Seventy-sixth Congress-H. R. 7464, Representative Geyer. To prohibit the transportation and receipt of gambling devices in interstate and foreign commerce.

Since these hearings began, there has been another interesting development. The committee has been reminded (by Mr. Schultz) that Congress itself, in the 1942 revenue act, deliberately exempted from the $100 tax on gaming devices and placed in the $10 amusement tax class the 1 cent gum ball slot machine which a formal ruling had held was a gaming device. It did this as a matter of that same policy with which the committee is here dealing. The House Ways and Means Committee now is proposing to entirely eliminate all tax on these machines, used by children and held to involve gambling. The precedent of excepting certain innocent devices already has been established and it manifestly would be unfair and inconsistent to incluude punchboards but exclude a recognized gambling device in this proposed legislation.

IV. The Attorney General, in 1937, wrote an opinion to the effect that Federal legislation forbidding transportation of gambling devices is of doubtful wisdom

Attorney General Homer Cummings, after careful consideration, advised against such legislation. On February 7, 1937, the above listed H. R. 4796 was submitted to him, and on April 21, 1937, he advised against its enactment in the following letter, to which I call the committee's particular attention:

Hon. HATTON W. SUMNERS,

Chairman, Committee on the Judiciary,

DEPARTMENT OF JUSTICE,

House of Representatives, Washington, D. C.

April 21, 1937.

MY DEAR MR. CHAIRMAN: I have your letter of February 7, requesting my views concerning the bill (H. R. 4796) to prohibit the importation and interstate transportation of gambling devices.

Section 237 of the Crinminal Code (35 Stat. 1136; U. S. C., title 18, sec. 387) penalizes the importation and interstate transportation or receipt of lottery tickets or any advertisement thereof.

The bill under consideration proposes to amend this section so as to include within its prohibitions all gambling devices, defined in the bill as "any article, device, or thing so constructed as to have for its principal and primary use the risk of money or property by lot or chance or any unfair, dishonest, or cheating. gambling article, device, or thing." The definition is somewhat broad and indefinite, so that it may prove to be difficult to determine what articles would come within its scope. It might raise a doubt, for example, as to whether playing cards or dice would be within its prohibitions.

Moreover, as a matter of general policy it appears highly doubtful whether the Federal Government should undertake to legislate on the subject of transportation of gambling devices, instead of leaving the matter to State and local regulation.

I am informed by the Acting Director of the Bureau of the Budget that this. legislation is in conflict with the program of the President.

Sincerely yours,

HOMER CUMMINGS,
Attorney General.

The reasons stated in that letter, Mr. Chairman, are applicable to the bills here proposed.

V. The proposed legislation contravenes fundamental principles of Federal jurisdiction while all experience points to the superior abilities of local authorities to meet the case

It is to be noted that the proposed legislation would be against: (1) The fundamental principles established by the founders of our Government;

(2) The policy heretofore determined and applied by Congress to the subject now before it;

(3) The recommendation adverse to such legislation made by Attorney General Cummings;

(4) The recommendation, adverse to including punchboards in the bill in question, made by the present Attorney General, whose staff drew the bill, and who would have the task of enforcement.

Administration would require a large police force, numerous additional lawyers, and would load the Federal courts with cases of a kind which belong in police courts, taking a large amount of time which the judges need for other and more important work, to borrow a phrase from the Federal Trade Commission representative. Recollection of the Volstead Act experience gives a good idea of what the practical situation would be. The expense would be enormous.

Inclusion of punchboards would “give a Federal agency pervasive control over myriads of local businesses in matters heretofore traditionally left to local custom or local law." These apt words were written by Mr. Justice Frankfurter in the last paragraph of the Supreme Court's decision in Federal Trade Commission v. Bunte Brothers, Inc. (312 U. S. 349).

If Congress should exclude the boards from interstate commerce, that would not stop their use. Boards could be made within a given State and be sold only there, and thus never enter interstate commerce. The people could keep on using them if they want to.

Even the local legislative bodies experience difficulty in determining the desire of the people on legislation upon the subject. The experience of Portland, Oreg., is an illustration.

Ordinance No. 69220 of Portland, Oreg., enacted by the city council February 18, 1937, made it unlawful to keep or use any device by which money or other thing of value may be staked or played upon chance, or to use or permit to be used any device or thing whereby any person may be induced to believe that money or thing of, or representing, value may be received as a result of the contest of skill between the person and such device or thing. Under referendum, the ordinance was submitted to a vote of the people at the election held May 20, 1938. The people defeated the ordinance by the following vote: Yes, 28,287; no, 40,614.

The council members, elected by the people, naturally thought they were doing what the people wanted; but they misjudged what the people wanted. Legislators, coming from numerous States, remote from Portland, meeting in Washington, and never in touch with the people of Portland would manifestly not be qualified to legislate for the people of Portland respecting a thing of local concern. That is why our system of government provides that the local things shall be dealt with by local representatives of the people. That is why the police power was reserved to the States and the people thereof.

The United States Supreme Court has said:

In such matters, the public is entitled to get what it chooses, though the choice may be dictated by caprice, or by fashion, or perhaps by ignorance (Federal Trade Commission v. Algoma Lumber Company, 291 U. S., 67, 78).

The concession of such a power would open the door to unlimited regulation of matters of State concern by Federal authority. The regulation of the conduct of its own citizens belongs to the State, not the United States. The right to impose sanctions for violation of the State's laws inheres in the body of its citizens speaking through their representatives (U. S. v. Constantine, 296 U. S., 287, 296).

The proponents of S. 3357 and H. R. 6736 base their request for the enactment of one or the other of these bills upon the assertion that the State and local officials will not perform their duty to enforce State and municipal gambling laws. If in any State or municipality that is the fact, our system of Government provides ample remedy. Officials who will enforce the law may be chosen by the people. They do not need to ask Congress to bring in a duplicate set of police officials.

The committee has heard analogies and comparisons to certain other Federal acts: The Mann Act, the National Firearms Act, the Narcotics Act. It heard no reference to the act which most closely approaches this legislation and the enforcement of which is a striking example of what can be expected. The Reed Amendment, passed way back in 1917 (27 U. S. C. A., sec. 123) and repealed June 25, 1936, made it a Federal crime to transport intoxicating liquors into dry States. Trains, boats, trucks, and autos were raided, thousands of gallons were seized and hundred of persons arrested. Newspapers all over the South simmered with censure of enforcement officials. Juries are necessary to convict, and juries come from the community. Because the effort was futile, it was practically abandoned shortly after it was enacted and no one can truthfully say the law ever kept an appreciable amount of liquor out of the dry States.

VI. The use to which a punchboard or other device is put is the only competent test of whether it is a gambling device

It cannot be assumed that a punchboard is a gambling device. The use to which an individual punchboard is put determines whether or not it is a gambling device. A few citations suffice:

It is assumed that, because cock-fighting is illegal, the sale of gamecocks is unlawful. This is clearly not the law. Cards and dice are implements of

gambling; but the sale of them is not unlawful.

That is from Coolidge v. Choate (2 Met. 79, 83), an early Massachusetts case.

Then, from another case, State v. Howell (83 Mo. App. 198, 203): They are not per se gambling devices, since they may be used or played upon for innocent purposes-the courts cannot therefore take judicial notice that every slot machine is a gambling device. The use to which a particular slot machine is put must determine its character. If set up for and used as a gambling device, the particular machine while being so used is a gambling device, and it falls within the inhibition of the statute.

**

nor is it shown ever to have been employed in gambling or other unlawful practices. We know of no law which will justify us in saying the owner of such property is without redress against the person who deprives him of it. A cold chisel may be a burglar's tool, yet has a legitimate use and value; cards and dice are employed in gambling, yet are not denied a place among legitimate merchandise; and so far as has yet been revealed to the court, there

may be some honest and harmless employment for a "musical black cat with jackpots in it" (Edwards v. American Express Company, 121 Iowa 744, 747, 748). In the Edwards case the defendant failed to prove that the machine in question had been used as a gambling device.

I quote further, from a Federal case:

We start, as we must, with the concession that although marked cards and loaded dice may be used, as stated, they are nonetheless lawful objects of commerce. They may be manufactured, sold, and purchased. If, therefore, upon purchase and sale the parties thereto understand precisely the subject matter, and the seller proposes to and does give to the purchaser just what the latter wants-even though it be a gambling apparatus-the transaction is an ordinary contract. The seller has neither devised nor executed a scheme or artifice.

The plaintiff in error mailed the catalogs which were descriptive of the articles in his possession and described in the indictment. He sustained no relations toward Moore and Nichols, the addressees, other than such as arose through a desire to sell to them articles described in the catalogs (Stockton v. U. S. (7th C. C. A.), 205, F. 462, 464, 465, 468).

VII. The breadth of the bill's definition invites confusion; the bill is objectionable on constitutional grounds; the law proposed would raise insuperable administrative and enforcement obstacles

A Federal policy of presumption of guilt obviously is untenable under American jurisprudence and the measure would serve no useful purpose in a campaign against organized crime but would impose an intolerable burden upon enforcement officials.

It is quite clear from the numerous questions addressed by the committee to the several witnesses who thus far have appeared that the committee itself is in grave doubt as to what articles would be prohibited under the definition contained in the bill which the Attorney General's representative says has been deliberately made broad, and therefore I submit confusing and impossible of efficient administrative enforcement.

As a lawyer with some experience in the administrative field, I respectfully submit that this legislation is further objectionable on constitutional grounds because it attempts to vest in an administrative officer the power to define a Federal criminal offense. Here again, I submit, that should the bill be passed in its present form and a criminal proceeding brought in the court to enforce it, the question of whether or not the particular device involved in that particular case violated the statute would be a question of fact for the jury in each case; and in determining that question, the jury would inevitably be guided not by what the Attorney General had pronounced but by the particular use to which the particular device was put in that particular case. It is thus apparent that to enforce this statute a large number of Federal criminal cases would have to be tried in the various district courts throughout the Nation; that the appropriations for the several Government agencies charged with the enforcement of the law would have to be substantially increased at a time when Congress is attempting to reduce and not increase Federal expenses; that a vast number of new Federal agents charged with the duty of investigating the uses to which these devices may be put would necessarily be employed at large additional expense; that a corresponding burden and further expense would be thrown upon the Federal courts and several United States attorneys and other Federal prosecuting officials in the various districts throughout the Nation and many innocent firms or persons engaged in legitimate manufacturing and merchandising

would be subjected to expensive and damaging prosecution to determine posthumously what they could not have known when they deposited their articles in trade-all under the guise of aiding the over one quarter million State, county, and municipal officials whose duty it is today to enforce the local gambling laws.

I submit appendix II, an estimate of the State and local enforcement officials, which has been compiled from sources believed to be authoritative. In all probability, the total figure, which could doubtless be readily supplied by the Department of Justice, would be closer to 300,000 than to the figure named. The inevitable result of the passage of this bill therefore, with the attendant consequences to which I have referred, would be, in the language of Mr. Justice Frankfurter, in Federal Trade Commission versus Bunte Brothers, supra, to "give a Federal agency pervasive control over myriads of local businesses in matters heretofore traditionally left to local custom or local law" which was the end sought in that case by the Federal Trade Commission, the one agency which appears before this committee and seeks to accomplish indirectly what the Supreme Court said in the Bunte case they could not do directly.

As a lawyer, I also seriously question the constitutionality of the proviso in section 2 of the bill, lines 2 to 12 inclusive, which purports to establish a presumption in a Federal criminal case that in the absence of a certificate by the governor of a State, any device determined by the Attorney General to be a gambling device shall be "presumed to be illegal." This presumption which was defended by the repreesntative of the Attorney General's office seems to do violence to the fundamental principles upon which the Federal criminal laws are established and to a basic principle of justice as administered in a democracy. Whether or not the governor of a State certifies or fails to certify as to any particular device is a matter obviously within the discretion of the governor and the designation of any particular device as a "gambling device" would appear to be within the discretion of the Attorney General of the United States. Any criminal proceeding in the Federal courts based upon uncontrolled discretion either of the Attorney General or the governor, or both, would seem necessarily to be subject to a motion to quash which I have no doubt any Federal judge would sustain. Guilt or innocence in a Federal criminal case obviously cannot be made to rest upon any such basis. The Supreme Court has rejected a statutory presumption much less violent than the one here proposed. In Tot v. United States (319 U. S. 463, 87 L. Ed. 1519), the Supreme Court invalidated the presumptions set up in the Federal Firearms Act that a criminal convicted of a crime involving violence and found to be in possession of a firearm was guilty of having received that firearm in interstate commerce, it being conclusively presumed that he received that firearm in violation of the Federal firearms law. In delivering the opinion of the Supreme Court in the Tot case striking down the presumption in question, Mr. Justice Roberts said:

It is not too much to say that the presumptions created by the law are violent and inconsistent with any argument drawn from experience.

That the even more violent presumption established in the pending bill represents the considered opinion of the Department of Justice appears from the statement of the Department of Justice representa