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to advise if we wish to appear as a witness or file a statement for the record for or against the proposed legislation.

In reply to your letter we wish to advise that the Commission does not desire to have a representative appear as a witness or file a statement for the record for or against the proposed legislation.

In this connection, however, we wish to advise that as requested by the chairman of your committee, the Commission reported on January 31, 1950, on H. R. 6736, Eighty-first Congress, Second session, to your committee.

The Commission has been requested by the Senate Committee on Interstate and Foreign Commerce to report on S. 3357, Eighty-first Congress, second session, and its report thereon, in the form of a letter addressed to the chairman of the committee, has now been cleared through the Bureau of the Budget. A copy of this report is enclosed.

By direction of the Commission,

Sincerely yours,

Hon. EDWIN C. JOHNSON,

JAS. M. MEAD, Acting Chairman.

Chairman, Committee on Interstate and Foreign Commerce,

United States Senate, Washington, D. C.

MY DEAR MR. CHAIRMAN: This is with further reference to your letter of April 7, 1950, enclosing a copy of S. 3357, Eighty-first Congress, Second session, a bill to prohibit transportation of gambling devices in interstate and foreign commerce, as introduced by you on April 4 (legislative day March 29), 1950, and requesting any comments the Commission may care to offer concerning this proposed legislation.

In response thereto I wish to advise that the bill does not purport to amend any of the acts or statutes administered by this Commission and, if enacted, would not affect its duties and functions. However, in studying the measure, consideration has been given to the power of Congress to pass such legislation in the exercise of its authority to regulate interstate commerce. It is our opinion that "Congress is free to exclude from interstate commerce articles whose use in the States for which they are destined it may reasonably conceive to be injurious to the public health, morals, or welfare, or which contravene the policy of the State of their destination" (United States v. Carolene Products Co., 304 U. S. 144, 147). Again, "Congress can certainly regulate interstate commerce to the extent of forbidding and punishing the use of such commerce as an agency to promote immorality, dishonesty, or the spread of any evil or harm to the people of other States from the State of origin. In doing this it is merely exercising the police power, for the benefit of the public, within the field of interstate commerce" (Brooks v. United States, 267 U. S. 432, 436). In the Lottery case (188 U. S. 321) it was held that Congress might pass a law prohibiting the carriage of such tickets from one State to another. By direction of the Commission. With kind personal regards, I am Sincerely yours,

Jas. M. MEAD, Acting Chairman.

INTERSTATE COMMERCE COMMISSION,
Washington 25, May 2, 1950.

Hon. ROBERT CROSSER,

Chairman, Committee on Interstate and Foreign Commerce,

House of Representatives, Washington, D. C.

MY DEAR CHAIRMAN CROSSER: Your telephone request of May 1, 1950, requesting a report and comments on S. 3357, introduced by Senator Johnson of Colorado, "To prohibit transportation of gambling devices in interstate and foreign commerce," has been referred to our legislative committee. After careful consideration by that committee, I am authorized to submit the following comments in its behalf:

The bill is so broad that it would establish a criminal liability on the part of any public carrier which transported machinery with knowledge of its intended use for the playing of any game of chance for money. While such knowledge would be an essential element of the crime and there might be difficulty in proving that element in a prosecution of a carrier, nevertheless carriers might be put to a considerable burden in trying to avoid possible prosecutions for viola

tions of a statute worded as proposed in this bill. In other instances where Congress has prohibited movement of certain articles in interstate commerce the acts have been made expressly inapplicable to carriers. For example, in the statute involving misbranded woolen goods the following provision was included (15 U. S. C. 682):

"This section shall not apply to any common carrier or contract carrier in respect to a wool product shipped or delivered for shipment in commerce in the ordinary course of business."

We respectfully suggest that, in the event your committee should decide to report S. 3357, the following sentence be added to the bill:

"This act shall not apply to any common carrier or contract carrier in rrespect to machinery shipped or delivered for shipment in commerce in the ordinary course of business."

Respectfully submitted.

Hon. ROBERT CROSSER,

CHARLES D. MAHAFFIE,

JOHN L. ROGERS.

Acting Chairman, Legislative Committee.

DEPARTMENT OF STATE,
Washington, April 28, 1950.

Chairman, House Committe on Interstate and Foreign Commerce,

House of Representatives,

MY DEAR MR. CROSSER: On the basis of the telephone request of your cormittee on April 28, 1950, we transmit herewith the report of the Department of State on S. 3357, to prohibit transportation of gambling devices in interstate and foreign commerce.

"The Department is primarily concerned with the effect of the provisions of this bill on the foreign commerce of the United States. In this connection. it is assumed that the exception contained in the proviso in section 2 with respect to gambling devices being transported to any state where the use of such devices is legal, was also intended to apply to the importation of gambling devices. This matter could be clarified by the insertion of the words 'or foreign' between 'interstate' and 'transportation' in the proviso in section 2. It would also be desirable to clarify the effect of the bill on the export of gambling devices. This could be accomplished by the addition of the following lenguage to the end of the first sentence of the proviso in section 2 of the bill: 'or to the course of unbroken interstate transportation of any gambling device for exportation to a foreign country.' In order to make clear that foreign manufacturers of gambling devices are not subject to the reporting requirements of section 3, it is suggested that the phrase 'in the United States' be added after the word 'devices' in line 21 of page 2 and in line 2 of page 3 of the bill.

"These modifications would avoid any possible inconsistency with our general commercial policy and international commitments which might arise from an interpretation of the bill resulting in unjustifiable restrictions on foreign trade. With these clarifications, the Department would have no objection to the bill. "By reason of the urgency of this matter, we are transmitting this report without the clearance of the Bureau of the Budget."

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MY DEAR MR. CROSSER: Reference is made to the telephone request of your committee on April 28, 1950, for the views of the Department of State on H. R. 6736, to prohibit the transportation or receipt of gambling devices in interstate and foreign commerce, and for other purposes.

From the point of view of economic foreign policy, the Department of State would have no objection to a complete prohibition on the transportation of gambling devices in interstate and foreign commerce as embodied in H. R. 6736. However, if there are to be any exceptions permitted, the comments of the Department in its report on S. 3357 would apply.

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."

* * *

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

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