Rodgers v. Southland Racing Corp., 5--5148

• Decision Date: 02 February 1970
• Docket Number: No. 5--5148,5--5148
• Citation: 450 S.W.2d 3,247 Ark. 1115
• Parties: Porter RODGERS et al., Appellants, v. SOUTHLAND RACING CORPORATION, Appellee.
• Court: Arkansas Supreme Court

Page 3

450 S.W.2d 3

247 Ark. 1115

Porter RODGERS et al., Appellants, v. SOUTHLAND RACING CORPORATION, Appellee.

No. 5--5148.

Supreme Court of Arkansas.

Feb. 2, 1970.

Rehearing Denied March 9, 1970.

Joe Purcell, Atty. Gen., Don Langston, Mike Wilson, Asst. Attys. Gen., Little Rock, for appellants.

Wright, Lindsey & Jennings, Little Rock, for appellee.

GEORGE ROSE SMITH, Justice.

The appellee, Southland Racing Corporation, operates a greyhound race track in Crittenden county, with pari-mutuel betting, under the authority of Act 191 of 1957, as amended Ark.Stat.Ann., Title 84, Ch. 28 (Repl.1960). In 1969 the General Assembly amended the law to provide that all officers and directors of such greyhound dog tracks must be qualified electors of the State, must have resided in the county where the track is located for at least two years, and must maintain their residence in the county during their tenure in office. Act 285 of 1969; Ark.Stat.Ann. § 84--2823.10 (Supp.1969).

Harry Latourette is Southland's only officer and only director who is not a resident of Crittenden county. Southland brought this suit against the members of the State Racing Commission and the Attorney General for a declaratory judgment holding Act 285 to be unconstitutional and for an injunction restraining the Commission from enforcing the act. This appeal is from a decree holding the act to be invalid as a grant of special privileges and immunities that do not equally belong to all citizens upon the same terms. Ark.Const., Art. 2, § 18.

In assailing the validity of the act Southland relies not only upon the privileges and immunities clauses of the state and federal constitutions, but also upon the due process, equal protection, and interstate commerce clauses. We shall consider all those constitutional attacks together, for with respect to each one the controlling question is whether Act 285, with its residence requirements, is a reasonable exercise of the state's police power.

We hold the act to be valid. The operation of a dog track, with legalized gambling, is unquestionably a privilege which the State might prohibit altogether if it chose to do so. Fortune telling and the sale of intoxicating liquors fall in that same category and may similarly be prohibited. White v. Adams, 233 Ark. 241, 343 S.W.2d 793 (1961); Wade v. Horner, 115 Ark. 250, 170 S.W. 1005, Ann.Cas. 1916E, 167 (1914). That being true, the State may impose conditions upon the exercise of the privilege beyond those that might be imposed upon the enjoyment of matters of common right. As we said in the Wade case: 'The state has this right, because the authority to sell liquor is a mere privilege, which the state may grant or withhold, as it pleases, or, if it grants this permission at all, it may do so under any conditions which it cares to impose; and this is true, as has been stated, even though these conditions are so onerous as to amount to virtual prohibition of that traffic.'

Statutes restricting the issuance of liquor licenses to local residents have frequently been sustained. Well reasoned opinions include those...