Earl Warren: Number 34, Charles Rowoldt versus J.D. Perfetto. Mr. Rein.
David Rein: Yes. If the Court please, petitioner in this case is a 72-year old alien, a native of Germany. He was admitted to this country for permanent residence back in 1914 and he has resided here ever since. He was ordered deported under the provisions of the Internal Security Act of 1950, which provides for the deportation of aliens who are former members of the Communist Party. A finding made by the Immigration Service in this case was that the alien here had been a member of the Communist Party for about six months in 1935. This finding of membership was based entirely upon a voluntary statement which was made by the petitioner under oath to an officer of the Immigration Service back in January of 1947. That statement is set out in the record at pages 25 to 32. And we have reproduced all the relevant portions of that statement in our brief from pages 401. I wish at this time to bring to the Court's attention the most prevalent portions of that statement which will come up in -- across my argument. On page 5, the question was put to the alien, “What was the purpose of your joining the Communist Party?” Answer, “The purpose was probably this, it seemed to me that it came hand in hand, the Communist Party and the fight for bread.”
William O. Douglas: Where are you reading from?
David Rein: I'm reading from page 5 of my brief.
William O. Douglas: Oh, the brief.
David Rein: Sorry, it's -- it appears at the record on page 25 and I'm reading from my brief at this time. It seemed to me like this. Let's put it this way that the Communist Party and the Workers' Alliance had one aim, to get something to eat for the people. Turning then to the brief on page 78, the following appears. Question, “Were you an active worker in the Communist Party?” Answer --
Hugo L. Black: What page?
David Rein: Page 7 of my brief, of the petitioner's brief. “Were you an active worker in the Communist Party?” Answer, “The only active work I did was running the bookstore for a while.” Question, “Where did you run a bookstore?” Answer, “241 Market in Minneapolis.” Question, “What sort of bookstore was it?” Answer, “Oh, all kinds of literature, all kinds of writers in the whole world. Strachey, Marx, Lenin's writing and others. Socialism and all that stuff.” Question, “Did you own the bookstore?” Answer, “No. I didn't get a penny there.” Question, “What was the arrangement there?” Answer, “I was kind of a salesman in there, but the Communist Party ran it.” Question, “You secure this employment through your membership in the Communist Party?” Answer, “Yes.” Question, “Was this store an official outlet for communist literature?” And then finally, turning to page 10 of our brief, I wish to read the following excerpt. Question, “Again referring to your joining in the Communist Party in 1935, was this motivated by dissatisfaction in living under a democracy?” Answer, “No, not by that, just a matter of having no jobs at that time. Everybody around me had the idea that we had to fight for something to eat and clothes and shelter. We were not thinking then, anyways, the fellows around me of overthrowing anything. We wanted something to eat and something to crawl into." Question, “You say, fight for something to eat and crawl into. What do you mean by that term?” Answer, “We had to go and ask those who had it, that was the courthouse at that time. We petitioned city, state and national government. We did and we succeeded.We finally got unemployment laws and a certain budget. Even at the few Communist meetings I attended, nothing was ever said about overthrowing anything. All they talked about was fighting for the daily needs. That is why we never thought much of joining those parties in these days -- in those days." Two questions are presented by this case, set out in the statement of questions presented. The first is whether under the evidence here, the petitioner was more than a nominal membership -- member of the Communist Party, and whether since under our contention, we argue he was no more than a nominal member. He comes within the deportation statute of 1950, as the term "member" was defined in Galvan. And the second question is whether the provision of the Internal Security Act of 1950, which was relied upon here by the deportation service is constitutional despite the decision of this Court in Galvan which sustained the constitutionality of that Act.
Speaker: In other words, that latter question you're asking is to overrule Galvan?
David Rein: That's true. And we make no distinctions for Galvan. We are expressly asking that to be overruled.
Earl Warren: You say you -- you make no distinguished --
David Rein: I'm sorry.
Earl Warren: -- or distinction?
David Rein: We make -- we make no distinction in Galvan on the issue of the constitutionality of the statute.
Earl Warren: Oh, I see.
David Rein: We do make a distinction on the definition of the issue of nominal membership. We think on --
Earl Warren: Yes.
David Rein: -- that issue the case is entirely different, I guess. We do not ask you to overrule Galvan in that respect. We ask you to overrule Galvan only insofar as Galvan sustained the constitutionality of the Act. We think on the issue to which I'm going to address myself now, the issue of nominal membership, we believe that Galvan has authority in our favor and would require a reversal of the deportation order. The Galvan case, which was the case sustaining the constitutionality of this provision, construe the statute as not applying to former members of the Communist Party who had been only nominal members. The Court gives no precise definition to that term. I gather because in the experience of the legislative history or previous decisions of courts, no precise definition was available. It referred essentially to the legislative history of a provision which was enacted in 1951 at which time Congress passed in clarifying of -- the clarifying act as to the meaning of member as used in the Act of 1950. Galvan established at least these propositions clearly. One, it is not necessary to fall within the orbit of the 1950 Act that the alien have knowledge of the Communist Party's alleged advocacy of violence. It is necessary however that he has some awareness of the platform and purposes of the Party. He must be aware that the organization he has joined is known as the Communist Party which operates as a distinct and active political organization, and his relationship with the organization must be of a character that you could characterize it as more than nominal. The guide post was the legislative debate, and the only guide post referred to in Galvan was the legislative debate in 1951 revolving around the clarifying provision with regards to the meaning of the term member. That Act was introduced, at least that clarifying amendment was introduced by Congress because of devoid of the original office of the Internal Security Act to Senator McCarran and Congressman Walter. But the Attorney General had been applying the term member wrongfully as applying to every kind of member. And they felt that not only do they not issue to be so applied but they stated in the cross of the debate that had never been to their attention, that it -- that it should be so applied. The clarifying amendment expressly provided that the statute will not cover those who had joined the Communist Party when they were children or they became members by operation of law or to obtain the necessities of life. This Court's opinion recognized however, that these three categories of nominal membership were not the sole categories of nominal membership intended by Congress and that there could be other instances of nominal membership. The Government recognized it isn't well in its brief and it recognizes the force of Galvan in creating the caveat as to the nature of membership. It suggests, that is the base to point out, the meaning of that caveat to refer more fully to the Senate debate. We agree with him in that, but we think here, we will find that the debate is somewhat confusing. It is not in itself too clear a guide because different Senators said not really different things but somewhat vague things. We suggest and we believe properly so that the language are set forth on page 25 of the Government's brief and the quotation from Senator Ferguson is as good a guide as there might be to what Congress had in mind. Senator Ferguson incidentally was one of the Senators who introduced an amendment to this clarifying amendment. The amendment originally introduced by Senator McCarran, were not have applied to members of so-called Communist organizations but only the Fascists and Nazi organizations. Senator Ferguson suggested that the amendment apply to members of any kind of organization that came within the terms of the 1950 Act. Senator Ferguson in giving what he had in mind said as follows at page 25. Mr. Ferguson, “That is correct. The amendment would exclude all those who were Communist by conviction, what we might call mentally communist. But it would not exclude those who really in effect never have been what I call mentally communist. Those who's Communist affiliation was nominal or involuntarily. “Thus clearly, so far as Senator Ferguson was concerned, the attachment to the Communist Party must be something more than just membership. There must be at least some mental indication of the individual's beliefs. The same language as appears also at the same volume of the Congressional Record at page 2387. Again what Senator Ferguson said, “When we change the statute here today, we are not changing it as to people who were Fascists, Nazis, Communists or totalitarians by virtue of their convictions, and what I have refer to as their mental processes. We are changing it only as to those persons who never walk mentally or psychologically, Fascists, Nazis, Communists, or totalitarians, or any stripe, or any color.“ Similarly, Congressman Walter, who was the author of the clarifying provision on the House side speaking at 97 Congressional Record 2674 and this does not appear in any of the briefs, said that under the present wording, that is the wording of this qualifying amendment -- under the present wording of the bill, active and voluntary members of all proscribed parties and organizations will be barred." They're putting emphasis on the word, “Active members would be barred."
Felix Frankfurter: Am I right in calling that the Ferguson amendment was -- delete -- deleting enactement.
David Rein: That's correct.
Felix Frankfurter: And prevailed to that?
David Rein: That's -- well, it was accepted by Senator --
Felix Frankfurter: It was accepted by Senator McCarrran.
David Rein: It was accepted by Senator McCarran. It did not come to a separate clause.
Felix Frankfurter: The amendment was the deletion of something that patently was qualified.
David Rein: That's correct.
Felix Frankfurter: Therefore, the comments that was put by Senator Ferguson are relevant to the construction of a statute that I have to comment of an individual member.
David Rein: That is correct. In other words, the deletion -- the clarifying amendment had in parenthesis except with regard to Communist organizations, and the proposed amendment which was accepted by Senator McCarran was to delete that. So his comments go to the original meaning of the Act. According to the debate also, and I think as the Government contends and we agree, the purpose that Congress had in mind in indicating this was to say that they wished the term member to have the same meaning in this statute, in the 1950 statute that the term member had had a deportation statutes as a result of judicial decision prior to the passage of the 1950 Act. And that what they were doing for the 1951 qualification was to restore that meaning to the Act. This leaves us with the consideration as what guides did we have in previous judicial decisions defining the term member. There were no decisions in this Court that are all relevant. The only decision that was cited by the Committee which brought up the 1951 Amendment, and the only decision that I am familiar with to discuss this term in any detail whatsoever is the case of Colyer v. Skeffington which was cited in -- by Congress at the time and also relied upon by this Court in the Galvan case. Now, the Government attempts to confine the Colyer case to a very narrow situation. It quotes from one excerpt of the Colyer case which was one of the situations before. I should briefly say that that case, before I go into it, involved the deportation of a whole mass group of aliens, I think something like 40 or 50 under a statute of 1918 which made one deportable for being a member of an organization that advocated the overthrow of the Government by force and violence. The issue came up in that case with regard to all 40 of these whether on the evidence they were members of that organization as well as many other issues. And the Court discussed that question and found that a number of them were not members of that organization for different reasons. The Government in its brief sets out only one rule, one quotation. That is the group and the Court said, we're not members of the Communist Party because they had originally belonged to the Socialist Party. The Socialist Party had changed its name and they had just become members of the Communist Party by virtue of the change of name of the Socialist Party. But the Court discussed other groups as well and its broad principle was not limited to that situation. Its broad principle as set out by the Court at page 72 of its opinion, it said that the membership must be -- and the term it used was a real membership. We think that would mean a membership with some significance. It refer to one other case which it reversed where the alien had joined the Communist Party, solely because of his interest in the social activities of the organization because he found it a good place to -- people who spoke his language, he can learn to read and write, and he learned arithmetic there. He had no interest in politics whatsoever but he had joined the Communist Party, had joined it not -- he had joined it consciously and notably. The Government would seem to say that nominal means no more than it would be unconscious or unknowing. But there was a case in Colyer where he joined it, but joined it with no notion of what the nature of the organization was at all. Thinking of it being an organization without regard to its political aspects, or the Court there found that that was a nominal member, Judge Anderson in that case. There was one other case where the evidence against the alien showed only a Communist Party membership part with notation of dues but no other evidence further connecting this alien with the Communist Party. Now, the Court felt that that was not -- that that did not make him a member within the terms of the Act. I say to the Court that on the basis of the representations made by the Government here that what was meaningful was the prior interpretation of the term member by the Courts before. The Colyer case is really the only case which would serve as a guide first post. And under the doctrine of the Colyer case, the -- the alien here certainly was no more than a nominal member. I turn now on the basis of -- consider the basis of these principles to the particular facts in this case, I think at the very least, the concept of nominal membership must be taken to establish that once the Government proves that an alien has been a member of the Communist Party, it has not proven its case. It must prove something more. Now, Galvan said that something more does not necessarily have to show knowledge of the unlawful advocacy of the Communist Party but it's not enough either merely to show nominal membership. There is an area in between which this Court has not yet, perhaps sketched out sufficiently where nominal membership ends and where actual and meaningful membership for the purposes of the deportation statute begins.
Felix Frankfurter: May I ask whether the voluntary statement from which you read the essentials, extract the duplicate --
David Rein: Yes.
Felix Frankfurter: -- where they rely on whether that was the whole -- that was all there was before the immigration authority --
David Rein: That is correct.
Felix Frankfurter: -- in including that he was supposedly a member.
David Rein: That is correct. It was just his statement.
Felix Frankfurter: That's his statement.
David Rein: Just his statement. There was not as in Galvan a witness against the alien whose testimony might have added to the statement. There was separately his statement which was introduced in the evidence. There was no other evidence, no other testimony against it.
Speaker: Don't -- don't you think it gets quite a full answer to Mr. Justice Frank -- Mr. Justice Frankfurter's question. It seem to me from reading your excerpts that this man showed an extraordinary amount of knowledge about the Communist Party and had philosophies about it, whether they're right or wrong.
David Rein: Yes.
Speaker: In other words, he was merely -- not the position of the janitor or the door keeper or the -- it seemed to me it indicated that he had more familiarity with it.
David Rein: I make a point on that. I didn't mean to say to Justice Frankfurter that the only thing in the record was the excerpts that I read.
Felix Frankfurter: I asked --
David Rein: I said --
Felix Frankfurter: -- a specific question whether there was anything except this statement --
David Rein: That's correct.
Felix Frankfurter: Which we then have (Voice Overlap) --
David Rein: Now, that statement includes more than what I read, Your Honor. Now, with respect to that --
Felix Frankfurter: When he says or does the rest of the statement shed any light on his book shop as to --
David Rein: No, that is all there is about this subject.
Felix Frankfurter: I thought it concerned -- he wasn't getting opinion and it incidentally what he lived or for -- what he -- by what he was sustained?
David Rein: No, Your Honor. That's one of the points that I wish to address myself --
Felix Frankfurter: That's what the Government saw that he got nothing.
David Rein: Well, it's rather a confusing statement --
Felix Frankfurter: Pardon me?
David Rein: It's rather a confusing statement. At one point he says he gets nothing.
Felix Frankfurter: (Voice Overlap) except to disciple that he likes and currently that he just needs a food or shelter and consults with the (Inaudible)
David Rein: (Voice Overlap) --
Earl Warren: It's what I thought. He said some place in there that he went to the courthouse and -- and that they were able to get right through the courthouse.
David Rein: Yes.
Earl Warren: They got -- they got some relief, yes.
David Rein: Yes.
Earl Warren: And then I suppose --
David Rein: I think that's to be what he was looking --
Earl Warren: -- I suppose that would be what he's looking.
David Rein: -- on a private relieve.
Felix Frankfurter: And I think this -- I know but he --
David Rein: I'm sorry.
Felix Frankfurter: What I mean to say he has no mean to substantiate but then he -- did all his words gave us anything to a cause without running infiltration.
David Rein: It's quite ambiguous, Your Honor. The statement is quite ambiguous. He says --
Felix Frankfurter: (Voice Overlap) anything more except what you read on that point.
David Rein: No, there in nothing more in the record. I would only say, Your Honor, that that's an argument I wish to come to later that I think that it indicates the need of -- had a minimum for the case to be turned back to the Immigration Service to consideration of the proper issues, but I want to come to that later. Addressing myself now to Justice Harlan's comment about his discussion about the nature of Communism or the Russian Revolution. As I read that, Your Honor, they seem to carry his views, I don't say that they're necessarily the Communist Party's views. Also, it is quite ambiguous from this statement as to when these views were applied, when they were expressed. This statement was made in January of 1947, the membership as found by the Immigration Service was back for a six-month period in 1935. The Government makes its point in his brief in dealing with this rather -- what I would consider a discursive discussion of his views of communism, they say apparently acquired at the term of his membership. Now, there is nothing in the statement here that makes that apparent and I don't know whether he acquired these views, whatever they may be in 1935 or whether he applied them much later. As a matter of fact, he says -- and this is at page 11, he was asked this particular -- of my brief again. He's asked this question. Question, “What is your personal belief as to the principles of communism?” Answer, “What is communism? That is a good question. My belief is a different thing than communism is. According to Marxism-Leninism I have seen the Communists working. Since I knew of them, they are aiming more or less with forever methods to set up an economic system to get the people out of a monopoly control on to their own economic feet. That is the way I see them working now,” spoken in 1947. I would say whatever that it, it's a very individual statement of the petitioner. And also, the phrase, “Since I have -- since I knew of that. “Now, whether that means, when I knew of them or last week, or later, I don't know. The matter was not fully explored. I would say this. There is no basis for the Government's statement to say that he had this knowledge of the Communist Party at the time of his membership. Maybe he did and maybe he didn't. These points served me when I brought into with the hearing. In Galvan, this Court found that the alien was a member of the Communist Party and came within the meaning of the deportation statute on a basis of the following facts. One, that he had been a member of the Communist Party for two years, that he had been an active member of the Spanish Speaking Club of the Communist Party and that he had been an officer of that club. They concluded from those factors that the alien relationship to the Communist Party was not so nominal as to keep him -- or from outside the orbit of the statute. Petitioner here was a member for only six months. There is no -- he is not active at all and indeed --
Felix Frankfurter: I think it makes much difference that it says approximately one year.
David Rein: Well --
Felix Frankfurter: Page 5 of your brief.
David Rein: Your Honor, I rely on the Immigration Service finding which is set out at page 9 of the transcript and that finding is for about six months and --
Felix Frankfurter: Well, it makes much difference (Voice Overlap) --
David Rein: He said --
Felix Frankfurter: I don't think he knows -- he knows best.
David Rein: Well, he was asked first when he joined. He said in the spring or summer and left toward the winter, and then in response to a leading question, “Was that about one year?” He said, “Yes.” So I think, Your Honor, that --
Felix Frankfurter: All right.
David Rein: -- a fair reading of his testimony would be about six months.
Felix Frankfurter: So do you think that changes -- he would have shaved it down to six months? And to think that's the way it is.
David Rein: Well, I won't argue the point other than to say that that's the finding of the Immigration Service.
Tom C. Clark: He quit when he was even taken in. At least (Inaudible)
David Rein: That's right. And he stated the reason why he quit, not this one, a much older deportation case.
Tom C. Clark: 1935.
David Rein: He quite because he said that at the time he had joined the Communist Party, he had joined as he stated solely because his interested in unemployment relief and he had no knowledge there was anything unlawful or wrongful about his joining the Communist Party until some member of the Immigration Service came and tell him that it was. And at that point he quit, yes.
Tom C. Clark: He kept up to this organization -- his membership and what are the organizations?
David Rein: He kept up his membership in the Workers' Alliance for about two years but that has no problem in this case. And as I can see it, the Government does not rely on saying that any activity in the Workers' Alliance would in any way indicate that he was more than an active member of the -- that he was -- that that constituted in anyway, activity in the Communist Party. I don't think that issue is in the case. It's not suggested either by the Immigration Service. It's not suggested here by the Government. We say therefore that if nominal membership means anything, it means that there must be shown some minimal activity and that the sole activity shown here of having been a clerk in the bookstore for a brief period is not enough to take the alien out of the concept of nominal membership. We argue also that he comes within two explicit exceptions set out in Galvan which would take him out of the clause of nominal membership. One, according to his testimony -- to put him the class of nominal membership. According to his testimony again which is on -- which is the sole evidence on which the deportation ought to rest here. He joined to obtain the necessities of life because of the fact that he felt it was necessary, at least in his view, that he joined in order to get something to eat, and clothes and shelter. That was his reason for joining and that comes within one -- one of the express exceptions as set forth in the clarification of the amendment. Secondly, he comes within the provision as set fort in the quotation from Colyer against Skeffington and the Galvan case that he had no real knowledge of the platform and purposes of the Party. And this is significant as to what he said about that. He said, "Even if the few communist meetings I attended, nothing was ever said about overthrowing anything. All they talked about was fighting for the daily needs. That is why we never thought much of joining those parties in those days." I submit that it is clear he never really gave any consideration to the question of the nature of the Communist Party as a political organization. He viewed it only as a mechanism through which he could -- he and others could get unemployment relief. He never inquired at least as it appears here from his testimony, his statement which is all that is in the record. He never inquired further as to the character of the organization, what his political position was in on any matters. And I say that under the language in Colyer which was approved by this Court in Galvan, he falls within the category of one who had no real knowledge of the platform and purposes.
Felix Frankfurter: Mr. Rein, may I ask you this question.
David Rein: Sure.
Felix Frankfurter: Apparently, when was he arrested in this case?
David Rein: On --
Felix Frankfurter: When was he arrested for purposes of deportation?
David Rein: In this particular -- he was -- for this particular deportation proceeding? In about 1948, originally.
Felix Frankfurter: (Voice Overlap) he was originally arrested in 1935.
David Rein: Yes.
Felix Frankfurter: What -- what happened between 1935 and the present date?
David Rein: Well, he applied all that I could see that happened. This statement which was made in January of 1947 was made in connection with his application for citizenship, Your Honor. And it was at the basis, nothing really happened.
Felix Frankfurter: (Voice Overlap) his state -- his statement of 30 --
David Rein: Of 1947.
Felix Frankfurter: Is that the one you read?
David Rein: Yes. Nothing really happened in between 1935 until he came and applied for citizenship.
Felix Frankfurter: Could be -- and as to -- he was arrested in 1935. What happened to that arrest?
David Rein: That -- that deportation of -- there was an order of deportation when it was set aside according to the Government on the basis of this Court's decision in (Inaudible) saying that it did not apply to past membership in organizations.
Felix Frankfurter: When was he mentioned to that?
David Rein: I don't believe he was next arrested until after he made an application for citizenship. In the course of that application for citizenship, he made this statement -- this was an interview with an Immigration inspector in connection with an application for citizenship. And after he made this, this revived the matter again and he was then arrested, I believe, in 1948 or 1949.
Felix Frankfurter: And the hearing officer's conclusion didn't come until May in 1951 --
David Rein: Yes.
Felix Frankfurter: -- in which he says that the petitioner remained in -- a member of the Communist Party which he have joined said it was spring or a summer of 1935 until he was arrested, so that the arrest means 1935.
David Rein: That's correct.
Felix Frankfurter: And what we're dealing with -- what we're dealing with here is not the arrest, a determination on arrest in this deportation proceeding --
David Rein: That's correct, Your Honor.
Felix Frankfurter: -- at all.
David Rein: That arrest was --
Felix Frankfurter: With what this thing you are saying from 1935 to 1948.
David Rein: No. That deportation proceeding in 1935 was completely wiped out and there was nothing paying it.
Felix Frankfurter: And as far as the record shows when he was -- when he quit -- in 1935, he quit?
David Rein: That's correct. There was no evidence to the contrary and no contention to the contrary.
Earl Warren: Do the cause for this arrest in 1935, the claim that he was a Communist. Would that be --
David Rein: That he had been a member of an organization was different in the present statute because that statute did not provide for deportation solely on being a member of the Communist Party. One had to be a member of an organization that advocated the overthrow of the Government by force and violence.
Earl Warren: Yes.
David Rein: And that was the claim under 1935. But as I said, the matter was never pressed to a conclusion by the Government. It was dropped. And the proceeding which we are now reviewing here is a completely new proceeding and is not a continuation about all the problems.
Tom C. Clark: When was this, in the 1940 Act?
David Rein: What?
Tom C. Clark: Was this pronounced in the 1940 Act?
David Rein: Well, he was arrested originally under the 1940 Act but by the time it came up for hearings, the 1950 Act had been passed, the charges were amended to include the charge under the 1950 Act and the deportation here is under the 1950 Act, not under the 1940 Act.
Speaker: When were the 1935 proceedings dropped? You said they were dropped. When were they dropped?
David Rein: I'm not entirely sure about that.
Felix Frankfurter: But our case -- our second when you came down in the spring of 1939.
David Rein: Yes.
Felix Frankfurter: I remembered. Is that right?
David Rein: I think it came in 1938, Your Honor.
Felix Frankfurter: No, it was -- came down and I was a member of the Court.
David Rein: Well, then perhaps your [Laughs] recollection is much better than mine. The Government somewhat logically acknowledges the concept of nominal membership but it tries to argue -- deprive that concept of any meaning. It also tries to say in its brief that the petitioner in any event was more than a nominal member, but it does this by -- what I would say as an argumentative assertions from the petitioner's statement in the record. In other words, it wishes to draw conclusions which not apparent from the face of the statement, that which they think can be argued. Now, I just wish to give one example. We discussed it and analyzed it more fully in our brief, our reply brief at pages 2 to 3. But to give simply one example of the kind of reasoning that the Government engages in, we say the petitioner's assertion that he joined the Communist Party because it seemed to me that it came hand-in-hand, the Communist Party and the fight for bread is translated by the Government to mean that he joined not out of his own economic necessity but to participate in its activities. And then they also say -- they read into that one phrase of the petitioner that that also means that the petitioner believed that the Party was the appropriate channel through which to seek social reforms and through which to secure ultimate economic benefits to society generally. Well, I suggest that's reading a good deal into that single statement that he joined because the Communist Party, in the fight for bread, seemed to him to be the same thing. But more than that, Your Honor, and I think it raises -- comes to another issue in this case, these are inferences which are being made by the Government in its brief here on the Supreme Court for the first time. They are not inferences that we made by the Immigration Service --
Felix Frankfurter: You can't tell that.
David Rein: What?
Felix Frankfurter: (Voice Overlap) --
David Rein: The Immigration Service simply said he was a member. We find no such argumentation --
Felix Frankfurter: But all I'm saying is, you can't tell what was in --
David Rein: What was in their mind?
Felix Frankfurter: (Voice Overlap) -- because it didn't reveal its mind by a disclosure.
David Rein: Well, I think, Your Honor, that a fair reading of those decisions would indicate --
Felix Frankfurter: I'm not talking about decisions, I'm talking --
David Rein: No. A fair reading of the -- their decision in this case would indicate that they felt no responsibility upon them to find anything more than that he was a member. That the entire concept of nominal membership was foreign to them, but they paid it no attention and that it never was in their mind. And I think that under the decisions of this Court, we have here a case where in any event, there's a minimum. The case was decided by the administrative agency upon an improper legal theory and upon an improper basis and that even if -- even if the statement alone would seem to be support to justify a finding of more than nominal membership, there is no such finding in the record here.
Speaker: Mr. Rein, how would you define the kind of membership that you think would set aside the statute?
David Rein: Well, I think I've done the best I could in what I have said up until now, Justice Harlan, decided that --
Speaker: There's got to be more than card-carrying member.
David Rein: He would have to go --
Speaker: It doesn't have to be officership, he doesn't have to.
David Rein: I think -- no, he would have to do some to further the activities of the Communist Party.
Felix Frankfurter: Why don't you stand fast on Senator Ferguson?
David Rein: Well --
Felix Frankfurter: (Inaudible)
Speaker: Well the books --
David Rein: I think it's a little vague.
Felix Frankfurter: What?
David Rein: I think it's a little vague. I think it serves as a guide -- guide post but as to (Inaudible) I think he would have to show that he did something to carry out --
Felix Frankfurter: You did your best in saying -- in saying that's -- that could be more than this and can be less than that?
Speaker: Well, isn't the distributing the Party literature enough, showing --
David Rein: Well, I think that.
Speaker: -- working in the book shop. That's a pretty accurate.
David Rein: Well, I think under the circumstances of this case, Your Honor, in which it appears from this testimony that all he said was that he was in there for -- well alive, merely as a clerk, selling books. I don't think it's enough. I think he would have to be carrying -- and it's also ambiguous, I would say as whether he was there and his character as a Communist Party member or what it was. One of the difficulties with this record in determining as a matter of fact, the question of whether he was a nominal member or argument, because of the fact that this concept was not something that occurred to the Immigration Service. There's really no exploring of the subject. All they have is this interview which was taken in January of 1947. That interview was simply put into the record and that's all there is.
Speaker: I hope your not --
David Rein: Well, it's in that real consideration.
Speaker: The reason I raised this question is that I think -- I hope you're going to save enough time to argue your second proposition --
David Rein: I hope --
Speaker: -- that Galvan should be overruled.
David Rein: I do. As a matter of fact and I'm about --
William J. Brennan, Jr.: May I ask this, Mr. Rein, before you leave it. You suggested that he was merely a salesman and you did that once or twice in the statement. Say, "I was kind of a salesman in there, but what about -- the only active work I did was running the book store."
David Rein: Well, there it is. That's what --
William J. Brennan, Jr.: In that --
David Rein: -- he said in one place and at the very next question he said, “I was kind of a salesman and I didn't run it, the Communist Party run it.”
William J. Brennan, Jr.: Well, I rather read that latter -- last as meaning merely that he was in charge but on behalf of the Communist Party. At least isn't that a possible inference?
David Rein: Well, it's one of the things that I would indicate that -- one of the reasons why at a minimum, I would the case should go back to the Immigration Service because I think it's their job to draw our inferences from this statement and not this Court's job to do it as a matter of first impression.
William J. Brennan, Jr.: Well, the only difference though is --
David Rein: Certainly --
William J. Brennan, Jr.: -- running the bookstore for a while rather has a literally understood meaning, does it?
David Rein: Except this -- except this later qualified in the very next few questions and answers. He says, “I didn't. The Communist Party ran it. I was just kind of a salesman.”
Tom C. Clark: Do you think he was (Inaudible) view that as an innocent view?
David Rein: Well, I --
Tom C. Clark: (Inaudible) as to Galvan.
David Rein: No. The -- Galvan does not use that language. Galvan uses the term “nominal member.” It does not refer to innocent views. And I think the question is as it appears here on the statement and I think we have to take it that a sole connection with the Communist Party other than as having been in this bookstore was that he joined it because he felt that this was a way to get unemployment relief. That's his statement and I don't see how we can go beyond it.
Earl Warren: Was there any indication how large the store was or what hours he worked or anything like that?
David Rein: No. Nor even if how long the period.
Earl Warren: Yes.
David Rein: It's just for a while. No, I don't know how long for a while it is, whether that -- that's a week or -- there's just no further exploration of the subject so far as it appears in this record.
Felix Frankfurter: Not without into it -- he mentions stretchy ahead of (Inaudible)
David Rein: Well, I think it's an indication if his type of character, but certainly, he fits in his own individual mold and nobody else's mold. I do want to say one point, one further remark before I leave this, before I go to the question of constitutionality, and that is that we have in our reply brief cases in this Court and we quote from them indicating that where there is any ambiguity upon the findings of the Immigration Service, the responsibility of this Court is not to resolve or clarify that but to send it back to the administrative agency to go and do the job. And I think that as a minimum, that is the relief we'll be entitled to. On the question now of the constitutionality of the statute, a lot of -- I'll address myself first to the question of what we think adopt into the Galvan is, as we read the decision in that case. And we read it as holding that the deportation power of Congress is to all practical effect without any constitutional limitations except for the one single limitation of the requirement of procedural due process. That is certainly not limited by substantive due process. It is not limited by the provisions of the ex post facto clause, by the Bill of Attainder Clause or by the First Amendment. We argue in our brief that such a view is not supported either by a precedent or by logic and hence, should be overruled. Now, the Government, quite interestingly enough in its brief, thinks that Galvan says too much in that respect also. And right off, it disagrees with us as to what we think that Galvan falls because it says that it would be wrong for this Court to hold that there are no constitutional limitations on the deportation statute. It argues that substantive due process is a limitation on the exercise of Congress' power to deploy and that a deportation statute can be upheld only where it constitutes a reasonable classification of currently undesirable aliens. And it then asserts, and I say it's not in the Galvan opinion, that that is what Galvan did. That Galvan upheld the statute on the ground that it was a reasonable classification of deportable aliens. But we think the Government's concession in this case requires this Court to reexamine Galvan because certainly, Galvan did not look at the constitutional issues that way.
Felix Frankfurter: What was that? I didn't hear your last statement.
David Rein: I said Galvan did not look at the constitutional issues the way the Government and we both now say as the proper way to look at it. That this Court has a responsibility to test deportation statutes under orthodox constitutional standards the way it would test other statutes. And that --
Felix Frankfurter: I -- I suppose that anybody could read Galvan and think it says that wherein comes the deportation, Congress can do unconstitutional things.
David Rein: Well, no because if Congresscan pass any statute it wishes without regard to the limitations of (a) the due process, Substantive Due Process Clause without regard to the limitations of the first one --
Felix Frankfurter: Do you think Galvan means that it would say, all few, they're all Catholics in 1940.
David Rein: Yes. I cannot read in any other way, Your Honor. As a matter of fact, to indicate it, the Court --
Felix Frankfurter: As the case could be read another way.
David Rein: Well, I would read the case that way and it seems to me when the case says, and I think that the point to the opinion itself. It says that looking at this statute --
Speaker: (Inaudible)
David Rein: It said if due process follows Congress from enactments that shock the sense of fair play, which is the essence of due process, one is entitled to ask whether it is not beyond the power of Congress to deport an alien who is duped into joining the Communist Party particularly when his conduct antedated the enactment of the legislation under which his deportation is sought. And then the Court went on to say that, although it was entitled to ask that but the Court was not going to ask that question or answer it either because they said policies retaining to the entry of aliens and there right to remain here are peculiarly concerned with the political conduct of Government. A formulation of these policies is entrusted exclusively to Congress, and therefore, the Court never considered or never posed that question. Now, I can only read that as meaning that if this Court felt at the time the opinion in Galvan was written, that substantive due process applied, that it would have considered it certainly much more fully than it did. And that simply say that our hands are tied by a previous line of decisions which say that we cannot inquire into the matter and therefore, we will just shut the door on it.
Felix Frankfurter: That means it must -- although Congress has the power it has to decide how an army could be composed, it can provide that there should be no Catholic or Jewish office until this day.
David Rein: No, Your Honor. I would say that to --
Felix Frankfurter: And that's the basis to your argument. Your whole brief reads that and under this statutes, it could say to -- it could deport for all Jews or Catholics.
David Rein: Well, that's what Galvan said.
Felix Frankfurter: No, I say to you. The Communist -- and because it has this great war power that say no Jew or Catholic --
David Rein: Oh, no, Your Honor.
Felix Frankfurter: -- could be -- could be (Voice Overlap) --
David Rein: Oh, I don't -- I don't draw the inference from that. As a matter of fact --
Felix Frankfurter: Well, war power is at least as broad as the --
David Rein: That's correct.
Felix Frankfurter: (Voice Overlap) --
David Rein: And in Galvan, Your Honor, the Court said that even though the Due Process Clause applies to the war power. However, it doesn't apply to deportation statutes.
Felix Frankfurter: Where does it say that? It says the opposite as to speak --
David Rein: No. It says in line of the expansion of the concept of substantive due process --
Earl Warren: What page are you reading from -- what page?
David Rein: I'm reading from my brief at 26 but it's from page 530 to 31 of Galvan.
Earl Warren: 26 in your brief?
David Rein: Yes. In line of the expansion of the concept of substantive due process as a limitation upon all powers of Congress, even the war power, much could be said for the view and this is in commerce. While we're writing on a clean slate that the Due Process Clause qualifies the scope of political discretion heretofore recognized as belonging to Congress in regulating the entry in deportation of aliens. Now --
Felix Frankfurter: Something was meant to be conveyed by political discretion. Does the --
David Rein: Well --
Felix Frankfurter: -- Congress -- we might say that Due Process Clause precludes recognition of certain and this is not relevant because people are affected by it.
David Rein: Well, Your Honor, I can only read --
Felix Frankfurter: I just suggest that that kind of extreme logical argument is not very illuminating in dealing with a very important problem.
David Rein: Well, but I don't think that what else Galvan would be saying if it isn't saying -- it isn't saying here.
Felix Frankfurter: That's right.
David Rein: And if the whole case --
Felix Frankfurter: Only -- only Catholics abused could be deported?
David Rein: No, no, but the whole case said when it comes to examine the deportation statute, this Court will not apply to it the same constitutional standards that it will apply to other congressional statutes. Now, unless it is saying that, I submit that it's really not saying anything. And significantly, it did not apply the same standards because it acknowledged that if it applied the same standards, for example, this Court found unconstitutional the depravation of a university teacher's job and Wieman against Updegraff on the ground of membership of an organization because there was no showing of knowledge of the character of that organization. Now --
Tom C. Clark: What is the condition, did you know?
David Rein: I'm sorry?
Hugo L. Black: You say that wasn't a deportation --
David Rein: That's exactly my point. Galvan says that that ordinary rule that applies in all other fields and all other statutes don't apply to deportation.
Felix Frankfurter: Mention what it -- it does to eminent domain anymore than just to settle other powers of Congress.
David Rein: Well --
Hugo L. Black: May I ask you what you understood this minute, I'm not in it. I'm not very strong in Galvan about the technical -- my understanding. Well, I can't -- in the Galvan case, it said this. But it seems to me to be inconsistent with the arguments you are making now after stating that the statute made present a former membership in the Communist Party in and of itself to grant a deportation. The courts opinion said, "Certainly, we cannot say that this classification by Congress as to a basis as to be violative of due process and therefore beyond the power of Congress."
David Rein: There is that exerpt in it, but that was not the full discussion which we quoted, indicates the deportation statutes. And the reason why they would come to that conclusion is that deportation statutes are not tested by the same standards as other statutes would be testified.
Felix Frankfurter: Now, you're on a sound ground when you say the opinion wasn't well written and we got a lot from that.
David Rein: Well, I'm sorry I didn't mean that, Your Honor.[Laughs] But to leave that aside, I think, Your Honor, and my time is running out. I wish to refer to the fact that to leave Galvan as it is that we do discuss in our brief the fact that the cases which were decided by this Court at least prior to the risk he honors, do not support the proposition stated in Galvan about deportation statutes being of a separate character than other statutes, and therefore, being given a separate kind of approach with regard to the Due Process Clause or other provisions of the Constitution. As a matter a fact and I don't have time to review those cases fully. Well, I think an examination of those cases in terms of their decisions about the generalities established only these propositions that Congress has an unlimited power to exclude aliens and including the power to deport for illegal entry, that it may employ the expulsion power to implement the exclusion policy or to remove resident aliens who have demonstrated by their conduct that their continued presence in the country would be harmful, and that legislation so limited is not punishment. Generalizations to the effect that the expulsion power is unlimited and that deportation power is not a punishment, are not supported by the decisions and a contradicted by contrary generalizations in this Court. The most recent contrary generalization was the opinion of this Court in Jordan against De George. Certainly, prior to hierarchy orders, there have been no decision which upheld any controllable statute or involved any of the features, the objectionable features of the 1950 Act. There was accordingly no warrant and I'm sorry to say that these issues were foreclosed by prior decisions. I think that if we consider that the issue was a fresh one and that the slate was clean at least so far as the 1950 statute was concerned and if we test the statute on orthodox constitutional principles, I think the statute must fall. It must fall first because of its conflict with the substantive Due Process Clause. The present statute is invalid because it is special legislation. It provides for the expulsion of a group of people not in terms of culpable characteristics or general descriptions but by name. Significantly, the only time that Congress had been for more in a statute of a similar nature and that was fact about 1940, a statute calling for the deportation of Harry Bridges by name. That statute was rejected by the Congress specifically by the Senate, specifically on constitutional grounds that Congress did not have the power to pass a deportation statute which can deport one by name. This statute is no different in principle. It just has a larger group. In addition, it is no answer to suggest that the Government does, that the statute was based upon evidence considered by Congress as to the character of the Communist Party, that the Communist Party was a tenacious organization. The due process means anything, and if it prohibits special legislation, it prohibits condemnation by legislative fiat without regard to whether that is reasonable or not. Because if the legislature cannot pass such a statute, it is not give -- if the legislature passed such a statute, it is not giving due process. And to consider the question of whether they had evidence before them does not meet the question. Because you could have evidence to justify any special legislation, deportation against Harry Bridges or under the same logic, deportation or statutes could be enacted exclusively against other groups in the community such as Catholics or Negroes on the ground that there is evidence. The statute is irrational moreover and therefore in conflict with the substantive Due Process Clause for other reasons. The general justification given for the power of Congress to expel aliens is that it enables the State to rid itself of undesirable alien residents. That is the general theory given for it. But the present statute --
Stanley Reed: Under -- under that argument, the statute against of what deportation anarchist would also --
David Rein: I'm sorry, under what argument?
Stanley Reed: Deportation, if you say --
David Rein: No, Your Honor, because anarchist is not a name, anarchist is a description of a category of people. This is not -- it maybe unreasonable but my argument addresses only to the fact that this three-fourths people who are members of the Communist Party by name without regard to what the Communist Party does or doesn't do. This statute makes it a matter of indifference as to what the nature of the Communist Party is. It fixed them out by name, and that's the point so the -- the provision about anarchists would have no -- no reference to it. This doesn't explore -- this doesn't expel people who believe in anarchism or who believe in communism. This only expels people who are members of the Communist Party, making all other things irrelevant. The present statute is even more irrational because it disregards all the considerations that would be relevant in determining whether or not the particular alien is undesirable. It ignores for example the alien's lack of knowledge of the evil nature of the organization. It ignores the nature of his activities in the organization, whether these activities were innocuous, commendable, or even when they were non-existent. It ignores the length of his membership or it ignores how long ago it was. In addition to that, it exhibits no interest whatsoever in what manner of a man the alien was at that time of the action of deportation. But this -- if this was a rational statute based upon expelling undesirable aliens, currently undesirable aliens which apparently is a theory of it, this would be the relevant factors which it would discuss. But the statute ignores all of these relevant factors which would be reasonable in its application and it applies its policy instead on a basically irrational factor. Certainly, as applied to the particular petitioner here, the statute is clearly irrational. Because on this record the petitioner is being deported solely because 20 years ago in a different political climate he was an active in a movement for relief of the unemployed.
Speaker: Do you -- I'm not quite sure. Do you say that Congress could not pass a statute deporting aliens who were then members at the time, members of the Communist Party?
David Rein: At the time, by name?
Speaker: No, not by name. This isn't deporting any -- any alien who is found to be a member of the Communist Party is deportable.
David Rein: I would think that that would have possibly some of the objectionable features of this statute if not all because -- but not -- but not others. It would still have the objectionable feature that it's a special legislation because it applies to a group without regard to its culpable characteristics. Because if one says the Communist Party then it wouldn't matter whether the Communist Party did or did not advocate the overthrow, it wouldn't matter what the character of the Communist Party was. It would also have the objectionable feature of ignoring the element, the important element which this Court set out in Wieman against Updegraff of making irrelevant the particular individual's knowledge of the character of the Communist Party, which it seems to me would also be an important element in considering whether or not he was an undesirable alien. But it still would be somewhat more rational than the present one which has in addition to that all of these other irrational elements of being a long time ago and it could have been of a brief period. Well, I think that -- that the statute is to be measured as to whether it's a reasonable statute to deport currently undesirable aliens, then under those standards, even that statute I think would have to fall because it would be defining it not in terms of culpable characteristics but it self is solely in terms of membership in an organization. And particularly, one of the defects of this statute -- and of that statute too would be the assumption that the Communist Party can never change which itself I believe is an irrational assumption. I don't think I have time now to develop the remainder of my argument on the Bill of Attainder and ex post facto, and perhaps I can save a few minutes that might be remaining for rebuttal. Thank you.
Earl Warren: Would you rather proceed in the morning or do you mind starting now?
Carl H. Imlay: Well, either as you wish, Your -- Mr. Chief Justice. I'll start now. I --
Earl Warren: All right.
Carl H. Imlay: I would just like briefly if I may to give the first -- give the questions presented. The first question for which this Court granted certiorari as whether the petitioner had been a member of the Communist Party as that term was defined by this Court in Galvan versus Press. Or whether he had been only a nominal member and therefore not subject to deportation. And two, whether or not withstanding Galvan, the statute providing for deportation of aliens for past membership in the Communist Party is unconstitutional on its face or as applied to the facts in this case. As I understand petitioner's position he accepts the -- the -- that part of the Galvan versus Press opinion which goes to the construction of Section 20 -- Section 22 of the Internal Security Act of 1950. But for purposes of question too, he rejects the -- the constitutional holding in that case. I might just say very briefly that this case -- the petitioner was first ordered deported in 1936 on the ground that he was a member of an organization which advocated the overthrow of the Government by force and violence under the 1918 Act, that was the Communist Party. And as we have already developed here, that -- at the time that he was arrested in -- within -- in those deportation proceedings at the end of 1935, he left the Communist Party.
Earl Warren: We'll recess now, Mr. Imlay.


Earl Warren: Number 596, United States of America versus Walter Korpan. Mr. Davis.
John F . Davis: Chief Justice, if the Court please. The issue in this case is whether the respondent was properly convicted for willfully failing to pay a tax imposed by the Revenue Code of 1954 on coin-operated gaming devices. And this, in turn, is dependent on whether three particular machines which the respondent maintained on his premises fall within the depth -- to the description of slot machines as that term is used in the Code. The Court of Appeals for the Seventh Circuit reversed the conviction of Korpan on the ground that his machines were pinball machines, not slot machines, and were not subject to the $250 tax. Now the facts in this case are these, the respondent maintained a summer resort known as Korpan's Landing on Fox Lake in Northern Illinois. And then a tavern which he had there, he had certain coin-operated machine games of various kind. The three, which are involved in this case, were games which were activated by inserting a dime in a slot, and this gave the player the opportunity of propelling five steel balls onto an inclined plane. They would run back down the -- the slant of the -- of the table and fall into certain holes where they would make electrical contacts and numbers would appear on the panel at the end of the game. The object of the game was to strike numbers which would make a line of three, or four, or five straight across vertically or diagonally.
William O. Douglas: Is there a skill involved – any degree of skill involved in --
John F . Davis: There's --
William O. Douglas: -- making these lines?
John F . Davis: Among us, there is some manual dexterity and how high the ball is shot but the evidence shows that luck is the predominant element. The -- the only skill which is involved is in how far back the plunger is pulled and how much the machine is pushed by the hands to nudge the ball, and to that extent, there is some skill involved but no one, however skillful, can control this ball so that it won't go where it wants to -- the majority of the time, luck, chance is the real element on where the ball would go.
William O. Douglas: How -- how is that -- that point established by the expert testimony?
John F . Davis: By expert testimony.
William O. Douglas: It's all in the record, is it?
John F . Davis: It's in the record, yes. And there are also some decisions which we cite in our -- in our present and some on that particular question of similar machines where other courts have determined that in this kind of an operation, chances, the predominant element --
William O. Douglas: The reason I asked is I had seen some of these machines, apparently similar to these being played with clubs where there seem to be -- some of these fellows who have a high degree of skill.
John F . Davis: Well, there is -- there is some degree of skill. I -- I tried one of these machines myself and I thought it was all chance and a small boy step up after I completed my play and he did much better than I did. But may I say this, there are elements of pure chance in this game which no one, however skillful, can operate because this particular game have an additional gambling element of putting additional coins in which change the odds, there are some sort of a wheel whirls within the device and it changes the chances. And there, all you do is to put the -- the dime in and these things happen. You have no control whatsoever of those changing in the odds additional game elements, they call them, additional bomb.
Hugo L. Black: If you -- if you haven't get that the right time to --
John F . Davis: Pardon?
Hugo L. Black: If you haven't get it the right time, is it okay?
John F . Davis: Well, maybe so. I think that these things are pretty chancy. I don't think that even -- even by watching when they get extra balls, you could really give very much.
William J. Brennan, Jr.: Well, I don't understand Mr. Davis what you mean changing the odds, the odds under what?
John F . Davis: Well, I was about to say the -- if one gets three numbers in a line, he then gets for the -- a certain number of replays. If he gets four numbers in a line, he gets a certain number and if he gets five, he gets a much larger number. Now, the number of replays and these replays -- and this is the essence of the case, these replays are redeemed in cash in this case so that they are -- although they have found the right to replay, there are also a right to receive cash.
William J. Brennan, Jr.: Well, what's that mean, if you have five replays on which after you get 50 cents or something like that?
John F . Davis: You get 50 cents, that is right. Now, the number of replays which you get for getting three numbers in a row on this panel, that lighting panel in front of the machine, may go up from four to six to ten by inserting additional dimes in the machine which make the odds more favorable to you. They may not go up.
William J. Brennan, Jr.: Now, was it before you play the game instead of putting just one dime, you may put in two or three dimes?
John F . Davis: That is right. You may put in as many dimes as you wish.
William J. Brennan, Jr.: On -- on the one play.
John F . Davis: That's right.
William J. Brennan, Jr.: On the one play.
John F . Davis: And after you get through with the five balls, you may again put in additional dimes and you may or may not get additional ball to shoot, and these too is determined entirely by chance.
William J. Brennan, Jr.: Well then, how -- how is the paid off, is it more often cash than that?
John F . Davis: There's no evidence in this record except that there is evidence that two players, one can get 10 replays and the other 12 were paid off in cash.
William J. Brennan, Jr.: And it's a dollar -- a dollar and twenty, in effect.
John F . Davis: That is right.
William O. Douglas: The very -- the opinion below the court didn't reach for the question whether this was a game of chance.
John F . Davis: At one time he said that if -- that he could assume that was a game of chance and then another, he said that he wouldn't pass upon whether there was skill involved. The -- the opinion isn't entirely clear.
William J. Brennan, Jr.: Well, I gather the Government's position in any event, it's that that the slot machine -- it's immaterial whether it's a game of chance or not?
John F . Davis: No I think they has – I can't tell --
William J. Brennan, Jr.: Well --
John F . Davis: -- within the definition. On this question of whether there was chance involved, the opinion -- the oral opinion of the trial court, the findings of the trial court that this was essentially a game of chance and that the skill element had been reduced to a minimum was -- was made in specific oral findings by the trial court. Now, those oral findings are not reprinted in the record and I'd like permission to -- they're obviously a proper thing for this Court to consider and I like permission to leave a copy of those findings with the clerk so that they'll know --
Earl Warren: You may.
John F . Davis: -- before the Court. But that -- the judge, the trial judge after hearing the evidence said this on the question of the skill involved, this -- the element of -- the element of skill was reduced to a minimum. As a matter of fact, the amount of skill that could be involved in those machines was fantastically small, almost nonexisting. The skill was supposed to be, I suppose, the force with which you shot the ball or the force or lack of force with which you attempt to tilt the machine. The machine was so devised that if you tilted it, it would go out of commission. Everything was done that could be done to eliminate the element of skill and nothing remained of any consequence except the element of chance and upon the device of that kind, Congress imposes a tax, both of its findings of the district judge. Well, during the period in question, Korpan had purchased $10 stamps for each of these machines. Now, these are the type of stamps which are used for amusement and music machines as distinguished from so-called "slot machine." And in June of 1925, a especial agent of the Internal Revenue Service visited the tavern and he asked Korpan whether he was paying cash on eliminating the -- on the replays. And Korpan told the agent that he was not, and the agent explained to him that if he did pay out cash for replays that he would be subject to the $250 tax rather than the $10 tax and Korpan said that he understood that.
William J. Brennan, Jr.: Well what -- what was this alternative, instead of paying out cash just to allow the player in a certain number of free games?
John F . Davis: The replay, yes.
William J. Brennan, Jr.: Free games?
John F . Davis: That is right, free games. And that is generally been construed by the -- by the service as not being a thing of value or at least not sufficiently a thing of value to -- to make the -- make it into a way to pay -- a pay-off, a gambling device.
Harold Burton: It makes no difference if they have an agreement among themselves to play as they still put -- play it among them.
John F . Davis: Between two separate players, it doesn't involve the operator of the machine.
Harold Burton: That's all right.
John F . Davis: What --
Harold Burton: They use it in the gambling machine between themselves?
John F . Davis: I -- some -- some --I don't know where to draw the line, Mr. Justice Burton, because obviously, people can gamble on any number of things and the owner of -- and the operator of the -- of the restaurant can't be responsible for -- for all of that. On the other hand, if the device is set up to be used for gambling purposes, I would think that he would then have to pay the tax. And if he knew that it was consistently used for gambling, I think anyone is involved in the case but we do not have this situation. This is a -- this is a situation where the gambling is between the owner of the restaurant, the operator of the restaurant, the owners of the machine.
Harold Burton: He is paying cash?
John F . Davis: He is paying the cash to the plaintiff. Two -- two persons played these machines later on in the summer and were paid off in cash. And the -- Korpan admitted to the agent who had discovered the violation that you remembered receiving the instructions that he would have to pay the $250 tax, that he had understood the instructions and that he had, in fact, been paying cash for replays even when he said he has not. Well, as a result, he was indicted for a willful failure to pay the tax which is a misdemeanor and he was convicted and fined $750. Now on appeal, the conviction was reversed by the Court of Appeals for the Seventh Circuit which held that this type of machine was not subject to the $250 tax. The court below found that this was what it called a -- a pinball machine and since it was a pinball machine, it said that on the language of the statute and the legislative history, it wasn't subject to the -- to the larger gaming tax. And it's our position that the language of the statute and the legislative history both point to the opposite result.
Speaker: Whether the limit -- what -- slot machines to one-armed bandits?
John F . Davis: The Court didn't specifically do so although that's what the defendant claimed.
Speaker: That's the net of it.
John F . Davis: Pardon?
Speaker: That's the net of it, is it?
John F . Davis: Yes. I think that's -- that's basically what he -- what he -- what he would -- what he did, although, all he said was that these -- he didn't say -- he didn't say so. He said these are pinball machines and Congress certainly didn't intend to have -- to tax pinball machines. The language of the statute, and this is as the Court concedes, it's purely a question of statutory construction. It's -- it's quoted on pages 2 and 3 of the Government brief. There's a tax, as I say, a -- $10 a year on any amusement or music machine. And then there is a tax of $250, and now I read from the bottom of page 2, on 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, premiums, merchandised as token. Now, on the language of the statute, this is a machine which is activated by the insertion of a coin, there's no question about it, whether or not -- and -- and the element of chance is -- is taken cared of both by the nature of the machine, the findings of -- of the District Court which was not upset by the Court of Appeals. And there is no question that the operators were given the right to receive cash. But the court below said that all of these conditions applied only when you started out with a so-called "slot machine." And the court below said, "This isn't what I consider to be a slot machine." Now, if he had taken the ordinary definition, dictionary definition of slot machine, which he quotes in his -- in his opinion, there's no question that it is a slot machine. Webster's Dictionary defines a slot machine, as a machine, the operation of which it started by dropping a coin in a slot unless the Court recognized. But they said, when Congress added the words so-called and put the words slot machine in quotation marks, they intended something other than the ordinary dictionary definition. Well, I think that what they meant -- what Congress must have intended by that -- that form was that they didn't –- they thought they were using a term which wasn't an elegant usage, maybe. It was a -- it was a common term. They wanted to give it a -- a broad scope rather than they use any -- considered as a technical definition. Now, actually, at the time the statute was passed, coin machines that are used for gaming were generally called in statutes, and by the courts, and the Digest, they were called slot machines. If one looks at the gambling laws of New Jersey or -- or New York or -- or California, Oklahoma and any number of States, you find in -- in the head notes or in the definition of gambling machines that they use the term "slot machine" as a -- as a definition of -- of coin activated gambling devices and then they go on and define the term very broadly to include all sorts of -- of coin activated devices with which one gambles. So it seems to me that when -- when Congress used the term so-called "slot machines", it was merely using the term to mean these things which are called and these certainly were called slot machines. But the court below said that the legislative history showed an intention to -- to limit it. Legislative history is this, the statute originated being a revenue measure, of course, originated in the House of Representatives in 1941. And at the -- at the time that the tax was imposed, there was no distinction drawn between different types of coin activated games, gambling games and amusement -- just amusement games were supposed to tax $25. When it got into the Senate, Senator Clark felt that there should be a distinction drawn between gambling games and amusement games. And he proposed the amendment which results in the differentiation of tax. And at page 28 of my brief, I quote when he told the Senate as to why he did this. Down at the bottom of the page for example he said, "Mr. President it seem to me and to a majority of the members of the Finance Committee that it was a disgrace to put all slot machines in the same class, therefore, we reduced the tax on the innocent slot machines, the ones which do not involve any gambling in -- from $25 to $10. And then he goes into a discussion which is on the next two pages with Senator Barkley in which Senator Barkley said, "Well, the difference you were trying to determine, the difference on which you are pacing the tax is whether or not, they're gambling, whether they can get anything back rather than a pleasure of -- of fame. And Senator Clark said that was the purpose of this amendment. And that is the background of this change. That's why the change was made. They hit the gambling machine. Well in 1942, a year later, there was a feeling that this tax, which at that time was $50 or higher of the two tax, this tax was too high to impose on gambling machines that you put a penny in and you get a ball of gum and you also get a price which is worth not more than 5 cents. And so, the industry came in and they said “You put us out of business if you put this kind of a tax on it." And so Congress drew an exception which is in the statute today saying if you got a penny from machine of that kind that it shall not be subject to the larger tax. Now, if Congress had intended only one-armed bandits to be subject for the larger tax, there would have been no occasion or whatsoever for this exception. I mean, it's perfectly clear that no one would ever consider one of these one cent vending machines to be a one-armed bandit. They have no -- there's no connection between the two. So these two is an -- an example of what Congress originally intended and -- and when it passed the statute. As a matter of fact, the Internal Revenue Service has had a regulation on its book since 1942 saying that the tax shall be imposed in the larger amount where three games are redeemed in cash. It's been made -- that too, the -- the regulation too is cited in our brief at page 4. But that's been on the books since 1942 and it's been objected too by the industry. There have been congressional hearings that this is too strict. Congress has reenacted the statute without making any change in the -- in the definition of slot machines knowing that this regulation was on the books and was being enforced. The respondent and the court below purport to find that there has been no consistent in -- in administrative interpretations. There was one inconsistent interpretation given by a local collector of Internal Revenue, a single inconsistent interpretation. The only one way we've been able to discover and I think that it was a mistake and doesn't stand in -- in the -- in the way of our position that this statute has received from the beginning, an interpretation consistent with that which we present to you now. And actually, I suppose the strongest argument for the interpretation we imposes that it makes common sense, it's just -- it's just as what Senator Clark meant. It's -- but what anyone, it doesn't really make any difference what the nature of the machine is whether it's called by a lever or plunges. If it is a gambling device, which they pay off money on, it seems to us obvious that's what Congress intended to cover. So here we are fortunate in having support both from the language of the statute itself, from the legislative history and, as I say, from just ordinary plain common sense.
Earl Warren: Well we have two or three minutes. You might as well proceed Mr. Sprecher.
Robert A. Sprecher: Mr. Chief Justice and Your Honors, looking at the language of the statute first, Section 4462 (a) (2) speaks of the so-called "slot machines" which are taxed at the rate of $250. Now, this can mean only one of two things. It can either be a machine with any type of coin slot or it must mean a one-armed bandit. It cannot -- there's no third meaning, those are the only two possibilities. Now, if it means a machine that merely has the coin slot, then the words which followed it immediately which state -- which operate by means of the insertion of a coin, token, or similar object would be entirely redundant and unnecessary. So that -- we believe that the Court of Appeals was entirely correct in holding that the meaning to be applied to this language, these words is the meaning -- the second meaning of a one-armed bandit. The government counsel speaks of common sense in approaching this problem. I think that we could all have enough judicial knowledge of these types of games to know that there are pinball games and there are slot machines and they are two different devices. The -- I think actually, the Government is contending that there are -- there's -- there is some kind of a third meaning which relates to the use of the machine. In other words, the machine can be a slot machine that was used in one way.
Earl Warren: We'll recess now.