Rodgers v. Southland Racing Corp.

ARK.] RODGERS V. SOUTHLAND RACING CORP. 1115

PORTER RODGERS ET AL V. SOUTHLAND RACING

CORPORATION

5-5148 450 S. W. 2d 3

Opinion delivered February 2, 1970

[Rehearing denied March 9, 1970.]

1. STATUTES—REGULATION OF DOG RACING TRACK—VALIDITY OF AMEND-

MENT.—Statute which permits operation of a greyhound race

track with pari-mutuel betting which was amended to require

all officers and directors to be qualified electors of the State,

to have resided in the county where the track is located for

at least two years, and maintain their residence in the county

during tenure of their office h eld valid.

2. LICENSES—GREYHOUND RACE TRACK, OPERATION OF AS PRIVILEGE—

STATE'S RIGHT TO CONTROL.— Operation of a greyhound race track

with legalized gambling is a privilege which the State might

prohibit altogether, and the State may impose conditions upon

1116 RODGERS V. SOUTHLAND RACING CORP. [247

the exercise of the privilege beyond those that might be imposed

upon the enjoyment of matters of common right.

8. CONSTITUTIONAL LAW—POLICE POWER OF ErrATE.—Statute reqtdr-

ing officers and directors of greyhound race track to be residents

of the county and State held a permissible exercise of State's

police power because residence requirements would enable the

licensing authority to determine whether applicant was of good

moral character, and maintain necessary surveillanee over con-

duct of a business that must be closely regulated in the interest

of the public peace, health and safety.

4. CONSTITUTIONAL LAW—POLICE POWER OF STATE—PROVINCE OF LEG-.

ISLATURE.—Residence requirements of the act held not so arbi-

trary or totally without foundation as to be contrary to the

constitution because the extent to which gambling establish-

ments should be controlled by law is within the province of

the legislature, even to the point of total prohibition.

Appeal from Pulaski Chancery Court, Third Divi-

sion, Kay L. Matthews, Chancellor; reversed.

Joe Purcell, Attorney General ; Don Langston, and

Mike Wilson, Asst. Attys. Gen., for appellants.

Wright, Lindsey & Jemings, for appellee.

GEORGE ROSE SMITH, Justice. The appellee, South-

land Racing Corporation, operates a greyhound race

track in Crittenden county, with pari-mutuel betting,

under the authority of Act 191 of 1957, as amended.

Ark. Stat. Ann., Title 84, Ch. 28 (Repl. 1960). In 1969

the General Assembly amended the law to provide that

all officers and directors of such greyhound dog tracks

must be qualified electors of the State, must have re-

sided in the county where the track is located for at least

two years, and must maintain their residence in the

county during their tenure in office. Act 285 of 1969 ;

Ark. Stat. Ann. § 84-2823.10 (Supp. 1969).

Harry Latourette is Southland's only officer and

only director who is not a resident of Crittenden coun-

ty. Southland brought this suit against the members of

the State Racing Commission and the Attorney General

ARIL] RODGERS V. SOUTHLAND RAGING CORP. 1117

for a declaratory judgment holding Act 285 to be un-

constitutional and for an injunction restraining the Com-

mission from enforcing the act. This appeal is from a

decree holding the act to be invalid as a grant of special

privileges and immunities that do not equally belong to

all citizens upon the same terms. Ark. Const., Art. 2,

§ 18.

In assailing the validity of the act Southland relies

not only upon the privileges and immunities clauses of

the state and federal constitutions, but also upon the due

process, equal protection, and interstate commerce

clauses. We shall consider all those constitutional at-

tacks together, for with respect to each one the control-

ling question is whether Act 285, with its residence re-

quirements, is a reasonable exercise of the state's police

power.

We hold the act to be valid. The operation of a dog

track, with legalized gambling, is unquestionably a

privilege which the State might prohibit altogether if it

chose to do so. Fortune telling and the sale of intoxi-

cating liquors fall in that same category and may sim-

ilarly be prohibited. White v. Adams, 233 Ark. 241, 343

S. W. 2d 793 (1961) ; Wade v. Horner, 115 Ark. 250,

170 S. W. 1005, Ann. Cas. 1916E, 167 (1914). That being

true, the State may impose conditions upon the exercise

of the privilege beyond those that might be imposed

upon the enjoyment of matters of common right. As we

said in the Wade case: "The State has this right, be.

cause the authority to sell liquor is a mere privilege,

which the State may grant or withhold, as it pleases,

or, if it grants this permission at all, it may do so under

any conditions which it cares to impose ; and this is true,

as has been stated, even though these conditions are so

onerous, as to amount to virtual prohibition of that

traffic."

Statutes restricting the issuance of liquor licenses

to local residents have frequently been sustained. Well

1118 RODGERS V. SOUTHLAND RACING CORP. [247

reasoned opinions include those in De Grazier v. Ste-

phens, 101 Tex. 194, 105 S. W. 992 (1907), citing other

cases, and Hinebaugh v. James, 119 W. Va. 162, 192

S. E. 177 (1937), which we approved in Brown v. Cheney,

233 Ark. 920, 350 S. W. 2d 184 (1961), cert. den. 369

U. S. 796. Such a statute is a permissible exercise of

the State's police power. The reason is that the resi-

dence requirement enables the licensing authority to de-

termine in the first instance whether the applicant is of

good moral character and to maintain thereafter the

necessary surveillance over the conduct of a business

that must be closely regulated in the interest of the pub-

lic peace, health, and safety.

Those considerations apply with even greater force

to an establishment, such as a race track, where gam-

bling is permitted. It is common knowledge that under-

world racketeers and criminal syndicates are constantly

seeking to gain control of gambling enterprises and de-

vices, whether legal or illegal. Our lawmakers were cer-

tainly justified in believing that a residence requirement

such as that contained in Act 285 would assist local au-

thorities in the necessary policing of establishments

such as race tracks. The exact extent to which such es-

tablishments should be controlled by law is peculiarly

within the province of the legislative branch of the State

government. When we consider the broad power that the

state has over such enterprises, extending even to the

point of total prohibition, we certainly cannot say that

the simple yesidence requirements set forth in Act 285

are so arbitrary or so totally without foundation as to

be contrary to the constitution.

We have not overlooked Southland's further con-

tentions that Act 285 violates the obligation of its con-

tractual franchise and that the act is a local or special

measure simply because Southland happens to operate

the only greyhound track in the state. We do not regard

either contention as having sufficient merit to warrant

discussion.

Reversed.