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 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 be 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

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give some protection. I do agree, however, with the opinions that have been expressed by different members of the committee that there should be given some additional thought to the definition as contained in the bill.

Having in mind the evil that it is sought to make unlawful, I believe that there is sufficient ability in the Justice Department, in this committee, or with our legislative counsel, to draw language that will eliminate much of the fear that has been expressed on the part of some members of the committee as to the effect of the language now in the bill.

I previously said I do not believe that the questioning of the members of the committee can be taken in any other way than to make the law as specific as it is possible, and to meet the situation which the Attorney General has seen fit to bring to our attention at the request of the States' attorneys. I believe that intent can lead us to the use of proper language by some additional thought.

I would suggest, therefore, Mr. Plaine, that you and your associates, in view of the questioning that has taken place today, give that additional thought to it, to eliminate as far as possible the fears that have been expressed here, to the end that damage might not be done to innocent persons. I do not take it that there is any desire to protect those who engage in this nefarious practice, and I use that word advisedly, because to my mind there is nothing more reprehensible than to see these machines in operation in grocery stores, candy stores, and what not, in close proximity to schoolhouses, and see school children of very immature age playing these machines. I think it is the duty of the Congress, wherever it can supplement what States have done, to do so, where it is shown that they are unable to properly enforce laws against gambling.

I do not, however, retract what I have previously said that in the final analysis the obligation is upon the local authorities, and it is the local authorities who can determine by the use of the machine whether it is a gambling device or whether it is merely used for innocent amusement purposes.

I am definitely of the opinion that any State attorney through his prosecuting officials in the several counties can, if they wish, stop gambling at any time. I do not mean stop it 100 percent. That is an impossibility. But I mean open, flagrant commercial vice that is apparent to anyone. That can be stopped if the will of the local authorities is there to do it.

In the event that a local authority is desirous of doing so, and finds that these machines have been brought into his district from outside the State, he could very properly call it to the attention of the Justice Department for such action as it might wish to take under this statute, but it is based upon the use which was made of these machines. The proof would be there that it was a gambling machine, because of the use that is made of it.

There are some machines that are so plainly gambling machines that anybody who manufactures them would have difficulty in hiding behind the screen that they did not know it was going to be used for gambling purposes. That would be perfectly ridiculous, and I think any grand jury as an inquisitory body or a petit jury in the trial of the case would see through that if it was raised.

I think what we have to give our attention to in this proposed legislation is to get it in as practical language as we can in an effort to uphold the States' attorneys in what they claim is a necessary adjunct to their duties.

Mr. BENNETT. I have asked a lot of questions. I want to be sure that my position in this matter is clear. I am sympathetically inclined toward legislation, and I think I will support it. My objection to this legislation as it is drawn is that it leaves to administrative discretion the determination of what is a gambling device. I prefer, if I am going to support this bill, that the words "gambling device" be defined in the bill, the same as it is, or in some fashion similar to that used in the Internal Revenue Code, and then prohibit the interstate shipment of those particular devices. When you get into this other field of the adaptation or the use by the purchaser, prohibiting the transportation of devices that may be converted by a purchaser into a gambling device, there I think you get into a field of legislation that exclusively belongs to the States, and, if the manufacurer manufactures a device that is not a gambling device, he ought to be able to ship it in interstate commerce. If the purchaser who buys it converts it into a gambling device, then that ought to be the problem of the law-enforcing officers of that particular State.

Mr. ELLSWORTH. I would like to make one suggestion to the gentleman from the Department of Justice. I think my objection to this bill is along the line mentioned by Mr. Bennett, and that is it just is too wide open for the power of the Federal Government to step in with police authority without warning. We do not allow that type of thing in a Federal Trade Commission action.

Here would be my suggestion. There are many devices which are obviously gambling devices, and your section 3 provides for the registration and reporting on those devices. That is fine. But as to those no-man's-land devices, such as the bingo game that I mentioned, I think there should be some language in the bill which provided, I assume it would be the Attorney General's office, or the administrative agency administering this law, could cite a device, a specific device, as coming under this statute, and from that time on the statute then would apply. I am seeking some way of getting rid of this uncertainty.

Mr. WOLVERTON. I think it has been made plain to you this morning that this committee in consideration of legislation does give it real honest consideration. We have a reputation for that in the House, and it is always our desire that whatever legislation is approved and recommended to the Congress for passage shall be as perfect as it is possible for it to be, and I want you to interpret the interest of the committee in that way, and also with the hope that you will recognize that there are very sincere, earnest, and positive views on the part of some of the committee.

Therefore, we will hope in our future consideration of the measure that we will be able to adopt that language which will undoubtedly carry out the intent and purpose of this legislation, and in giving it that further consideration, I wish some thought would be given to those words about the middle of the second page that speak in the event that the Governor or the Attorney General or whoever is charged with the responsibility of certifying to the Justice Department, in the