Mr. BENNETT. I do not think that is quite true, because we do not know what kind of a machine is going to be made tomorrow, do we? It is conceivable that there are already hundreds of types of amusement devices and gambling devices, and the border line between whether a device is gambling or whether it is amusement is sometimes very thin. Under the provisions of this bill, the governor has got to interpret the laws, saying, "Well, this particular machine, 'A' machine, can come in. I have looked up our statutes, and that can come in. 'B' machine cannot. I have looked up our law, and that cannot come in."

My point is that that would make for a terrific amount of administrative work on the part of the governor, would lead to endless disputes about interpretation, and could be avoided entirely by simply having a State say, "Yes; we wish to come under the terms of this bill," or "No; we do not"-period. And that would end it.

That is all, Mr. Chairman.

- The CHAIRMAN. Mr. Dolliver?

Mr. DOLLIVER. The passage of a law by the Federal Government prohibiting gambling in any of the States would not be constitutional, would it?

Mr. HAMMOND. Not in my opinion, no sir.

Mr. DOLLIVER. Because of the provision of the Constitution that the Federal Government is a government of delegated powers, and all residual powers rest in the State governments. Or in the people? Is that correct?

Mr. HAMMOND. Correct, sir.

Mr. DOLLIVER. So, accordingly, what is attempted here, and the thing that the Attorneys General resolved upon, was merely an assist on the part of the Federal Government, rather than any primary legislation on the subject of gambling.

Mr. HAMMOND. And an assist which is within their control; to call upon, or not to need, as they determine.

Mr. DOLLIVER. That is right. The problem we are confronted, here, with, is a problem of drafting, then, rather than of the principle involved.

Mr. HAMMOND. In my mind, yes, sir.

Mr. DOLLIVER. For example, it is certainly possible that under the law as presently presented to this committee, which we have been discussing here this morning, the pari-mutuel machines which are used at the race tracks in Maryland and other States might be eliminated from interstate commerce. Is that not possible?

Mr. HAMMOND. I should think it were very probable if they were not exempted.

Mr. DOLLIVER. Of course, you do not wish to go on record as favoring that kind of sumptuary legislation?

Mr. HAMMOND. I am opposed to that, sir.

Mr. DOLLIVER. There are other States that are in the same situation as Maryland with respect to race tracks and pari-mutuel machines. Mr. HAMMOND. Yes.

The CHAIRMAN. Mr. Wolverton.

Mr. WOLVERTON. Mr. Chairman, I would like to make an observation. I have had a great deal of sympathy for the Attorney General, since he has appeared before this committee this morning. I do

not know that he has sought any sympathy, but he certainly is in a very embarrassing situation. He came before our committee today to emphasize the desire of the States' attorneys to have certain legislation. He is confronted with a bill that he did not draw. The States' attorneys did not draw it. It was drawn by the Department of Justice. And yet some of our questions might seem to indicate that we held him to a certain degree of responsibility for the legislation that is before us; and certainly that is not the case. He has had the bill laid in his lap. He had nothing to do with originating it, and yet he is called upon to justify its existence, so to speak. I think that would be an embarrassing situation for anyone in similar circumstances.

I take it that what the State's attorneys have asked for is supplementary legislation. They are not asking for any change of laws in any States or anything that would in any way indicate a disposition to change the laws of a State. They are merely asking the Federal Government to act in its sphere of jurisdiction where the State cannot act. And that relates to the transportation in interstate commerce of gambling devices. The State could not act in the matter if it wanted to. On the other hand, the Government could not act if it wanted to in defining whether gambling should or should not exist in a particular State. They each have their respective jurisdictions. All we are asked to do by the State attorneys general is to pass supplementary legislation, which would not necessarily cure an evil but might be helpful in the enforcement of the laws of their States. And I do not look upon it in any other way than that.

I am hopeful, however, that in view of the questioning that this witness has had to submit to today, it might be considered well to take the question back to the States' attorneys general and have them assume some responsibility in drawing the kind of a law that they think they need to uphold their hands in the work that they are trying to do in their individual States. I am thoroughly of the opinion that whoever drew this law certainly did not give it the care that should have been given in the drawing of the language of the bill to meet what the State attorneys general desired.

Now, when you speak of these other matters to which they have referred in their resolution, there is a bill in the House, introduced by Mr. Bennett of Florida, H. R. 2733, which deals somewhat with the question of horse and dog races and betting upon them, and all that sort of thing, but that bill has not come before the committee as yet for a hearing. So if there are other features of laws that are desired by the States' attorneys general, I assume that in due course we will get before us all that they had in mind. This is only, as Mr. Harris pointed out, piecemeal legislation dealing with one particular instance. Mr. HARRIS. Mr. Chairman, I think I should make this additional reference. As I understand it, this legislation has come to the Congress and to the committee in the usual way of matters of this kind. The questioning by the members of this committee in no way reflected a criticism on how it came, but was merely for the understanding of what it proposes to do. The Attorneys General Association, at its meeting, passed resolutions, and those resolutions were submitted in the proper way. The Department of Justice, at the instance of the Attorney General of the United States, had its regular law enforcement meeting, at which the same viewpoint was expressed, and dele

gates of your organization met with them, and, pursuant thereto, this legislation comes from the one legal agency of our Government, the Department of Justice. The association that you represent comes here, and you endorse, as you have said, the principle of this legislation and its purposes, in individual communications from your association, including the State of New Jersey, the State of my distinguished and beloved colleague, Mr. Wolverton, saying that this is the legislation you want.

The CHAIRMAN. Thank you, Mr. Hammond.
Mr. HAMMOND. Thank you, Mr. Chairman.

The CHAIRMAN. I think this is the proper place to insert the letter from the attorney general of Maine on this subject.

We will make it a part of the record. (The letter referred to follows:)

STATE OF MAINE,

DEPARTMENT OF THE ATTORNEY GENERAL,

Augusta, May 31, 1950.

ELTON J. LAYTON,

Clerk, Committee on Interstate and Foreign Commerce,
House Office Building, Washington, D. C.

DEAR MR. LAYTON: I received your notice of hearings set for Thursday and Friday, June 1 and 2, at 10 a. m. to complete public hearings on S. 3357 and H. R. 8350 (identical bills) and H. R. 6736, to prohibit the transportation or receipt of gambling devices in interstate and foreign commerce, and note that the hearings have been definitely set for these dates.

Will you please convey my kindest regards and my regrets to your chairman, Mr. Crosser, and advise him that the subcommittee on State laws unanimously approved the provisions, in substance, of S. 3357 and H. R. 3580 at the Attorney General's Conference on Crime in Washington, March 15.

Very truly yours,

RALPH W. FARRIS, Attorney General of Maine.

The CHAIRMAN. I believe the next witness scheduled to appear this morning is Mr. John J. Lechner of South Bend, Ind. Is Mr. Lechner present? I hear no response.

Mr. BENNETT. Mr. Chairman, I understand there is a member of the United States Attorney General's staff here. I wonder if we might hear from him in reference to the letter by the assistant to the Attorney General, Peyton Ford. It was read to the committee yesterday, with reference to a clarification in the bill.

The CHAIRMAN. What is the disposition of the gentleman from the Attorney General's Office? Does he care to be heard?

STATEMENT OF DREW J. T. O'KEEFE, SPECIAL ASSISTANT TO THE ATTORNEY GENERAL, JUSTICE DEPARTMENT, WASHINGTON, D. C.-Resumed

Mr. O'KEEFE. I will be very glad to testify, Mr. Crosser, if there are any questions which the committee has.

The CHAIRMAN. Will you just take a seat? It is a little bit unfair to ask you to appear without your knowing that you were going to be called. You would just prefer to answer questions?

Mr. O'KEEFE. Yes, sir. I was here before, as some of the members know, to testify with Mr. Hertzel Plaine, and if there are any further questions the committee has, I would be glad to answer them.

The CHAIRMAN. Would you give your name and title for the record? Mr. O'KEEFE. My name is Drew J. T. O'Keefe. I am a special assistant to the Attorney General.

Mr. BENNETT. Mr. Chairman?

The CHAIRMAN. Mr. Bennett.

Mr. BENNETT. Mr. O'Keefe, in a letter signed by Peyton Ford, dated June 1, that was read to the committee yesterday, with reference to the possibility of an amendment, particularly to the first section of the bill, which was designed to clarify just what was intended here: As I listened to the Attorney General's letter, it was not clear to me just what he had in mind. I assume that you are familiar with the situation.

Mr. O'KEEFE. Yes, sir, I am. That letter was written because of the fact that we had heard here some comment as to whether or not it was the intention of the Attorney General or the intention of the Attorney General's Crime Conference and the conferees to include in this bill machines that were used purely for amusement; and as secretary of that conference, I got together with Mr. Ford and went over the record of the conference and went over the record that was kept of the Federal legislative committee of the conference that worked on the drafting of this bill, and it was our recollection from the discussion of the legislative committee and from the record of the conference that it was not the intention of the conference nor was it the intention of the Department of Justice, to include in the bill machines that were manufactured purely for amusement. And I think the letter so states.

Mr. BENNETT. Well, is it your idea, then, that what ought to be done here, in the first section of the bill, which is really the meat of the bill, is to specifically define a gambling device as one that is manufactured and intended to be used for the purpose of gambling?

Mr. O'KEEFE. The suggestion that was made in that letter, that it might further clarify "any thing of value" and specify that pure amusement machines were not to be included, was purely in the form of a suggestion to the committee for their perusal. Now, it is not specifically our feeling that we should have included that. We feel that the legislative history would take care of such a situation as that when it came up.

Mr. BENNETT. Do, you think the amendment which you suggest, which was to be added to the end of the first section of the bill, at the end of line 8, the words "any thing of value," will cure the situation and exempt amusement devices?

Mr. O'KEEFE. Mr. Bennett, I think when we were here before, that question was asked of Mr. Plaine, and it comes down to a definition of "amusement," of just what is amusement. I don't think that I can define it. As I recall Mr. Plaine's answer to that question, it was: "What is sin?" It is a word that, in line with this bill, it would be very difficult to pin down and tie down, and it would be very difficult to say just what "amusement" is.

Mr. BENNETT. So you would not be helping the situation too much by simply adding the suggestion that has been made by Mr. Ford, then, as I take it?

Mr. O'KEEFE. It was purely a suggestion on the part of the Department.

Mr. BENNETT. Do you not believe that the language in the first section in S. 3357, "designed or adapted for gambling or any use by which the user * * *" and so forth, should be stricken from the bill? Do you want to clarify it?

Mr. O'KEEFE. Do I believe it should be stricken?

Mr. BENNETT. Yes.

Mr. O'KEEFE. No, sir. I believe that that language covers the primary purpose for which this bill was written.

Mr. BENNETT. You agree, do you not, that any kind of a device can be adapted for gambling?

Mr. O'KEEFE. Well, I think that it could be used, as almost anything can be used, for gambling. Marbles can be used, and cards, as has been brought out here, can be used for that.

Mr. BENNETT. That is not my question. My question is: Do you not agree that practically any kind of a mechanical device can be adapted for gambling?

Mr. O'KEEFE. No, sir. I don't think I would say that. You must remember that it speaks of the purpose for which it was manufactured. And, looking to the purpose, was the purpose of the manufacturing of it for gambling? An automobile is a mechanical device.

Mr. BENNETT. That is just the point. Where does this bill say anything about the purpose for which it was manufactured?

Mr. O'KEEFE. Mr. Bennett, I assume that you are referring to the words "adapted for gambling."

Mr. BENNETT. Well, I am talking now about your statement about the purpose of the device. Where is there anything in this bill that says anything about the purpose for which the machine is manufactured?

Mr. O'KEEFE. It says "designed or adapted for gambling." In other words, if the machine is designed for gambling. Now, an automobile is a mechanical device, but it is not designed for gambling. Mr. BENNETT. It could be adapted for gambling.

Mr. O'KEEFE. It could be adapted. Or I wouldn't say "adapted," Mr. Bennett. I would say it could be used in a gambling game or used to further gambling.

Mr. BENNETT. It could be adapted for gambling, could it not?

Mr. O'KEEFE. No, sir. Of course, I don't have the ingenious mind that some of these fellows have that manufacture these devices, but I don't think that an automobile would primarily be considered a gambling device.

Mr. BENNETT. Did you hear the story about the two sailors who were on board ship and had nothing to gamble with, and took an electric fan that was in the room and put number on the blades and then turned the current off and on, and paid off on whatever number would come up on top?

Mr. O'KEEFE. I can see where a machine such as that can be used for gambling.

Mr. BENNETT. Would you say, under those circumstances, it had been adapted for the purpose of gambling?

Ι

Mr. O'KEEFE. No, sir, I would say it was "used." And I would further say that it was not originally designed, as this bill states, for gambling.

Mr. BENNETT. Well, this bill says "designed for gambling," and it also says "or adapted for gambling."