State Ex Rel. Hollywood Jockey Club, Inc. v. Stein

• Decision Date: 20 July 1938
• Citation: 133 Fla. 530,182 So. 863
• Parties: STATE ex rel. HOLLYWOOD JOCKEY CLUB, Inc. v. STEIN et al.
• Court: Florida Supreme Court

182 So. 863

133 Fla. 530

STATE ex rel. HOLLYWOOD JOCKEY CLUB, Inc. v. STEIN et al.

Florida Supreme Court

July 20, 1938

Original mandamus proceeding by the State of Florida, on the relation of the Hollywood Jockey Club, Incorporated, against Joseph R Stein and others, as and constituting the State Racing Commission, and others, to compel the Commission to convene and by resolution rescind action previously taken adopting a rule permitting horse racing to be conducted only between the hours of 12 noon and seven p. m. Eastern Standard Time wherein the relator filed a motion for the granting of a peremptory writ notwithstanding respondents' return.

Motion denied.

BUFORD J., and ELLIS, C.J., dissenting.

COUNSEL

Fred M. Valz, of Jacksonville, and R. R. Saunders, of Fort Lauderdale, for relator.

H. P. Baya, of Tampa, George Couper Gibbs, Atty. Gen., and W. P. Allen, Asst. Atty. Gen., for respondents.

OPINION

BROWN Justice.

This mandamus proceeding involves the authority of the State Racing Commission to make a rule providing that horse racing shall be conducted only between the hours of 12 noon and 7 p. m., Eastern Standard Time. The petition and alternative writ of mandamus issued thereon allege that the petitioner, Hollywood Jockey Club, Inc., a Florida Corporation, was granted a permit to conduct racing at its plant in Broward County, Florida under and by virtue of Chapter 14832 of the Laws of 1931, amended in certain respects by Chapter 17276 of the Laws of 1935, and that in accordance with the provisions of the statute said permit was duly ratified by a majority of the voters voting in a special election held in Broward County on August 3, 1937, in accordance with said law. That the petitioner is engaged in the building of a horse racing track in said county near the City of Fort Lauderdale, which will be completed prior to the 1st day of December, 1938 (which petitioner prays for leave to amend to read the 3rd day of August, 1938), and that it is the plan and intention of the petitioner to conduct horse racing at night by use of a well lighted track and modern methods, public announcement of which plan had been made. That there are not, nor has there ever been, any horse racing track operating at night within the confines of this State, but that by modern methods of lighting it has been found most profitable to conduct dog racing, base ball games, foot ball games and other sports at night and that such amusements so conducted enjoy a most profitable patronage from the general public. That Section 4 of said statute as amended in 1935, § 4, reads as follows: 'Section 4. Any person, association or corporation desiring to operate a race track in this State shall have the right, subject to the provisions of this Act, to hold and conduct one or more race meetings at such tracks each year. Hereafter horse race track meetings shall be held only during the period extending from and including the 10th day of December in each year to and including the 10th day of April the following year and hereafter dog race track meetings shall be held only during the period extending from and including the 1st day of December in each year to and including the 10th day of April the following year; Provided, that both horse race and dog race meetings shall be limited as to number of racing days as provided in Section 8 of Chapter 14832, Laws of Florida, Acts of 1931, and provided further no race or racing shall be permitted on Sunday. No minors, excepting jockies, jockey apprentices and exercise boys shall be permitted to attend said races or to be employed in any manner about the race tracks.'

It is further alleged that the State Racing Commission assembled in the American Bank Building in Miami on April 12, 1938, and adopted, among other rules, the following rule known as Rule 34(a): 'Every association shall conduct horse racing only between the hours of 12 noon and 7 p. m. Eastern Standard Time.'

That the effect of said rule is to deny petitioner the right to race at night, making the investment of petitioner in Broward County practically worthless; that said rule is not reasonably appropriate to the purposes of the statute legalizing racing, being the statute above referred to; and that said action of the racing commission in adopting said rule is arbitrary and unlawful and that the commission is without lawful authority to limit the hours during the days and dates granted by said commission in which a person, firm or corporation, holding a legally ratified permit may conduct racing, provided however that said racing be not conducted on Sunday.

The alternative writ, issued upon this petition commands Joseph R. Stein and others, as and constituting the members of the State Racing Commission, to convene forthwith and without undue delay and by resolution rescind the arbitrary and unlawful action taken by said commission on April 12, 1938, in adopting said rule 34 (a) or to show cause to this court why a peremptory writ should not issue commanding the same to be done. The respondents filed a motion to quash the alternative writ upon the ground that it is not made to appear that the relator has a clear legal right to the performance by the respondents of the command directed to them; that chapter 17276, § 2, amended Section 2 of the Act of 1931 relating to racing, the effect of which amendment clearly gives to the Florida State Racing Commission full power and authority to make rules and regulations for the control, supervision and direction of all applicants, permitees and licensees, for the holding and conducting of all races in this state, with the provision that such rules and regulations so adopted shall be uniform in their application and effect, the said duty being made mandatory by the act upon the commission; and that it is not made to appear by the alternative writ that said rule 34 (a) is not uniform in its application and effect. That it further appears by section 1 of Chapter 17276, Acts of 1935, amending section 1, that said commission is vested with and possessed of the powers and duties specified in said act and 'all other powers necessary and proper to enable it to execute fully and effectually all the purposes of this Act'; and that it is not shown in the alternative writ that the respondent, in the exercise of its rule making power under the law, and in its discretion, has been either arbitrary or unreasonable.

Motion to quash further says that the allegations of the writ that the rule complained of makes relators' investment practically worthless, and that it is not reasonably appropriate to the purposes of the act, are conclusions of the pleader not based upon substantive facts from which the court can determine as a matter of law that the effect of the rule is such that the relator can complain.

It is further alleged that the alternative writ does not show that relator is licensed to conduct racing for the season 1938-1939, nor that it has filed its application with the commission to be so licensed, or if it has filed its application for a license to conduct racing for the season 1938-1939, that such application for license has been accompanied by proof in such form as the commission might require, that it still possesses all the qualifications described by section 2 of Chapter 17276, Acts of 1935; that unless and until relator has applied for such a license and first satisfied the commission that it still possesses all the qualifications prescribed by said section 2, it is not authorized under section 7 of said act to be licensed and to have days and dates assigned to is as provided by section 2, and unless relator has complied with these conditions precedent it is not authorized to conduct horse racing as a licensed track and is without authority to seek the relief commanded under the alternative writ. That it further appears that the respondent racing commission is duly authorized by the statute to make rules and regulations for the control, supervision and direction of the conduct and operation of race tracks, race meets, ets., provided such regulations be uniform in their application and effect, and that in making said rule the commission was acting under authority of law and within its lawful discretion and that the rule so adopted was for the best interest of racing in the State.

Without waiving its motion to quash the alternative writ the respondent commission filed a return in which it alleged that said commission derived its authority from the Act hereinabove referred to and is vested with the rule making power under Section 1 and Section 2 of Chapter 17276 hereinabove referred to; that the commission in and by virtue of said authority and within its lawful discretion, after due and full consideration, did on April 12, 1938, adopt said rule No. 34(a), that same was done for the best interest of the public as well as the various licensees, and that the same was a reasonable and proper rule for the purpose of enabling the commission to carry out, execute and control legalized racing in this State, and that said rule so adopted is reasonable and proper, and uniform in its application and effect.

It is further alleged that at no time prior to the issuance of mandamus had the relator completed its race track and been possessed of a track suitable for racing at its said plant although more than nine months had elapsed since the ratification of plaintiff's permit on August 3, 1937, and that under Section 6 of the State Racing statute, unless said track is constructed and suitable for conducting races prior to August 3, 1938, the permit granted to the relator shall be null and void and the commission authorized to cancel the permit. That it is not positively alleged that relator will have said...