Tamelleo v. New Hampshire Jockey Club, Inc.

• Decision Date: 19 July 1960
• Docket Number: No. 4814,4814
• Citation: 102 N.H. 547,163 A.2d 10
• Parties: Carmine TAMELLEO and Danny Raimondi v. NEW HAMPSHIRE JOCKEY CLUB, INC. d/b/a Rockingham Park, and Vincent Murphy.
• Court: New Hampshire Supreme Court

Page 10

163 A.2d 10

102 N.H. 547

Carmine TAMELLEO and Danny Raimondi v. NEW HAMPSHIRE JOCKEY CLUB, INC. d/b/a Rockingham Park, and Vincent Murphy.

No. 4814.

Supreme Court of New Hampshire.

Argued June 7, 1960.

Decided July 19, 1960.

Shaw & Donovan Exeter, (both, by brief and orally) for plaintiffs.

McLane, Carleton, Graf, Greene & Brown, Manchester (Kenneth F. Graf, Manchester, orally), for New Hampshire Jockey Club, Inc.

Sheehan, Phinney, Bass, Green & Bergevin, Manchester (Wm. L. Phinney, Manchester, orally), for Vincent Murphy.

BLANDIN, Justice.

The plaintiffs argue that there is no common-law right in this state to operate a pari-mutuel race track and, assuming there is, that this state does not recognize the common-law rule that the proprietor of a private enterprise, not a public calling, can discriminate without cause among his patrons.

It is firmly established that at common law proprietors of private enterprises such as theaters, race tracks and the like, may admit or exclude anyone they choose. Woollcott v. Shubert, 217 N.Y. 212, 222, 111 N.E. 829, L.R.A.1916E, 248; Madden v. Queens County Jockey Club, 296 N.Y. 249, 72 N.E.2d 697, certiorari denied 332 U.S. 761, 68 S.Ct. 63, 92 L.Ed. 346; 1 A.L.R.2d 1165 annotation; 86 C.J.S. Theaters and Shows § 31. While it is true, as the plaintiffs argue and the defendants concede, that there is no common-law right in this state to operate a race track where pari-mutuel pools are sold, horse racing for a stake or price is not gaming or illegal. Opinion of the Justices, 73 N.H. 625, 631, 63 A. 505.

However, the fact that there is no common-law right to operate a pari-mutuel race track is not decisive of the issue before us. The business is still a private enterprise since it is affected by no such public interest so as to make it a public calling as is a railroad for example. Garifine v. Monmouth Park Jockey Club, 29 N.J. 47, 148 A.2d 1; Madden v. Queens County Jockey Club, supra. Regulation by the state does not alter the nature of the defendant's enterprise, nor does granting of a license to conduct pari-mutuel pools. North Hampton Racing and Breeding Association v. New Hampshire Racing Commission, 94 N.H. 156, 159, 48 A.2d 472; Greenfeld v. Maryland Jockey Club, 190 Md. 96, 57 A.2d 335. As the North Hampton case points out, regulation is necessary because of the social problem involved. Id., 94 N.H. 159, 48 A.2d 475.

We have no doubt that this state adheres to the general rule that the proprietors of a private calling possess the common-law right to admit or exclude whomsoever they choose. In State v. United States & C. Express, 60 N.H. 219, after holding that a public carrier cannot discriminate, Doe, C. J., stated, 'Others, in other occupations, may sell their services to some, and refuse to sell to others.' Id., 60 N.H. 261. (Emphasis supplied.)

In Batchelder v. Hibbard, 58 N.H. 269, the Court states that a license, so far as future enjoyment is concerned, may be revoked any time. A ticket to a race track is a license and it may be revoked for any reason in the absence of a statute to the contrary. Marrone v. Washington Jockey Club, 227 U.S. 633, 33 S.Ct. 401, 57 L.Ed. 679.

Cases cited by the plaintiffs in support of a contrary proposition are clearly distinguishable. For example, in Sterling v. Warden, 51 N.H. 217, the right invoked was to enter a United States post office. It was of course upheld. Dicta to the effect that one who keeps a store is 'presumed to license all persons to enter who come there for lawful purposes' (Id., 51 N.H. 231) merely supports the proposition that one who enters such a place is not a trespasser unless his license is revoked. See Batchelder v. Hibbard, supra. In short, we find no reason to believe New Hampshire has departed from the rule laid down by the overwhelming weight of authority in regard to the right of owners of private enterprises to discriminate as they choose between those seeking admission to their places of business.

The plaintiffs also contend that if this be our law, we should change it in view of altered social concepts. This argument ignores altogether certain rights of owners and taxpayers, which still exist in this state, as to their own property. Furthermore, to adopt the plaintiffs' position would require us to make a drastic change in our public policy which, as we have often stated, is not a proper function of this court.

The plaintiffs take the position that RSA 284:39, 40 as inserted by Laws 1959, c. 210, § 4, is invalid as an unconstitutional delegation of legislative power. We cannot agree....