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In view of the urgency of this matter, we are transmitting this report without the clearance of the Bureau of the Budget.

Sincerely yours,

JACK K. MCFALL, Assistant Secretary
(For the Secretary of State).

Mr. BECKWORTH. The time is quite late. There are some witnesses who have not had a chance thus far to be heard.

You all have the privilege of submitting statements which will be made a part of the record.

The chairman of the committee is not here at this time, as he is out of the city. It will be necessary to talk to him about devoting more time to these hearings, and, at this moment, we adjourn, subject to the call of the Chair.

(The following statement was submitted for the record by Mr. Linehan :)

MEMORANDUM RE CONSTITUTIONALITY OF S. 3357, EIGHTY-FIRST CONGRESS, SECOND SESSION, SUBMITTED BY BERNARD WEISSBOURD, ATTORNEY AT LAW, SPECIAL COUNSEL FOR COIN MACHINE INSTITUTE

I. THE POWER TO DECLARE THE LAW OF A STATE IS, UNDER STATE CONSTITUTIONS, A JUDICIAL FUNCTION. THE DELEGATION OF THAT POWER TO A STATE EXECUTIVE BY A FEDERAL ENACTMENT IS AN UNCONSTITUTIONAL INTERFERENCE WITH THE SEPARATION OF POWERS BEWEEN THE DEPARTMENTS OF GOVERNMENT OF SUCH STATE

Senate bill, S. 3357, now pending before the Committee on Interstate and Foreign Commerce of the House of Representatives, prohibits the interstate shipment of "any gambling device" as defined in section 1 of the act, "Provided, That the provisions of this section shall not apply to the course of unbroken interstate transportation of any gambling device into any State where the use of such device is legal, as certified by the Governor of the State to the Attorney General of the United States and published by the Attorney General in the Federal Register." (Section 2. Emphasis added.)

The above-quoted portion of the act delegates to the Governor of each State the responsibility of certifying whether or not the use of a given "gambling device" is legal in his State. It is submitted that this determination by the Governor of each State as to what is the existing interpretation of the law in his State is clearly a judicial determination. The act thus contemplates and requires an invasion of judicial power by the executive department of each State. In so doing, it violates the doctrine of separation of powers inherent in the Federal Constitution and in the constitutions of virtually all of the States of the Union.

If the law of each State were completely unambiguous, the problem might be Isaid to be academic. If such were the case there would be no need for certification by the Governors. The Attorney General could simply publish in the Federal Register his findings as to the applicable law in each State; or publication at all would be unnecessary. However, the construction of the applicable State laws is a task which is not simple or purely ministerial, but requires, in many cases, a high degree of judicial discretion.

In essence the act incorporates the laws of the several States by reference. However, it must have been recognized that a simple reference to existing State law, without some authority stating what the State law actually meant in this connection, would have produced too great a degree of confusion and uncertainty. As a result, a statement of what the law of each State is, as applied to the legality of the use of gambling devices within its borders, was presumably thought to be required. The act delegates the power and responsibility of making such a statement to the Governors. Yet the very fact that such a delegation was thought necessary that is, that mere incorporation of State laws by reference was thought to be insufficient as too uncertain-indicates that the construction and declaration of the State laws is not an executive function, but requires judicial determination.

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It has uniformly been held by the courts that the construction or interpretation of a statute is a judicial function. Fessler v. Boson, 189 Ind. 484, 128 N.E. 145; Bodison Mfg. Co. v. California Employment Commission, 109 P. 2d 935 (S. Ct. Cal.); Gulf Refining Co. v. City of Dallas, 10 S.W. 2d (Ct. Civ. App. Tex.) 151; Commissioner of Internal Revenue v. Winslow, 113 F2d 418 (C.C.A. 1); Walker v. United States, 83 F2d 103 (C.C.A. 8); Manhattan General Equipment Co. v. Commissioner, 297 U.S. 129; Louisville & N.R. Co. v. United States, 282 U.S. 740; Levindale Lead & Zinc Co. v. Coleman, 241 U. S. 432).

In Walker v. United States, supra, speaking of acts of Congress, the court said (p. 106):

"The determination of the construction of the meaning of congressional acts is a judicial function. This function and duty is so entirely and purely judicial that it is beyond the power either of the executive (citing cases) or of the Congress (citing cases) to control." [Emphasis added.]

In Bodison Mfg. Co. v. California Employment Commission, supra, the court said (p. 938):

"The ultimate interpretation of a statute is an exercise of the judicial power." Thus, it cannot be denied that the construction of a statute, and a fortiori of the common law, of a jurisdiction is purely a judicial function. It is this function which the act under consideration delegates to the respective Chief Executives of the States. And it is certain that a declaration of the State law will, in many cases, involve the construction of the statutes of such States.

When even the courts of a given State may not agree as to whether devices of a certain character are lawful, then it is certain that the Governor of that State will be exercising a very high degree of judicial discretion in certifying the law of the State for purposes of the act under consideration.

For example, in the State of New York, the question of whether coin-operated pinball games returning mere amusement are legal or illegal has brought forth apparently contradictory answers from the courts of that State. In Times Amusement Corporation v. Moss (160 Misc. 930, 290 N. Y. S. 794), it was said that if only amusement was returned the machines were lawful, while in People v. Gravenhorst (32 N. Y. S. 2d 760), it was said that amusement itself is a thing of value, rendering the machines unlawful. How is the Governor of New York, without usurping the function of the courts of the State of New York, to certify whether pinball machines returning only amusement are legal or not? His certification, and his failure to certify, would each amount to the exercise of a judicial function, which is clearly not within the executive power.

While it appears to be settled by authority that the construction of a statute or of the law of a State is a judicial function, may not that function be delegated or exercised by another department of government? The answer is emphatically "No."

Even the legislature itself, which enacts a law, may not construe it (Lindsay v. United States Saving & Loan Asso., 120 Ala. 156; Pryor v. Downey, 50 Cal. 388; Meyer v. Bulandi, 39 Minn. 438; Otto v. Harlee, 119 Fla. 266; West v. Sun Cab Co., 160 Md. 476; Martin v. Moore, 143 P. 2d 334 (S. Ct. Ariz.)). In the latter case, the court said (p. 335):

"By delaring the meaning of an existing law, the legislature usurps the functions of the court."

If a legislature may not construe the law itself, it surely cannot delegate the authority to construe it. Where the State constitution divides the powers of government into district departments, the legislature is powerless to delegate judicial functions to a nonjudicial department (Denver v. Lynch, 92 Colo. 102; Re Opinion of the Justices, 87 N. H. 492; Dallas Fuel Co. v. Horne, 230 Iowa 1148; Fesseler v. Boson, 189 Ind. 484).

In Fessler v. Boson, supra, the court said:

"The State board cannot usurp the functions of the legislature, nor can the legislature confer upon such board the power of final judicial action on the tax and revenue laws of the State (sec. 177, par. 2), for the reason that the judicial interpretation of such laws is for the judicial department of the State." [Emphasis added.]

It is thus settled by authority that the construction of State laws is a function of the judicial department of each State which cannot be delegated to or exercised by any department of government except the State judiciary. If each State were to determine for itself whether or not its governor was empowered to construe and declare its laws, the answer would clearly be that the exercise of such power by the governor would violate the State constitution. It must follow that it would similarly violate the State constitutions for the governors

to exercise exactly the same judicial power pursuant to a Federal mandate. The National Government cannot so flagrantly interfere with the right of the States, expressly reserved to them in the Constitution of the United States, to control their own internal governmental organization.

It is fundamental that the Federal Government possesses only the powers delegated to it by the Constitution; powers not delegated remain with the States. Thus, in the License Cases (5 How. 504, 528, 12 L. Ed. 256, 267, 1847)), the Supreme Court said:

"The powers not conceded or prohibited by the Constitution remain in the States unchanged, unaltered, and unimpaired, and as fully in force as if no Constitution had been made. None of those powers which relate to municipal legislation or internal policy have been surendered or restrained, but are complete, unqualified and exclusive. The inference is irresistible that such powers are independent of and paramount to the Constitution of the United States, and therefore not subject to any supreme power of the federal government in cases of conflict."

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And see Silman v. Philadelphia (3 Wall. 713, 725, 18 L. Ed. 99 (1865)), where the court said:

"The National Government possesses no powers but such as have been delegated to it. The States have all but such as they have surrendered."

The basic statement of the doctrine is made, of course, in the tenth amendment to the national Constitution:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States are reserved to the States respectively, or to the people."

Our entire system of government is based upon the idea of checks and balances, evidenced not only by the constitutional division of governmental power among a national executive, a national legislature, and a national judiciary, but also by an equally fundamental division of power between the National Government and complete and sovereign State Governments. The purpose of such a system of combined local and National Government is to afford a working compromise between National and State Governments, the latter being necessary because of the inability of the National Government to deal adequately with local problems and because of the dangers inherent in centralization of power.

The Supreme Court has refused to uphold the constitutionality of any national statute which interferes with the control of the States over their own instrumentalities. The National Government may not, by bankruptcy laws applicable to municipal corporations, control the activities of local governing bodies of the States. Ashton v. Cameron County Water Improvement District No. One (298 U. S. 513, 531, 56 S. Ct. 892, 80 L. Ed. 1309, 1314 (1936)), where the Court said: "Neither the consent nor submission by the States can enlarge the powers of Congress; none can exist except those which are granted."

A national statute was held unconstitutional by the Court because the statute permitted the conversion of State associations into Federal associaions in contravention of the law of the State of their creation (Hopkins Federal Savings and Loan Association v. Cleary, 296 U. S. 315, 337, 56 S. Ct. 235, 80 L. Ed. 251, 259, 100 A. L. R. 1403 (1935)), where the Court said:

"In this there is an invasion of the sovereignty or quasi-sovereignty of Wisconsin and an impairment of its public policy, which the State is privileged to redress as a suitor in the courts so long as the tenth amendment preserves a field of autonomy against Federal encroachment."

The Supreme Court has said many times that the exclusive right to form and define governing bodies of a State rests with the people of that State. In Taylor v. Beckham (178 U. S. 548, 570, 20 Sup. Ct. 890, 44 L. Ed. 1187, 1198 (1899)), the Court said:

"It is obviously essential to the independence of the States, and to their peace and tranquility, that their power to prescribe the qualifications of their own officers, the tenure of their offices, and the grounds on which, the tribunals before which, and the mode in which such elections may be contested, should be exclusive and free from external interference, except so far as plainly provided by the Constitution of the United States."

The employment of an organ of State Government for the conduct of functions of the National Government is permissible only if such employment is permitted by the State constitution. In Dallemagne v. Moisan (197 U. S. 169, 25 S. Ct. 422, 49 L. Ed. 709, 711 (1904)), the Court said:

"It has long been held that power may be conferred upon a State officer, as such, to execute a duty imposed under an act of Congress, and the officer may exe

cute the same unless its execution is prohibited by the Constitution or legislation of the State."

The bill before this committee provides for certification as to the law of a State by the Governor of the State. It has been shown, however, that the duty of formally stating the law of a State is one resting upon the State's judiciary. The bill, therefore, improperly assigns a judicial function-namely, the declaration and interpretation of State law-to the executive department of the State government; namely, the governor. As has been previously established in this memorandum, the constitutions of the several States provide for a division of powers among a State executive, a State legislature, and a State judiciary, and no State legislature can constitutionally grant the power to a governor to determine the law of the State. Such a power, under State constitutions, is the sole prerogative of the State judiciary.

It is an obvious and serious violation of the tenth amendment of the National Constitution for the National Legislature to attempt to give the governor of a State a judicial power which he may not be granted and may not exercise under the constitution of his own State. Senate bill 3357 thus represents an improper interference with the right of the people of each State to determine the functions of the several departments of the State governments. Insofar as the bill attempts to transfer from the State judiciaries to the State chief executives a power which is not properly transferable, the bill transcends constitutional limitations.

The foregoing discussion may be briefly summarized. The National Constitution has, in the tenth amendment, expressly reserved to the States powers not specifically delegated to the National Government. Among these reserved powers is the power of the people of each State to determine and define the State departments of government. In the exercise of such power the people of each State have adopted constitutions designating separate and distinct legislative, executive, and judicial departments. The function of construing and declaring the law of each State has uniformly been held to belong exclusively to the judiciary of that State. Therefore, an attempt by the National Government to delegate to the governor of each State the judicial power to construe and declare its laws, for any purpose, is an unconstitutional interference with a power reserved to the States, and clearly violates the separation of powers embodied in the State constitutions.

II. Senate bill 3357 does not sufficiently satisfy the constitutional requirement that a penal statute must be free from uncertainty

Section 1 of the bill to prohibit the interstate shipment of gambling devices provides that "As used in this act the term 'gambling device' means any machine or mechanical device, or parts thereof, designed or adopted for gambling or any use by which the user as a result of the application of any element of chance may become entitled to receive, directly or indirectly, any thing of value."

It is submitted that the foregoing section lacks the certainty and explicitness essential to the constitutionality of any enactment. The bill before the committee is penal. And the law applicable to such enactments is well settled. In Lanzetta v. New Jersey (306 U. S. 451), defendants were convicted under a New Jersey statute which provided that "Any person not engaged in any lawful occupation, known to be a member of any gang, consisting of two or more persons, who has been convicted at least three times of being a disorderly person, or who has been convicted of any crime in this or in any other State, is declared to be a gangster." The Supreme Court held that the enactment was in violation of the due-process clause of the fourteenth amendment and therefore void. The court said (p. 453) :

"No one may be required at peril of life, liberty, or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids. The applicable rule is stated in Connally v. General Construction Co. (269 U. S. 385, 391): "That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it. what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.'"

The Supreme Court supported the foregoing statement of the law by citing Champlin Rfg. Co. v. Commission (286 U. S. 210, 242, 243); Cline v. Frink Dairy Co. (274 U. S. 445, 458); Connally v. General Construction Co. (269 U. S. 385, 391-393); Small Co. v. American Sugar Rfg. Co. (267 U. S. 233, 239); United States v. Cohen Grocery Co. (255 U. S. 81, 89-92); Collins v. Kentucky (234 U. S. 634, 638); International Harvester Co. v. Kentucky (234 U. S. 216).

In Winters v. New York (333 U. S. 507, 515), the Court said that "The standards of certainty in statutes punishing for offenses is higher than in those depending primarily upon civil sanction for enforcement. The crime 'must be defined with appropriate definiteness' (Cantwell v. Connecticut, 310 U. S. 296; Pierce v. United States, 314 U. S. 306, 311). There must be ascertainable standards of guilt. Men of common intelligence cannot be required to guess at the meaning of the enactment. The vagueness may be from uncertainty in regard to persons within the scope of the act (Lanzetta v. New Jersey, 306 U. S. 451), or in regard to the applicable tests to ascertain guilt." [Italics added.]

Measured by the foregoing standards, Senate bill 3357 is defective. It condemns as a gambling device any machine or mechanical device designed or adopted for gambling. None can doubt that slot machines, designed so that a player attaining a given objective is rewarded with coins or tokens, is a gambling device within the meaning of the bill. But the vice of the bill lies in the fact that its definition of a "gambling device" embraces alike the innocent and the guilty. There are many reputable and important American manufacturers who manufacture mechanical devices designed not for gambling but for amusement only. But the most innocent of amusement devices may be perverted from its intended use, and used instead for some purpose prohibited by law. Mechanical games simulating baseball, football, basketball, and other sports are familiar to all Americans. Are they designed for gambling? Reasonable men will agree that they are not designed for gambling, and that they are, rather, devices designed for amusement. But it is obviously easy to use such games for improper purposes. Gamblers acquiring such games will inevitably wager on the outcome of the mechanical contests. If a given game is so used with some consistency, then a law-enforcement officer may well declare that the games are in fact gambling devices, and were designed as gambling devices. A legitimate manufacturer of devices intended for amusement only may become subject to the penalties imposed by Senate bill 3357 because a device lawfully manufactured and lawfully shipped has been put to an unlawful use.

It may be answered that legitimate manufacturers of amusement devices need not fear the bill; that the bill is directed against slot machines and similar devices; that reputable manufacturers of legitimate devices will not be molested. But such assurances are wholly insufficient. A manufacturer of devices to be shipped in interstate commerce has the constitutional right to be apprised, on examining the proposed act, whether he will or will not be subject to its penalties. "No one may be required at peril of life, liberty, or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids" (Lanzetta v. New Jersey, 306 U. S. 451).

Even greater hazards attach to the phrase "adapted for gambling." One who ships in interstate commerce a device "adapted" for gambling (absent certification) violates the proposed law. If "adapted" be construed to comprehend devices which may be suitable or may be used for gambling then a multitude of articles, harmless in themselves and good in themselves, may be gambling devices within Senate bill 3357. Children's games often employ a spinner, consisting of an arrow so fastened at its center that when it is flicked with the finger it revolves rapidly, and in coming to rest points to a number or to an instruction pursuant to which the player acts. None can tell where the arrow will stop. The gambling possibilities of such a device are obvious. Is the bill violated by a shipment of such games in interstate commerce without certification? It is common knowledge that bowlers often wager on the outcome of a game. Such wagering is, as a matter of law, gambling.

Is the bill violated by a shipment of bowling equipment in interstate commerce without certification? A variety of the well-known shuffleboard game, played by means of a coin-operated device, is currently popular in many parts of the country. The game is in fact designed for amusement. But players may-as with bowling, or, indeed, with any sport-wager upon the outcome. Shall a manufacturer of such games be subject to the penalties of the bill because of the misuse to which his games are subject? Virtually any mechanical device designed to entertain may be misused for gambling purposes. It has, indeed, been held that a teletype machine is a gambling device (Albright v. Muncrief, 176 S. W.

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