Tweel v. West Virginia Racing Commission

• Decision Date: 09 July 1953
• Docket Number: No. 10585,10585
• Citation: 138 W.Va. 531,76 S.E.2d 874
• Parties: TWEEL, v. WEST VIRGINIA RACING COMMISSION, etc., et al.
• Court: West Virginia Supreme Court

Page 874

76 S.E.2d 874

138 W.Va. 531

TWEEL, v. WEST VIRGINIA RACING COMMISSION, etc., et al.

No. 10585.

Supreme Court of Appeals of West Virginia.

Submitted May 19, 1953.

Decided June 30, 1953.

Concurring Opinion July 9, 1953.

Syllabus by the Court.

1. Horse racing where pari-mutuel wagering is conducted may be regulated or prohibited by the State, through the Legislature, under the police power.

2. The exercise of the police power in the regulation of any business is subject to the due process provisions of the Federal and State Constitutions.

3. A statute enacted for the purpose of regulating horse racing, to be constitutional, must not discriminate against any person of the class to which the statute applies; all persons of the same class must be treated substantially alike.

4. The equal protection provisions of the Federal and State Constitutions do not preclude resorting to classification for purposes of legislation if such classification is reasonable, is founded upon pertinent and real differences, and has as its object a purpose germane to the legislation.

5. 'A very wide discretion must be conceded to the legislative power of the state in the classification of trades, callings, businesses, or occupations which may be subjected to special forms of regulation or taxation through an excise or license tax.' Opinion State Board of Tax Commissioners v. Jackson, 283 U.S. 527.

6. Chapter 112 of the 1953 Acts of the Legislature, now Code, 19-24, relating to regulation of horse racing, is not discriminatory for the reason that it exempts race tracks theretofore existing from requirements relating to the holding of local option elections.

7. Chapter 112 of the 1953 Acts of the Legislature, now Code, 19-24, relating to regulation of horse racing, is not a special Act within the meaning of Section 39 of Article VI of the State Constitution, notwithstanding the Act exempts from its provisions relating to local option elections operators of race tracks theretofore licensed to hold horse race meetings.

8. 'Unless the question is free from doubt, it is the duty of courts to uphold legislative acts as constitutional.' Point 6, Syllabus, Booten v. Pinson, 77 W.Va. 412 .

Compbell, McNeer & Woods, Selden S. McNeer, and Robert K. Emerson, Huntington, for petitioner.

John G. Fox, Atty. Gen., W. Bryan Spillers, Asst. Atty. Gen., for defendants.

GIVEN, Judge.

In this original proceeding in mandamus Nicholas J. Tweel, petitioner, seeks the issuance of a writ commanding the defendant, West Virginia Racing Commission, 'to issue a license to petitioner to conduct a horse race meeting at petitioner's race track', to be constructed partly in Cabell County and partly in Putnam County, West Virginia. An application for the license was made by petitioner and refused by the commission, for the reasons set forth in a letter to petitioner, dated April 13, 1953, in the following language:

'We acknowledge receipt of your letter of April 8, 1953, which constitutes an application for license to hold or conduct a Horse race meeting at the track you are in the process of constructing near Hurricane in Cabell and Putnam Counties.

'We, the newly formed Commission, made up of J. F. Edwards, Chairman, Frank Brooke, Vice-Chairman, and Ralph LePore, Member, find your application to be in due form, and it meets with the unqualified approval of the Commission, but it is necessary for us to decline to issue the license for which you have applied because of the enactment by the West Virginia Legislature on March 7, 1953, of Senate Bill No. 127, which is effective ninety days from passage.

'While we recognize the fact that you were in process of constructing this track prior to the date of the passage of said act, and, in fact, prior to the beginning of the last Legislature, nevertheless, because the construction of this track cannot be completed prior to the effective date of this act, and also because you will not have held race meetings at the track prior to the effective date of the act, we believe you are subject to the act, and it will be necessary for you to make application for a construction permit in accordance with the terms of this legislation.'

No issue of fact is involved. The answer of defendants admits the material facts alleged in the petition, but says that the Act of the Legislature mentioned in the letter quoted above is constitutional. Petitioner contends that the Act of the Legislature is violative of the due process provisions of the Federal and State Constitutions, as being discriminatory, and also violative of Section 39, Article VI, of the State Constitution, as being, in effect, a special Act, where a general Act would have been proper.

The Act in question, Chapter 112, was passed by the Legislature on March 17, 1953. It became effective ninety days after passage. It simply amended Chapter 19 of the Official Code by adding thereto Article 24. The Act specifically provided that it was 'supplementary and in addition to article twenty-three * * * and nothing herein contained shall relieve the person desiring to conduct a horse race meeting, where the pari-mutuel system of wagering is followed, at either an existing race track or one which shall be hereafter established, of the necessity of securing the license therefor and otherwise complying with all of the terms, provisions and conditions of article twenty-three of this chapter.' Prior statutes dealing with regulation of the business of horse racing were not repealed or amended. Section 1 of the Act of 1953 requires that no person, after the effective date of the Act, should 'construct a race track where horse race meetings are to be held and the pari-mutuel system of wagering conducted * * * unless and until such person shall first have applied for and obtained' from the racing commission a construction permit. After consideration of the application the commission is required to enter an order giving 'tentative approval' or showing refusal of the license. In the event 'tentative approval' is given, the commission is required to prepare and publish a notice of that fact and of the further fact that 'a construction permit' will be issued to applicant at the expiration of sixty days from the date of the first publication of the notice, 'unless within said time an application for a local option election shall have been filed with the county court of the county in which said race track is proposed to be established * * *.'

Sections 2 and 3 provide the manner in which a county court shall hold such local option election. In Section 3 it is provided that after the votes cast shall have been canvassed by the county court and the results certified to the racing commission, 'thereupon said commission shall issue or refuse to issue the construction permit in accordance with the results of such local option election.'

Section 4 furnishes a form for the ballot to be used at the local option election. Section 5 inhibits the holding of any other such election within the county for a period of five years following the holding of such an election, inhibits the racing commission from considering any other application for such a construction permit within that period, and further provides: 'In the event a race track shall be constructed in a county pursuant to a construction permit issued by the West Virginia racing commission in accordance with the provisions of this article, no local option election shall thereafter be held as to any race track constructed pursuant to such construction permit.'

The part of Section 6 of the Act alleged to render it unconstitutional is quoted: 'Nothing herein contained shall apply to any race track heretofore established in the state of West Virginia and at which races have been conducted by the owners or operators thereof under and in pursuance of licenses issued by the West Virginia racing commission in accordance with the provisions of article twenty-three of this chapter. The establishment of any new or additional race track within a county in West Virginia in which a race track has heretofore been established and operated under licenses issued by the West Virginia racing commission, whether by the persons owning and operating such existing race track or others, shall be subject to the provisions of this article * * *.' Section 7, the only other section contained in the Act, defines certain terms used therein.

Prior to the passage of the Act of 1953, the law governing horse racing where pari-mutuel wagering is permitted was Chapter 71 of the Acts of the Legislature of 1935, now Code, 19-23, as amended. That Act contained no provision relating to any 'construction permit' of any race track or facilities. It is provided in that Act, however, that before any 'horse race meeting' where pari-mutuel betting is had, the person intending to hold the same shall first obtain a license therefor from the racing commission. The requirements and procedure to obtain such a license are set forth in Section 5 of the 1935 Act, reading:

'Any person desiring to conduct a horse race meeting within the State of West Virginia and to permit or conduct pari-mutuel pools shall apply to the West Virginia racing commission for a license to do so. Such application shall be filed with the commission at least thirty days prior to the first day of each horse race meeting which said person proposes to hold or conduct. The commission shall prescribe blank forms in making such applications. Such application shall specify the days upon which said race meeting is to be conducted. It shall state the name of the person making such application, the post office address of the person making such application, the number of days he intends to hold or conduct such meeting (which shall be successive week days, excluding Sundays,) and the location of the place or track or enclosure where he proposes to hold or conduct such race meeting, and shall supply such other data...