State ex rel. Gulfstream Park Racing Ass'n v. Florida State Racing Com'n

• Decision Date: 17 November 1953
• Citation: 70 So.2d 375
• Parties: STATE ex rel. GULFSTREAM PARK RACING ASS'N, Inc. v. FLORIDA STATE RACING COMMISSION et al.
• Court: Florida Supreme Court

Page 375

70 So.2d 375

STATE ex rel. GULFSTREAM PARK RACING ASS'N, Inc. v. FLORIDA STATE RACING COMMISSION et al.

Supreme Court of Florida, En Banc.

Nov. 17, 1953.

Rehearing Denied Dec. 11, 1953.

Ward & Ward, Miami, for relator.

Richard W. Ervin, Atty. Gen., George E. Owen, Asst. Atty. Gen., and Walter E. Dence, Miami, for respondents.

Boardman, Bolles & Kates, Miami, for Hialeah Race Course, Inc.

Baynard & Baynard and Leonard W. Cooperman, St. Petersburg, for University of Miami Alumni Ass'n.

Worley, Cautier & Dawes, Miami, for Gables Racing Ass'n.

Ausley, Collins & Ausley, Tallahassee, L. B. Vocelle, Vero Beach, William T. Fussell, Tampa, Rufus Jefferson, B. A. Meginniss, Leonard Pepper and John K. Folsom, Tallahassee, for Florida State University.

Willard Ayres, Ocala, E. Dixie Beggs, Pensacola, R. J. Bishop, Orlando, Louis S. Bonsteel, Miami, E. A. Clayton, Gainesville, G. H. Bourke Floyd, Apalachicola, Leo L. Foster, Tallahassee, William C. Gaither, Miami, J. Thomas Gurney, Orlando, J. Lewis Hall, Tallahassee, Wallace M. Jopling, Lake City, Gordon B. Knowles, Jr., Bradenton, William K. Love, Lakeland, Raymer F. Maguire, Orlando, Paul H. Marks, Miami, William A. McRae, Jr., Bartow, George L. Pink, Palm Beach, Edward B. Rood, T. M. Shackleford, Jr., Tampa, William P. Shelley, Jr., R. P. Terry, Miami, Hamilton D. Upchurch, St. Augustine, Fuller Warren, Tallahassee, and Olin E. Watts, Jacksonville, for University of Florida.

Leo Foster and J. Lewis Hall, Tallahassee, for Florida A. & M. University, amici curiae.

PER CURIAM.

Contention is made by the Relator that Sections 550.03 and 550.08, Florida Statutes, F.S.A., are violative of Sections 2 and 4 of Article 9 and Section 30 of Article 3 of the Florida Constitution, F.S.A. The CHIEF JUSTICE and Justices TERRELL, THOMAS, SEBRING, MATHEWS and DREW are of the opinion that such a contention is without merit and that Sections 550.03 and 550.08, supra, are immune to such constitutional attack.

The contention is also made by the Relator that, in the event such Acts are upheld as valid legislative enactments, the scholarship and charity days provided for therein are to be allocated outside the 120-day racing season which begins by statute on December 1st of each year. The effect of the contention of the Respondents is that Sections 550.03 and 550.08 extended the racing season from 120 days to 126 days and that the charity and scholarship days are not necessarily prior to December 1st or after the end of the 120-day season. The CHIEF JUSTICE and Justices SEBRING, HOBSON and MATHEWS are of the opinion that the scholarship and charity days created by Sections 550.03 and 550.08 must necessarily be awarded either prior to December 1st or subsequent to the 120-day racing season or distributed within such pre-season and post-season period and cannot be allowed within the normal 120-day racing season which begins December 1st. Justices TERRELL, THOMAS and DREW are of the opinion that the allocation of a part of the scholarship and charity dates within the 120-day season was not an abuse of discretion by the Respondents.

Mr. Justice HOBSON is of the opinion that the legislative enactments complained of are immune to the attack herein made but that under certain conditions and under proper attack they might become violative of the Fourteenth Amendment to the United States Constitution.

Specially concurring opinions setting forth the views of certain individual justices are being published herewith.

It is therefore the order of the court that the constitutional objections raised to the scholarship and charity acts, Sections 550.03 and 550.08, Florida Statutes, F.S.A., are without merit and that the Respondents grant to the Relator, Gulfstream Park Racing Association, Inc., a permit in accordance with the application of said Relator now on file so as to permit the said Relator to begin its racing season on March 4, 1954, and to run for 40 consecutive racing days thereafter, Sundays excluded.

It is so ordered.

ROBERTS, C. J., and TERRELL, THOMAS, SEBRING, HOBSON, MATHEWS and DREW, JJ., concur.

TERRELL, Justice.

Gulfstream Park Racing Association, Inc., secured an alternative writ of mandamus from this Court directed to the Florida State Racing Commission, commanding it to modify its order allocating to Tropical Park Race Course, Hialeah Race Course and Gulfstream Park Racing Association, Inc., certain charity or scholarship racing days for the 1953-1954 racing season or to show cause. We are confronted with a return and a motion to quash the alternative writ.

It is first contended that the alternative writ should be quashed because the Board of Control, the University of Florida, the Florida State University, the Florida A. and M. University, Tropical Park Race Course and Hialeah Race Course, interested and necessary parties to the cause, are not made so by the alternative writ.

There is no merit to this contention. The real purpose of the litigation is to adjudicate the validity of the Commission's order relative to racing dates including a fund which is collected and paid into the State treasury for support of charities and scholarships. It is unnecessary to make those not substantially affected parties to the litigation, but even so, they were heard amici curiae and were permitted to file briefs. They are accordingly on notice of the litigation, and for all practical purposes they are parties to the cause. If they had been made parties respondent they could have done nothing more, but since this case is to settle validity and status, their presence as parties to the cause was not essential. State ex rel. Stewart v. Mayo, 160 Fla. 367, 35 So.2d 13; State ex rel. West Flagler Amusement Co., Inc., v. Rose, 122 Fla. 227, 165 So. 60.

The second question challenges the power of respondents to change or alter racing dates that have been once fixed in the manner authorized by statute.

The answer to this question requires consideration of the following statutes, the pertinent part of which is as follows:

1. Section 550.03, F.S.1953, F.S.A. (Charitable Organizations passed in 1941).

'Provided, however, that the Florida state racing commission may extend said limitations of time for horse and dog racing not to exceed one day at any one track, when such additional day of racing is conducted under the auspices and for the sole benefit of some one or more charitable institutions or organizations, and further provides that for the purposes of this section the University of Miami shall be deemed to be a charitable institution and that a portion of the proceeds available for the charitable purposes in an amount not less than twenty-five per cent thereof shall be paid over to and for the benefit of the University of Miami, and provided further that the total of all profits derived from the operation of such racing on such day including all taxes which would otherwise be received by the state racing commission for such day's operation shall be and become a part of charity fund for which such racing on such days is conducted.'

2. Section 550.08, F.S.1953, F.S.A. (Scholarship Act passed in 1949).

'Provided the state racing commission is authorized to grant one additional day of racing during the race meeting period granted to any track as provided by law, upon application and agreement by any track in which one specific day of any meet shall be set aside, and all profit, less actual operating costs, from such specific day's operations of such track including all taxes payable to the State of Florida or any agency thereof for such day's operation shall be paid into the state treasury for a scholarship fund which shall be administered by the board of control of the institutions of higher learning of the State of Florida for the granting of scholarships for the purpose of attending the institutions of higher learning of the State of Florida upon such terms and conditions as the said Board may from time to time prescribe.

'(2) The provisions of this section are supplemental to § 550.081 and shall be construed as authority for granting additional days of racing above the total of one hundred and twenty days limitation therein except that each horse race track may run only one additional day as herein provided during its race meeting period as authorized by said law and the one hundred and twenty days limitation therein shall in no event be extended beyond three additional days.'

3. Chapter 28,499, Acts of 1953, (Hillsborough County Act.)

'In all counties having a population of not less than two hundred thousand (200,000) nor more than two hundred and seventy-five thousand (275,000) according to the latest official census, the state racing commission is authorized to grant an extra day of racing to each horse or dog track located in the county. This extra day shall be added to any other additional day of racing heretofore authorized by law. This extra day of racing shall be granted by the racing commission upon application and agreement by the race track owner or operator that all profits, less actual operating costs, from such specific day's operations including all taxes payable to the state or any agency thereof for this extra day's operation shall be paid to the trustees or other governing body of any institutions of higher learning located in the county and having comparable curricular standards for entrance and graduation as is prescribed for state senior universities. * * *'

The purpose of these statutes is to permit two extra days of racing to the track owners who apply for permission to do so, the profits, less cost of operation to be available to certain charitable and educational institutions for scholarship purposes. Relator contends that such profits are in fact state tax funds and that the attempt to withdraw them from the state treasury for the stated purposes, absent an act of the legislature so appropriating them, is in violation of Sections 2 and ...