Kline v. New Jersey Racing Commission

• Decision Date: 02 July 1962
• Docket Number: No. A--138,A--138
• Parties: Harley B. KLINE et al., Plaintiffs-Appellants, v. NEW JERSEY RACING COMMISSION et al., Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 109

38 N.J. 109

183 A.2d 48

Harley B. KLINE et al., Plaintiffs-Appellants, v. NEW JERSEY RACING COMMISSION et al., Defendants-Respondents.

No. A--138.

Supreme Court of New Jersey.

Argued June 11, 1962.

Decided July 2, 1962.

James Hunter, III, Camden, for plaintiffs-appellants (Archer, Greiner, Hunter & Read, Camden, attorneys).

Evan Wm. Jahos, Deputy Atty. Gen., for defendants-respondents, New Jersey Racing Commission, Thomas J. Brogan, Hugh J. Strong, Hugh L. Mehorter, Richard V. Mulligan and Charles J. Sheehan (Arthur J. Sills, Atty. Gen., of New Jersey, attorney; Evan Wm. Jahos, Trenton, of counsel).

Robert N. Wilentz, Perth Amboy, for all other defendants-respondents.

Frank J. Ferry, Camden, for defendant-respondent, Atlantic City Racing assn.

Samuel P. Orlando, Camden, for defendant-respondent, Garden State Racing Assn.

Wilentz, Goldman, Spitzer & Sills, Perth Amboy, for defendant-respondent, Monmouth Park Jockey Club.

The opinion of the court was delivered by

SCHETTINO, J.

Plaintiffs are residents and property owners in Camden County. They instituted this proceeding in lieu of prerogative writ challenging the validity of L.1962, c. 17 (hereafter 'Chapter 17') and seeking to prevent defendants from conducting horse running races on the 30 additional days for 1962 which are authorized by that act. On cross motions for summary judgment the trial court entered judgment for defendants. Plaintiffs appealed to the Appellate Division. We certified the appeal before the argument was heard in the Appellate Division.

In March 1962 a particularly heavy storm caused considerable damage along the Atlantic shore area in our State. Means of raising funds to aid in rehabilitating the damaged public facilities were discussed and proposals were offered to finance these projects by tax revenues derived from a one-time extension of the horse racing season.

As a result, Chapter 17 was passed by the Legislature and was approved on March 29, 1962 by the Governor, effective upon approval. It expressly amends four provisions of the Racing Act, N.J.S.A. 5:5--22 et seq., and in so doing it conforms to Art. IV, § 7, par. 5 of the New Jersey Constitution by reciting the amended provisions in full. The amendments to N.J.S.A. 5:5--44 and 5:5--47 increase from 50 to 60 days the number of days per year on which licensed owners of harness racing tracks may hold harness races. N.J.S.A. 5:5--64 is amended to increase the percentage of the bets which may be withheld from any pool for winners. The amendment to N.J.S.A. 5:5--66 increases the percentage payable to the State from each horse running race pari-mutuel pool in 1962.

However, other provisions of Chapter 17 are completely new and commence with Section 5 (N.J.S.A. 5:5--79) which provides:

'Notwithstanding any of the provisions of the act to which this is a supplement, the commission may grant a special permit, upon joint application of the holders of the outstanding permits authorizing running races in this State, for the holding or conducting of a special running race meeting at one or more of the otherwise authorized running race tracks on such days, other than Sunday, during the entire calendar year of 1962 as the commission may designate. Such special running race meeting shall not exceed 30 racing days in the aggregate during such calendar year.'

Shortly after the passage of Chapter 17 all three holders of the outstanding regular permits for horse running races made an oral joint application for such a special permit to the chairman of the Racing Commission. The Racing Commission met on April 4 and adopted a motion to allot 'emergency racing dates' to Monmouth Park Jockey Club and Garden State Racing Association, two of the three holders of the regular permits for horse running races, by 'supplemental permit to the prior issued permit.' A companion resolution declared that a 'supplemental permit be and hereby is granted' to Monmouth for racing from June 1, 1962 to June 7, 1962 and to Garden State from October 3, 1962 to October 5, 1962 and from November 12, 1962 to December 5, 1962. No special permit in writing was issued at that time.

At a meeting held on April 11 the Commission decided to delay issuance of any special permit until a joint Written application was made by all three holders of the regular permits for horse running races. Such an application, under date of April 13, was received by the Commission on April 16. At the next meeting of the Commission, held on April 19, the Commission adopted a motion 'to re-open the approval of the minutes of the meeting of April 4th.' Several amendments to those minutes were adopted and the written joint application was called to the attention of the Commission. Then the special permit was presented to the Commission for signature and executed. Thus, although it is dated April 4, the special permit was actually issued on April 19. It expressly indicates that it provides for a 'running horse race meeting,' pursuant to and subject to the provisions of the new act.

At oral argument plaintiffs conceded that the Legislature has the power to provide for a special meeting and a special permit substantially as it purported to do in Chapter 17. But they assert that Chapter 17 violated the New Jersey Constitution, Art. IV, § 7 in respect to: (1) par. 4, relative to the adequacy of the title; (2) par. 5, relative to the sufficiency of the procedure for amending statutes; and (3) par. 9, relative to private, special and local laws.

Plaintiffs also contend that all of the requirements for the issuance of a special permit under Chapter 17 were not met. We will consider this issue before discussing the constitutional challenge.

I

Section 5 (N.J.S.A. 5:5--79) begins with the statement that 'Notwithstanding any of the provisions of the act to which this is a supplement, the commission may grant a special permit * * *.' And Section 9 (N.J.S.A. 5:5--83) provides:

'Except to the extent the provisions of this act are Inconsistent therewith, the provisions of the act to which this is a supplement shall apply in their entirety to any Special running race meeting and any Special permit holder.' (Emphasis added).

Plaintiffs' claim that the requirements of Chapter 17 for the grant of the special permit were not met rests upon the postulate that Chapter 17 should be construed to make applicable to the application for the special permit all of the requirements contained in the Racing Act for the issuance of a regular permit. Upon this premise they contend that the application here made did not meet the following provisions of the Racing Act: N.J.S.A. 5:5--38, providing that applicants must apply, by verified application, detailed information regarding directors, owners of all stock, etc.; N.J.S.A. 5:5--39, requiring a deposit in the amount of $10,000; N.J.S.A. 5:5--39.1, requiring a public hearing with subsequent referendum at a general election in the county and municipality where the race meeting is to be held; and N.J.S.A. 5:5--46, requiring a $100,000 bond.

The premise for this challenge is unsound. We think it plain that Chapter 17 does not contemplate compliance with these provisions of the Racing Act. Chapter 17 does not expressly call for such compliance. Nor can we infer it. On the contrary, since Chapter 17 requires the special permit to be granted only to holders of regular permits, there was no reason to require those holders to re-establish their qualifications. Moreover, as plaintiffs themselves concede, the purpose of Chapter 17 would be defeated by that construction of it; for it would be impossible to meet the terms of N.J.S.A. 5:5--39.1 in time to achieve the racing meeting in the year 1962, the year in which the meeting must be held under the terms of Chapter 17. Hence we are satisfied that the provisions of the Racing Act to which plaintiffs refer are unconnected with the provisions of Chapter 17 and therefore are inapplicable to the grant of a special permit.

With reference to the argument that the Racing Commission did not follow the express procedures set forth in Chapter 17, nothing in that Chapter requires the 'joint application' referred to in Section 5 of that Chapter (N.J.S.A. 5:5--79) to be in writing (even though it would seem that the advisable practice would be to require a writing). Even were this not so, however, the actions of the Commission at its meeting of April 19 make it sufficiently clear that the Commission intended to incorporate by reference its action of April 4. This action, coupled with the other April 19 proceedings, fulfilled the requirements of Section 5.

II

We turn then to the constitutional challenges.

Plaintiffs assert Chapter 17 accomplishes amendments of the Racing Act without meeting the mandate of Art. IV, § 7, par. 5 that the section amended 'shall be inserted at length' in...