Utah State Fair Ass'n v. Green

Citation68 Utah 251,249 P. 1016
Decision Date06 August 1926
Docket Number4443
PartiesUTAH STATE FAIR ASS'N et al. v. GREEN et al
CourtSupreme Court of Utah

Appeal from District Court, Third District, Salt Lake County; L. B Wight, Judge.

Action by the Utah State Fair Association and others under the Uniform Declaratory Judgments Act against Herman H. Green and others. Judgment for defendants, and plaintiffs appeal, and defendant Utah Horse Breeding & Racing Association brings cross-appeal.

REVERSED and remanded with directions.

Irvine Skeen & Thurman, of Salt Lake City, for appellant Utah Horse Breeding & Racing Ass'n.

Harvey H. Cluff, Atty. Gen., J. Robert Robinson, Asst. Atty. Gen and H. L. Mulliner, of Salt Lake City, for other appellants.

APPELLANT'S POINTS.

Section 6, Chapter 77, Laws of Utah, 1925, is not invalid by reason of the insufficiency of the title. It is a broad general title covering the creation of the State Racing Commission and its duties and powers. In addition to the reference to State Racing Commission, it also contains a broad general provision as to what these duties and powers relate, that is to horse racing. It is therefore not a title that attempts to give in detail certain features of the Act and omits features contained in the bill; it is broad enough to cover everything relating to the subject recited therein. 25 R. C. L. 853, Sec. 99.

The title is valid: First--Because it refers to the creation of the State Racing Commission and covers its powers and duties, and where a public board is created and the title so states and states the general subject to which their duties relate, everything that is necessary in the act to provide or that is intended to provide means of carrying out the objects contemplated or that comes within the duties devolving upon said board are comprehended by the title and may be contained in the act. 36 Cyc. 1042, 25 R. C. L. 860-2; Cooley's Constitutional Limitations 205, Para. 2; Lewis Sutherland Statutory Construction, 194, Sec. 117, pp. 202-4, Sec. 121; Garr v. Board of Commissioners (Minn.) 97 N.W. 422; Leslie v. Bracken, 45 So. 841; Baltimore & O. R. Ry. Co. v. Town of Whiting, Indiana (Ind.), 68 N.E. 266; Commissioners v. Healan (Md.) 20 A. 130; note, 64 Am. St. Rep. 103; Henderson v. State, 137 Ind. 552; Benson v. Christian, 1129 Ind. 535; Lynch v. Chase, 55 Kan. 367; Rogers v. Morrill, 55 Kan. 737; State v. Hyde 129 Ind. 296; John v. Reaser, 31 Kan. 406; Stone v. Brown, 54 Tex. 330; State v. Ranson, 73 Mo. 78; Hoke v. Commonwealth, 79 Ky. 567; Commonwealth v. Bailey, 81 Ky. 395; State v. Slover, 134 Mo. 10; People v. Backus, 11 A.D. 147; State v. Nomland, 5 N.D. 427, 44 A. S. R. 572; State v. Hedrick, 241 S.W. 402, 409; Rogers v. Morrill, (Wash.) 42 P. 355; People v. Richardson, (Calif.) 65 P. 325; Koppala v. State, (Wyo.) 89 P. 576; Vreeland v. Pearson (N.Y.) 57 A. 151; Devery v. Coler, (N.Y.) 65 N.E. 956; Sweet v. City of Syracuse, 14 N.Y.S. 421; Anderson v. Board of County Commissioners, (Colo.) 186 P. 286; Jackson v. Bell, 226 S.W. 207; Republic Iron & Steel Co. v. State of Indiana, (Ind) 62 L. R. A. 138; State Racing Commission v. Latonia Agricultural Assn., 123 S.W. 681, 25 L. R. A. (N. S.) 905.

Second--Because the pari-mutual system is a system always connected and associated with horse racing, and when used is used in connection therewith, and is therefore embraced within the broad title, "An Act relating to racing," etc. State v. Del Mar Jockey Club, 92 S.W. 185; State Ex Rel v. Miller, 100 Mo. 445; Ex Parte Herman, 77 S.W. 225.

Utah decisions upon the question of title: Ritchie v. Richards, 14 Utah 345; In re Monk, 16 Utah 100; Nystrom v. Clark, 27 Utah 186; Marioneaux v. Cutler, 32 Utah 475; Salt Lake City v. Howe, 37 Utah 176, 106 P. 705; State Ex Rel v. Edwards, 34 Utah 13, 95 P. 367; Naylor v. Crabbe, 45 Utah 617; Salt Lake City v. Wilson, 46 Utah 60, 148 P. 1104; State v. Hammond, 46 Utah 249; Martineaux v. Crabbe, 46 Utah 327; State v. McCornish, 201 P. 637; State v. Olsen, 205 P. 337; Salt Lake City v. Salt Lake County, 209 P. 207. It will thus been seen that in only one case out of thirteen or more cases discussing this question, has any portion of an act ever been held unconstitutional by our Supreme Court on account of the title, and in no case has this been held where the title was general as in this chapter. It will further be seen from the Utah cases that where a general title is used any matter that is "Germane," "Cognate," "Related directly or indirectly," "Connected with," "Fairly implied," or which is calculated to "Carry out" or "Effectuate the purpose," or is "Incidental to," the subject, expressed in the general titles, may be included in the act. This is in accordance with the general rule upon this subject. 25 R. C. L. 856-857, Secs. 101, 102, 103, 104, and 105; People v. Stitt, 117 N.E. 784; Loomis v. Rogers, 163 N.W. 1018; Altgelt v. Gutzeit, 1187 S.W. 220; Bitter v. Bexar County, 266 S.W. 224; People v. McBride, 84 N.E. 865; People v. Bowman, 93 N.E. 244; People v. Nellis, 94 N.E. 165.

Chapter 77, Laws of Utah, 1925, is not within the provisions of Article 6, Section 28 of the Constitution prohibiting games of chance, lotteries or gift enterprises. People v. Laude, 143 N.Y.S. 156. Chapter 77 does not infringe the Constitution: (a) Because horse racing is a game of skill. (b) Because Pari-Mutuals is not a game at all. 27 C. J. 968; 12 R. C. L. 716; 7 L. R. A. (N. S.) 900 (notes); 33 L. R. A. (N. S.) 828 (notes); Harless v. U.S. Morris, (Iowa) 169; State v. Ayres, (Or.), 88 P. 653; State v. Hayden, 31 Mo. 35; McCall v. State (Ariz.) 161 P. 893; 27 C. J. 968-9; Louisville v. Wemhoff, 116 Ky. 812, 79 S.W. 201; Cheek's case, 79 Ky. 359; Gamble v. State, 63 Md. 342; State v. Oldham, 98 S.W. 497; James v. State, 113 P. 226 (Okla.); People v. Ingeman, 129 A.D. 462, 114 N.Y.S. 174; (affirmed) 195 N.Y. 591, 89 N.E. 1107.

Statute constitutional as a matter of definition and legislative construction. Board of Education v. Bryner, (Utah), 192 P. 628; 6 R. C. L. 49; State Road Commission v. Industrial Commission, (Utah), 190 P. 545; Murdock v. Murdock, 38 Utah 373.

Any doubt or ambiguity solved in favor of constitutionality. Park v. Reeves, 40 Utah 47; Board of Medical Examiners v. Blair, 196 P. 221; Scott v. Salt Lake County, 196 P. 1022; State v. McCornish, 201 P. 637.

This legislation within general power of Legislature. Tribune Co. v. Homer, 51 Utah 153, 169 P. 170; Ex Parte Pierotti, 184 P. 209, 211; Carrier v. Brannan, 3 Cal. 328; Scott v. Courtney, 7 Nev. 419; State Racing Commission v. Latonia Agricultural Assn. 123 S.W. 681, 25 L. R. A. (N. S.) 905; Grainger v. Douglas Park Jockey Club, 148 F. 513; Eberhart v. People (Colo.), 130 P. 1076; State v. Gemmell (Mont.), 120 P. 268; Dundham v. Strother, 1 Tex. 89; MacElroy v. Carmichael, 6 Tex. 227; Harris v. White, 81 N.Y. 532; Tuckett v. Herdic, 24 S.W. 992; Grimstead v. Kirby, 110 S.W. 247; Armstrong v. Parchman, 43 Tex. 185; Brannan v. Brighton Beach Racing Association, 9 N.Y.S. 220.

The statement in the case of Salt Lake City v. Doran, 42 Utah 401, to the effect that the legislature cannot under any circumstances legalize any form of gambling whatever under the provisions of Article 6, Section 28 of the Constitution of this State, is pure dictum, as the question was never raised or discussed or involved in the case, and has no force as an adjudication. Callahan v. Salt Lake City, 41 Utah 300; Salt Lake City v. Sutter, 216 P. 234.

The question of policy of dealing with the subject of horse racing and the methods of handling it is for the Legislature. Tribune Co. v. Homer, 51 Utah 153, 169 P. 170; Ex Parte Pierotti, 184 P. 209.

The Constitution in prohibiting the legalizing of certain kinds of gambling, which were named, excluded all others. Scott v. Salt Lake County, 196 P. 1022.

Pari-Mutual system is generally referred to as pool-selling and in every instance where it is mentioned in the decisions, text books and other legal authorities it is related to the general subject of horse racing. 31 Cyc. 913; Reilly v. Gray, 77 Hun. (N.Y.) 403, 408, 28 N.Y.S. 811 (quoted in People v. McCue, 87 A.D. 72, 73, 83 N.Y.S. 1088); Swigart v. People, 154 Ill. 284, 288, 40 N.E. 432 (cited in Ullman v. St. Louis Fair Assn., 167 Mo. 273, 283, 66 S.W. 949, 56 L. R. A. 606); State v. Del Mar Jockey Club, 200 Mo. 34, 56, 92 S.W. 185, 98 S.W. 539; State v. Maloney, 115 La. 498, 513, 39 So. 539; Words and Phrases, 1st Ed., pp. 5174, 5450; State Racing Comm. v. Latonia Agri. Assn., 123 S.W. 681, 25 L. R. A. (N. S.) 905; Granger v. Douglas Park Jockey Club, 148 F. 513; State v. Hermon, 77 S.W. 225; In re Opinion of the Justices (N.H.) 63 A. 505; Barker v. Mosher, 60 N.H. 73.

The law in question is not a private or special law. Grimstead v. Kirby, 110 S.W. 247; Reilly v. Gray, 28 N.Y.S. 811; State v. Thompson, 60 S.W. 1077; Granger v. Douglas Park Jockey Club, 148 F. 513; State Racing Commission v. Latonia Agri. Assn., 123 S.W. 681, 25 L. R. A. (N. S.) 905.

William H. Folland, City Atty., and Shirley P. Jones and W. A. Fraser, Asst. City Attys., all of Salt Lake City, for respondents.

RESPONDENT'S POINTS.

Chapter 77, Laws of Utah, 1925, contains two subjects, one of which has not been clearly expressed in the title in this: The title to said chapter refers merely to horse racing and the setting up of a commission to regulate it. It is silent upon the subject of authorization of the pari-mutual system of wagering and betting, is silent upon the question of prohibiting betting among individuals, is silent upon the subject of the repeal of such portions of Section 8161 as must of necessity be repealed or modified in order to authorize the operation of the pari-mutual system of wagering or betting, all contrary to the provisions...

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