was my understanding that in our country, at least, our criminal statutes have to be clear.

Mr. PLAINE. We think this is precise enough for purposes of criminal prosecution.

Mr. ELLSWORTH. I was giving you an illustration referring to the bingo game, and I do not believe you could answer it. I am not being critical of you or the Department. I am searching for these answers. Mr. BENNETT. May I interject a question right there? Refer to the language on page 2 of the bill. That is what I think Mr. Ellsworth is driving at. That is puzzling to me, too. It says:

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

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Suppose this bill is passed, just what would the mechanics be? How would the people who are going to have the amusement devices and machinery which might be susceptible to coverage under this act get any information as to what policy was to be pursued?

Mr. PLAINE. I think between the Department of Justice and the Treasury Department, which is also responsible for seeing that these people register, and so forth, the various lists may be drawn which will put various people on notice.

Mr. BENNETT. Is it not the fact this is about what would happen if this bill were passed today: Tomorrow the Department of Justice would come out with a sweeping order on all types of mechanical devices that might possibly be used for gambling and define them as gambling devices. Then in order for a manufacturer to ship a device of that character that you have put on the blacklist, he would have to go to the governor and the governor of the State would be bound by your decision too. You say it is a gambling device. The only recourse the governor has is to say it is a gambling device but it can come in here anyway. Is not that a fact?

Mr. PLAINE. You jumped a little bit ahead. I was going to point out that based on what Representative Preston said yesterday, there are probably only 10 manufacturers of these things that are difficult cases, and their opportunity for consultation in the preparation of any list is certainly apparent, because the question of interpretation with regard to registration and so forth, is going to require a certain amount of interplay and exchange of ideas, and obviously this will be arrived at with an opportunity for consultation.

Mr. BENNETT. Let us be specific as to where the authority lies here. Who is going to define the gambling device under this bill? It will be your office, will it not?

Mr. PLAINE. It is defined here under the section, and your only question, I think, sir, goes to how will certain things be listed.

Mr. BENNETT. You have in the first section of this on page 2, you say, it is not illegal to ship the gambling device into the State where such device is legal. Who is going to say that it is a gambling device? Mr. PLAINE. The bill, sir, and as I said insofar as instructions to particular officers are concerned, obviously they will be given some advice as to which are and which are not.

On the question of the proviso that you spoke of, the presumption will be in the case of those which are regarded as gambling devices, that their shipment is illegal unless certified to the contrary, so there is an actual basis of reliance.

Mr. BENNETT. Somebody has to issue a warrant to start or initiate prosecution under the bill.

Mr. PLAINE. I thought we were talking of the situation long before we get into the prosecution period.

Mr. BENNETT. I am talking about how anybody would come to know, and Mr. Ellsworth was trying to find out by his question, as to how a person manufacturing a machine of that type might come within this purview of this definition, could possibly know where he was at until someone had issued a list, a blacklist, if you please, with these machines that would be subject to coverage under this bill.

Let me give you a specific case. Suppose a man is making a machine, take an ordinary pinball machine. What happens to that fellow under this bill? He goes on shipping those machines, the same as he has in the past; what happens? If somebody in your office, I assume this would happen, somebody in your office says that pinball machines are gambling devices under the State; then the manufacturer would have to go to the Governor of the State and say to the Governor, "The Attorney General has issued a ruling that pinball machines are gambling devices; can we ship into your State?" He says, "Yes; you can go ahead and ship them." Is that a fact?

Mr. PLAINE. He does more than that.

Mr. BENNETT. He issues a certificate.
Mr. PLAINE. Which is published.

Mr. BENNETT. But in the first place, the decision as to what kind of devices are gambling devices is up to the Attorney General, is not that a fact, and the minute you say a device can be used or adapted for gambling, the manufacturer cannot turn a wheel until he takes it up with the State and gets a clearance there.

Mr. ELLSWORTH. Would it not be much simpler to just short-cut the whole thing by merely leaving it to the Governor to enforce his gambling laws as they are now? Would it not be simpler as Mr. Wolverton said a while ago for the Governor, instead of attempting to pass the buck this way, to go ahead and enforce his own laws?

Mr. PLAINE. That is a matter of legislative policy. Either Congress does or does not enact a law.

Mr. BENNETT. You see the difficulty involved in enforcing this bill. Anybody that manufactures a device that the Attorney General construes as being used for or can be used for gambling purposes, under this law he is then pinned down to the manufacturer of gambling machines. Is that not a fact?

Mr. PLAINE. You are assuming that we will say that the nongambling devices are gambling devices.

Mr. BENNETT. I am assuming you have the power to do it under this bill. Do you not think you have?

Mr. PLAINE. No, sir.

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 for gambling and is therefore within the language of the bill?

Mr. PLAINE. All laws require administration, sir, and where one deals 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. Your criticism, as I see it, goes to the whole process of law enforcement.

Mr. BENNETT. 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, in my opinion. 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 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 clearly and specifically described in the law. That is my motion of good law. You have not done that.

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

Mr. ELLSWORTH. The significant language in this definition as I see it is in line 5, "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." The pinball machine comes under that definition. There is an element of chance as to where the marble will go and the player may become entitled to receive something of value. I believe there are many such amusement devices involving elements of chance wherein the user might become entitled to receive something of value. Mr. BENNETT. The pleasure you get out of it. Mr. ELLSWORTH. That might be hard to define.

Mr. BENNETT. It is so loosely drawn it says any thing of value. Mr. ELLSWORTH. The "application of any element of chance," I do not know how you can administer that phrase in the definition.

Mr. PLAINE. It is now in the code provision that the gentleman was arguing for, title 18, U. S. C., section 3267, Internal Revenue Code. Mr. ELLSWORTH. Will you read that?

Mr. PLAINE (reading):

As used in this law the term "coin-operated amusement and gaming devices" means (1) any amusement or music machine operated by means of the insertion of a coin, token, or similar object, and (2) so-called slot machines which operate by means of insertion of a coin, token, or similar object, and which by application of the element of chance may deliver or entitle the person playing or operating the machine to receive cash, premium, merchandise, or tokens. And then there are certain other things added on as well.

I explained at the outset, sir, we borrowed this definition, we have taken it right out of the Revenue Code definition.

Mr. ELLSWORTH. I think there is quite a difference. That definition has to do with the matter of taxation. This bill has to do with the making possession of certain devices unlawful. In other words, we are talking about what I would consider a criminal statute, wherein that is a statute of definition for the purpose of raising money. After all, there is no great harm to an individual one way or the other except in the matter of a few dollars. Under the bill we are talking about he can be thrown in jail if he happens to guess wrong with regard to the element of chance in an amusement device.

Mr. PLAINE. I do not think it is quite as difficult as that, sir. As a matter of fact, the elements of this definition will be found in most of the statutes of the States, and for your interest and information, you

might want to examine some of the reviews of the State legislation and decisions.

Mr. ELLSWORTH. I make this point, and I think it is the sharpest consideration in this whole matter. The police powers of the several States, and the laws, the criminal laws of the several States, represent quite a different problem from transferring those powers to the Federal authorities. I think there is a very great difference between what a State legislature might do regarding criminal laws, and what the Federal Government of the United States might undertake to do. I think in one instance you have one forty-eighth of a great country, and in the other you have a police power in all of the 48 States at once, and administered a long, long way away in most cases. That is the most important consideration in this whole discussion.

Mr. PLAINE. I thought your point earlier, sir, was that a criminal statute, whether it be State or Federal, requires that it be specific, not

vague.

Mr. ELLSWORTH. That would be true.

Mr. PLAINE. Then if these are valid standards in State statutes, I see no difference in testing vagueness or specificness, whether it be a prosecution under a State law or a Federal law. The individual gets hit just as hard, whether he is put in a State or Federal prison.

Mr. ELLSWORTH. Yes, I stepped outside of the matter of technicalities of law, and went into the realm of political philosophy. I think there is a vast difference between concentrating criminal powers in the Federal establishment and leaving them divided by 48. I grant you that a State legislature may make a very foolish law, a law that would be contrary to my view, as expressed a while ago, that law is close enough to home that it likely will be changed, but once we saddle onto the whole 48 States the great power of the Federal Government, a criminal police power that is not strictly definite, I think we have done something to the people of our country that we should not do. 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 the Attorney General that right. If I were the Attorney General I could go into court and prove that any of the amusement machines, by common consent now regarded for purposes of amusement and not for gambling, were in fact gambling devices under this bill. I ask you to dispuate 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 "any thing of value," it can do so.

Mr. BENNETT. That is what the intent of this bill is, to give the Attorney General that power. Is not that a fact?

Mr. PLAINE. No, no, this bill was written to accommodate the definitions

Mr. BENNETT. I do not care about that.

Mr. PLAINE. Of the various States, because how else could we bet helping the States to keep the gambling machines out of the channels of interstate commerce. You must start with the premise that either we are drafting a Federal statute de novo that sets up a complete test irrespective of what the States want, or we are trying to follow the con

ference recommendation which was to aid the States in enforcement of their laws.

We are trying to accommodate the definition to the latter end. If then in their laws the States prohibit the use or possession of a machine that may incorporate certain features of amusement in it, obviously the definition that we use must in general follow that. How else could we be carrying out the recommendation?

Mr. BENNETT. This has nothing to do with the States, this definition not a single thing to do with the States.

Mr. PLAINE. Very clearly it does.

Mr. BENNETT. It is administrative interpretation by the Attorney General's office.

Mr. PLAINE. The prohibitory section says that it shall be unlawful knowingly to transport or cause the transportation of these things in commerce, provided that the provisions of this section shall not apply to the course of unbroken transportation into any State where the use of such device is legal.

Mr. BENNETT. Who says the machine is a gambling device? It is the Attorney General's office under the language of this bill, is it not? Where is there any language in this bill that gives the Governor the right to define a gambling device under this section?

Mr. PLAINE. He can tell us that anything under this-

Mr. BENNETT. Where is the language in the bill that gives the Governor any authority at all to determine what is or is not a gambling device?

Mr. PLAINE. He can certify to us that A, B, C, and D are legal in his State.

Mr. BENNETT. Sure he can; but he does that after you say it is a gambling device. You have the authority.

Mr. PLAINE. He can do it in advance. He does not have to wait for us. The Governor of Nevada, for example, can give us a blanket certification.

Mr. BENNETT. Sure he can.

Mr. PLAINE. The moment the law is enacted. There is no specific time for that.

Mr. BENNETT. Does the Governor have anything to say about whether amusement devices that have been described, are gambling devices under this bill?

Mr. PLAINE. He can do it any number of ways, sir.

Mr. BENNETT. He would have to call it a gambling device, would he not?

Mr. PLAINE. He might be in effect admitting that it is so regarded under the terms of the Federal law

Mr. BENNETT. Yes.

Mr. PLAINE. But he could, if he wished, under Nevada law, for example, where these gambling devices are legal, certify that possession or use of them is legal.

Mr. WOLVERTON. Have you finished?

I think the questioning has developed the fact that there are many innocent devices that can be used for gambling purposes if a person wishes to do so, but I think the act that has been presented to us attempts to protect such individuals, because it states it shall be unlawful if "knowingly"; I think the word "knowingly" is broad enough in its general acceptance to require specific criminal intent, and that does