Lion Manufacturing Corporation v. Kennedy

• Decision Date: 05 March 1964
• Docket Number: No. 17832.,17832.
• Citation: 330 F.2d 833,117 US App. DC 367
• Parties: LION MANUFACTURING CORPORATION (new Lion), et al., Appellants, v. Robert F. KENNEDY, Attorney General of the United States, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

117 US App. DC 367, 330 F.2d 833 (1964)

LION MANUFACTURING CORPORATION (new Lion), et al., Appellants, v. Robert F. KENNEDY, Attorney General of the United States, Appellee.

No. 17832.

United States Court of Appeals District of Columbia Circuit.

Argued November 18, 1963.

Decided March 5, 1964.

Mr. Paul R. Connolly, Washington, D. C., with whom Mr. John J. Ross, Washington, D. C., was on the brief, for appellants.

Mr. Sherman L. Cohn, Attorney, Department of Justice, with whom Asst. Atty. Gen. John W. Douglas, David C. Acheson, U. S. Atty., and David J. McCarthy, Jr., Attorney, Department of Justice, were on the brief, for appellee. Mr. Morton Hollander, Attorney, Department of Justice, also entered an appearance for appellee.

Before EDGERTON, Senior Circuit Judge, and DANAHER and McGOWAN, Circuit Judges.

McGOWAN, Circuit Judge.

The appellants, two corporations and two individual officers thereof, brought suit in the District Court against the Attorney General of the United States to enjoin the enforcement of the Slot Machine Act of 1951, 64 Stat. 1134, as amended by the Gambling Devices Act of 1962, 76 Stat. 1075, 15 U.S.C.A. §§ 1171-1178. The complaint also sought a declaratory judgment to the effect that the statute is unconstitutional, the manufacturing operations of appellants are not within its scope, and it is not unlawful for appellants to transport any machine in interstate commerce into any state where such machine is legal. Because the request for injunctive relief was founded upon the asserted unconstitutionality of the statute, appellants asked for the convening of a three-judge court which, under the terms of 28 U.S.C. § 2282, is the only tribunal authorized to afford relief of this nature. The Attorney General opposed this request, and also moved the dismissal of the complaint. The District Court denied appellants' motions, and granted that of the Attorney General on the separate and distinct grounds that the complaint (1) raised no substantial constitutional question as to the validity of the statute and (2) presented no case or controversy appropriate for adjudication at this time. Since we find that the second of these grounds adequately supports the action of the District Court, we affirm on that ground and do not consider the constitutional challenge to the statute.

I

On February 15, 1950, the Attorney General's Conference on Organized Crime was held in Washington. As one consequence of its deliberations and recommendations, there was introduced in the Congress a bill, urgently supported by the Attorney General, which was enacted on January 2, 1951, as the Slot Machine Act of 1951. Its stated purpose was "to support the policy of those States which outlaw slot machines and similar gambling devices, by prohibiting use of the channels of interstate or foreign commerce for the shipment of such machines or devices into such States." Congress was explicitly of the opinion that machines of this character are a fertile source of revenue for nation-wide criminal syndicates which do not confine their illegal operations to gambling. H.R.Rep. No. 2769, 81st Cong., 2d Sess. (1950); U.S.Code Cong.Service 1950, p. 4240.

The Slot Machine Act of 1951 attacked the problem in several ways. It first made unlawful the knowing transportation in interstate commerce of any gambling device, as defined in the Act, into any state where its use would not be legal under state law.¹ It further provided for registration with the Attorney General of "every manufacturer of and dealer in" gambling devices, and for marking such devices.² A separate section imposed certain requirements with respect to the labeling and marking of shipping packages. Violations of the Act were made punishable by fine or imprisonment, or both; and the machines themselves were made subject to confiscation and forfeiture.

Of critical importance to the efficacy of the Act was its definition of "gambling device." As originally passed in 1951, this definition was cast as

"(1) any so-called `slot machine\' or any other machine or mechanical device an essential part of which is a drum or reel with insignia thereon, and (A) which when operated may deliver, as the result of the application of an element of chance, any money or property, or (B) by the operation of which a person may become entitled to receive, as a result of the application of an element of chance, any money or property; or

"(2) any machine or mechanical device designed and manufactured to operate by means of insertion of a coin, token, or similar object and designed and manufactured so that when operated it may deliver, as the result of the application of an element of chance, any money or property."³ (Emphasis supplied.)

It will readily be seen that the italicized words in the foregoing definition directed the major thrust of the 1951 Act to the then familiar and widely prevalent slot machine, or "one-armed bandit," as it is ruefully referred to by those addicted to the unequal sport it offers. The use of this language is quite understandable since, at the time, the traditional "slot machine" constituted the primary problem to be dealt with. Congress, however, failed to reckon with human ingenuity. New devices were developed which, although perhaps outside the definition in the Act, perpetuated the evils giving rise to the initial legislative concern. This story is briefly told in the following excerpt from the House Committee Report (H.R.Rep.No. 1828, 87th Cong., 2d Sess. 6 (1962); U.S.Code Congressional and Administrative News 1962, p. 3809) accompanying the bill eventually passed as the Gambling Devices Act of 1962:

"Eleven years of experience in the enforcement of this law the Slot Machine Act of 1951, also known as the Johnson Act show that there are serious inadequacies in it which must be corrected. New gambling machines have been developed which are controlled by syndicated crime, but which are not subject to the provisions of the Johnson Act because they are not coin-operated, do not pay off directly or indirectly, and do not have a drum or reel as in the conventional slot machine. Principally they are pinball machines which afford players an opportunity if certain combinations are achieved to register a great number of free games, in some instances up to 999 free games. These machines usually have a mechanism whereby the player can change the odds merely by inserting more money into the machine or increase the number of balls that can be played by inserting more money. These free games can be played off or they can be eliminated from the machine by pressing a button or lever. The number of accumulated free games eliminated from the machine are recorded by a meter and payment to the player for the number of free games canceled is made by the proprietor of the establishment where the gambling machine is located or by his agent.

"The committee bill broadens the definition of the term `gambling device\' in the Johnson Act so as to include such pinball machines and any other mechanical devices which are designed and manufactured primarily for use in connection with gambling and which when operated may deliver as a result of the application of an element of chance any money or property, either directly or indirectly.

"Pinball and other machines, intended for amusement only, which award a limited number of free plays that are not convertible to money or other things of value, are not covered by this legislation."

The Gambling Devices Act of 1962 is not an independent piece of legislation; it is an amendment and revision of the 1951 Act. Several sections of the latter statute are left without change, and others are preserved in basic framework and content but with additions or alterations suggested by the significant span of experience under the 1951 law. The most important change is denoted by the expansion of the title from "Slot Machine" to "Gambling Devices" Act. The definition of "gambling device" contained in the 1951 Act is not itself basically changed, but it is expanded and clarified. The old-fashioned slot machine remains squarely in the sights of the law, but the target is enlarged to include other mechanical devices which were thought to offer similar opportunities of exploitation. Sub-section (1) of the definition is unchanged; but Sub-section (2) now reads as follows:

"(2) any other machine or mechanical device (including, but not limited to, roulette wheels and similar devices) designed and manufactured primarily for use in connection with gambling, and (A) which when operated may deliver, as the result of the application of an element of chance, any money or property, or (B) by the operation of which a person may become entitled to receive, as the result of the application of an element of chance, any money or property." (Emphasis supplied.)

Presumably because of this broader sweep given to the concept of gambling device, the 1962 Act added a new section (Section 9) to the statute in order to make clear that certain types of machines were not to be regarded as within its terms. This section, set forth in the margin,⁴ reflects a purpose by the Congress to address itself only to those machines which, although differing from the slot machine in physical design, are calculated to function quite as effectively in separating the public from its money on a large scale. Between the relative specificity of this new listing of exclusions, on the one hand, and the general language used in the new category added to the definition of "gambling device," there is admittedly a wide range of potential applicability. But this appears to have proceeded from a conscious purpose on the part of Congress to anticipate the ingeniousness of gambling machine designers.⁵

II

The amended statute became effective by its terms on December 17, 1962. Four days earlier the complaint in this case was filed. Plaintiff Lion Manufacturing Corporation is alleged to be an Illinois...