Greyhound Parks of Ariz., Inc. v. Waitman

• Decision Date: 06 February 1970
• Docket Number: No. 9815,9815
• Citation: 105 Ariz. 374,464 P.2d 966
• Parties: GREYHOUND PARKS OF ARIZONA, INC., an Arizona corporation, Appellant, v. Frank S. WAITMAN, Chairman; John K. Goodman, Vice-Chairman; Donald Butler, Al. A. Marth, and Tom Finley, Commissioners of the Arizona Racing Commission, Appellees. Turf Paradise, Inc., an Arizona corporation; and Arizona Downs, an Arizona corporation, Intervenors.
• Court: Arizona Supreme Court

Page 966

464 P.2d 966

105 Ariz. 374

GREYHOUND PARKS OF ARIZONA, INC., an Arizona corporation, Appellant, v. Frank S. WAITMAN, Chairman; John K. Goodman, Vice-Chairman; Donald Butler, Al. A. Marth, and Tom Finley, Commissioners of the Arizona Racing Commission, Appellees Turf Paradise, Inc., an Arizona corporation; and Arizona Downs, an Arizona corporation, Intervenors.

No. 9815.

Supreme Court of Arizona, In Banc.

Feb. 6, 1970.

Lewis, Roca, Beauchamp & Linton, by John P. Frank, Phoenix, for appellant.

Gary K. Nelson, Atty. Gen., by T. M. Pierce, Asst. Atty. Gen., Phoenix, for appellees.

Jennings, Strouss, Salmon & Trask by Francis B. Campbell, Jr., and Rex E. Lee, Phoenix, for intervenor Turf Paradise, Inc.

Moore, Romley, Kaplan, Robbins & Green, by Elias M. Romley and Arthur E. Romley, Phoenix, for intervenor Arizona Downs.

HAIRE, Judge of the Court of Appeals.

The appellant, Greyhound Parks of Arizona, Inc., filed a complaint against the appellee State racing commissioners seeking a declaratory judgment construing A.R.S. Sec. 5--110, subsec. C and further requesting a writ of mandamus compelling the appellees to issue a certain amended racing permit to appellant. The intervenors, Turf Paradise, Inc. and Arizona Downs, whose horse racing interests conflict with the dog racing interests of appellant, were allowed to intervene in the trial court. The trial court entered judgment construing the statute contrary to the construction urged by appellant and denying the issuance of the writ of mandamus which would have compelled the granting of the amended racing permit. Appellant has appealed from this adverse judgment.

The primary question raised on this appeal relates to the proper construction to be placed upon a statute which regulates competition between daytime dog racing and certain daytime horse racing. Appellant contends that the area restriction placed upon daytime dog racing by the statute involved was intended to be only countywide so as to prevent competition between daytime dog racing and daytime horse racing on the same day in certain counties only, that is, in any county in which commercial horse racing had been conducted prior to January 1, 1968. On the other hand, the appellees and the intervenors contend that the area restriction was intended to be statewide so as to prevent daytime dog racing anywhere in the state on the same day that there is daytime horse racing of the required seniority ¹ anywhere else in the state.

The pertinent portion of the statute involved, A.R.S. Sec. 5--110, subsec. C reads as follows:

'C. Racing shall be permissible in either daytime or nighttime, but there shall be no daytime dog racing on the same day that there is daytime horse racing in any county in which commercial horse racing has been conducted prior to January 1, 1968, and no nighttime horse racing on the same day that there is nighttime dog racing in the same county.'

The statute on its face is ambiguous and arguably susceptible to the constructions urged by both parties. Since such is the case, this court is faced with the task of ascertaining which meaning the legislature intended when it enacted this statute. City of Tombstone v. Macia, 30 Ariz. 218, 245 P. 677, 46 A.L.R. 828 (1926); Larsen v. Arizona Brewing Co., 84 Ariz. 191, 325 P.2d 829 (1958); State v. Locks, 94 Ariz. 134, 382 P.2d 241 (1963). In view of the fact that no extrinsic evidence was introduced in the trial court which would in any way aid the court in determining the probable legislative intention, we must determine this intention from the language used in the statute, aided by the canons and rules of statutory construction. Automatic Registering Machine Co. v. Pima County, 36 Ariz. 367, 285 P. 1034 (1930); Barlow v. Jones, 37 Ariz. 396, 294 P. 1106 (1930); and Marquez v. Rapid Harvest Co., 89 Ariz. 62, 358 P.2d 168 (1960).

While the specific limits of the restrictions imposed by this statute may be uncertain, there can be no uncertainty regarding the overall purpose of the statute, that is, that its purpose was to place Time and Area restrictions on competition between dog racing and horse racing. As to the Time restriction, there is likewise no uncertainty--whether the competition be between daytime dog racing and daytime horse racing, or between nighttime horse racing and nighttime dog racing, the time restriction only prohibits competition when these racing activities take place 'on the same day'. However, when we consider the Area restriction, we do find some ambiguity. But even as to the area restriction there is no uncertainty involving nighttime racing competition, because it is quite definitely limited to competition 'in the same county'. The uncertainty relating to the Area restriction exists only in relation to daytime racing competition and results from the legislature's use of the words 'in any county in which commercial horse racing has been conducted prior to January 1, 1968,' rather than the words 'in the same county' as were used in the restriction on nighttime racing competition. In support of their contentions, the intervenors argue that the prepositional phrase 'in any county' is an adjectival prepositional phrase which modifies the noun it follows, 'horse racing'. This argument lends support to the intervenors' contention and apparently is the position adopted by the trial court as evidenced by the transcript of the trial judge's remarks at the time judgment was entered. On the other hand, appellant urges that the phrase 'in any county in which commercial horse racing has been conducted prior to January 1, 1968,' answers the question 'where?' and is thus an adverbial phrase modifying the verb 'shall be' and therefore indicates where the restriction on daytime dog racing 'shall be', that is, in any county in which commercial horse racing has been conducted prior to January 1, 1968. While we are inclined to agree that the quoted prepositional phrase does answer the question 'where?' and therefore is more correctly denominated as an daverbial phrase, we do not believe it necessary in this particular case to base our opinion on such technical, grammatical distinctions.

In construing an ambiguous provision in the statute, all parts and provisions must be considered and construed together, and a construction adopted which best harmonizes with the context in which the ambiguous provision occurs. State v. Miller, 100 Ariz. 288, 413 P.2d 757 (1966); Sorenson v. Six Companies, 53 Ariz. 83, 85 P.2d 980 (1939); Isley v. School District No. 2, 81 Ariz. 280, 305 P.2d 432 (1956); and Powers v. Isley, 66 Ariz. 94, 183 P.2d 880 (1947).

In this statute, the legislature definitely limits the restriction on nighttime competition to countywide application, and, when reading the statute as a whole, the more reasonable interpretation is that the area of restriction on daytime racing was also intended to be on a countywide basis. If the intent had been to restrict daytime dog racing on a statewide basis, it would have been very easy to so provide by the insertion of the words 'in this state' after the words 'daytime dog racing'. Further, if we ascribe to the legislature an intent to exclude daytime dog racing on a statewide basis, why were the words 'in any county' used? There was no reason to refer to counties unless the legislature intended by such reference to define the area of competition. ² To accomplish a statewide area restriction, a proper drafting would not refer to counties, but rather would read '* * * but there shall be no daytime dog racing on the same day that there is commercial horse racing which has been conducted prior to January 1, 1968,'. It is more logical to assume that by inserting the words 'in any county', the legislature evidenced an intention that the area of restriction on daytime racing competition was to be the same as the area of restriction on nighttime racing competition, subject to the further limitation that in those counties in which commercial horse racing was not conducted prior to January 1, 1968, there was to be no statutorily imposed restriction whatsoever.

Appellant advances an additional argument as to why the interpretation urged by the intervenors should not be adopted. This contention is that such an interpretation would result in an arbitrary and unreasonable classification and an unwarranted interference with the rights of citizens guaranteed by the equal protection clause of the fourteenth amendment of the United States Constitution and by Art. 2, Sec. 13, and Art. 4, Part 2, Sec. 19, of the Constitution of the State of Arizona, A.R.S. Where different interpretations of an ambiguous provision in the statute are possible, a construction should be adopted which avoids constitutional doubts. Stewart v. Robertson, 45 Ariz. 143, 40 P.2d 979 (1935); City of Phoenix v. Superior Court, 101 Ariz. 265, 419 P.2d 49 (1966); and Employment security Commission of Arizona v. Fish, 92 Ariz. 140, 375 P.2d 20 (1962). The interpretation which we adopt avoids this constitutional question.

In arriving at our conclusions we have not ignored the arguments raised by the appellee or by the intervenors concerning legislative intent. While the ascertainment of of the legislative intent is always the cardinal principle to be applied in construing statutory provisions, that intent must be garnered from the language of the statute itself, or from pertinent evidence which is legally competent and admissible under recognized standards and canons of construction developed by the legislature and by the courts. Automatic Registering Machine Co. v. Pima County, Supra; Barlow v. Jones, Supra; and Marquez v. Rapid Harvest Co., Supra. Applying this rule, the court has not considered the broad statements as to legislative intent contained in the appellees' brief which are not supported by arguments based upon the language of the statute or by pertinent evidence presented to the trial court. Further, we...