Greyhound Park of Eugene v. Oregon Racing Commission

• Decision Date: 10 December 1958
• Parties: GREYHOUND PARK OF EUGENE, an Oregon corporation, Appellant, v. OREGON RACING COMMISSION, and Dr. Frank Menne, C. A. Huntington, Robert T. Mautz, Wilbur Stadleman, and Thaddeus Bruno, its Commissioners, Respondents.
• Court: Oregon Supreme Court

Page 634

332 P.2d 634

215 Or. 76

GREYHOUND PARK OF EUGENE, an Oregon corporation, Appellant, v. OREGON RACING COMMISSION, and Dr. Frank Menne, C. A.

Huntington, Robert T. Mautz, Wilbur Stadleman, and

Thaddeus Bruno, its Commissioners, Respondents.

Supreme Court of Oregon, Department 1.

Argued and Submitted Dec. 4, 1958.

Decided Dec. 10, 1958.

Sidney A. Milligan, Eugene, Milligan & Brown, Eugene, on the brief, for appellant.

Scott M. Kelley, Sp. Asst. Atty. Gen., Robert Y. Thornton, Atty. Gen., on the brief, for the Oregon Racing Commission.

Before PERRY, C. J., and ROSSMAN, McALLISTER, and O'CONNELL, JJ.

McALLISTER, Justice.

This is a proceeding in mandamus brought in the circuit court for Marion county by the petitioner, Greyhound Park of Eugene, a corporation, to compel the defendant, Oregon Racing Commission, to issue to petitioner a license to conduct a race meet in Lane county during the year 1955. The circuit court entered judgment for the defendant and petitioner has appealed.

The amended alternative writ of mandamus alleged, and the defendant in its answer to the writ admitted, that on November 3, 1954, the plaintiff, pursuant to ORS ch. 462, filed with the commission an application for a license to hold a greyhound race meet in Lane county during 1955; that the petitioner was qualified to conduct a greyhound race meet in Oregon; and that the application was in proper form. It is further admitted that the application was presented to the commission on December 11, 1954 and on the same day was denied.

ORS 462.010 defines a race meet to mean an exhibition of animal racing where the mutual system is used. ORS 462.020 provides that no person shall hold any race meet without a license therefor issued by the commission. ORS 462.120 contains a variety of limitations on the number and kinds of race meets to be held on any one track in any one county in any one year. It is clear from a reading of the act that the commission may issue a license only for a particular race meet to be held on a particular track between May 1st and November 1st during a period of not more than 60 days as designated by the commission. The act clearly requires a separate application for each race meet. This is the contemporaneous construction of the act by the commission. Its rules adopted April 15, 1933 provide that licenses for racing shall be granted annually.

The petitioner filed its application for an alternative writ of mandamus on February 11, 1955. The defendant filed a motion to require the petitioner to make the writ more definite and certain, which motion was allowed in part. An amended alternative writ was thereupon filed on March 15, 1955 and the answer of the defendant thereto was filed on March 25, and petitioner's reply on March 30, 1955. On April 25, 1955 the trial judge notified counsel for both parties that he desired to hear and decide the matter as soon as possible, but for some reason which does not appear in the record, the matter did not come on for trial until January 30, 1956. On February 29, 1956, the court entered its findings of fact and conclusions of law and a judgment dismissing the proceedings.

The mere statement of the history of this proceeding demonstrates that it is now moot and was moot when it was tried in the lower court. It is obvious that petitioner would receive no benefit from the issuance now of a license to conduct a race meet in 1955.

This court has consistently followed the well-established rule that it will not consider an appeal if the question presented has become moot, or if lapse of time has rendered it impossible for the court to grant effectual relief. The rule was concisely stated in the earlier case of State ex rel. Lord v. Grand Jury, 37 Or. 542, 62 P. 208, as follows:

'* * * An appellate court, like every other judicial tribunal, is empowered to decide actual controversies only, and not to give opinions upon mooted questions, or mere abstract propositions of law. The rule is general, therefore, that when an event occurs pending an appeal which renders it impossible for the court to grant the relief sought, it will not proceed to final judgment, but will dismiss the appeal [citing cases]; and, as said by the supreme court of the United States, in [People of State of] California v. San Pablo & T. R. Co. [149 U.S. 308, 13 S.Ct. 876, 37 L.Ed. 747] 'no stipulation of parties or counsel, whether in the case before the court or in any other case, can enlarge the power or affect te duty of the court in this regard.''

The above rule has been applied frequently by this court in mandamus proceedings. Callbeck v. Kell, 211 Or. 640, 317 P.2d 589; Makinson v. Board of Directors, School District No. 4, 209 Or. 232, 304 P.2d 1076; Oregon State Grange v. McKay, 193 Or. 627, 238 P.2d 778, 239 P.2d 834; Perry v. Oregon Liquor Commission, 180 Or. 495, 177 P.2d 406; State ex rel. King v. Webster, 58 Or. 376, 114 P. 932; and State ex rel. Ford v. Fields, 53 Or. 453, 101 P. 218. The rule has been applied by other courts in cases involving applications for licenses when the term for which the license would have been effective had expired before the appeal could be determined. Frenkel v. State ex rel. Johnson, 89 Fla. 74, 104 So. 857; Cravey v. Bankers Life & Cas. Co., 209 Ga. 273, 71 S.E.2d 659; Central States Import & Export Corp. v. Illinois Liquor Control Comm., 405 Ill. 58, 89 N.E.2d 903; National Jockey Club v. Illinois Racing Comm., 364 Ill. 630, 5 N.E.2d 224; and People ex rel. Cairo Turf Club...