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 3Opinion 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.