Narragansett Racing Ass'n, Inc. v. Kiernan, 678.

• Decision Date: 13 September 1937
• Docket Number: No. 678.,678.
• Parties: NARRAGANSETT RACING ASS'N, Inc. v. KIERNAN et al.
• Court: Rhode Island Supreme Court

194 A. 49

NARRAGANSETT RACING ASS'N, Inc.,

v. KIERNAN et al.

No. 678.

Supreme Court of Rhode Island.

Sept. 13, 1937.

Proceeding in certiorari by the Narragansett Racing Association and another against Francis J. Kiernan and others, to review and quash so much of the findings and order entered in a decision of the respondents as might appear to be illegal.

Petition granted as directed in opinion.

Hogan & Hogan, of Providence, for petitioner Walter E. O'Hara. Raymond J. McMahon, of Pawtucket, for Narragansett Racing Ass'n, Inc. John P. Hartigan, Atty. Gen., for respondents.

PER CURIAM.

This is a petition for a writ of certiorari brought by Narragansett Racing Association, Inc., holder of a class A license issued by the state division of horse racing under the provisions of chapter 2086, Public Laws 1934, as amended, and by Walter E. O'Hara, president and managing director of said Narragansett Racing Association, Inc., against the respondents, Francis J. Kiernan, chief of the division of horse racing of the state of Rhode Island, James H. Hagan, Jr., superintendent of the bureau of licenses, and Thomas F. Kane, superintendent of the bureau of inspection of said division.

The petition seeks to have us review and quash so much of the findings and order, entered by said respondents in their decision of September 3, 1937, as may' appear to be illegal. Pursuant to the writ, the respondents have made a return and have brought before us the certified record and papers pertinent to the case. In addition to this record as returned by the respondents, it is agreed, upon suggestion of counsel, that "The rules of Horse Racing adopted by the Rhode Island Division of Horse Racing," as evidenced by a pamphlet, printed and distributed by said division, are a proper part of the record, and that they constitute all the rules, as such, in force at the time of the occurrences in question. The one exception was rule 463, which was promulgated too recently to be printed but which admittedly was in writing and duly served on the licensee, and about which there is no dispute. It was also agreed to incorporate in the record the time of service upon the petitioners of the notice of charges upon which the present action was initiated and the hearing held.

The first part of the order is not in question. The portion sought to be quashed reads as follows: "Second: Said Division finds that said Walter E. O'Hara an employee and official of said Narragansett Racing Association, Inc., on the third day of September, A. D., 1937 did unlawfully interfere with, threaten and intimidate James H. Doorley, a steward appointed by the Division of Horse Racing in the performance of his duty as a steward and said Division of Horse Racing hereby orders said Narragansett Racing Association, Inc., a licensee of said Division of Horse Racing, to remove forthwith Walter E. O'Hara as an employee and official of said Narragansett Racing Association, Inc." (Italics ours.)

The Attorney General, appearing for the respondents, during the course of the hearing before us, filed a motion to dismiss the petition "on the ground that it appears on the face of the petition that the petitioners are not entitled to the relief prayed for." While his motion was directed to both petitioners, his argument was directed particularly to the petitioner Walter E. O'Hara. It was not seriously contended that the other petitioner, Narragansett Racing Association, Inc., was improperly before the court. In fact, before us, when pressed, he admitted that, under the broad powers of this court, the petition could be entertained. The charges, hearing, and decision by the respondents as the division of horse racing for the state of Rhode Island are directed to Narragansett Racing Association, Inc., and are of vital concern to it. No right of appeal or review is expressly given by the terms of the statute to an aggrieved licensee or party. We are of the opinion that the petition discloses a proper case to entitle the licensee, as an aggrieved party, to bring a petition for the writ of certiorari as the only method open to it under existing law by which a review of the action of the division may be obtained. What rights or status the petitioner O'Hara may have as a party to these proceedings need not be considered, because our ultimate decision on the merits in relation to Narragansett Racing Association, Inc., makes such consideration now immaterial.

It appears that the original notice to the latter petitioner required its appearance for a hearing solely on the charge of an alleged violation of rule 463. This was communicated to the licensee's executive officer several hours before the happening of the incident that forms the basis of the second charge, finding, and order in question. Notice of the latter charge was not given in any form to the petitioners until they appeared at the hearing, when written copies of both charges were delivered to the petitioner O'Hara and to counsel for the Narragansett Racing Association, Inc. Notwithstanding this form of notice and service, a hearing before the respondents, sitting as the division of horse racing, was held immediately thereafter on the night of September 3, 1937.

The record indicates that counsel appeared for the Narragansett Racing Association, Inc., and not for petitioner O'Hara. As a result of that hearing and the evidence taken thereat, the division of horse racing rendered its decision in which they found first that the preponderance of evidence did not substantiate the first charge, namely, the alleged violation by the petitioners of rule 463, relating to equal privileges to the press and concerning which we are not now concerned. The second finding and order, which is in question, is as above set forth. This was based upon the second charge, namely, "Said Division of Horse Racing further charges that on, to wit, September 3, 1937, Walter E. O'Hara, an officer of said Narragansett Racing Association, Inc., did unlawfully interfere with, threaten and intimidate James H. Doorley, a steward, appointed by the Division of Horse Racing, in the performance of his duties as a steward."

The Attorney General, on behalf of the respondents, has argued that the action of the division in ordering the licensee to re-, move forthwith the petitioner O'Hara, as an employee and official of said Narragansett Racing Association, Inc., was purely a ministerial act and therefore not reviewable. We cannot agree with this contention, particularly in view of the presence of the words "for cause" in section 7 of chapter 2086, Public Laws 1934, which is admittedly relied on as authority for the division to act. The pertinent part of this section reads as follows: "The commission may at any time for cause require the removal of any employee or official employed by any licensee hereunder." (Italics ours.)

The petitioners have cited many cases sustaining generally the proposition that the words "for cause" or similar words, in contemplation of law, mean for legally sufficient cause; and that,...