State Ex Rel. Broward County Kennel Club., Inc. v. Rose , 126 Fla. 288 ( 1936 )

I am unable to agree that Subsection (1) of Section 2 of Chapter 17276, Acts of 1935, amending Section 2 of Chapter 14832, Acts of 1931, should be construed to preclude the State Racing Commission exercising the authority to "fix and set" the dates for dog racing in a county where there is only one licensed dog race track holding permit to conduct a dog racing meet and thereby fixing and setting the particular ninety days during which such racing meet may be conducted at such track.

Section 2 of Chapter 14832, Acts of 1931, insofar as the same is pertinent here, provided as follows:

"It shall be the duty of the State Racing Commission to carry out the provisions of this Act and such Commission shall have the power and authority to personally, or by agents, supervise and check the making of Pari Mutuel Pools and the distribution therefrom, and

"(1) To fix and set the dates, provided, however, that this Section shall not be construed as authorizing the Commission to fix and set dates for racing in any county where there is not more than one horse track or more than one dog track seeking to race and holding ratified permits, upon which any track can operate in any county, but shall not exclude the operation of other tracks in other counties on same dates."

The first paragraph of that section is identical with the first paragraph of the amended section, except that the word "distributions" (plural) appears in the original and "distribution" (singular) appears in the amendment. But the second paragraph designated (1) is quite different, as will be seen at a glance. The amended paragraph reads:

"Section 2. It shall be the duty of the State Racing Commission to carry out the provisions of this Act and such Commission shall have the power and authority to personally, or by agents, supervise and check the making of Pari Mutuel Pools and the distribution therefrom, and

"(1) To fix and set the dates for racing in any county where there are one or more horse tracks or one or more dog tracks seeking to race and holding ratified permits upon which any track can operate in any county apportioning such dates to the several tracks in such counties in a fair and impartial manner. Provided, however, that where only one licensed dog track is located in a county, such track shall be entitled to operate ninety (90) days, during the racing season at option of said dog track."

Here the Legislature has authorized the Racing Commission to "fix and set the dates for racing in any county where there areone or more horse tracks or one or more dog tracks seeking to race," etc. (Emphasis supplied.) The paragraph then authorized the Commission to apportion such dates to the several tracks in any such counties in a fair and impartial manner.

In State, ex rel. West Fla. Amusement Co., v. Rose, 122 Fla. 227, 165 So. 60, we construed this provision as follows:

"Turning now to the statute on the subject of racing ``dates' and racing ``days,' we find that it disclosed a clear intent that every licensed dog track shall be entitled to a full period of 90 days of racing unless by reason of intra-county competition between two or more licensees operating in the same county, a less total number of ``days' for racing than 90 days shall be specified for each of the tracks. We find further that only after the permissible total number of ``days' for dog racing has been determined and fixed in more than one-track counties at less than the full 90 days accorded by the statute to dog tracks generally in all one-track counties, is the State Racing Commission vested with any authority at all under paragraph 1 of Section 2 of Chapter 17276, supra, to apportion the ``dates' within the specified and limited number of ``days' permitted for the operation of each track."

In that case we were applying the statute to a condition which existed because there were two or more tracks operating in the county. In this case we apply the statute where there is only one dog track in the county.

If we follow the well established rule and give all the words in the paragraph full meaning, we must say: the State Racing Commission may fix and set dates for racing in any and every county where either or both horse racing and dog racing are permitted; that in counties where more than one track of either character is operated the Commission has the discretion to apportion to each track of like character dates covering a part of the racing season and allow each of such tracks less than 90 days in which to operate. But in a county where there is only one dog track to be operated, the Commission may fix and set the days for racing at such track, but must allow the track to operate the full period of ninety (90) days, if the operators desire to operate during all of such period. It is left at the option of the track to take a permit for ninety days or less. The option which may be exercised by the track is as to the number of days it will be permitted, but, having exercised and indicated its option, the dates between which it will so operate will be fixed by the Commission.