Grainger v. Douglas Park Jockey Club

• Citation: 148 F. 513
• Decision Date: 27 October 1906
• Docket Number: 1,571.
• Parties: GRAINGER et al. v. DOUGLAS PARK JOCKEY CLUB.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

148 F. 513

GRAINGER et al. v. DOUGLAS PARK JOCKEY CLUB.

No. 1,571.

United States Court of Appeals, Sixth Circuit.

October 27, 1906

D. W Saunders and Lewis McQuown, for appellants.

H. W Bond and Helm Bruce, for appellee.

Before LURTON and SEVERENS, Circuit Judges, and COCHRAN, District judge.

COCHRAN District Judge.

This is an appeal from an interlocutory order granting a preliminary injunction. It was made May 24, 1906, in a suit brought May 15, 1906, by the appellee, a Kentucky corporation created and organized December 12, 1905, against the appellants, Charles F. Grainger, Louis des Cognets, J. P. Chinn, Milton Young and E. F. Clay, all citizens of Kentucky. All of the appellants except Charles F. Grainger reside in the Eastern district of Kentucky, but the appellee has its place of business, and hence resides, in the Western district. Diversity of citizenship not existing, the lower court did not have jurisdiction of the suit on that ground. The sole ground of jurisdiction was that the basis of the relief sought was state action claimed to have been in violation of the tenth section of the first article of the federal Constitution and the fourteenth amendment thereto. This being so, this court will not have jurisdiction of an appeal from the final decree therein. That must go to the Supreme Court. It has jurisdiction of this appeal from said interlocutory order by virtue of the Act of Congress of April 14, 1906 (chapter 1627, 34 Stat. 116), amending the seventh section of the act establishing the Circuit Courts of Appeals (Act March 3, 1891, c. 517, 26 Stat. 828 (U.S. Comp. St. 1901, p. 550)) so as to give them jurisdiction of an appeal from an interlocutory order or decree granting or continuing an injunction or appointing a receiver 'in any cause' instead of in 'a cause in which an appeal from a final decree may be taken under the provisions' of said act to the Circuit Court of Appeals as before.

The douglas Park Jockey Club was empowered by its charter to acquire, equip, and operate in Jefferson county, Ky., within which the city of Louisville is located, a race track for running horses, and prior to the bringing of this suit it had acquired 125 acres of land adjoining said city and equipped it for said purpose at an expense of $225,000. The most, if not all, of this expense was incurred prior to the doing of any of the acts complained of in said suit.

The five individual appellants are the constituent members of the state racing commission appointed April 2, 1906, by the Governor of Kentucky, under an act of the Legislature thereof, approved by him March 23, 1906, and which then became a law by virtue of an emergency clause. Said act is as follows:

'An act to regulate the racing of running horses in the commonwealth of Kentucky and to establish a state racing commission and prescribing its powers and duties.

'Be it enacted by the General Assembly of the commonwealth of Kentucky'

'Section 1. 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; but no person or persons other than the owner or owners of a horse or horses contesting in a race shall have any pecuniary interest in the purse, prize, premium or stake contested for in such a race, or be entitled to, or receive any portion thereof after such race shall have been finished; and the whole of such purse, prize, premiums or stake shall be allotted in accordance with the terms and conditions of such race. Such meeting shall not be held except during the period extending from the 1st day of April, to the 1st day of December, inclusive in each year. No running races are authorized or shall be permitted except during the period aforesaid, nor except between sunrise and sunset.

'Sec. 2. A state racing commission is hereby established to consist of five persons to be appointed by the Governor, three of whom shall be breeders and raisers of thoroughbred stock, and no two of whom shall be members of the same racing association. The members of said commission shall hold their offices for a term of four years, and the first commission shall be appointed within twenty days after this act shall go into effect. Such commission shall appoint a secretary, who shall serve during its pleasure, whose duty it shall be to keep a full and faithful record of its proceedings, and preserve at its general office all books, maps, documents and papers intrusted to its care, and perform such other duties as the commission may prescribe. He shall be paid a salary, to be fixed by the commission at a rate not exceeding $1,200 per annum which shall be paid by the several racing corporations or associations, the amounts to be paid by each to be apportioned by the commission, which shall on or before the 1st day of December in each year assess upon each of said corporations or associations its just proportion of such salary. The commission shall biennially make a full report to the General Assembly of its proceedings for the two year period ending with the 1st day of December preceding the meeting of the General Assembly, and shall embody therein such suggestions and recommendations as it shall deem desirable.

'Sec. 3. 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. Any corporation or association desiring to conduct such racing may annually apply to the state racing commission for a license to do so. If in the judgment of the commission a proper case for the issuance of such license is shown, it may grant the same for a term of one year; 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 continuance of such license shall be deemed by the commission not conducive to the interests of legitimate racing.

'But if said license is refused or revoked, said commission shall publicly state its reasons for so doing, and said reasons shall be written in full in the minute book of said commission, which shall at all times be subject to inspection upon application of any one desiring to do so; said finding of said commission shall be subject to the review of a court of competent jurisdiction; provided, that a refusal of the commission to grant to any racing association a license or to assign any racing association at least forty days in each year if desired for racing at such association, and the decision of such commission revoking any license of any association shall be subject to review of the courts of the state.

'Sec. 4. Every running race meeting at which racing shall be permitted for any state, purse or reward, except as allowed by this act, is hereby declared to be a public nuisance, and every person acting or aiding therein shall be deemed guilty of a misdemeanor and punished by a fine of not less than $500 nor more than $1,000 for each day of such meeting or racing; and in addition thereto, in a suit brought for the purpose by the state racing commission in the circuit court of the county where it may be proposed to conduct such unauthorized racing, an injunction may be obtained against the same.

'Sec. 5. This act shall not apply to trotting meetings or races, nor shall it apply to racing conducted by any state, county or other fair association, holding not more than one meeting annually, and for a period not exceeding six days for such meeting.

'Sec. 6. Inasmuch as there is no general law regulating racing in this commonwealth, and it is desirable that one should be in operation as soon as possible, and emergency is hereby declared to exist and this act shall be in full force and effect from and after its passage.'

Its provisions can be stated and grouped in a way to impress them on one's mind, and we think, though at the risk of tediousness, that this should be done.

This act has no application to trotting races. It applies only to running races. It has no application to such races when conducted by any state, county, or other fair association holding not more than one meeting annually and for a period not exceeding six days for such meeting. It prohibits running races not so conducted, except when conducted by a corporation or association formed for that purpose, and by such corporation or association unless licensed by the commission so to do. It further prohibits a corporation so formed and licensed from running such races except between April 1st and December 1st, inclusive, in each year, and between sunrise and sunset. It provides that no one save the owners of the horses participating in the races shall have any pecuniary interest in the stakes contested for or be entitled to or receive any portion thereof, and that the commission shall have power to prescribe the rules, regulations, and conditions under which races shall be conducted.

As to the granting of licenses, it provides that they shall be granted annually; that they shall be for the term of one year; that they shall be granted if in the judgment of...