State Racing Commission v. McManus

• Decision Date: 02 November 1970
• Docket Number: No. 9091,9091
• Citation: 1970 NMSC 134,82 N.M. 108,476 P.2d 767
• Parties: The STATE RACING COMMISSION and its members, Robert M. Lee, George J. Maloof, John Augustine, Jr., Dr. L. E. Farrell and William Gallagher, and La Mesa Park Racetrack Board of Racing Stewards and its members, Richard Thomas, A. R. Barrett, and Henry Zarges, Petitioners, v. The Honorable John B. McMANUS, Jr., District Judge, Second Judicial District, Bernalillo County, New Mexico, and Ronnie Ellis, Respondents.
• Court: New Mexico Supreme Court

Page 767

476 P.2d 767

82 N.M. 108

The STATE RACING COMMISSION and its members, Robert M. Lee George J. Maloof, John Augustine, Jr., Dr. L. E. Farrell and William Gallagher, and La Mesa Park Racetrack Board of Racing Stewards and its members, Richard Thomas, A. R Barrett, and Henry Zarges, Petitioners, v. The Honorable John B. McMANUS, Jr., District Judge, Second Judicial District, Bernalillo County, New Mexico and Ronnie Ellis, Respondents.

No. 9091.

Supreme Court of New Mexico.

Nov. 2, 1970.

[82 NM 108] James A. Maloney, Atty. Gen., Mark B. Thompson, III, Asst. Atty. Gen., Santa Fe, for petitioners.

McAtee, Marchiondo & Michael, Pat Chowning, Albuquerque, for respondents

OPINION

WATSON, Justice.

Having issued an alternative writ of prohibition, we must how decide whether to make the same permanent. Our alternative writ prohibited the respondent district judge from proceeding further in Cause No. A48680, District Court of Bernalillo County. There, the respondent, on the petition of Ronnie Ellis, a jockey, had entered an ex parte order temporarily restraining petitioners from enforcing a suspension of Ellis, required by an order of La Mesa Racetrack Board of Racing Stewards. Their order suspended Ellis for seven calendar days for careless riding.

The New Mexico Racing Commissioners are appointed by the governor with the advice and consent of the senate. Sections 60--6--2 and 60--6--2.1, N.M.S.A., 1953 Comp. The Commission may make rules and regulations governing the conduct of races, § 60--6--2, supra, and may appoint representatives to oversee the races, require observation of the rules and avoid violations. Section 60--6--7, N.M.S.A., 1953 Comp. The Commission has designated as its representatives three stewards for the supervision of each racetrack. The Board at La Mesa joins as petitioner herein.

Pursuant to their statutory authority the Commissioners have adopted rules and regulations. Rules and Regulations governing Horse Racing, filed June 9, 1969, with the State Commission of Public Records & Archives. All persons engaged in racing, their employees, and concessionaires are licensed annually. Rule 4.01, supra. Whenever the Commission or the stewards find that any person or licensee has violated the letter or spirit of the Rules of Racing, they may take disciplinary action in 'the form of a fine, suspension, revocation of license, or a combination of these penalties, or the ruling off for life.' Rule 24.01, supra. Any license holder aggrieved by any order of the stewards may protest and make a written request for a hearing before the Commission within ten days after issuance of the protested order. Rules 25.01, 25.02, and 25.03, supra. He will be granted a hearing, will be given specification of the charges if requested, may appear personally or by counsel, and may receive a transcript of the record if paid for by him. Rules 25.04, 25.05, and 25.07, supra. The decision of the Commission is final. Rule 25.06, supra.

We are at once struck with the apparent failure of Ellis to exhaust the administrative remedies provided by the rules mentioned above. However, we note that the respondent did exercise jurisdiction in this case, implicit in which action is the determination by him, on the facts presented, that all jurisdictional prerequisites had been met. Thus, in order for us to find a lack of jurisdiction on the ground of failure to exhaust administrative remedies, we have to review a determination by the trial court which it had power to make, and this is not a proper inquiry for this court on prohibition. We explain.

The difficulty of determining whether the jurisdictional question is one for our decision in a prohibition action or one to be determined by the district judge and only reviewed by us on appeal has been fully recognized by this court. The problem was discussed in State ex rel. Kermac Nuclear Fuels Corp. v. Larrazolo, 70 N.M. 475, 375 P.2d 118 (1962), where we said:

'The correct rule is that announced generally in Gilmore v. District Court, etc. (35 N.M. 157, 291 P. 295 (1930)), supra, and applied specifically in a workmen's compensation case in State ex rel. St. Louis, Rocky Mountain & Pacific Co. v. District Court, etc. (38 N.M. 451, 34 P.2d 1098 (1934)), supra, to the effect that jurisdiction being present of both the subject matter and the parties, ordinarily prohibition will not issue, and further that the question was not whether the court had a right to decide the issue in a particular way, but did it have the right to decide it at all.' 70 N.M. at 481, 375 P.2d at 122.

The rule was thus stated by Justice Sadler in State ex rel. Heron v. District Court of First Jud. Dist., 46 N.M. 296, 128 P.2d 454 (1942):

'We think it fair to say of our decisions on the question when to prohibit, in line with what has just been quoted from State ex rel. St. Louis, Rocky Mountain & Pacific Co. v. District Court of Eighth Judicial District, supra, that if, absent prohibition in the given case, the judgment therein rendered, unless reversed for error on direct review, would be binding on the parties and not subject to collateral attack as a mere nullity, then prohibition will not lie; otherwise it will.' 46 N.M. at 302, 128 P.2d at 458.

See also State v. Patten, 41 N.M. 395, 69 P.2d 931 (1937), where the distinction between 'jurisdiction' and 'exercise of jurisdiction' is made.

If we have departed from the rules above quoted, or drawn the line too far in favor of our determination of the jurisdictional question in State ex rel. Attorney General v. Reese, 78 N.M. 241, 430 P.2d 399 (1967); State ex rel. Board of Education v. Montoya, 73 N.M. 162, 386 P.2d 252 (1963); or in State ex rel. State Corporation Comm. v. Zinn, 72 N.M. 29, 380 P.2d 182 (1963), we hereby reaffirm the rule as set forth in State ex rel. Kermac Nuclear Fuels Corp. v. Larrazolo, supra. See Peyton v. Nord, 78 N.M. 717, 437 P.2d 716 (1968).

Under the rules just discussed, it was the duty of the respondent to examine the facts presented upon which his jurisdiction depended, and since respondent exercised jurisdiction, he implicitly made that determination. We cannot believe that such a determination could be successfully attacked collaterally, and thus we cannot prohibit respondent, under the authorities cited above.

Our inquiry, however, does not end merely because of this determination. Petitioners earnestly contend that since this case is one involving great public interest and importance to the people of the state, we should exercise our superintending control, through the writ of prohibition, in order to determine whether the trial court should have acted as it did. There is authority for such a course. In State ex rel. Townsend v. Court of Appeals, 78 N.M. 71, 428 P.2d 473 (1967), we said:

'* * * Also, prohibition will lie even where there is a remedy by appeal, where it is deemed to be in the public interest to settle the question involved at the earliest moment * * *.' 78 N.M. at 74, 428 P.2d at 476.

The same reasoning has been used in the cases of State ex rel. Castillo Corp. v. New Mexico State Tax Comm., 79 N.M. 357, 443 P.2d 850 (1968); State ex rel. Gomez v. Campbell, 75 N.M. 86, 400 P.2d 956 (1965); and State ex rel. West v. Thomas, 62 N.M. 103, 305 P.2d 376 (1956); all of which involved writs of mandamus which were issued solely because of the great public importance of the questions involved and which would not otherwise have properly issued. Therefore, our inquiry now becomes: Is the question here involved one of great public importance requiring the use of our power of superintending control?

In examining the circumstances we find that in 1969, 705,689 persons attended races during 190 racing days at the four state-licensed tracks. Over 35 million dollars were wagered, of which $739,404.00 was paid to the State after deducting all expenses of supervision. New Mexico State Racing Commission 1968--1969 Biennial Report, filed February 3, 1970 with the State Commission of Public Reocrds & Archives. Respondents do not deny the public interest nor dispute the evidence submitted to us pursuant to Supreme Court Rule 24(5) (§ 21--2--1(24)(5), M.M.S.A., 1953 Comp.), of the frequency of small fines and seven-day suspensions imposed by the stewards on the State's racetracks. For example, on June 21 and 22, 1970, three 7-day suspensions, six $25.00 fines, and one $50.00 fine, all for riding violations, were imposed upon jockeys by the stewards at Ruidoso Downs. On June 22, 1970, two 7-day suspensions for riding violations were imposed at La Mesa Park, where Ellis received a similar suspension on June 29. The Attorney General complains of the frequency of the receipt of temporary restraining orders from the courts which are entered after ex parte hearings permitting the jockey to ride. Thus he states the court, rather than the Commission acts as the umpire at the racetracks.

Although this continuing problem is one of great importance to the State in its policing of this gambling activity, taken separately the penalty involved in each case is generally so small that the probability of a case reaching us on appeal is remote. All jockeys licenses expire at the end of each year. A jockey, whose lincense is suspended toward the end of the season, might not be interested in either pursuing his administrative remedies or in further litigation. Thus the matter in many cases would become moot.

It appears that the problem is not only one of publici juris, but our refusal to entertain jurisdiction might amount to a denial of justice. For these reasons we will resort to our extraordinary writ, State ex rel. Owen v. Van Stone, 17 N.M. 41, 121 P. 611 (1912), and examine the entire matter in order to determine what result should have been reached.

Because the respondent district judge had already entered his order staying the suspension order of the stewards, a true writ of prohibition from this court may not be the...