because they have long rooms filled with them, and it would not be financially worth while for them to operate them. Thus the Government could stop it.

Mr. RUTTENBERG. I will agree that there is a good deal of merit to what you say, and there might be an idea there.

Mr. BENNETT. Is it not also true that in the case mentioned by the chairman, if gambling was illegal in that State, the person adapting it to that use would be in violation of the State gambling laws? Mr. RUTTENBERG. Pardon me.

Mr. BENNETT. The person adatping it to such use would be in violation of the State gambling laws.

Mr. RUTTENBERG. Every where except in Nevada.

Mr. BENNETT. Any State that had gambling laws.

Mr. RUTTENBERG. That is right, in the 43 States that outlaw that type of thing.

Mr. BENNETT. So it seems to me that what the Attorney General is trying to do here is to regulate the use of a device that is presently and for all time past has been a matter regarded as a State enforcement proposition. In other words, practically all States have laws against gambling, and the use of gambling devices within their borders. Mr. RUTTENBERG. That is right, sir.

Mr. BENNETT. And if somebody takes a harmless amusement machine and converts it to a gambling device, in 9 instances out of 10 he would be in violation of a specific State statute; would he not?

Mr. RUTTENBERG. I believe in 10 out of 10 he would be; in every State he would be if he did that.

Mr. BENNETT. In every instance except where the State did not have any laws against gambling.

Mr. RUTTENBERG. That is right.

Mr. BENNETT. And of course this bill does not attempt to cover those States in any case, as I read it.

Can you not get together a better definition of a gambling device than you have put together here? It seems to me that you felt the language of the Attorney General was not right and you sought to exempt specific types of machines, rather than to specifically define a gambling device.

Mr. RUTTENBERG. I did that intentionally, sir. The Justice Department has a very large and able staff of attorneys, and they have done a lot of research and I did not want to be presumptuous and change their language, frankly, and I thought it would be better for us to recommend it in this manner.

Mr. BENNETT. What is the responsibility of the Federal Government? It is simply this, as I see it: That it wants to cooperate with the States in preventing the interstate shipment of gambling devices. The function of the State is to prevent the use of such device. But the Attorney General is undertaking, it seems to me, to enact a law which regulates the use of a gambling device or anything that he says is a gambling device, as against the piece of legislation that will take into consideration the function that Congress has in matters of that kind, and that is to regulate the interstate transmission of gambling devices and specifically define such a device so everybody will know where they are.

68519-50-9

Mr. RUTTENBERG. This committee may desire to spell out the definition of a slot machine, rather than to spell out the things that are not included within the definition and that would be a very simple thing. You might say that slot machines and similar devices should not be shipped in interstate commerce.

Mr. BENNETT. I think it should be directed to slot machines and they ought to be outlawed; but it seems to me that any machine that is manufactured or made by the manufacturer for the purpose of being used as a gambling device ought to be outlawed, period, whether it is a slot machine or whatever kind of machine it is.

Mr. RUTTENBERG. Mr. Morehouse of the Federal Trade Commission used some very good language yesterday; that is, "any machine intended or calculated to be used."

Mr. BENNETT. If a manufacturer makes and ships in commerce that kind of a machine, he ought to be prosecuted.

Mr. RUTTENBERG. If he makes an innocent machine and the user at the other end converts it into a gambling machine-

Mr. BENNETT. And he can do that with almost any kind of a machine. Mr. RUTTENBERG. I would like to add one further thought. You mentioned that a card could be put up on our machines and convert them to gambling devices, and I would like to say that that is true of a bowling alley, and I have seen it done, where they have offered a ham for the best line during the week. You can do that with a toy or any other similar device.

Mr. BECKWORTH. Are there any other questions? Thank you, gentlemen, very much.

The Chair might state we have a good many witnesses who have indicated an interest in being heard, and because we have only two more days set aside for hearing on this legislation, it would be well for those who have similar interests to try to consolidate as many as you can of your statements in the interest of being sure that you have the privilege of appearing. We will do our best to accommodate you. Any lengthy statement that you might have, you certainly will have the privilege of including in the record.

The Chair also recognizes that the witnesses this morning did not take a lot of time except that occasioned by the large number of questions asked by the members of the committee. It is the desire to get an expression from all who want to be heard so that I do trust that it will be kept in mind we have but two more days at this time. Be just as brief as possible.

Thank you very much, and the committee adjourns until 10 o'clock tomorrow morning.

(At 12:20 p. m., the committee recessed, to reconvene Thursday, May 4, 1950, at 10 a. m.)

GAMBLING DEVICES

THURSDAY, MAY 4, 1950

HOUSE OF REPRESENTATIVES,

COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE,

Washington, D. C.

The committee met, pursuant to adjournment, at 10 a. m., in room 1334, New House Office Building, Hon. Lindley Beckworth presiding. Mr. BECKWORTH. The committee will please come to order.

The first witness we shall have this morning is our colleague, Hon. Walter S. Baring, a Member of Congress from Nevada; the only Member of the House of Representatives from Nevada.

STATEMENT OF HON. WALTER S. BARING, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEVADA

Mr. BARING. Thank you, Mr. Chairman. I do not want to take up too much time of the committee, Mr. Chairman. As you know Nevada has wide-open gambling and I have an amendment which I would like to submit to Senate bill 3357, or the corresponding House bill, whichever one you are studying.

The amendment is as follows:

Providing, That the provisions of this Act shall not apply to the transportation involving the return to the original consignor of a gambling device by the original consignee who resides in a State or subdivision thereof where such devices are licensed.

It is a simple amendment, but we do have a lot of returns on the machines. Maybe the machine might break down or there might be an exchange for new machines, new models, and I do believe that in our State we would like that to apply in the bill or if the committee thinks it is already contained in the bill, it is all right; but we would like to have that provision that we can send the machines back from Nevada, back to the manufacturer of the machine.

I really would like to go further. I would like to make it broader, that we could ship them to any other State that legally has slot machines. However that is up to the committee.

But, I would like to get this provision into the bill. That would let us return the machines to the original manufacturers.

Mr. BECKWORTH. Is your amendment worded as you desire it to be worded?

Mr. BARING. Yes, with the exception that I would like to have it broader if we could.

Mr. BECKWORTH. Mr. Baring, why not submit the amendment in the form that you would like for it to be considered, and I assure you

that the committee will consider your version of the amendment when we meet to consider the bill in its final form.

Are there any questions? Thank you very much, Mr. Baring.

The next witness we shall have is our former colleague, Hon. Dow W. Harter, an attorney in Washington and formerly a Representative from the great State of Ohio. We will be very glad to hear you, Mr. Harter.

STATEMENT OF DOW W. HARTER, REPRESENTING THE TOY MANUFACTURERS OF THE U. S. A., INC., WASHINGTON, D. C.

Mr. HARTER. Thank you, Mr. Chairman and members of the committee. My name is Dow W. Harter. I am an attorney with offices in the Washington Building, this city. I represent the Toy Manufactures of the U. S. A., Inc., a trade association, made up of the great majority of the manufacturers of toys, playthings, and games in this country. While the volume of business done by the toy industry is considerable, the association consists of numerous members, most of whom fall in the category of small business concerns.

My remarks will be confined to S. 3357, as I understand Mr. Preston, the author of the earlier bill, H. R. 6736, considers S. 3357 a more comprehensive measure and favors its enactment rather than H. R.

6736.

Let me say emphatically we do not appear in opposition to S. 3357, but, on the contrary, we are in complete sympathy with and heartily in favor of the purpose of this bill which the Attorney General says

is to support the basic policy of the States, which outlaw slot machines and similar gambling devices, by prohibiting the interstate shipment of such machines except into States where their use is legal.

But, as members of this committee during interrogation of witnesses have said, the definition of the term "gambling device" is the crux of the proposed bill, and to this catch-all language we are opposed. It seems strange that the Justice Department says its objective in asking Congress for this legislation is to assist the States of the Union in outlawing slot machines and other similar gambling devices, yet in its definition it does not identify or indicate the types of gambling machines which the bill is to eliminate.

You are requested to enact a criminal statute. Certainly by precedent and under our system of justice, as administered by our Courts, such an Act should clearly and concisely state the offense which the law is intended to make illegal. Let us take a look at the language of section 1 of S. 3357. This says the term "gambling device" means any machine or mechanical device, or parts thereof, designed or adapted for gambling. If that were the end of the definition, there might not be too much objection, certainly not to a machine or mechanical device designed for gambling. Adapted for gambling would raise the question immediately of who is liable for utilizing a perfectly innocent article of legitimate use produced in the ordinary course of business by a manufacturer, and then adapted or utilized by the purchaser for gambling.

Let us now go a step further to the remainder of the definition in section 1 of the proposed bill, which reads:

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, anything of value.

There are many toys and games which are mechanical devices, not designed or intended for gambling but for the amusement of children and, I presume, their parents as well. Yet these, with the element of chance being present in their use, can be gambling devices under the definition in S. 3357. It is possible to make wagers or to offer a prize in the form of something of value in the operation of these apparently innocent games. It is difficult to believe the Congress will adopt such language in a criminal statute. In our opinion, Congress should define the offense. It surely is an improper delegation of legislative authority to leave to administrative decision the determination of what is unlawful under the act. We call your attention to the refusal of the Department witness to answer inquiries of your members, asking whether pinball machines and other amusement games and mechanical devices are within the proposed statute.

I quote from the transcript of these hearings, pages 144 and 145, questions by Mr. Bennett of the committee, answers by Mr. Plaine of the Department of Justice:

Mr. BENNETT. Do you not think under the language of this bill that you have the right to say that a machine which is not manufactured for the purpose of gambling, but by adaptation by the purchaser can be used, can be manipulated into a gambling machine, have you not got the right under the language of this bill to say that machine can be made into a gambling machine, therefore we say it is, and it is within the language of the bill?

Mr. PLAINE. All laws require administration, sir, and where you deal with laws that have a number of objects included, obviously the administering officials have to engage in some process of determining which is or is not within the purview of the act, and your criticism, as I see it, goes to the whole process of law enforcement.

Mr. BENNETT. My criticism goes to this, my criticism is directed to the fact that you have not nailed down anything here. You have left to administrative discretion what the crimes will be in this case. There is not any question about that. You have not described what type of machine is a gambling device, such as you have done in the Internal Revenue Code. You have left it wide open on all ends for administrative interpretation as to what the crime is. When you

are defining a crime, subjecting the citizens of this country to the commission of a crime, prosecution for a crime, the nature of the elements that go about to make that crime should be specifially described in the law. That is my notion of good law. You have not done that.

Mr. PLAINE. There have to be decisions whether it falls into one class or another, or in the other classes, no matter what definition you use, sir. You always have that question of inclusion and exclusion.

Again on pages 148 and 149 of the transcript of these proceedings: Mr. BENNETT. In addition to that, you have given the administrative agency the right in this language to eliminate every amusement machine in the country today, irrespective of whether it is used in connection with gambling or not, because you do that by giving yourselves the right. If I were in the Attorney General's office, I could say that any of these machines, I could go into court and prove that any of the amusement machines by common consent is now regarded for purposes of amusement and not for gambling. I could very easily go into court and show from a mechanical standpoint that that particular machine could be adapted for purposes of gambling and hence, it is out, it is eliminated, it cannot be used. I ask you to dispute that statement.

Mr. PLAINE. We have been over the point so many times, sir, I do not know that I would serve any useful purpose by rehashing it. Certainly if Congress wants to eliminate sheer amusement from anything of value, it can do so.

I would like to show the committee a few simple mechanical games that I picked up in various stores here in Washington, as a demonstration of what mechanical devices are included in the toy and game field and how easy it would be under the definition contained in this bill to utilize these simple toys as gambling devices.