Longstreth v. Cook

• Decision Date: 04 April 1949
• Docket Number: No. 4-8780.,4-8780.
• Citation: 220 S.W.2d 433
• Parties: LONGSTRETH v. COOK et al.
• Court: Arkansas Supreme Court

220 S.W.2d 433

LONGSTRETH v. COOK et al.

No. 4-8780.

Supreme Court of Arkansas.

April 4, 1949.

Dissenting Opinion May 30, 1949.

Appeal from Chancery Court, Pulaski County, First Division; Frank H. Dodge, Chancellor.

Suit by James McKrell against Otho A. Cook, secretary, Arkansas Racing Commission and others, to enjoin the Commission from reviewing a license to hold horse racing meets under statute legalizing parimutuel betting on horse races. O. D. Longstreth, Jr., intervened and from a decree of dismissal the intervenor appeals.

Decree affirmed.

Dave E. Witt, of Little Rock, for appellant.

Ike Murry, Atty. Gen., and O. T. Ward, of Little Rock, for appellee.

Otis Nixon, Warren E. Wood and Griffin Smith, Jr., all of Little Rock, for intervener.

FRANK G. SMITH, Justice.

The question presented by this appeal is whether Act 46 of the Acts of 1935, p. 90, legalizing pari-mutuel betting on horse races violates Section 14 of Article 19 of the State Constitution and is void for that reason. This section of the Constitution reads as follows: "No lottery shall be authorized by this State, nor shall the sale of lottery tickets be allowed." This Act 46 of 1935 created the Arkansas Racing Commission, and, among other things, provided that the Commission shall promulgate rules and regulations for horse racing and for the issuance of permits to operate race tracks and licenses to hold racing meetings under the terms and conditions therein specified.

Section 14 of this Act reads in part as follows: "Any license under the provisions of this Act, conducting a horse racing meeting, may provide a place or places in the race meeting grounds or enclosure at which he, they or it may conduct and supervise the pari-mutuel or certificate system of wagering by patrons on the horse races conducted by such license at such meeting, and such pari-mutuel or certificate method of wagering upon such horse races held at said race track, and within such race track, and at such horse racing meeting, shall not under any circumstances if conducted under the provisions of this Act, be held or construed to be unlawful, other statutes or parts of statutes of the State of Arkansas, to the contrary notwithstanding."

The Act is a lengthy and very comprehensive one, and contains specific directions for the exercise of the license which the Commission is authorized to issue. Since the passage of the Act in 1935, the Racing Commission has issued annually a permit or license to hold racing meetings under its provisions in the City of Hot Springs, and it is sought by this suit to restrain the Commission from renewing this license or permit.

The argument is made that the Act is violative of the State's public policy, and that it legalizes what would otherwise be an unlawful act. In this connection it may be said that an Act was initiated and submitted at the General Election held in 1944 to repeal this Act, which was defeated by a large majority. As to what shall be the State's public policy, it may be said that this is a question which the General Assembly may decide. Upon the authority of Lewis' Sutherland Sta. Const., Vol. I, 136, we said: "As to whether a law is good or bad law, wise or unwise, is a question for the Legislature, and not for the Courts." State v. Hurlock, 185 Ark. 807, 49 S.W.2d 611.

We may therefore consider only the question of the constitutionality of Act 46, and rules have been often announced by this and other Courts to guide the approach to that question. In the recent case of Fugett v. State, 208 Ark. 979, 188 S.W.2d 641, 643, we said: "The wisdom and propriety of statutory enactments are matters to be determined solely by the legislative branch of the government. Courts are not authorized to strike down a law enacted by the General Assembly unless it clearly appears that the law contravenes some provision of the Constitution; and, in case of doubt as to the constitutionality of a statute, the doubt must be resolved in favor of the validity of the law."

Many of our cases are cited in support of the statement just quoted, to which an indefinite number from other jurisdictions could be added.

Unquestionably Act 46 has authorized and legalized and possibly given encouragement to a form of gambling, but the question here presented is whether it has done so by authorizing a lottery. If it does, the Act is unconstitutional, as the provisions of the Constitution hereinabove quoted denied the General Assembly the power to authorize a lottery. So that the question for decision is whether Act 46 authorizes a lottery.

The State Commissioner of Revenues is made the Secretary of the Racing Commission, and in the discharge of the duties imposed upon him he visited the track where the races are held and explained in detail how the betting thereon is conducted, and there appears to be no question but that the betting is conducted in a manner authorized by the Act.

The Court below held that a lottery had not been authorized and was not being conducted and dismissed the suit, from which decree is this appeal. This finding was based upon the testimony of the Revenue Commissioner, which is undisputed and is to the following effect:

The permit was issued to the Oaklawn Jockey Club of Hot Springs. The American Totalizator Company, which is a separate corporation from the Oaklawn Jockey Club, has a contract with the club to set up the mechanical equipment for the purpose of issuing and selling tickets to persons wishing to bet through designated windows in what is called the pari-mutuel room. There are ticket sellers at each window who are employees of the totalizator company. Under the law, ten per cent. of the proceeds of the sale of these tickets goes to the Jockey Club and five per cent. to the State, and the Totalizator Company is paid out of the Jockey Club's part of these proceeds. The Totalizator Company owns the machines which are used in betting and they are not for sale. At one window tickets are sold on horses to win, that is, to cross the finish barrier first. At another bets are made on a horse for a place, that is, to run second; and at another window, bets are made that a horse will show, that is, run third. At still another window bets are made which are said to be "across the board" or combinations, that is, that the horse bet on will finish first, second or third.

Bets are received at still another window called a Daily Double; that is, the bettor names the horse which will win the first race and another horse which will win the second race, and if the horses thus bet on win both the first and second races the person thus betting is said to have won the Daily Double. This pool is independent of all the other pools and relates only to the first and second races.

When a person wishes to purchase his ticket at a designated window the seller pushes a button similar to a cash register and the ticket at that time is printed by an individual machine designating the number of dollars paid for the ticket, and it is registered on an individual calculator which is there and is automatically transferred to what is called a master control totalizator. All of this takes place during the time the tickets are being sold for a particular race and they are sold before the beginning of that race. No tickets are sold in the second race until the first race has been run, with the exception of the Daily Double, nor on the third race until the second race has been run, and so on with the remaining races. Altogether eight races are run each day.

When a race is about to be run the machines are locked with a master key by the racing stewarts who have a box in the stewarts' stand and the betting windows are not reopened until a calculation is made of all the money that has gone through the individual machines and the totalizator has figured the amount of money in the Win, Show and Place pools. From the total that has been placed in all the pools, fifteen per cent. is deducted, of which the Jockey Club gets ten per cent. and the State, five per cent.

The Jockey Club procures the horses that are to run at the racing meet, and there were about 1200 of these during the preceding meeting. Some of these are not entered or run at any race during the meeting but are kept there for training purposes. Others will run in more than one race during the meeting.

The owners bring their horses to the meeting and are accompanied by their trainers, who keep the horses in condition and accustom them to the tracks on which the races will be run. The horses are ridden by riders called jockeys, whose training, skill and ability are known to the owners who compete for the prizes offered in each race, and it is these prizes paid in money which compensate the owners for racing their horses. They receive no part of the money bet on the races. Admission fees to the race track are charged but the owners of the horses have no share therein.

After the deduction of the fifteen per cent. above mentioned has been made the balance in each pool is paid to the holder of tickets bet on the horses in the respective pools. The bettors do not bet against each other. The Act makes it unlawful to do so. The bet is between the bettor and the Jockey Club or the Association.

Horses are selected for entrance in a particular race by the Association, and the horses names are listed or lined up on a daily racing card, and there is sold a racing form which shows the weight carried by each horse and its handicap depending on the past performances of the horse in previous races at that or other tracks. This weight handicap is intended in some measure to equalize the speed of the horses, and the amount thereof depends upon the horse's record in prior races run within the preceding twelve months.

The owners have trainers who are skilled in handling horses with the purpose of increasing their speed and making them more responsive to the control of the jockeys.

Many persons attend the...