| Garden State Racing Association v. Commission

• Citation: 48 A.2d 569,134 N.J.L. 391
• Decision Date: 29 July 1946
• Court: New Jersey Supreme Court
• Parties: GARDEN STATE RACING ASSOCIATION, PROSECUTOR, v. NEW JERSEY RACING COMMISSION ET AL., DEFENDANTS

134 N.J.L. 391

48 A.2d 569

GARDEN STATE RACING ASS'N

v.NEW JERSEY RACING COMMISSION et al.

Supreme Court of New Jersey.

July 30, 1946.

Proceeding on application for a writ of certiorari by Garden State Racing Association to review the action of the New Jersey Racing Commission taken to enforce and collect additional taxes imposed upon the Garden State Racing Association.

Application denied.

Samuel P. Orlando, of Camden, for prosecutor.

Walter D. Van Riper, of Newark, for defendants.

DONGES, Justice.

This matter is before the court on notice of an application for a writ of certiorari ‘to review the action of the New Jersey Racing Commission taken to enforce and collect the additional taxes imposed upon the Garden State Racing Association, under Chapter 169, Pamphlet Laws 1946, R.S. 5:5-64, N.J.S.A.’

This statute imposes a tax upon the socalled breakage which arises by reason of the calculations of the pari mutual system of betting conducted at horse race tracks, and differentiates between the amount of such tax to be paid by horse tracks during their first two years of operation and those operated longer than two years, the prosecutor's track being the only one in the State that has presently operated more than two years.This is asserted by prosecutor to be illegal discrimination and in contravention of our State Constitution and the Federal Constitution.

The Attorney General in limine raises the point that there is in existence no judgment, resolution, determination or action taken by the defendantRacing Commission which can be the subject of review by certiorari, and it seems to me that this objection is well taken.The form of writ submitted calls for certification of ‘said action, determination, finding of facts and construction of said statute,’ but the affidavit does not point out or allege the existence of any action or determination, or that there has been any hearing or finding of facts, and it is clear that a construction of a statute allegedly adopted by an administrative body is not subject to the issuance of a writ of certiorari.The affidavit alleged that the Commission is preparing to collect from the prosecutor, at its next horse race meeting, the taxes imposed by the statute, and that it has not collected or demanded of Monmouth Park Jockey Club taxes at the same rate which it plans to assess against the prosecutor.

It was said for the Court of Errors and Appeals in Clay v. Civil Service Commission, 89 N.J.L. 194, 98 A. 312, 313:

‘It is sufficient for the disposition of the matter to reiterate what was said by Mr. Justice Garrison, speaking for the Supreme...