Douglas Park Jockey Club v. Talbott

• Decision Date: 06 February 1917
• Parties: DOUGLAS PARK JOCKEY CLUB v. TALBOTT ET AL.
• Court: Kentucky Court of Appeals

191 S.W. 474

173 Ky. 685

DOUGLAS PARK JOCKEY CLUB v. TALBOTT ET AL.

Court of Appeals of Kentucky.

February 6, 1917

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.

Suit by the Douglas Park Jockey Club against T. H. Talbott and others, as the Racing Commission of Kentucky. On plaintiff's refusal to plead further after demurrer to the petition was sustained, the petition was dismissed, and plaintiff appeals. Affirmed.

Baskin & Vaughan, of Louisville, and Harvey Myers, of Covington, for appellant.

John T Shelby, of Lexington, Fred Forcht, of Louisville, and Shelby Northcutt & Shelby, of Lexington, for appellees.

CLARKE J.

The Kentucky state racing commission on September 1, 1916 adopted the following rule:

"That no purse less than $800.00 shall be given by any race track within ten miles of a city of 200,000 population or $600.00 by any other track, for races, run by horses, at a meeting held under the authority of this commission."

Appellant, which owns and operates a race track within ten miles of Louisville, Ky. a city having a population of over 200,000, brought this action against the racing commission seeking to enjoin the enforcement of the above rule, claiming: First, that the Legislature cannot delegate to the racing commission power to fix the amount of the purses; second, that it did not in fact delegate such power; and, third, that the rule adopted by the commission is a discrimination in favor of the Lexington track, which, under the rule, is required to give purses not less than $600, and deprives appellant of its property without due process of law, and denies it the equal protection of the laws, in violation of the Fourteenth Amendment to the Constitution of the United States. Plaintiff's motion for a temporary injunction to restrain the enforcement of the rule was overruled, and defendant's demurrer to the petition was sustained. Plaintiff declining to plead further, its petition was dismissed, and it has appealed.

Section 1 of the act (Kentucky Statutes, § 3990a) provides that:

"Any corporation formed for the purpose of racing and breeding or improving the breed of horses and conducting races and contests of speed, shall have the power and right, subject to the provisions of this act, to hold one or more running race meetings in each year, and to hold, maintain and conduct running races at such meetings. At such meetings the corporation or the owners of the horses engaged in such races, or others who are not participants in the racing, may contribute purses, prizes, premiums or stakes to be contested for."

It will be noticed, first, that the corporation which is authorized to contribute purses, etc., to be contested for must be one that is formed for the purpose of "racing and breeding or improving the breed of horses," etc., not racing alone, and that such corporation has the power and right to hold race meetings only subject to the provisions of the act.

Section 2 of the act creates a state racing commission, and section 3 provides, in part, as follows:

"Said commission shall have the power to prescribe the rules, regulations and conditions under which running races shall be conducted in this state, and no such races shall be conducted except by a corporation or association duly licensed by said commission, as herein provided. * * * And every such license shall contain a condition that all races or race meetings conducted thereunder shall be subject to the rules, regulations and conditions from time to time prescribed by the commission, and shall be revocable by the commission for any violation thereof, or whenever the continuation of such license shall be deemed by the commission not conducive to the interests of legitimate racing."

And a review is permitted by a court of competent jurisdiction of the action of the commission in refusing to issue, or revoking a license, or refusing to assign racing dates.

By section 4 of the act every running race meeting, except as allowed by this act, is declared to be a nuisance, punishable as a misdemeanor, and subject to abatement by injunction.

Section 5 limits the application of the act to running races.

In State Racing Commission v. Latonia Agricultural Ass'n, 136 Ky. 173, 123 S.W. 681, 25 L.R.A. (N. S.) 905, this court declared the act to be constitutional and valid; that its purpose is to foster the industry of breeding thoroughbred horses in the state; that it is a police regulation, outlawing all racing, except as licensed by the commission, who shall in advance prescribe the general conditions upon which the license may be obtained; and that it invests the commission with the power to ascertain the fact whether or not a given applicant for license is so situated as to conduct orderly, lawful public races, "to ascertain and set forth the particular states of fact that will promote the breeding of thoroughbred horses, and the conducting of legitimate races, and to prohibit the evil of unlawful gambling on the race courses."

1. Appellant's first insistence is that the Legislature cannot delegate to the racing commission the power to fix the amount of the purses; that the fixing of purses is a legislative act that the Legislature cannot delegate. The error in this position is in the assumption that the fixing of a minimum purse by the commission as a condition precedent to the operation of a race track is a legislative function, which it clearly is not. The Legislature has declared the law to be that all racing is unlawful, except upon such conditions as will promote the breeding of thoroughbred horses in the state, and prevent unlawful gambling, and at the same time delegated to the commission the power to ascertain and prescribe the rules and regulations that will accomplish this result. To ascertain and prescribe the conditions or facts that will promote the industry of breeding thoroughbred horses, and prevent unlawful gambling, is a ministerial act, and is not an act of legislation. The act of legislation is the prohibition of racing, except upon certain conditions, while the act of ascertaining the facts that will promote the industry of breeding thoroughbred horses, and prevent unlawful gambling in the state, is altogether and purely ministerial.

Assuming for the moment, that some regulation of purses is a necessary condition precedent to the right to operate a race track, if the legislative purpose in enacting the law is to be accomplished, is it not apparent that the ground upon which the rule can be attacked, if at all, is upon its reasonableness or its lack of justification upon the facts? But it is not attacked upon this ground, but upon the basis that any attempt to regulate the amount of the purses, by the commission is ultra vires. If appellant's contention is sustained, the commission is without authority to regulate in any way the purses to be offered, and the appellant may, if it so elects, offer only nominal purses, or no purses at all, even though such action should result in participation in the races of only the most inferior of thoroughbred horses, or even "scrubs," and afford only an opportunity for gambling, in no wise fostering or encouraging the breeding of thoroughbred horses in the state. While it is, of course, not insinuated that a...