Opposition Brief — Roosevelt Raceway v. County of Nassau

Office-Supreme Court, us. |

Re iter .. P m FILED |

DEC 23 1966

|__o1n F. DAVIS, CLERK _}

.IN THE

Supreme Court of the United States

October Term, 1966

No. 732

ROOSEVELT RACEWAY, INC.,

Appellant,

v.

COUNTY OF NASSAU and PETER P. ROCCHIO, 8z.,

as Coyptroller of Nassau County,

Appellees.

On APPEAL FROM THE CourRT oF APPEALS OF THE

State or New York

BRIEF OF APPELLANT IN OPPOSITION

TO MOTION TO DISMISS OR AFFIRM

Grorce Morton Levy,

Counsel for Appellant.

Of Counsel:

Grorce Morton Levy,

Louis Harmorr.

BLANK

PAGE

TABLE OF CONTENTS

Grounds of Jurisdiction .........:....ccecceees Goan

Opinions Delivered in the Courts Below ...........

e ©

Order and Judgment Appealed aoe

‘The Statutes Involved .......... (dbenecenuseones

; Question i ee rr af AS eS

Gist of the Argument ...... : (jbneuesVoens keesess

The Alleged ‘Tax Deficiency ................. s ao

History of Local Admission Tax — on

Racetracks in New York ...........0..eeeeeeeees

Pornt I—A tax which discriminates against harness

tracks in favor of running tracks in the same metro-

politan area is arbitrary and denies the harness

tracks the equal protection of the laws in violation

of the Constitution of the United States ...... lawn

FRO CEE TE OPC OOO sie Shei aetae eae

Index to Citations

CasEs :

: Application of Roosevelt Raceway, Inc., ete. v.

County of Nassau, et al., 18 N.Y. 2d 720 (Sept.

TSE: 4A RO 0hN adnan ene neauhbesebones 1

Allied Stores of Ohio v. Bowers, 358 U.S. 522 .. — 15

Baker v. Carr, 369 U.S. 186 ...............00068 13

Borden’s Farm Products Co. v. Baldwin, 293

Pee er Creer eer re ere 3,8

Colgate v. Harvey, 296 U.S. 404 ..........005. 13

“4

li

PAGE °

er err e et rere errs err ree errr 15

Heisler v. Thomas Colliery Co., 260 U.S. 245 .... 14

Louisville Gas & E. Co. v. Coleman, 277 U.S. 32... 6, 12

Magnano Co. v. Hamilton, 6 UB. @ i... ...5.. 14

Matter of Gould; 156 N.Y. 423 ...'..... Cc ccc ceees car

_ Matter of McPherson, 104 N.Y. 306 ............ 8

Merchants Refrigerating Co. v. Taylor, 275 N.Y.

ee svagvobeass PT LiastideekWe eee anes aaewes sx 9, 15

People ex rel Hatch v. Reardon, 184 N.Y. 431 .... 7

‘Smith v. Cahoon, 283 U.S. 553. ,......5......5.. ae

‘State Board of Tax Comsntestorn v. Jackson, 283

SS eee yer err ror esas eeegeccess 13

Unrrep States Statute:

28 U.S.C. § 1257(2) -.... cee enna ee eee ; 1

New York StaTE Sessiiiiins 2 :

Laws of 1895, Chapter 570 ....... ee ete:

Laws of 1940, Chapter 254 ......... veccececveees “B10

Laws of 1952, Chapter 148 .......... pean es eae

Laws of 1952, Chapter 236 .......... oenie ane 3,5

Laws of 1956, Chapter 837(3) ............see0es 2, 3,5

Laws of 1956, Chapter 881 ...... Urry tis 13

. Laws of 1959, Ex. Sess. Chapter 881, 67 ee 13

McK. Vsinanal. Laws, a I oso santas cvsceces

McK. Unconsol. Laws, Sec. 7951-8052 puaeadataanies

| | PAGE

Locau Laws: . ;

Nassau County Administrative Code

Sec. 4-2.7 ,...... see eeee ewes Raa ee iiieas 4

Nassau County Administrative Code

EE RS cea eg pape a te ae =

Nassau County Local Law No. 1, 1956 ...........

New York Stare ConsriruTion : a. :

MT seins ei sSoviventvanal 5, 6, 15

Unitep States ConstITUTION: .

Amendment XIV ..... Pparans. Wy yer eae aeeaves 4

( ae

»

IN THE

Supreme Court of the United States

October Term, 1966

No. 732

r =

Vv

Roosevett Raceway, Inc., |

Appellant,

v.

County or Nassau and Perer P. Roccuio, Sr.,

as Comptroller of Nassau County, _

Appellees.

On AppreaL FROM’ THE CouRT or APPEALS OF THE ©

State or New York

ra’

Vv

BRIEF OF APPELLANT IN OPPOSITION

TO MOTION TO DISMISS OR AFFIRM

Grounds of Jurisdiction

The jurisdiction of the Supreme Court is invoked under

28 U.S.C. §1257(2) on the ground that the judgment appealed

from sustained the validity of a state statute claimed to

violate the equal protection clause of the Fourteenth Amend-

ment to the Constitution ‘of the United States.

The Court of Appeals denied appellant’s miotioén to -

amend the remittitur to set forth the federal question ‘‘as

unnecessary since the Federal constitutional question is

. discussed and passed upon in the opinion of the Court of

Appeals’’ [Application of Roosevelt Raceway, Inc., etc. v.

County of Nassau, et al., 18 N.Y. 2d 720 (Sept. 22, 1966) }.

2

Opinions Delivered in the Courts Below

The opinion of the Supreme Court of the State of New

York, Appellate Division, Second Department, is reported

at 25 A.D. 2d 595, 267 N.Y.S. 2d 591 (p. 17a).*

The opinion of the Court of Appeals of the State of

New York is reported at 18 N.Y. 2d 30, 271 N.Y.S. 2d 662

(p. 9a).

Order and Judgment Appealed From

The appeal is from the order of remittitur of the Court

_of Appeals entered June 9, 1966 (p. la) and the judgment

on remittitur, entered July 6, 1966 (p. 4a). Notice of

appeal was filed on September 2, 1966 with the Clerk of

-the Supreme Court, Nassau County (p. 3).

The Statutes Involved

The challenged enactments are the enabling act of the

Legislature of the State of New York, which authorized

‘“cities or counties adjacent to a city having a population

in excess of 2,000,000’’ to collect a 30% admission tax on

admissions to harness tracks within such cities or counties ;

and the Local Law adopted by Nassau County pursuant

to such enabling act.

The enabling act is Chapter 837, Sagtion 3, of the Laws

of 1956, set forth in 65 McKinney’s Consolidated Laws of

New York: 499 (cited as McK. Unconsol. Laws § 9502).

The local law is Nassau County Local Law No. 1, 1956, - Fe

which amended § 4-2.1 of the Nassau County Administra-

tive Code by increasing from 15%’ to 30% the rate of the

County admissions tax imposed on appellant.

* References are to pages of the Appendix to the Statement as

to Jurisdiction filed by appellant.

83

The text of both laws is set out in the Statement as to’

Jurisdiction heretofore filed (pp. 4-6).

Question Presented

The question is whether appellant Roosevelt Raceway,

a harness racing track in Nassau County, is denied the

equal protection of the laws by a state statute which au-

thorized Nassau County to impose a 30% admissions tax

on harness tracks, while the admissions tax on thorough-

bred tracks in the same county and in neighboring Queens

County was fixed at 15% (L. 1956, c. 837; L. 1952, c. 236).

Gist of the Argument

We contend, as_ three of the five Judges of the New

York Appellate Division held, that ‘‘There is no rational

basis for a distinction between a tax on running tracks

and one on harness tracks’’ (p. 19a). Two of the seven

Judges of the Court of Appeals agreed (p. 16a).

Chief Judge Desmond of the Court of Appeals, writing

for the majority, acknowledged that ‘‘We do not know

what prompted the Legislature to permit a 30% impost

on harness tracks only’’ (pp. 14a, 15a), but nevertheless

found that the differences were sufficiently ‘‘substantial’’

to justify the discriminatory tax (p. 15a).

We submit that the classification is arbitrary on its

face, that the differences relied upon are either nonexistent

or irrelevant; and constitute mere ‘‘fanciful conjecture’?

wholly insufficient ‘‘to repel attack’? (Bogden’s Farm Prod-

ucts Co. v. Baldwin, 293 U.S. 194, 209).

4

The Alleged Tax Deficiency

In 1964, the petitioner filed its tax return in Nassau

County, setting forth that for the period from July 30,

1964 to September 28, 1964, the admission tax payable

to Nassau County under the challenged enactment amounted

to $559,353.06; that there had been paid $550,657.60; .that

the taxes theretofore paid had been paid under protest;

and that petitioner claimed that the tax in its entirety

was unconstitutional and invalid. It was also stated that

the petitioner proposed ‘‘to test the validity of such admis-

sion tax in & court of competent jurisdiction”’.

Thereafter, and on October 15, 1964, the Comptroller

notified petitioner of an alleged deficiency: in the sum of

$8,695.46; within 30 days thereafter, petitioner filed its

' protest against the deficiency; hearings were held on De-

cember 1 and 16, 1964; a determination was made rejecting

the protest on December 30, 1964; and within 90 days there-

after, petitioner instituted the present proceeding as re-

quired by the Nassau County Administrative Code, Sec-

tion 42.7.

Appellant’s petition asserted in Paragraph 25 the

repugnance ‘of the admission: tax to the due process and

equal protection clauses of the Fourteenth Amendment to

’ the Constitution of the United States.

After joinder of issue, the matter was transferred to the

Appellate Division, Second Department for determination.

The matter was determined upon the pleadings, including

the transcript of the hearing before the Comptroller annexed

as an exhibit to the petition. The Appellate Division,

by order dated February 14, 1966, annulled the Comptrol-

ler’s determination and granted the petition, on the ground

that the eriabling act and the local law deprived appellant

of the equal protection of the laws, three justices concur-

ring and two dissenting.

Appellees appealed to the Court of Appeals, which

reversed the order of the Appellate Division, five judges

concurring and two dissenting, holding, with respect-to the

federal constitutional question, that the enabling act and

the local law were not repugnant to the equal protection’

clause.

History of Local Admission Tax Legislation

on Racetracks in New York

When the New York State Constitution was amended

‘in November 1939 ‘to exempt from its prohibition against

gambling, pari-mutuel betting on horse racing (Art. I,

§9), the Pari-Mutuel Revenue Act of 1940, which imple-

mented the constitutional authorization, provided for a

tax on the pari-mutuel wagering, but specifically prohibited

any county from imposing any taxes, including taxes ‘‘on

admission fees’’ to the tracks (L. 1940, c. 254).

It was not until 1952, that the Legislature authorized

cities and counties to impose an admissions tax on both

harness and thoroughbred tracks, fixing the maximum at -

15% (L. 1952, ¢. 148, c. 236).

In 1956, for no stated reason, the Lesihuben authorized

local governments to impose a 30% tax on admissions to

harness tracks located ‘in ‘‘cities or counties adjacent to

a city, having a population in excess of 2,000,000’ (L. 1956,

c. 837), but left unaffected the 15% admissions tax on all

other harness tracks, as well as on all running tracks

afiywhere in the State, including Aqueduct —*

Park in the metropolitan New York area.

We submit that this 30% tax on harness tracks in

Nassau and Westchester Counties, while: neighboring flat

tracks enjoy a 15% rate, is palpably discriminatory and

denies appellant the equal protection of the laws.

POINT I

A tax which discriminates against harness tracks

in favor of running tracks in the samé metropolitan’

area is arbitrary-and denies the harness tracks the

equal protection of the laws in violation of the Con- .

stitution of the United States.

We contend that a tax classification which discriminates

against harness tracks in favor of thoroughbred tracks in -

the same urban area is palpably arbitrary and that no

state of facts can be shown or conceived which would jus-

tify this onerous admission tax differential against harness

racing.

‘Both types of enterprise conduct horse races with pari-

mutuel betting. Both enterprises were authorized by the

same provisions of the New York State Constitution (Arti-

cle I, §9). Both forms of racing are under the Pari-Mutuel

Revenue Law (McK. Unconsol. Laws, §{ 7951-8052). The

only factual differences between the two forms of racing

are wholly unrelated to the subject or purpose of the chal-

lenged enactment, viz.: —

(a) The jockey in a running horse race sits astride the

horse while the driver in a harness race sits in a sulky; and

(b) The gait of the horse is different.

There is nothing in the gait of the horse or the position

of the driver or jockey. which suggests, however remotely -

or speculatively, any rational basis for allowing a state

subdivision to tax up to thirty percent of admissions to

harness races, but only fifteen percent of admissions to

running races. The distinction is on its face arbitrary and

discriminatory since it fails to treat equally enterprises

‘‘similarly cireumstanced’’ (Louisville Gas ¢ E. Co. v. Cole-

man, 277 U.S. 32, 37).

At the hearing before the Comptroller of Nassau County |

upon which the determination reviewed herein was made,

ample opportunity was afforded the County of Nassau to

justify either by fact or logic the discrimination between

flat tracks and harness tracks in Nassau County. In that

hearing, not one shred of evidence or argument, however

fanciful or conjectural, was offered to justify the ‘‘classifi-

cation.’’ On the contrary, the testimony of Edward Larkin,

Presiding Supervisor of the Board of Supervisors of

Nassau County, exposed the arbitrary nature of the dis-

crimination. Larkin said:

‘*T don’t think or I don’t know how you can make.

a distinction between a horse that runs with that

thing behind it, a sulky, and a horse that runs with-

out it.’’

Larkin admitted that “the 15% admission tax imposed

by Nassau County on the thoroughbred track at Belmont —

Park did not ‘‘come under discussion at all’’. No con-

sideration had been given to whether it was unfair to tax

Roosevelt Raceway 30% and Belmont Park 15%. Larkin

said;

‘‘T'o my knowledge there was no discussion, there

was no comparison made of the relative merits of

either one or the other: It was a situation where

the Legislature had given permission for an act to

be taken. The act was being beneficial to the finances

of the County and the act was therefore taken.’’

The presumption of constitutionality which must be

accorded any legislative enactment is thus overcome by

the obvious lack of the remotest rational connection be-

tween admission taxes on the one hand and ‘the position

of the es or driver and the gait of the horse on the

other.

Apt here is the language of the Court of paces in |

People ex rel. H atch v. Reardon, 184 N.Y. 431, per Vann, J.,

at p. 445:

‘«e* * While a tax upon * * * the * * * horses of a

particular man, or on the sale thereof, would obvi-

ausyeenmrarnerae

ously invade a ninnithdiess right, still a tax upon

* all horses or the sale thereof, leaving sheep

and cows untaxed, however unwise, would be within

the power of the legislature. This is true of a tax

* * * on all race-horses. The power of taxation

necessarily involves the right of selection, which is

without limitation, provided all persons in the same

situation are treated alike and the tax imposed

equally upon all property of the class to which it

belongs. (Matter of McPherson, 104 N.Y. 306, 318;

Matter of Gould, 156 N. Y. 423, 427.)”’ (emphasis

added)

Here, all ra@ horses have not been ‘‘treated alike’’;

a distinction has been made between thoroughbred horses

' and standardbred horses, though it is not possible even to

conjecture a rational rélation between admission taxes

and .the breed or gait of_the horse or the position of the

- rider. As was pointed out by track counsel during the

hearings before the Nassau County Comptroller, ‘‘you

might as well tax white horses at 15% and black horses at

30%’’.

In Borden’s Farm Products Co. v. Baldwin, 293 U.S.

194, the Supreme Court emphasized that the presumption

of constitutionality is a rebuttable presumption of fact,

which may be overcome by the patent arbitrariness of the

statute. The Court said (pp. 209, 210):

‘Respondents invoke the presumption which

attaches to the legislative action. But that is a

presumption of fact, of the existence of factual

conditions supporting the legislation. As such, it

is a rebuttable presumption * * * It is not a conelu-

sive presumption or a rule of law which makes

legislative action invulnerable to constitutional as-

sault, Nor is such an immunity achieved by treating

any fanciful conjecture as enough to repel attack.’’

(emphasis added)

In this case, where the arbitrariness appears on the

face of the enabling act, and no factual data or logical

argument has been shown or can be -conceived tending

to support the legislative classification, the presumption

‘of constitutionality is rebutted. As was held in Smith v.

Cahoon, 283 U.S. 553, where the Supreme Court struck

down a Florida statute which regulated ‘‘auto trans.

portation companies,’’ but exempted transporters of agri-

cultural, naetioesnaain dairy and seafood products (at pp.

566-567) :

‘“The principle that the state has a broad discre-

tion in classification in the exercise of its power of

regulation is constantly recognized by the decisions _

of this court * * * But in establishing such a regu-

lation, there does not appear to be the slightest

justification for making a distinction between those

who carry for hire farm products, or milk or butter,

or fish or oysters, and those who earry for hire

bread or sugar, or tea or coffee, or groceries in

general, or other useful commodities.’’ [citing cases].

Here, a 30% tax is imposed on admissions to harness

tracks and a 15% tax on admissions to thoroughbred tracks,

though no rational justification for the discrimination has

been shown or can be § suggested. The ‘‘differences’’ in

the position of the jockey or driver or the gait of the

horse palpably do not constitute ‘‘pertinent and real differ- -

ences, as distinguished from irrelevant and artificial ones.’’

(Merchants Refrigerating Co. v. Taylor, 275 N.Y. 113, 121-

122). |

That there is no ‘‘pertinent difference’’ between. the

two types of horse racing is confirmed by the fact that

the Legislature has historically dealt with thoroughbred

racing and harness horse racing as a single sport, viz.,

horse racing.

The Racing Law, originally enacted in 1895 (L. 1895,

c. 570), governed both running and trotting racing; pro-

vided for the organization of corporations ‘‘for the purpose

of raising and breeding and improving the breed of horses’’

(Sec. 1) ; autherized any such corporation ‘‘to hold one or

more trotting or running race meetings in each year’’

(See. 3); and permitted trotting associations ‘‘entitled to

AsO eee ane -eereneeene. 02

10

conduct trotting races * * * (to) also conduct running

races’’ (Sec. 9). °° ‘

Thus, the Racing Lew since 1895 treated running and

trotting race meetings as a single sport of horse racing

and this classification continued without interruption until

the advent of pari-mutuel betting in 1940, when both forms

of horse racing were covered by the same Pari-mutuel Reve-

nue Law (L. 1940, c. 254).

We recognize, as did the New York Court of Appeals,

that the question is whether there is ‘‘any conceivable

stification for this particular statutory classification”’

(p. 14a). We submit, however, that the factual ‘‘differ-

- enees’’ relied upon by the Court of Appeals in sustaining

te statute are not énly irrelevant but actually non-existent.

e consider sertatim the justifications ‘‘conceived’’ to be

sufficient by the Court of Appeals (p. 15a) :

(a) ‘«For instance, harness racing is generally carried

on at night and flat racing in the daytime. The

Legislature could have come to the conclusion that

night operations result in greater municipal costs

than those in the daytime. agile

We are at-a loss to i imagine what these greater municipal

expenses might be. The Court below did not specify... The

difference between a day and night operation is artificial

illumination—but the track, not the county; furnishes the

illumination. .

It might be fancifully conjectured that the county is

required to furnish more traffic police or other security

- protection at night than during the day. But the incontro-

vertible fact is that Nassau County furnishes no police,

traffic or otherwise, to Roosevelt Raceway. ‘Traffic and

security are supervised by track personnel—surely, an

onerous tax discrimination eught not to be sustained

by a hypothetical supposition unsupported by the record

and contrary to facts which are a matter of f public record

in Nassau County. '

uy

~S : -

(b) Chief Judge Desmond said further (p. 15a):

“Then, too, the harness racing tracks, subject to

the 30% authorization are in Nassau and Westchester

Counties where there is little public transport and.

very large attendance and these tracks might be

thought to require expenditure by the localities of —

larger amounts for highways. It can be judicially

noticed and appears from official statiation that the

two harness tracks which could be affected by these .

___ two increased admissions tax are in the heavily

populated metropolitan area, again justifying the

conclusion that local government would be put to

greater expensé thereby than would be the case in

rural areas.’’

we

-But Belmont Park is also in Nassau County, where

‘‘there is little public transport and very large attend-.

ance’’; and both Belmont Park and Aqueduct fre also in

the same “‘heavily populated metropolitan area’’.

Moreover, there is nothing to suggest either on the

basis of? fact or logic that ‘‘public transport’’ requires

‘‘expenditures by the localities’’ of lesser sums than is

expended ‘‘for highways’’. What reason is there to sup-

pose that the City of New York expended less in acquiring

the New York City transit system than is expended by

Nassau County or Westchester County for highways and

it is common knowledge that most of the funds employed

~ in highway construction is supplied by the federal gov-

ernment.

(c) In ochalonton, Chief Judge Desmond said (p. 15a) :

‘“We will never know what in fact moved the.

. Legislature but we cannot say there is nothing in the

local governmental legislation and management of

a harness racing track adjacent to the metropolitan

_ area, which is sufficiently different from running

tracks eo in the State, to warrant -an authori-

zation by the Legislature for the enactment of a

different tax on admissions on these particular

harness tracks.’?>

a

12 %

With all due respect, we suggest that the Court of

Appeals, in this respect, fell into inadvertent error. The

statute does not classify metropolitan harness tracks differ-

ently ‘‘from running ie elsewhere in the state’’—on

the contrary, it is the vice of the classification com-

plained of that it discriminates against harness tracks in

favor of running tracks in precisely the same urban area.

(d) The Court below noted ‘‘that the (New York) °

Legislature in many other statutes has ordered different

treatment for ‘flat tracks’ and harness tracks’’ (p. 12a).

Reference was made to the different Racing Commissions

which govern the respective sports; and it was pointed out

that the tax on pari-mutuel betting is ‘‘at a (different)

rate and formula’’; and that differing statutory procedures

for providing ‘‘financial assistance * * * for modernization

of crack facilities’? were enacted (pp. 12a, 13a).

Of course, there are ‘‘differences’’ between trotting

traeks and running tracks which warrant differences in

regulatory legislation. But it is horn-book constitutional

law that the ‘‘difference’? must bear ‘‘a reasonable and

just relation’’ to the specific classification in squestion

(Louisville Gas & E. Co. v. Coleman, 277 U.S. 32, 37).

Thus, when different Commissions are created to govern

the two tracks, this is because the racing rules. differ;

and when the Legislature levies a graduated pari-mutuel*”

tax on harness tracks, ranging from .5% on betting. up to

$175,000 to 11% on betting over $600,000; or imposes a

10% tax on metropolitan running tracks and a 9% tax at

Saratoga, the classifications are rationally related to the

volume of betting, not to the position of the jockey or

driver. Further, in actual application to the metropolitan

tracks, based upon existing volume of betting, the pari-

mutuel tax on harness and flat tracks is pubetantially the

same. ;

Similarly, the differences in the legislation enacted to

_enable the tracks to modernize their facilities are not ‘‘a

o ; : a

13

ground of difference having a fair and substantial rela-

tion’’ to the admissions tax rate (Allied Stores of Ohio v.

Bowers, 358 U.S. 522, 527). Varying legislative patterns

facilitating new track construction are not relevant to the

‘*object’’ of admission taxes which ‘‘is to secure revenue”’

» (Colgate v. Harvey, 296 U.S. 404, 424).

But in any event, and decisive on this issue, is the fact,

demonstrable to a mathematical certainty, that the benefits

granted the running tracks have far exceeded those con-

ferred on the harness tracks. If anything, this would

justify a higher tax on the running tracks—not on the .

harness tracks. As is shown by official statistics, the legis-

lature granted the running tracks a reduction in the pari-

mutuel tax which amounted to more than $100,000,000,

and is still continuing, as compared with the. total of

$40,019,706.67 allowed the harness tracks under a statute

now repealed (L. 1959, Ex. Sess. c. 881, § 7).

The net is, to paraphrase the language of Chief Judge

Desmond, that the reason ‘‘We do not know what in fact

moved the Legislature’’ to discriminate between running

tracks and neighboring harness tracks is because there was

in fact no reason, other than political expedience, a con-

sideration which is no more sufficient here than the political

maneuvering whieh prompted the legislative ‘‘gerryman-

dering’’ struck down under the ‘‘one man, one vote’’ rule

(see Baker v. Carr, 369 U.S. 186).

Authorities Relied Upon Below Are Inapposite

We submit that the authorities relied upon by the Court

below and by appellees are either inapposite or tend to

establish the inyalidity of the discriminatory tax here im-

posed.

State Board of Tax Commisstyns y. Jackson, 283 U.S.

527, cited by the, Court below, sustained\the validity of a

, retail store license tax which provided for a graduated levy

14

ranging from $3. per store to $25. for each store in excess

of 20. The Court ruled that ‘‘The chain store has many

features and advantages which definitely distinguish it from

the individual store dealing in the same commodities’’

(p. 535). Here, harness tracks have no ‘‘advantages’’ over.

running tracks—if anything, the economic advantage is the

other way.

In Heisler v. Thomas Colliery Co., 260.U.S. 245, relied

upon below, the statute under attack authorized a tax on

anthracite but not bituminous coal. The classification

was sustained specifically because anthracite had ‘‘no

substantial use beyond a fuel’’, whereas bituminous ‘‘has

other uses’’, which were ‘‘incentives to industry that

the state, in‘natural policy, might well hesitate to obstruct

or burden’’; this ‘‘fact is not denied and the products are

enumerated’’ (p. 257); accordingly, the ‘‘distinction’’ had

‘‘logical and legal justification’? and was therefore ‘‘not

unreasonable or arbitrary’’ (p. 257). Here, so far as the

state is concerned, pari-mutuel betting on running tracks

has no different use or function than pari-mutuel betting on

harness tracks. Both are designed to provide revenue to

- governments, local and state—neither has any other ‘‘use’’.

Magnano Co. v. Hamilton, 292 U.S. 40, cited by the

Court of Appeals, held that a tax on oleomargarine, not im-

posed upon butter, did not violate the equal protection .

clause because ‘‘it is obvious that the differences between

butter and oleomargarine are sufficient to justify their

separate classification for purposes of taxation’’ (p. 43).

It is well settled that the lawmakers may levy taxes which

restrict or even destroy particular occupations or busi-

nesses where such action is deemed appropriate in the

_ public interest, which policy considerations were plainly

applicable to oleomargarine as compared with butter.

(Magnano Co. v. Hamilton, supra, p. 44).

Here, there is no intimation of any legislative purpose

either to restrict or destroy harness tracks or to favor

running tracks over harness tracks.

15

On the contrary, the course of State legislation has

been to enlarge greatly the number of racing days for both

flat and harness racing and to make comparable provision

for the modernization of track facilities in order to en-

courage increased betting and augmented state revenues.

_ The basic constitutional doctrine is that ‘‘mere differ-

ence is not enough’’ (Merchants Refrigerating Co. v.

Taylor, 275 N.Y. 113, 122); and that the difference must

be ‘‘pertinent’’ to the specific classification adopted.

Here, there is no ‘‘pertinent’’ distinction. Both harness

and running tracks are, for governmental purposes de-

signed, euphemistically, to accomplish ‘‘improvement of

the breed of horses’’; and, realistically, to provide the

means for pari-mutuel betting from which, as the Consti-

tution mandates, the State shall ‘‘derive a reasonable

revenue for the support of government’’ (Art. I, § 9).

To adopt a current colloquialism, the ‘‘name of ‘the

game’’ in horse racing is revenue. In this context, pari-

mutuel betting on harness racing and flat racing is the

same. We have shown that the differences referred to by

the Court of Appeals are either factually incorrect or

irrelevant. The gait of the horse and the position of the

rider certainly do not warrant tax discrimination. We

submit that the Presiding Supervisor of the County of

Nassau, the dissenting Judges in the Appellate Division,

and the majority in the Court of Appeals have all ‘‘con-

spicuously failed’’ to find any ‘‘reasonable basis’’ to dis-

criminate against harness tracks in favor of flat tracks

(Hartford S.B.I. & Ins, Co. v. Harrison, 301 U.S. 458, 463).

Broad as is the power of government to classify for tax

purposes, ‘‘there is a point beyond which the State cannot

go without violating the Equal Protection Clause’’—the

classification ‘‘must rest upon some ground of difference

having a fair and substantial relation to the object of the.

legislation’? (Allied Stores of Ohio v. Bowers, 358 U.S.

522, 527).

4

16

We submit that in imposing a 30% tax upon harness

tracks, while taxing ‘‘next door’’ running tracks at 15%,

the challenged legislation has- passed the ‘‘point beyond

which the State cannot go”’.

t

CONCLUSION

For the foregoing reasons, the motion of appellees

should be denied in all respects.

Respectfully submitted,

Grorce Morton Levy,

Counsel for Appellant.

Of Counsel:

Grorce Morton Levy,

Louis Harmorr.

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