Narraganseet Racing Ass'n, Inc. v. Kiernan

• Decision Date: 15 October 1937
• Docket Number: No. 680.,680.
• Citation: 194 A. 692
• Parties: NARRAGANSEET RACING ASS'N, Inc., et al. v. KIERNAN et al.
• Court: Rhode Island Supreme Court

194 A. 692

NARRAGANSEET RACING ASS'N, Inc., et al.

v. KIERNAN et al.

No. 680.

Supreme Court of Rhode Island.

Oct. 15, 1937.

Proceeding by the Narragansett Racing Association, Inc., and another for a writ of certiorari to review and quash the record of a hearing and decision of Francis J. Kiernan and others, as members of the Division of Horse Racing of the State of Rhode Island.

Petition granted, and record of hearing, findings thereon, and decision quashed.

Hogan & Hogan, of Providence, and Raymond J. McMahon, of Pawtucket, for

Narragansett Racing Ass'n and Walter E. O'Hara.

John P. Hartigan, Atty. Gen., and Hyman Lisker, 4th Asst. Atty. Gen., for respondents. Michael De Ciantis, of Providence, for Governor Robert E. Quinn.

PER CURIAM.

This is a petition for a writ of certiorari to have reviewed and quashed, as illegal, the record of the hearing before the Division of Horse Racing of the State of Rhode Island upon certain charges against these petitioners and the record of the decision of that body, dated September 17, 1937, suspending the license of the petitioner Narragansett Racing Association, Inc., and ordering the removal by it of the petitioner, O'Hara, as president and managing director of said Narragansett Racing Association, Inc.

The respondents, Francis J. Kiernan, chief, James H. Hagan, Jr., superintendent of the bureau of licenses, and Thomas F. Kane, superintendent of the bureau of inspection, are the appointed official members of the Division of Horse Racing of the State of Rhode Island, hereinafter called "the division." Upon them certain powers are conferred, by and in accordance with chapter 2086, Public Laws 1934, as amended by chapter 2250, Public Laws 1935, to hear and determine charges preferred against a licensee thereunder, to suspend and revoke for cause such licensee's license, and for cause to order the removal by the licensee of officials employed by it. The petitioner Narragansett Racing Association, Inc., hereinafter referred to as "Narragansett," is the holder of a class A license issued by said division under the provisions of said chapter 2086 as amended, to conduct horse racing upon specified dates during the year 1937; and petitioner Walter E. O'Hara is the president and managing director of said Narragansett.

Upon the filing of the petition in this court, a citation was issued to the respondents, returnable October 4, to show cause why the writ of certiorari, as prayed for, should not be issued. On October 4th, the return day thereof, the petitioners appeared with their counsel, as did the respondents, the latter being represented under the law by the Attorney General. When the case was called for hearing, Michael De Ciantis, Esq., as personal counsel for His Excellency, Robert E. Quinn, Governor of the State of Rhode Island, represented to the court that the Governor requested leave, as a friend of the court, to file a brief and to argue through his attorney certain questions of law involved. A motion to that effect was made by Mr. De Ciantis and, in the absence of any objection, it was granted, his brief was filed, and argument by him, representing the Governor, was later heard.

Thereupon the respondents produced, through the Attorney General, a record of the hearing before them, which was represented to be the record of the division as prayed for by the petition for the writ, and they requested that it be treated as if it were returned on a writ of certiorari which had been duly issued and served. By agreement of all counsel, including counsel for the Governor, it was then stipulated in open court that the record, so produced, was the one which would have been returned if the writ had been issued and served and that the merits of the case should be heard and determined thereon. Accordingly, the case proceeded to hearing and is before us now upon the merits of the petition and its prayer for relief.

It appears by the petition and record that counsel for Narragansett was served, on September 9, 1937, with a copy of six charges preferred by the division, as grounds upon which they should suspend or revoke the license of Narragansett. This notice was served upon counsel for Narragansett as he was leaving a hearing in this court upon a petition for certiorari in the previous case, Narragansett Racing Association, Inc., and Walter E. O'Hara v. Francis J. Kiernan et al., 194 A. 49, which we have recently decided. It called upon Narragansett to appear before the division at 1 o'clock p. m., on the next day, September 10th, and to show cause why its license to conduct horse racing should not be suspended or revoked. These charges and notice read as follows:

"Narragansett Racing Association, Inc.

"You are hereby notified and summoned to appear before the Division of Horse Racing for the State of Rhode Island and Providence Plantations at a hearing to be held in the office of said Division in the State Office Building, Providence, Rhode Island, on Friday, the 10th of September, A. D. 1937, at one o'clock P. M. daylight saving time, to show cause why the license heretofore issued to you to conduct a racing meeting in said state should not be suspended or revoked.

"The Division of Horse Racing charges:

"1. That the Narragansett Racing Association, Inc., through its duly authorized agent and agents, did unlawfully appropriate to its own use and did unlawfully use large sums of moneys belonging to the holders of winning tickets who had failed to cash the same.

"2. That the Narragansett Racing Association, Inc., by and through its agents, has continuously, since September 3, 1937 to date, neglected and failed to comply with the order of said Division of Horse Racing issued September 3, A. D. 1937, to remove forthwith Walter E. O'Hara as an employee and official of said Narragansett Racing Association, Inc., and said Walter E. O'Hara, purporting and claiming to speak for the said Narragansett Racing Association, Inc., has openly defied said Division and its said order.

"3. That the Narragansett Racing Association, Inc. by and through its agents did, on, to wit, the 5th and 6th days of September, A. D., 1937, interfere with, prevent and hinder the duly authorized agents of the said Division from visiting, investigating and placing expert accountants in the offices of the said association and seeing the books and documents showing receipts and disbursements of said association in violation of Section 7 of Chapter 2086 of the Public Laws of 1934.

"4. That the said Narragansett Racing Association, Inc. by and through its agents did, on, to wit, the 4th day of September, A. D., 1937, on two separate occasions, refuse admission to the Secretary of said Division to the office of the said association in violation of Rule 15 of said Division.

"5. That the Narragansett Racing Association, Inc. did, on, to wit, the 28th day of August, A. D., 1937, publicly state that he, the said Walter E. O'Hara, could buy the Chief of the Division of Horse Racing for a dollar and a half ($1.50), meaning and intending to convey the impression that the Chief of said Division was dishonest and corrupt.

"6. That the Narragansett Racing Association, Inc. by and through its agents has encouraged and allowed at the track, trainers and stable men who have created disturbances and public nuisances and Walter E. O'Hara its former Managing Director employs and keeps one Curran, a trainer, who continually engages in brawls and disturbances at the track and he the said Walter E. O'Hara with the said Curran was involved in an altercation with one Roles, on September 4, 1937 at the Narragansett Race Track, and he the said Walter E. O'Hara ordered said Roles off said track without reason and forbade his return.

"R. I. Division of Horse Racing

"[Signed] Francis J. Kiernan

"Chief of Division."

At the appointed time on September 10th, counsel for the respondents (petitioners here) moved for a continuance of the hearing to permit a reasonable time in which to prepare their defense. After counsel notified the division that they were authorized by a justice of the superior court to inform the division that he would entertain a proposed bill in equity to enjoin the hearing, if a reasonable time were not given the respondents to prepare, the motion for a continuance was granted, and the hearing was continued to September 14th.

On the next day, September 11th, the Governor preferred two additional charges against these petitioners who were served with a copy thereof, together with a* notice that these charges would be heard before the division of horse racing on September 14th. These two charges read as follows:

"1. I am informed that the order of the Racing Division removing Walter E. O'Hara as an official or employee of the Narragansett Racing Association has been reversed by the Supreme Court. He, therefore, is acting as president and managing director of the Narragansett Racing Association. I, therefore, prefer the following charges, and ask the division to revoke the license of said Narragansett Racing Association on the ground that its president and managing director has in the public prints called the Governor of the State of Rhode Island, to wit, Robert E. Quinn, a 'G — D — Liar.' Upon the further ground that said O'Hara has on diverse occasions called the Lieutenant-Governor, the Chief of the Racing Division, the United States district attorney, the State Racing Steward and other officials and respected citizens of this State, foul, abusive, and slanderous names.

"[Signed] Robert E. Quinn,

"Governor."

"2. I have been informed that the order of the Division removing Walter E. O'Hara as an official or employee of the Narragansett Racing Association has been quashed by the Supreme Court. I, therefore, present the following charge against Walter E. O'Hara and ask for his removal by reason thereof: The said Walter E. O'Hara in the public prints has called the Governor of the State of Rhode Island,...