Ross v. State Racing Commission

• Decision Date: 14 October 1958
• Docket Number: No. 6335,6335
• Citation: 64 N.M. 478,330 P.2d 701,1958 NMSC 117
• Parties: D. F. ROSS and J. S. Witt, Plaintiffs-Appellants, v. STATE RACING COMMISSION of New Mexico and C. J. Warren, Marvin Ake, Richard Burguete, B. M. Keohane and Howard McDaniel, constituting the members of said Commission, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 701

330 P.2d 701

64 N.M. 478

D. F. ROSS and J. S. Witt, Plaintiffs-Appellants, v. STATE RACING COMMISSION of New Mexico and C. J. Warren Marvin Ake, Richard Burguete, B. M. Keohane and Howard McDaniel, constituting the members of said Commission Defendants-Appellees.

No. 6335.

Supreme Court of New Mexico.

Oct. 14, 1958.

Reese, McCormick, Lusk & Paine, Carlsbad, for appellants.

Fred M. Standley, Atty. Gen., Hilton A. Dickson, Jr., Fred M. Calkins, Jr., Asst. Attys. Gen., for appellees.

SHILLINGLAW, Justice.

This is an appeal by the petitioners below who sought by mandamus to compel the issuance by the State Racing Commission of a license to conduct horse racing near Carlsbad, New Mexico. Petitioners were granted an alternative writ of mandamus by the District Court of Santa Fe County on June 11, 1957. The alternative writ set forth that petitioners had made application to the State Racing Commission for a license to engage in horse racing meetings and that said application was refused by the Commission for the reason that:

'In the matter of the application by J. S. Witt and D. F. Ross, for twenty-five (25) race days during October, November and December of 1958 for Carlsbad, New Mexico; No sufficient showing has been made that it will be a successful enterprise. Should it fail, it would not be in the best interest of racing.'

The writ further alleged that the denial of the application and license was arbitrary, capricious, and without authority of law, and that, since the Commission had not found petitioners to be ineligible to receive a license under Sec. 60-6-1 et seq., N.M.S.A.1953, it was the Commission's legal duty under these statutes to issue the license as requested.

The Commission answered admitting the filing of the application, that a hearing was held on the application, that the Commission refused to grant the license for the reasons set forth in the writ, and interposed as affirmative defenses allegations that the petitioners had failed to assert facts sufficient to state a claim and that the court was without jurisdiction inasmuch as the Commission was exercising discretionary functions.

Prior to proceeding to trial on July 1, 1957, before the Hon. David W. Carmody, a stipulation was filed by the parties in open court:

'* * * [P]rior to said hearing [before the Commission], Plaintiffs performed all actions required by said statutes and deposited with the Commission a cashier's check in the amount of $1,250, covering the license fee of $50.00 for each of the twenty-five racing days requested.

'* * * following said hearing of December 5, 1956, the motion was made, and passed by a majority, to delay action upon said application until a later date.

'* * * the applicants submitted a complete and valid application, as amended, and have performed all conditions precedent to Sections 60-6-1 to 60-6-5, inclusive, N.M.S.A.1953 Comp.'

The petitioners rested after calling their only witness, Commission member B. M. Keohane, who testified as to the proceedings of the Commission in passing on petitioners' application. Offering no testimony, the Commission rested with a renewal of its motion to dismiss the writ.

The trial court concluded as matters of law that the Commission did, by accepting the application, holding a public hearing, passing upon the application, and publicly stating its reason for denial, fulfill the duties imposed by the state law; that the Commission is empowered with discretionary authority to approve or disapprove all applications, and that mandamus did not lie. The court further concluded that the racing license contemplated by Sec. 60-6-1 et seq., N.M.S.A.1953, is a privilege created and permitted by the state and subject to the police powers reserved by the state--a mere privilege rather than a constitutionally guaranteed right, that the Commission acted within its discretionary bounds in denying petitioners' application for a racing license, and that, since no appeal is provided from the final discretionary determinations of the Commission, the court could not substitute its own judgment. Upon these conclusions, the court dismissed the alternative writ.

Based on the situation as above developed, petitioners contend that it became obligatory for the Commission to issue them a license for racing. In other words, the petitioners argue that, not having been found ineligible under the statutes and the Commission not having requested further information, the Commission had exercised its discretion and its function then became ministerial only and mandamus would lie to compel the performance of such a ministerial duty--issuance of a license. The Commission contends that, even having found in petitioners' favor as it did under the specific statutory requirements, the Commission still had discretion to grant or refuse a license.

Does the Commission have such discretion? Admittedly the petitioners present a very strong case in support of their position. See, Cloverleaf Kennel Club v. Racing Commission of Colorado, 130 Colo, 505, 277 P.2d 226; State ex rel. Palm Beach Jockey Club, Inc. v. Florida State Racing Commission, 158 Fla. 335, 28 So.2d 330. However we have finally concluded that the Commission's power to grant or refuse a license is discretionary.

Whether the words of a statute are mandatory or discretionary is a matter of legislative intention to be determined by a consideration of the purpose sought to be accomplished. Lyons v. Gram, 122 Or. 684, 260 P. 220; see also 53 C.J.S. Licenses Sec. 38, p. 633.

Long a part of the existing law of this state is the declared prohibition against gambling in any manner or form as contained in Sec. 40-22-1, N.M.S.A.1953. By the terms of Sec. 60-6-1, N.M.S.A.1953, horse racing likewise finds displeasure among the lawmakers:

'Hereafter it shall be unlawful for any person, firm, association or corporation to hold public horse races or race meetings for profit or gain in any manner unless license therefor has first been obtained from the state racing commission as herein provided for.'

Continuing through this latter section of our statutes, there are revealed permissive rules for both horse racing and gambling, and the conditions which premise their activation. These stated prohibitions are a matter of public policy. And the provisions for application for a racing license, the consideration of such application and action thereon as provided by Secs. 60-6-2 and 60-6-5, N.M.S.A.1953, are legislative delegations to an administrative body, the State Racing Commission, which is charged with the guidance of the stated policy. Should there have been no legislative intent to establish a discretionary control over the number, location, and manner of issuing licenses, then no meaning could be given the statement of public policy found in Sec. 60-6-1.

As a general rule, power vested in a board to grant a license on prescribed conditions carries with it an implied power to exercise reasonable discretion. State ex rel. Grimes v. Board of Com'rs of City of Las Vegas, 53 Nev. 364, 1 P.2d 570; Erwin v. City of Dallas, D.C.N.D.Tex., 85 F.Supp. 103; see also, 53 C.J.S. Licenses Sec. 38, p. 632.

In Kiddy v. Board of County Com'rs of Eddy County, 57 N.M. 145, 255 P.2d 678, 681, this court defined discretionary duties, quoting from First National Bank v. Hayes, 186 Iowa 892, 171 N.W. 715:

'The distinction between merely ministerial and judicial or other official acts seems to be that, where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment, the act is ministerial, but where the act to...