Appeal of Little Balkans Foundation, Inc.

• Decision Date: 16 September 1988
• Citation: 247 Kan. 180,795 P.2d 368
• Parties: In the Matter of the Appeal of the LITTLE BALKANS FOUNDATION, INC., From Orders of the Kansas Racing Commission Dated
• Court: Kansas Supreme Court

Page 368

795 P.2d 368

247 Kan. 180

In the Matter of the Appeal of the LITTLE BALKANS FOUNDATION, INC., From Orders of the Kansas Racing Commission Dated September 16, 1988, as Extended and Modified by Orders Dated May 12, 1989, June 30, 1989, and October 13, 1989; Administrative Order No. 1; and Administrative Order No. 4 The LITTLE BALKANS FOUNDATION, INC., a nonprofit Kansas corporation, Appellant, v. The KANSAS RACING COMMISSION and the Racing Association of Kansas Southeast, Inc., a nonprofit Kansas corporation, Appellees.

Nos. 64244, 64460.

Supreme Court of Kansas.

July 13, 1990.

Syllabus by the Court

1. General principles applicable to statutory construction are stated and applied.

2. The right to appeal is entirely statutory and not a right vested in the United States or Kansas Constitutions; Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken within the time limitations and in the manner prescribed by the applicable statutes.

3. In two consolidated appeals by an unsuccessful applicant for an organization license pursuant to the Kansas Parimutuel Racing Act, K.S.A.1989 Supp. 74-8801 et seq., the record is examined and, as more fully explained in the opinion, it is held: This court lacks jurisdiction and the appeals must be dismissed.

Shelby P. Horn, Pittsburg, argued the cause and was on the briefs for appellant.

Janet A. Chubb, Asst. Atty. Gen., argued the cause and was on the brief for appellee Kansas Racing Com'n.

HOLMES, Justice:

This is a direct appeal by The Little Balkans Foundation, Inc., (Little Balkans) from various orders of the Kansas Racing Commission (KRC or Commission) regarding a proposed race track facility in Crawford County. The Racing Association of Kansas Southeast, Inc. (TRAK Southeast) was also joined as a respondent; however, it has filed no pleadings or briefs and apparently is content to ride upon the coattails of the KRC. The appellant has filed two separate appeals which have been consolidated in this court. Case No. 64,244 and case No. 64,460 are identical except that the latter case includes an order of the KRC which was issued after the filing of the earlier appeal. We dismiss for lack of jurisdiction.

On September 16, 1988, the KRC issued its order, designated 88 KRC 18, granting TRAK Southeast an organization license pursuant to the Kansas Parimutuel Racing Act, K.S.A.1989 Supp. 74-8801 et seq. (the Act). The order also granted Sunflower Racing, Inc., (Sunflower) a facility owner license and a facility manager license. Little Balkans was an unsuccessful applicant for the organization license granted to TRAK Southeast.

The various types of licenses subject to the jurisdiction of the KRC are defined in K.S.A.1989 Supp. 74-8802, which provides in part:

"As used in this act unless the context otherwise requires:

....

"(f) 'Facility manager licensee' means a person, partnership, corporation or association licensed by the commission and having a contract with an organization licensee to manage a racetrack facility.

"(g) 'Facility owner licensee' means a person, partnership, corporation or association, or the state of Kansas or any political subdivision thereof, licensed by the commission to construct or own a racetrack facility but does not mean an organization licensee which owns the racetrack facility in which it conducts horse or greyhound racing.

....

"(n) 'Organization licensee' means a nonprofit organization licensed by the commission to conduct races pursuant to this act and, if the license so provides, to construct or own a racetrack facility."

The organization license issued to TRAK Southeast is the one directly in issue here.

Order 88 KRC 18 provided that the term of the licenses was for a period of 25 years subject to annual and periodic review and each license was subject to a number of conditions to be complied with by the licensees. Because of the various conditions attached to each license, the KRC adopted the term "conditional organization license" in its original order of September 16, 1988, and in subsequent orders and proceedings. More will be said about the terminology applied to the licenses by the KRC later in this opinion.

On the same date, the KRC issued its administrative order No. 4 denying licenses to all other applicants, including the organization license sought by Little Balkans. TRAK Southeast and Sunflower, the successful applicants, had submitted applications in which Sunflower was to provide the actual funds for construction of the Crawford County racing facilities. The September 16, 1988, order granted Sunflower 150 days to submit to the KRC final loan documents necessary to assure construction of the facilities.

Thereafter, Sunflower experienced difficulty in securing the necessary financing and was granted numerous extensions of time by the KRC. The rather turbulent history of the attempt to establish dog racing in Crawford County is set forth at length in State, ex rel. Stephan v. Kansas Racing Comm'n, 246 Kan. 708, 792 P.2d 971 (1990), and need not be repeated here. Suffice it to say, Little Balkans is appealing from the September 16, 1988, order granting an organization license to TRAK Southeast; administrative order No. 4, of the same date, which denied the application of Little Balkans; orders issued May 12, 1989, and June 30, 1989, which granted Sunflower additional time to secure approved financing; and an order of October 13, 1989, which, in effect, cancelled the Sunflower licenses and clarified an order dated October 6, 1989. Apparently the KRC granted TRAK Southeast additional time to present a plan for a new facility owner/facility manager. Little Balkans stipulated in its reply brief that any issues relative to Sunflower are now moot since the Sunflower licenses have been cancelled.

One other order, administrative order No. 1 issued January 8, 1988, is also included by Little Balkans in this appeal. Administrative order No. 1 authorized the delegation of the day-to-day "management over the conduct of the races and the operation of the parimutuel system of wagering" from the organization licensee to the facility manager licensee. The order is not limited to Crawford County but is a general order applicable to all KRC licensees.

Little Balkans raises numerous issues in its attack upon the various KRC orders but, at the outset, we are faced with a jurisdictional challenge by the KRC. Before turning to the applicable jurisdictional statutes, it is necessary to first determine the nature of the licenses authorized by 88 KRC 18. Little Balkans contends that there are numerous conditions precedent which must be met before any license is issued and argues that the order granted TRAK Southeast nothing more than a conditional license and, therefore, 88 KRC 18 is not a final order. It contends that each order which granted TRAK Southeast and Sunflower additional time, or in any way modified the conditions of 88 KRC 18, is a new order subject to direct appeal under the Act. The KRC, on the other hand, contends 88 KRC 18 actually granted TRAK Southeast a license subject to certain specified conditions which, if not met, could result in a cancellation of the license as was done with the Sunflower owner and facility manager licenses. Thus, it contends, under the Act the appeal here is not timely as to certain orders and, as to others, is not the proper subject of a direct appeal to the Supreme Court.

Much of the confusion which has been injected into this appeal and other actions involving the KRC has resulted from terminology adopted by the KRC in which it repeatedly refers to the TRAK Southeast organization license, and other licenses authorized by the KRC, as "conditional licenses." Little Balkans now uses this language to bolster its argument that TRAK Southeast has not received an organization license but merely has the right to receive a license at some time in the future when all conditions in the order are met.

To determine the nature of the organization license contemplated by 88 KRC 18, it is necessary to consider and construe the statutory provisions of the entire Act. The general principles applicable to statutory construction were recently summarized in Bell v. Simon, 246 Kan. 473, 790 P.2d 925 (1990), wherein the court stated:

" 'The fundamental rule of statutory construction is that the purpose and intent of the legislature governs when the intent can be ascertained from the statute. In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible.' Harris Enterprises, Inc. v. Moore, 241 Kan. 59, Syl. p 1, 734 P.2d 1083 (1987).

" 'In determining legislative intent, courts are not bound to an examination of the language alone but may properly look into the causes which impel the statute's adoption, the objective sought to be attained, the statute's historical background and the effect the statute may have under the various constructions suggested.' In re Petition of City of Moran, 238 Kan. 513, Syl. p 2, 713 P.2d 451 (1986).

" 'When a statute is plain and unambiguous the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.' Randall v. Seemann, 228 Kan. 395, Syl. p 1, 613 P.2d 1376 (1980).

" 'Interpretation of a statute is a question of law, and it is the function of the court to interpret a statute to give it the effect intended by the legislature.' Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, 455, 691 P.2d 1303 (1984)." 246 Kan. at 476, 790 P.2d 925.

K.S.A.1989 Supp. 74-8813 covers in depth the procedure and duties of the KRC in the issuance of an...