Durousseau v. Nebraska State Racing Commission, No. 39874

• Court: Supreme Court of Nebraska
• Writing for the Court: Heard before WHITE; McCOWN
• Citation: 231 N.W.2d 566,194 Neb. 288
• Decision Date: 10 July 1975
• Docket Number: No. 39874
• Parties: L. J. DUROUSSEAU, Appellant, v. The NEBRASKA STATE RACING COMMISSION et al., Appellees.

Page 566

231 N.W.2d 566 194 Neb. 288 L. J. DUROUSSEAU, Appellant,
v.
The NEBRASKA STATE RACING COMMISSION et al., Appellees. No. 39874. Supreme Court of Nebraska. July 10, 1975.

Page 567

Syllabus by the Court

1. The Nebraska State Racing Commission has authority to bring an original action on its own motion to revoke any license issued by the commission where the holder has violated the rules and regulations of the commission.

2. Whether a proceeding be criminal or civil the procedures and procedural rules to be applied are those which are in effect at the date of the hearing or proceeding and not those in effect when the act or violation is charged to have taken place.

3. An administrative agency may take notice of general, technical, or scientific facts within its specialized knowledge, and may utilize its experience, technical competence, and specialized knowledge in the evaluation of the evidence presented to it.

4. If a judgment of dismissal is on the merits it operates to preclude subsequent relitigation of the same cause of action but if it is not on the merits it does not operate to preclude subsequent relitigation of the same cause of action.

5. An order of revocation of a license to engage in an occupation or profession will ordinarily not be disturbed on appeal in the absence of an abuse of discretion.

Nelson, Harding, Marchetti, Leonard & Tate, Kermit A. Brashear, II, Omaha, for appellant.

[194 Neb. 289] Edmund D. McEachen, Thomas E. Johnson, Baird, Holm, McEachen, Pedersen, Hamann & Haggart, Omaha, for appellees.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

McCOWN, Justice.

This is an appeal from a decree of the District Court for Douglas County, Nebraska, affirming an order of the Nebraska State Racing Commission revoking the jockey license of the appellant, L. J. Durousseau.

The appellant, L. J. Durousseau, is a professional race horse jockey who held a jockey license issued by the Nebraska State Racing Commission. In May 1974, he was riding as a jockey in a scheduled race meeting at Ak-Sar-Ben track in Omaha, Nebraska. At that time rule 18.19 of the Nebraska Rules of Racing, 1970, had been duly adopted, published, and filed, and was in full force and effect. 'No electrical or mechanical device or other expedient designed to increase or decrease the speed of a horse, (or that would tend so to do) other than the ordinary whip, shall be possessed by any one or applied by any one to a horse at any time on the grounds of an Association, during a Meeting whether in a race or otherwise.'

On May 9, 1974, after appellant had mounted his horse for the eight race, he was ordered to dismount. Several witnesses observed him drop an object to the ground. The object was picked up and identified as an electrical device, possession

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of which was prohibited by rule 18.19. On May 10, 1974, the board of stewards for the race track held an informal hearing and issued a ruling suspending the appellant for the balance of the Ak-Sar-Ben racing season. On the same day, appellant applied to the District Court for Douglas County and was granted a temporary restraining order permitting him to continue riding at Ak-Sar-Ben. On May 14, 1974, the appellant filed an appeal from the ruling of [194 Neb. 290] the board of stewards under rule 7.01 of the Nebraska Rules of Racing, 1970. That rule contained only skeletal provisions for practice and procedure. The commission set a hearing on the appeal for May 21, 1974, and at the beginning of the hearing appellant's counsel objected to the entire proceeding upon the ground that the commission and the board of stewards lacked jurisdiction to consider the matter because the commission had failed to adopt appropriate rules of procedure in contested cases as required by section 84--913, R.R.S.1943, and related statutes. The commission adjourned the hearing to consider the objection and no evidence or testimony was taken. Apparently because of the objection, the commission then initiated action to adopt rules of procedure in contested cases. After due notice, the commission conducted a public hearing on June 13, 1974, on the proposed new rules. On June 25, 1974, the commission adopted rules of practice and procedure covering hearings in contested cases. The new rules of practice and procedure were filed with the Secretary of State and the Clerk of the Legislature on June 26, 1974, and were thereafter in full force and effect. Rule 7.02 of the new rules of practice and procedure specifically provides that the new rules govern any hearing initiated by the racing commission upon its own motion pursuant to any matter within its jurisdiction, including, but not to be limited...