Brennan v. Illinois Racing Board

Mr. Justice Schaefer, dissenting:

I cannot agree with the majority’s limited view of the scope of the power of the State to protect the public from the manipulations to which horse racing is particularly susceptible. That view seems to rest largely upon doubt as to the wisdom of the legislative enactment and a feeling that there is “little if any tendency in penalty-without-fault provisions to reduce the frequency of the crime.” It is horn-book law, however that considerations of this kind are for the legislature, and not for courts.

The statutory provision embodied in Rule 318 states a rule of substantive law which imposes on the horse trainer absolute liability for the condition of his horse, regardless of fault upon his part. The question, therefore, is not whether such a provision raises a conclusive presumption of misconduct or fault but whether the State lacks the power to impose absolute liability. Such legislation is not unusual. For example, in the course of holding the president and general manager of a corporation guilty of having violated the Federal Food, Drug and Cosmetic Act by shipping in interstate commerce misbranded or adulterated drugs, without any showing whatever of wrongdoing on his part, the Supreme Court pointed out that the prosecution “is based on a now familiar type of legislation whereby penalties serve as effective means of regulation. Such legislation dispenses with the conventional requirement for criminal conduct — awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger. United States v. Balint, 258 U.S. 250 , 66 L. ed. 604, 41 S. Ct. 301 . * * * Hardship there doubtless may be under a statute which thus penalizes the transaction though consciousness of wrongdoing be totally wanting. Balancing relative hardships, Congress has preferred to place it upon those who have at least the opportunity of informing themselves of the existence of conditions imposed for the protection of consumers before sharing in illicit commerce, rather than to throw the hazard on the innocent public who are wholly helpless.” United States v. Dotterweich, 320 U.S. 277, 280-81, 284-85 , 88 L. Ed. 48, 51, 53 .

The Liquor Control Act imposes a somewhat similar vicarious liability upon licensees under that Act. It provides : “Every act or omission of whatsoever nature constituting a violation of any of the provisions of this Act, by any officer, director, manager or other agent or employee of any licensee, shall be deemed and held to be the act of such employer or licensee, and said employer or licensee shall be punishable in the same manner as if said act or omission had been done or omitted by him personally.” (Ill. Rev. Stat. 1967, ch. 43, par. 185.) And a property owner who leases his property for tavern purposes is subject to liability under the Liquor Control Act to one who suffers injury as a result of the sale of liquor to an intoxicated person, even though the owner is entirely without knowledge of the transaction. Ill. Rev. Stat. 1967, chap. 43, par. 135; Gibbons v. Cannaven, 393 Ill. 376 . See also, Van Oster v. Kansas, 272 U.S. 465 , 71 L. Ed. 354 .

The present statute goes further, and explicitly makes the trainer an insurer of the condition of his horse, “regardless of the acts of a third party.” But, in my opinion it does not for that reason violate the constitutional rights of the plaintiff. Horse racing accompanied by legalized gambling is peculiarly susceptible to fraudulent manipulation. One of the major problems to be guarded against is the artificial stimulation or depression of the horse. The betting public cannot protect itself against this kind of fraud, nor can its adverse effect, so far as the public is concerned, be remedied, for the parimutuel bets must be paid off immediately after each race. These considerations, in my opinion, justified the General Assembly in imposing upon the trainer the duty to take whatever steps are necessary, during the brief but critical period immediately preceding a race, to insure that his horse is in proper condition. That duty is not discharged by a retrospective recital of suspicions aroused before the race by the conduct of a discharged employee. See, Maryland Racing Com. v. McGee (1957), 212 Md. 69 , 128 A. 2d 419 .

The majority cites Mahoney v. Byers (1946), 187 Md. 81 , 48 A. 2d 600 . The rule involved in that case, however, did not impose upon the trainer an insurer’s responsibility. Instead, it provided that “the fact that the analysis shows the presence of a drug shall be conclusive evidence either that there was knowledge of the fact on the part of the trainer or that he was guilty of carelessness in permitting it to be administered.” Under that rule the trainer’s actual fault was the ultimate fact to be proved, and the court held that the conclusive presumption which required the finding of that ultimate fact from the fact that analysis showed the presence of a drug violated due process. (See, Tot v. United States, 319 U.S. 463 , 87 L. Ed. 1519 .) In State ex rel. Paoli v. Baldwin, 159 Fla. 165 , 31 So. 2d 627 , a closely divided court applied, on rehearing, the reasoning of the Mahoney case to an insurer rule like the one before us. Some years later, the Maryland court distinguished the Mahoney case, and sustained the validity of a rule which imposed an absolute liability on the trainer to so guard his horses that no drug could be administered. Maryland Racing Com. v. McGee (1957), 212 Md. 69 , 128 A. 2d 419 .

Other courts whose opinions, like the second Maryland case, are not mentioned by the majority, have considered and sustained legislation like that now before us. Sandstrom v. California Horse Racing Board (1948), 31 Cal. 2d 401 , 189 P.2d 17 , cert. den. 335 U.S. 814 , 93 L. Ed. 369 ; State v. West Virginia Racing Com. (1949), 133 W. Va. 179 , 55 S.E.2d 263 ; Fogt v. Ohio State Racing Com. (1965), 3 Ohio App. 2d 423 , 210 N.E.2d 730 .

Underwood and Ward, JJ., join in this dissent.