North Hampton Racing & Breeding Ass'n Inc. v. Conway

• Decision Date: 03 September 1946
• Docket Number: No. 3599.,3599.
• Citation: 48 A.2d 472
• Parties: NORTH HAMPTON RACING & BREEDING ASS'N, INC., v. CONWAY et al. *
• Court: New Hampshire Supreme Court

48 A.2d 472

NORTH HAMPTON RACING & BREEDING ASS'N, INC.,

v.CONWAY et al. ^*

No. 3599.

Supreme Court of New Hampshire.

June 27, 1946.

Rehearing Denied Sept. 3, 1946.

Original application for certiorari by North Hampton Racing & Breeding Association, Inc., against George W. Conway and another, members of the New Hampshire Racing Commission, to set aside defendants' denial of plaintiff's application for license to conduct pari-mutuel horse racing from August 26 to September 28, 1946, in Portsmouth.

Petition dismissed.

Petition for certiorari seeking to set aside the defendant's denial of plaintiff's application for a license to conduct pari-mutuel horse racing from August 26 to September 28, 1946, in Portsmouth. The petition for the writ was filed directly in this court and we granted certiorari. The case is now before us for the determination of plaintiff's right to secure the license.

McCabe & Fisher, of Dover, and Morse & Grant, of Concord (George R. Grant, Jr., of Concord, orally), for plaintiff.

Ernest R. D'Amours, Atty. Gen. (Gordon M. Tiffany, Law Asst., of Concord, on the brief), for defendant.

William P. Fowler, of North Hampton (Edward R. Hale, of Boston, Mass., on the brief), as amicus curiae.

BURQUE, Justice.

‘In the view we have taken of the present case it is wholly unnecessary to consider or determine the question as to whether or not certiorari is the proper remedy.’ Blake v. Portsmouth & C. Railroad, 39 N.H. 435, 436. ‘All parties desire a decision * * *. In this situation, the questions have been considered, without reference to any defect in the form of the petition.’ Barber v. School Board of Rochester, 82 N.H. 426, 427, 135 A. 159. We granted certiorari because of the important question of law involved. Having granted it and heard the parties on the merits of the issue raised therein, we proceed to the direct consideration of the case. In so doing we do not wish to be understood however that we subscribe to plaintiff's claim that time is of the essence in this case. Time cannot be of the essence when dealing with a request that involves a permit to be allowed to conduct legalized gambling. We are not moved by any motive to expedite a bringing about of any such undertaking. Our purpose in the consideration of the case is simply to determine the authority of the defendant commission.

The Statute involved is R.L. c. 171, entitled ‘Horse Racing.’ It creates a Commission (§ 1); to ‘make rules and regulations for the holding, conducting, and operating of all running or harness horse races or meets for public exhibition and for the operation of race tracks on which any such race or meet is held.’ § 8; and further provides that ‘no person, association, or corporation shall conduct, hold, or operate any running or harness horse race or meet for public exhibition without a license from the commission.’ § 9.

Section 10. ‘License’ provides that ‘Any person, association, or corporation desiring to hold a running or harness horse race or meet for public exhibition shall apply to said commission for a license to do so.’

Section 11. ‘Issuance of License. If the commission is satisfied that all the provisions hereof and the rules and regulations prescribed have been and will be complied with by the applicant, it may issue a license which shall expire on the thirty-first day of December.’

The main question involved is whether the word ‘may’ means ‘may’ or ‘shall.’ In other words, has the commission any discretionary power in granting or refusing to grant a license when, as plaintiff claims, the applicant has complied with all the requirements of the statute. Except for the fact that the plaintiff, in its application, named in the alternative two places where the races might be held, and that in the questionnaire submitted by the commission, designed to elicit the information the commission sought to obtain as a preliminary requisite to the consideration of the application, Q. 6. ‘State either in this petition or by supplemental statement, names of officials to preside at the race meetings, together with salaries to be paid,’ answered ‘Not yet determine,’ no claim is made that the application was incomplete. We proceed on the theory that the commission did not consider that a defect in the application, for nowhere in the record nor in its findings does it appear that any such ground was relied upon for the refusal of the license. At the hearing before the commission plaintiff expressly and definitely waived its application for the location of the race track in North Hampton. Plaintiff rested its case on its application for a racing permit at a track to be located in Portsmouth. So we take it for granted in considering the merits of the case that plaintiff complied with all the requirements of the statute and of the commission relating to the necessary information to be submitted to it.

In construing a statute, standard principles of statutory construction are to be employed. “But as statutory language is not always given its broadest meaning, or a meaning which the context and subject-matter show was probably not intended (Pierce v. Emery 32 N.H. 484, 508; Carter v. Whitcomb, 74 N.H. 482, 488, 69 A. 779, 17 L.R.A.,N.S., 733), the evident intention of the legislature as revealed by the act cannot be defeated by giving a single word in the statute an unnecessary meaning.' State v. Dunklee 76 N.H. 439, 441, 84 A. 40, 41, Ann.Cas.1913B, 754. The police power is to be exercised in reason and legislation in its exercise is to be construed reasonably with due regard for its objectives. And the rule of reasonable construction invokes some measure of elasticity in broadening or narrowing the applications of statutory language. Pierce v. Emery, supra; Opinion of the Justices, 66 N.H. 629, 661, 33 A. 1076.' State v. Richardson, 92 N.H. 178, 181, 27 A.2d 94, 97. ‘Words in a statute are to be construed according to the common and approved usage of the language, unless they have acquired a peculiar and appropriate meaning in the law, or from the context or manifest purpose of the Legislature it is apparent a different meaning was intended. P.S. c. 2, §§ 1, 2.’ In re Opinion of Justices 73 N.H. 625, 626, 63 A. 505, 506, 6 Ann.Cas. 689; R.L. c. 7, § 2.

‘In construing a statute as mandatory or directory the courts may take into consideration the consequences which would result from construing it as mandatory.’ 50 Am.Jur. p. 49, s. 26. ‘The intention of the legislature as to the mandatory or directory nature of a particular statutory provision is determined primarily from the language thereof. Words and phrases which are generally regarded as making a provision mandatory include ‘shall and must.’ On the other hand, a provision couched in permissive terms is generally regarded as directory or discretionary. This is true of the word ‘may’ * * *.' Id, § 28. ‘It is the general rule that in statutes the word ‘may’ is permissive only, and the word ‘shall’ is mandatory.' State ex inf. McKittrick v. Wymore, 343 Mo. 98, 109, 119 S.W.2d 941, 944, 119 A.L.R. 710.

It has been held in this state that the word ‘may’ confers discretionary powers. In Town of Belmont v. Parent 90 N.H. 249, 252, 7 A.2d 255 and Court, in construing the statutory powers of Seletmen in granting or refusing to grant a junk dealer's license, said the word ‘may’ meant discretionary. True it is that the statute, there being construed (P.L. c. 159, § 1, now R.L. c. 190, § 1) reads ‘* * * selectmen * * * may, in their discretion, license suitable persons to be dealers * * *’ and ‘may determine and designate the place where the business is to be carried on * * *.’ The issue was over the location of the junk yard and the Court was construing the latter portion of the statute.

We are of opinion that the word ‘may’ in section 11 of the law we are considering (R.L. c. 171) is intended to confer discretionary power to the commission in the exercise of its administrative governmental function in regard to the issuance of a license to conduct race meets. There are many reasons which prompt us to reach this conclusion. In the first place we are not dealing with an ordinary situation, with cases e. g. where the protection of public health is concerned (Cloutier v. State Milk Control Board, 92 N.H. 199, 28 A.2d 554; Whitney v. Watson, 85 N.H. 238, 239, 157 A. 78); where public interest and rights are involved and the public or third persons have a claim de jure (Blake v. Portsmouth & Concord Railroad 39 N.H. 435, 439); where insurance companies have complied with all the necessary requirements to qualify them to do business in the State (United States Fidelity & Guaranty Co. v. Linehan, 73 N.H. 41, 58 A. 956); and where the right of a party to engage in what is lawful business is concerned. State v. Moore, 91 N.H. 16, 13 A.2d 143.

The statute confers upon one able to secure a license the right to conduct pari-mutuel horse racing. It legalizes what was previous to the enactment of the law a prohibited unlawful undertaking. As such it granted a privilege such as the state may grant or withhold at pleasure. State v. Sterrin 78 N.H. 220, 222, 98 A. 482; Rosenblum v. Griffin, N.H., 197 A. 701, 115 A.L.R. 1367. The statute deals with a private enterprise which, of its nature, is not only privileged, but which presents a social problem properly coming under the exercise and jurisdiction of the police power of the state and which requires strict regulation and supervision. That the party seeking the privilege may be required to pay for same, and to comply with all the requirements of the statutory law can not be questioned. American Baseball Club of Philadelphia v. Philadelphia 312 Pa. 311, 167 A. 891, 92 A.L.R. 386. See Anno. 12 A.L.R. 1453. Likewise that the granting of licenses for such privileged enterprise may lawfully be delegated to administrative public officials, clothed with the power to exercise discretion, even without prescribed rules of action, seems...