Arkansas State Racing Commission v. Southland Racing Corp.

Decision Date19 November 1956
Docket NumberNo. 5-1066,5-1066
Citation295 S.W.2d 617,226 Ark. 995
CourtArkansas Supreme Court

Wood & Smith, Little Rock, for appellant.

Goldstein & Smith, West Memphis, and Barrett, Wheatley, Smith & Deacon, Jonesboro, for appellee.

W. H. Dillahunty, West Memphis, amicus curiae.


This is a suit by Southland Racing Corporation for a mandatory injunction to require the Arkansas State Racing Commission to issue to Southland a license for the operation of a greyhound race track in Crittenden county. The chancellor overruled the Commission's demurrer to the complaint and, upon the Commission's refusal to plead further, entered a decree for the plaintiff. Three issues of law are presented by the appeal.

First, it is contended that the Crittenden chancery court had no jurisdiction of the case, for the reason that the venue in actions against State boards must be laid in Pulaski county. Ark.Stats.1947, § 27-603. Despite the settled rule that an objection to venue is waived by a defendant who enters his appearance by the filing of a demurrer, the appellant insists that a different rule for State officers was announced in Arkansas Highway Comm. v. Holt, 190 Ark. 868, 81 S.W.2d 929.

We are unable to agree with this contention. The Holt case was decided in the interval during which it was held that the legislature could constitutionally consent to suits against the State Highway Commission--a view later rejected in Arkansas State Highway Comm. v. Nelson Bros., 191 Ark. 629, 87 S.W.2d 394. The Holt case did not involve, as this one does, the general statute fixing the venue of suits against public officers. There the court considered only an act applying specially to suits against the Highway Commission. Ark.Stats. § 76-232. Byt that act the legislature gave its consent to such suits but declared that they 'shall be brought only at the seat of government, in Pulaski County'. We held that the statute was a limitation upon jurisdiction and could not be enlarged by an entry of appearance on behalf of the Highway Commission.

The case at bar is not a suit against the State itself, which at the time of the Holt decision could be maintained only with the express consent of the legislature. Here Southland simply seeks a mandatory injunction to compel the performance of a ministerial duty--a common-law cause of action that exists in the absence of statute. The statute providing that suits against State officers and boards must be brought in Pulaski county relates only to venue, not jurisdiction, and falls within the general rule that the issue of improper venue may be waived. In jurisdictions having similar laws it is held that the statutory venue is a personal privilege for the benefit of the public officer and may be waived by him. Tullis v. Brawley, 3 Minn. 277; Howland v. Willetts, 5 Sandf.,N.Y., 219, affirmed 9 N.Y. 170; McConihe v. Palmer, 76 Hun 116, 27 N.Y.S. 832. This rule is manifestly sound, for situations might often arise in which both parties would prefer, for reasons of convenience, to have the case tried in the county where the cause of action arose. We therefore hold that the question of venue is not a jurisdictional issue that can be asserted after the entry of the Commission's appearance.

Second, on the merits the principal issue is whether the Racing Commission has been invested with unlimited discretion to deny an application for a license when the applicant has met all the requirements exacted by the legislature. The governing statute reads as follows: 'Any person, firm, association, or corporation, desiring to apply for a permit under this act must make known to the Commission the name of the person, firm, association, or corporation, and if a corporation, the State under which incorporated, the location where it is desired to conduct or hold a greyhound race meeting, and such other information as the Commission may require; also that they have a plant which is completed and ready for operation, and it will then be the duty of the Commission to inspect said plant at the expense of the applicant, and if the plant is found to be in good condition and completed, the Commission may grant the license provided the officers and directors are reputable citizens of the State of Arkansas and have filed the necessary bond as required in this act.' Ark.Stats. § 84-2805.

The complaint alleges that Southland has complied with the statute in every particular, in that it has completed a plant at a cost of about one million dollars, that the Commission has inspected the plant and made no objection to it, that Southland has tendered the required bond, and that its officers and directors are reputable citizens of the State. The complaint avers, and the demurrer concedes, that in spite of Southland's strict compliance with the law the Commission has denied the application upon the ground 'that the granting of a permit would not serve the best interests of the State of Arkansas.'

The controversy centers upon the statutory provision that the Commission may grant the license: is the word 'may' used in its permissive or in its mandatory sense? It is of course a familiar rule of statutory construction that 'may' is to be construed as 'shall' when the context of the statute so requires. Washington County v. Davis, 162 Ark. 335, 258 S.W. 324; Viking Freight Co. v. Keck, 202 Ark. 656, 153 S.W.2d 163, 167. Indeed, this interpretation is so well known that it is uniformly recognized in dictionary definitions of 'may.' See Webster's New International Dictionary (2d Ed.); Funk & Wagnalls New Standard Dictionary (1949).

It goes without saying that in every instance the problem is that of ascertaining the legislative intent. In contending that the present statute evinces an intention to leave the matter wholly to the Commission's discretion the appellant stresses the use of the word 'may' and relies strongly upon our decision in Cook v. Glazer's Wholesale Drug Co. of Ark., 209 Ark. 189, 189 S.W.2d 897. It is apparent, however, that the mere use of the word 'may' cannot be conclusive, for then the term could never be construed as being mandatory. Nor is the Cook case parallel to this one. There the statute, Ark.Stats. § 48-301, was explicit in stating that the Commissioner of Revenues 'is further given the discretion to determine the number of permits...

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