Colorado Racing Commission v. Columbine Kennel Club, Inc.

• Decision Date: 01 February 1960
• Docket Number: No. 19014,19014
• Citation: 141 Colo. 497,348 P.2d 954
• Parties: COLORADO RACING COMMISSION, and F. Richard Hite, Ben T. Poxson and Emmett J. Dignan, as members of Colorado Racing Commission, and H. E. Christensen, as Executive-Secretary of Colorado Racing Commission, Plaintiffs in Error, v. COLUMBINE KENNEL CLUB, INC., Defendant in Error.
• Court: Colorado Supreme Court

Page 954

348 P.2d 954

141 Colo. 497

COLORADO RACING COMMISSION, and F. Richard Hite, Ben T Poxson and Emmett J. Dignan, as members of Colorado Racing Commission, and H. E. Christensen, as Executive-Secretary of Colorado Racing Commission, Plaintiffs in Error, v. COLUMBINE KENNEL CLUB, INC., Defendant in Error.

No. 19014.

Supreme Court of Colorado, En Banc.

Feb. 1, 1960.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John W. Patterson, Asst. Atty. Gen., for plaintiffs in error.

William B. Paynter, Richard B. Paynter, Earl G. Eby, Fort Morgan, for defendant in error.

MOORE, Justice.

We will refer to plaintiffs in error as the Commission and to defendant in error as Columbine.

Columbine submitted an application to the Commission seeking a license to operate a greyhound race track between the cities of Brush and Fort Morgan in Morgan county, Colorado. A hearing on said application was held in the court house at Fort Morgan on November 26, 1958, at which time a number of witnesses were heard by the Commission. A majority of these witnesses favored granting the license but the record discloses that most of them were interested financially in Columbine either as officers, directors, stockholders or employees; or in a most unusual contract between Columbine and the Brush Racing Association, operator of an existing horse racing track at Brush. Several petitions containing signatures of approximately two hundred persons opposing the granting of the application and asking the Commission to deny the same, were introduced.

The Commission denied the application by resolution adopted on December 15, 1958. The action of the Commission was communicated to Columbine by letter signed by the Executive Secretary of the Commission. The body of the letter was as follows:

'The Colorado Racing Commission has met this day for the purpose of considering your application for license to operate a race track for greyhound racing and all members of the commission have considered the complete file in this regard.

'The Commission finds that there are 238 racing days licensed in and near Denver, Colorado at five different race tracks all of which are patronized by Denver area people; therefore, there is approximately 1 race day per 3,000 persons in such area. In other large metropolitan areas the ratio is 1 racing day to approximately 18,000 persons.

'The Commission further finds that there was considerable protest from the inhabitants of the area of Fort Morgan and Brush in respect to the granting of your application.

'After considering the general sentiments of the communities involved and the character and population of such area, and further considering the best interests of the State and racing industry the Commission does hereby deny the application.'

In appropriate proceedings in the nature of certiorari the district court reversed the order of the Commission, ordered the license to issue and entered judgment accordingly. The Commission is here by writ or error directed to the judgment of the district court.

In November, 1954, this court decided the case of Cloverleaf Kennel Club. v. Racing Commission, 130 Colo. 505, 277 P.2d 226. The majority opinion in that case held that under the statute as it then existed the Commission could deny a license only on the grounds specified therein. The dissenting opinion in that case, concurred in by three justices, was based upon the view that the statute required the Commission to deny applications on the grounds specified, but vested a wide discretion in the Commission to deny applications on grounds other than those specifically prohibited.

The General Assembly which convened in January 1955, motivated by the...