# United States v. Five Gambling Devices/Dissent Clark

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Clark
United States Supreme Court
346 U.S. 441
United States v. Five Gambling Devices
Argued: Oct. 12, 1953. --- Decided: Dec 7, 1953
Mr. Justice CLARK, with whom The CHIEF JUSTICE, Mr. Justice REED and Mr. Justice BURTON concur, dissenting.
I agree with Mr. Justice BLACK on the question of statutory construction, that § 3 of the Act means just what it says: 'every manufacturer of and dealer in gambling devices' is required to register with the Attorney General and file with him certain records, without reference to interstate commerce. Mr. Justice JACKSON'S opinion states that 'this Court will construe a statute in a manner that requires decision of serious constitutional questions only if the statutory language leaves no reasonable alternative.' I agree; but I think that the statutory language involved here leaves no reasonable alternative. It would be difficult for Congress to be more explicit than to direct the statute's mandate, as it has here, to 'every' manufacturer and dealer without qualification. In United States v. Sullivan, 1948, 332 U.S. 689, 68 S.Ct. 331, 92 L.Ed. 297, the Court dealt with a highly analogous situation; the opinion of the Court there was that 'A restrictive interpretation should not be given a statute merely because * * * giving effect to the express language employed by Congress might require a court to face a constitutional question.' 332 U.S. at page 693, 68 S.Ct. at page 334.
If by legislative history or otherwise it could persuasively be shown that Congress intended that the word 'every' be given other than its plain meaning, we should likely consider such evidence in interpreting the statute. See Boston Sand & Gravel Co. v. United States, 1928, 278 U.S. 41, 48, 49 S.Ct. 52, 53, 73 L.Ed. 170. But I think the legislative history on this issue is almost totally unenlight ening. Of the meager evidence available perhaps strongest support is furnished the construction resulting from a literal reading of the section. The bill, including the part of § 3 here in issue as passed without discussion, was drafted pursuant to the resolution of a 'crime conference' consisting of leading national and local officials and others interested in law enforcement, in cooperation with the Department of Justice. The conference's unanimous resolution was 'Resolved, That this conference endorse the idea of Federal legislation to prohibit the shipment of gambling devices into or out of any State where the possession or use of such devices is illegal. Further, requiring Federal registration of all such machines sold within States.' The bill was drafted shortly thereafter by the Justice Department, with § 3 requiring registration and filing by 'every' dealer and manufacturer. That part of the section was never changed and apparently was never discussed by Congress.
Concedely, to give the provision its literal meaning affords far more effective enforcement with respect to other sections of the Act than would be the case if any of the other suggested interpretations were applied.
For these reasons I am unable to agree with the solution of these cases offered by Mr. Justice JACKSON.
I am also unable to agree that the statute is unconstitutionally vague.
Section 3 requires that at specified times 'every manufacturer of and dealer in gambling devices shall register with the Attorney General his name or trade name, the address of his principal place of business, and the addresses of his places of business in such district', and that there be filed monthly with the Attorney General 'an inventory and record of all sales and deliveries of gambling devices as of the close of the preceding calendar month for the place or places of business in the district.'
I do not mean to suggest that these provisions are models of clarity; when words are left in a statute by oversight, exemplary draftsmanship hardly results. But our function is not to discipline Congress for its failure to dot the i's and cross the t's. It is rather to make certain that the conduct required has been made sufficiently clear that to impose sanctions for ignoring the statute's requirements will not violate due process of law.
The appellees ask us to hold that this is a case 'where patently ambiguous language is so unclear and equivocal as to render its enforcement a denial of due process'; they argue that conviction here violates the rule that 'no one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes,' and that all are entitled to be informed as to what the statute commands or forbids, citing Lanzetta v. State of New Jersey, 1939, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888. In my view speculation is not here required, unless one seeks to avoid compliance with the law; I think that all who would comply with the law are sufficiently informed of what is required of them to assure that any bona fide attempt at compliance would be successful.
Appellees' complaint, according to their brief, appears to be not that the statute does not tell them what to file, but that it does not tell them where to file it. As I read the Act, several things are at once apparent: (1) the registrant must register with someone his name and the addresses of all his places of business, designating the principal one if he has more than one; (2) he must file monthly an inventory and record of all sales and deliveries of gambling devices; (3) this registration and filing must be done with the Attorney General-for the Act provides in clearest terms that he 'shall register with the Attorney General his name' etc., and that he 'shall file with the Attorney General an inventory' etc. I take it that, aside from 5 U.S.C. § 291, 5 U.S.C.A. § 291, which provides that the Attorney General shall be at the seat of government, it is common knowledge that the Attorney General is located in Washington, D.C. There can be no doubt that the required information sent to him there would amount to compliance. If one desired to give meaning to 'district,' the Attorney General has United States Attorneys representing him throughout the country. There can be no doubt that the required information sent to the Attorney General through a local United States Attorney would amount to compliance. At any rate the Act did not leave room for doubt that the Attorney General was to receive the specified information. Subsequent to passage of the Act the Attorney General, acting pursuant to 5 U.S.C. § 22, 5 U.S.C.A. § 22, provided by regulation that the required information should be sent to him in Washington, with an exception made in the case of dealers and manufacturers in Illinois (apparently the center of the affected industry), who were directed to register and file with the United States District Attorney there. If there was ever bona fide doubt as to where to file the information, the Attorney General had now made his whereabouts for purposes of the Act crystal clear.
The Constitution requires that a statute must not be too vague to allow the citizen to ascertain what course of conduct he must follow to put himself safely within the bounds of the law. Lanzetta v. State of New Jersey, supra. No doubt the forgotten words in the Act provide room for quibbling; and the lawyer who is looking for litigation, or whose client seeks to avoid compliance with the law, can paint a picture of uncertainty and frustrated effort to fathom the unfathomable intent of Congress. But to me it is certain that, with or without the regulations, a person honestly seeking to comply with this law would inevitably have succeeded, without undue mental strain in determining the statute's import and without uncertainty as to his chances of remaining within the bounds of the law. The certainty required by the Due Process Clause is not tested from the would-be violator's standpoint; the test is rather whether adequate guidance is given to those who would be law-abiding. See Musser v. State of Utah, 1948, 333 U.S. 95, 97, 68 S.Ct. 397, 398, 92 L.Ed. 562. The constitutional requirements are met when the statute prescribes a course of conduct which any person acting in good faith can recognize and act upon the presence of the forgotten words in this statute does not transform into a trap for the unwary the express requirements of registration and filing with the Attorney General specified information about one's person, business and places of business.
The ultimate question presented by these cases is whether Congress has exceeded its constitutional power. I think it has not.
It appears that Congress in this Act has embarked on what it deemed the most effective course of action possible to eliminate one of the major sources of income to organized crime, while at the same time yielding to the policy of Nevada and a few other states where slot machines are legal and the underworld's control and profit are correspondingly minimized. The Act prohibits shipment of gambling devices into any state except those which act to exempt themselves from the statute. Section 3, which sets up the registration and filing requirements here in issue, was designed to make effective and enforceable the interstate shipment ban. It was thought that a report on each transfer of each machine before and after interstate shipment would enable enforcement officials to ascertain who transported the machine across state lines and thereby violated the law. Unless all such local sales were reported, it was thought that it would be an easy matter to conceal the identity of the interstate transporter by resorting to straw-man transactions, cover-up intrastate 'sales' before and after interstate shipment, and the like. In view of the established tie-up between slot machines and 'Nation-wide crime syndicates,' more stringent methods of enforcement were deemed necessary to accomplish the ban on interstate transportation of the machines than would be needed to control an activity in which dealers and manufacturers could be presumed to the law-abiding citizens who kept accurate books and accounts. The net effect of these considerations is to clearly establish that the registration and filing requirements of the Act amount to reasonably necessary, appropriate, and probably essential means for enforcing the ban on interstate transportation of gambling devices.
The question presented, then, is whether Congress is empowered by the Constitution to require information, reasonably necessary and appropriate to make effective and enforceable a concededly valid ban on interstate transportation of gambling devices, from persons not shown to be themselves engaged in interstate activity. I think that an affirmative answer is not inevitably dictated by prior decisions of the Court; but, more important, no decision precludes an affirmative answer. The question has not been previously decided because the legislative scheme utilized here apparently has not been heretofore attempted. But its novelty should not suggests its unconstitutionality.
In the body of decisional law defining the scope of Congress' powers in regard to interstate commerce, it has been clearly established that activities local in nature may be regulated if they can fairly be said to 'affect' commerce, or where local goods are commingled with goods destined for interstate commerce, or were previously in interstate commerce. For present purposes, these cases at least establish that activities or goods intrastate in nature are not immune from congressional control where they are sufficiently related to interstate activities or goods controlled by Congress.
The Court also has on several occasions stated that the commerce power 'extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end, the exercise of the granted power of Congress to regulate interstate Commerce.' I think it may accurately be said that every sale of slot machines affects the exercise of the power of Congress over commerce, in view of the elusive nature of the object whose interstate shipment is being controlled.
The Constitution empowers Congress 'To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers * * *.' McCulloch v. State of Maryland, 1819, 4 Wheat. 316, 421, 4 L.Ed. 579, cited in the foregoing cases, interprets this as follows:
'Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.'
The Court in that case added that much leeway is to be given Congress in determining what means are appropriate. 4 Wheat. at page 423, 4 L.Ed. 579.
In their brief appellees attack the power of Congress under the Constitution solely on the basis that the registration and filing requirements are not reasonable means of enforcing the provision against interstate transportation of slot machines. I believe that the reasonableness and the necessity of the requirements have already been adequately demonstrated. None of the cases relied on by the appellees suggests a contrary conclusion. The Act's requirements of registration and filing as to local transactions are certainly not a mere ruse designed to invade areas of control reserved to the states, but are 'naturally and reasonably adapted to the effective exercise of' the commerce power.
If Congress by § 3 had sought to regulate local activity, its power would no doubt be less clear. But here there is no attempt to regulate; all that is required is information in aid of enforcement of the conceded power to ban interstate transportation. The distinction is substantial. See Interstate Commerce Commission v. Goodrich Transit Co., 1912, 224 U.S. 194, 211, 32 S.Ct. 436, 439, 56 L.Ed. 729.
In my view Congress has power to require the information described in § 3 of the Act since the requirement is a means reasonably necessary to effectuate the prohibition of transporting gambling devices interstate. If it be suggested that such a holding would open possibilities for widespread congressional encroachment upon local activities whose regulation has been reserved to the states, I would point out, first, that power of regulation heretofore exclusively vested in the states remains there; and second, that the situation here is unique: the commodity involved is peculiarly tied to organized interstate crime and is itself illegal in the great majority of the states, and the federal law in issue was actively sought by local and state law enforcement officials as a means to assist them, not supplant them, in local law enforcement. I would reverse the judgments.

## Notes

* ↑ The quoted and cited statements of Senator Johnson occurred in the course of debate on the bill as a whole and particularly in reference to its ban on certain interstate shipments. Apparently the only mention of the scope of § 3 was the statement from the conference report that the bill 'requires manufacturers and dealers in gambling devices to register annually with the Attorney General of the United States.' 96 Cong.Rec. 15106. This statement occasioned no discussion. The Attorney General's statement that no 'prohibition era' was contemplated and the committee report to the same effect apparently were designed to assure some Senators that the thrust of the Act was not at the gamblers, the users of the machines, who were to be left to state law enforcement measures and officials. However this may be, I suggest that the question of who was to enforce the various provisions of the Act-state officers or federal officers-is scarcely relevant to show congressional intent as to the scope of § 3.
* ↑ 96 Cong.Rec. 15102. (Emphasis supplied.)
* ↑ The construction urged by the appellees differs from that of Mr. Justice JACKSON. They state: '* * * the proper construction of this Act, we feel, is this: that all shipments of gambling devices in interstate commerce are prohibited except to those States where the same are legal. Manufacture or dealers shipping into those States where it is legal should be required to register with the Attorney General and file an inventory.' Brief of Appeals in Nos. 40 and 41, p. 8. (Emphasis supplied.) This construction would seem to circumvent the possible self-incrimination aspects suggested by Mr. Justice BLACK; it would also unduly strain statutory construction.
* ↑ H.R.Rep.No.2769, 81st Cong., 2d Sess., pp. 4-6; S.Rep.No.307, 82d Cong., 1st Sess., p. 55, published after passage of the Act, made this relationship even more clear.
* ↑ E.g., United States v. Darby, 1941, 312 U.S. 100, 657, 61 S.Ct. 451, 85 L.Ed. 609; Wickard v. Filburn, 1942, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122; Currin v. Wallace, 1939, 306 U.S. 1, 59 S.Ct. 379, 83 L.Ed. 441; United States v. Sullivan, 1948, 332 U.S. 689, 68 S.Ct. 331, 92 L.Ed. 297. In United States v. Darby, supra, 312 U.S. at page 121, 61 S.Ct. at page 460, the Court summarized the power of Congress to control local activities as follows:
* ↑ United States v. Darby, supra, 312 U.S. at page 118, 61 S.Ct. at page 459; United States v. Wrightwood Dairy Co., 1942, 315 U.S. 110, 119, 62 S.Ct. 523, 526, 86 L.Ed. 726; Wickard v. Filburn, supra, 317 U.S. at page 124, 63 S.Ct. at page 88. (Emphasis supplied.)
* ↑ Compare Linder v. United States, 1925, 268 U.S. 5, 17 45 S.Ct. 446, 449, 69 L.Ed. 819.
* ↑ Compare Oklahoma Press Publishing Co., v. Walling, 1946, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614, holding that Congress can empower the Administrator of the Fair Labor Standards Act to issue subpoenas duces tecum to obtain information from a corporation to determine whether it is covered by the Act or has violated it.
* ↑ Once it is established that Congress can require registration and filing, I view the forfeiture sanction imposed in No. 14 as an alternative method of enforcement, which presents no substantial additional issue. Compare United States v. Stowell, 1890, 133 U.S. 1, 10 S.Ct. 244, 33 L.Ed. 555.
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