State Ex Rel. Morris v. West Va. Racing Comm'n

• Decision Date: 28 July 1949
• Docket Number: No. 10181.,10181.
• Citation: 55 S.E.2d 263
• Parties: STATE ex rel. MORRIS. v. WEST VIRGINIA RACING COMMISSION.
• Court: West Virginia Supreme Court

55 S.E.2d 263

STATE ex rel. MORRIS.

v.WEST VIRGINIA RACING COMMISSION.

No. 10181.

Supreme Court of Appeals of West Virginia.

Submitted July 25, 1949.

Decided July 28, 1949 by Order of the Court.

Filed Sept 13, 1949.

A proceeding in mandamus was instituted by the State of West Virginia on the relation of Elsie S. Morris for an order requiring the West Virginia Racing Commission to reinstate the relator's racing license.

The Supreme Court of Appeals, Fox, J., denied the writ holding that the grant of power to the Racing Commission to regulate horse racing was a valid delegation of legislative power and the rule of the Commission promulgated pursuant thereto making a trainer an insurer of the condition of a horse entered in a race regardless of any acts of third persons and providing for his suspension if stimulants or drugs are found in horse, was a valid exercise of the state's police power.

Haymond, P., and Riley, J., dissented.

Syllabus by the Court.

Rule No. 248, framed and promulgated by the West Virginia Racing Commission, under the power of regulation granted to it by the Legislature of this State, by Chapter 71, Acts of the Legislature, 1935, and which rule reads as follows:

"The saliva of the winner of each and every race shall be taken, and from such other horses as the Stewards may direct. In all such cases the trainer shall be held responsible for the condition of his horse or horses, except in case of unavoidable absence of the trainer, when the stable foreman or groom in charge of the horse or horses shall be held responsible, and in the event of the horse or horses from which said saliva has been taken shall have been found by the Chemist to show evidence of the administration of narcotics, said responsible person so offending shall be suspended for not less than six (6) months and the case referred to the West Virginia Racing Commission for any further action deemed necessary.

"Any urine test may be taken of any horse or horses that the Stewards may ask the Veterinarians in charge to take and have analyzed, and if found positive, the responsible person so offending shall be suspended for not less than six (6) months and the case referred to the West Virginia Racing Commission for any further action deemed necessary", is a valid exercise of the police power of the State, as related to horse racing over which the State has assumed control, legally delegated to such Racing Commission by the Legislature, and is not violative of any provision of the State or Federal Constitutions.

James M. Mason, III, Charles Town, for petitioner.

Ira J. Partlow, Atty. Gen., Thomas J. Gillooly, Asst. Atty. Gen., for defendants.

FOX, Judge.

This proceeding in mandamus, in which the original jurisdiction of this Court is invoked, involves the validity of certain rules and regulations in respect to horse racing in this State, as the same may be conducted under the provisions of Chapter 71, Acts of the Legislature, 1935, as amended by Chapter 158 of said Acts, 1947, and as promulgated by the West Virginia Racing Commission, created by the original act, and in force and effect in the month of April, 1949, during which month there occurred the events with which this proceeding is concerned. In this opinion we will deal only with the Act of 1935, as the 1947 Amendments thereto do not cover any question here involved.

By Section 1 of the 1935 Act, aforesaid, there was created the West Virginia Racing Commission, hereafter referred to as "Racing Commission", with the provisions that it should be a corporation, with power, as such, to contract and be contracted with, and to consist of three members to be appointed by the Governor, by and with the consent of the Senate. The section then provides:

" * * * Said commission shall have all the powers necessary to carry out fullyand effectively all the purposes of this act and shall have full power to prescribe rules, regulations and conditions under which all races shall be conducted within the state of West Virginia. The commission may at any time for the violation of any rule or for any fraudulent practices, require the removal of any official or employee employed by any licensee hereunder, and shall have power to summon witnesses and to administer oaths or affirmations to such witnesses and take testimony whenever in the judgment of said commission it may be necessary for the discharge of its duties. False swearing on the part of any witness shall be deemed perjury and shall be punished as such."

Section 11 of the Act provides:

"The commission may license jockeys, trainers and grooms, register colors, assumed names, apprentice contracts, authorized agents, and charge a fee therefor. * * *"

Acting under the general authority aforesaid, the Racing Commission adopted and promulgated certain rules governing the conduct of horse racing under the act, to which all persons desiring to race horses were required to subscribe, as a prerequisite to the granting of any license or privilege therefor. The general purpose of the act was to legalize horse racing under what is known as the pari-mutuel system, to be conducted under the supervision and control of the State through the Racing Commission created by the act. These regulations were very broad and comprehensive, and presumably covered every feature of horse racing permitted under the act. Here we are only concerned with such rules so far as they pertain to fraudulent and corrupt practices. Under the heading "Corrupt Practices" Rules Nos. 245, 246, 247, 247-A, 248, 249 and 249-A were so adopted and promulgated and they read as follows:

"#245--No narcotic, stimulant or drug shall be used, no drench of anything shall be administered, and no electrical, mechanical or other appliances other than the ordinary whip shall be used for the purpose of stimulating the horse or affecting his speed in a race. Any person so offending shall be suspended for not less than six (6) months, and also any horse showing positive from a saliva test or urine test, containing drugs or stimulant shall be disqualified, and the case referred to the West Virginia Racing Commission for any further action deemed necessary."

"In cases where a saliva or urine test shows a positive analysis, the trainer shall be given a hearing before any announcement is made of any penalty imposed."

"246. Any owner, trainer, foreman, groom, stable employee or other person connected with any stable found with any narcotic drug in his possession while upon the grounds of any of the tracks under the jurisdiction of the West Virginia Racing Commission shall be ruled off, and such possession shall be deemed sufficient evidence for such ruling without further proof."

"247. Every owner or his authorized agent or trainer of any horse or horses entered to race on any race track licensed by the Commission to operate a race track, shall immediately at any time when requested by the Commission or any of its agents or employees, submit any horse or horses, of which he is the owner or authorized agent or trainer to any veterinary surgeon designated by the Commission for such examination or tests as said veterinarian may deem advisable to make."

"247-A. (a) Any trainer who injects, gives, uses or administers any drugs or medicines of any kind whatsoever, or who authorizes, allows or permits any other person to give, inject or administer any drugs of any kind whatsoever to a horse within forty-eight (48) hours prior to the running of a horse race, must give notice of the use, injection or administering of said drugs or medicines prior to the running of said race. Any trainer failing to give such notice may be suspended or his license revoked."

"(b) If a horse is scratched as a result of such medication, said horse cannot be entered again for five (5) racing days."

"248., The saliva of the winner of each and every race shall be taken, and from such other horses as the Stewards may direct. In all such cases the trainer shallbe held responsible for the condition of his horse or horses, except in case of unavoidable absence of the trainer, when the stable foreman or groom in charge of the horse or horses shall be held responsible, and in the event of the horse or horses from which said saliva has been taken shall have been found by the Chemist to show evidence of the administration of narcotics, said responsible person so offending shall be suspended for not less than six (6) months and the case referred to the West Virginia Racing Commission for any further action deemed necessary."

"Any urine test may be taken of any horse or horses that the Stewards may ask the Veterinarians in charge to take and have analyzed, and if found positive, the responsible person so offending shall be suspended for not less than six (6) months and the case referred to the West Virginia Racing Commission for any further action deemed necessary."

"249. The veterinarian, as soon as possible, shall send or deliver to the chemist designated by the West Virginia Racing Commission a sample of such saliva and/or urine for analysis, and said chemist shall report to the Stewards the result thereof. Should the report of such chemical analysis disclose a positive result indicating a narcotic, stimulant or drug has been administered, or should any chemical analysis of other excretions or body fluids taken from any horse which has run in any race disclose beyond doubt that a narcotic, stimulant or drug has been used, any person so offending shall be punished at the discretion of the Stewards, by suspension of not less than six (6) months."

"249-A. Any purse won by a horse found to have been stimulated, shall be returned and the same, upon its return, shall be redistributed as if said horse had been disqualified. The suspension against a horse and against the person or persons responsible for his stimulated condition, shall not be terminated at the end of the period imposed by the Stewards, or by the Commission, unless the sum won by the...