Citation Numbers: 208 Misc. 1047
Judges: Markowitz
Filed Date: 8/11/1955
Status: Precedential
Modified Date: 1/12/2023
This is an article 78 proceeding whereby petitioner seeks a review of respondent’s refusal to accept petitioner’s application for a license as a mutuel clerk at Roosevelt Raceway. The application was rejected by the respondent upon the determination that section 63 of the Pari-Mutuel Revenue Law (L. 1940, ch. 254, as amd.) as added by chapters 514 and 515 of the Laws of 1954 was applicable and required such rejection. Petitioner further seeks the judicial direction of this court to the respondent to accept said application and to issue the requested license. It appears from the record before me that petitioner is a discharged veteran, has been and is now
By chapter 254 of the Laws of 1940, harness racing and mutuel betting in connection therewith was authorized. It was not until the year 1954 when, in the light of the Moreland Act Commission exposures involving the operation of the race tracks and the ownership of their proprietary stock, drastic regulations were adopted by the Legislature in an attempt to cure the situation. Subdivision 1 of section 63 of the Pari-Mutuel Revenue Law was enacted which provided, so far as the proceedings herein are concerned, that public officers and public employees who earned more than $5,000 per year and party officers were barred from holding any license from the State Racing Commission or the State Harness Racing Commission (subd. 1, par. [a]; subd. 3, pars, [a], [b]), and also were barred from holding any office or employment with any of certain corporations or associations connected with pari-mutuel racing (subd. 1, par. [c]). In view of the foregoing petitioner did not apply for a license from the respondent commission in 1954.
Subsequently, by the adoption of subdivision 6 of section 63 (L. 1954, eh. 515), the severity of the statute was immediately softened. That provision reads as follows: ‘1 6. The provisions of paragraph (c) of subdivision one of this section shall not apply to a public employee of a political subdivision (other than a police officer or paid employee of a police department, sheriff’s office, district attorney’s office or other law enforcement agency) whose compensation is less than five thousand dollars per annum if the local legislative body or other governing board or body of the political subdivision authorizes such employment by ordinance, resolution or local law.”
In 1955, by chapter 815, subdivision 7 was added to said section 63 which reads as follows: “ The provisions of paragraph (a) of subdivision one of this section shall not bar a public officer, public employee or party officer from holding any license issued by the state racing commission or the state harness racing commission if he was qualified to hold such a license on or prior to April sixth, nineteen hundred fifty-four ”.
The effect therefore, of the addition of this subdivision 7, was to repeal the prohibition against the granting of a license to a public officer, public employee or party officer. Respondent contends that since subdivision (c) was not expressly repealed, a public employee earning more than $5,000 per year is still barred from employment at a harness track and since a license would be meaningless, none should issue.
My study of the statutes involved and the history of the legislation leads me to the ultimate conclusion that petitioner has a clear right to the issuance of the license requested and that the position taken by respondent is contrary to the intent and purposes of the controlling statutes aforestated. There can be no dispute that petitioner is a person fully qualified to be licensed as a mutuel clerk prior to April 6, 1954. He had served in that capacity from 1947 to 1953. When section 63
It appears that the obvious intent of the Legislature, in removing the statutory prohibition against the issuance of a license to public employees, was to permit them to obtain such license and that the persons obtaining such license could naturally use them. While it may be argued that the intent of the amendment was to permit the issuance of a license to a public employee, public officer or party officer for the purpose of doing something other than that contained in paragraphs (b), (c) and (d) of subdivision 1, it neverthless is apparent that there is not one single activity involved in the operation of a race track which is not within the condemnation of said paragraphs (b), (c) and (d). Certainly one who races or trains horses, conducts an occupation, trade or business at the race track in order to seek income in the form of a purse or a prize for a successful effort. Whatever- the activity may be, if it is conducted at the race track with the consent, permission or co-operation of the association, it must come within the prohibition contained in the afore-mentioned paragraphs (b), (c) and (d).
After a thorough consideration of the statutes involved in this application and of the background for their enactment, it is clear that the approach to the application of these statutes must be a reasonable one; a reasonable interpretation must be made in order that the law be fairly construed to give force
For all of the foregoing reasons, I find and conclude that the determination of the respondent was arbitrary and capricious; that the respondent misinterpreted the effect of the amendment enacted by chapter 815 of the Laws of 1955, and that petitioner, being a qualified person within the provisions of section 63 of the Pari-Mutuel Revenue Law, is entitled to the issuance of the license applied for, and that the respondent is hereby directed to issue such license to the petitioner.
In view of this disposition, I do not feel that further consideration of the argument raised in respect of the constitutionality of the statutes in question need be considered, and that question is therefore not determined here.
The cross motion of respondent to dismiss the petition, on the ground that the application is premature and petitioner has failed to exhaust his remedies before the respondent commissioner, is denied. It appears that the respondent commissioner here did not refuse to grant petitioner a license, but that he refused to even accept petitioner’s application. The present proceeding seeks to compel the commissioner to accept the application and for an order directing him to issue the license as a ministerial act. Since petitioner is qualified under the law and entitled to a license as a mutuel clerk, there is no discretionary power in the respondent to refuse him the license upon the grounds stated by the respondent commissioner in its interpretation of the law. There is no factual dispute here and the sole question involved is one as to the interpretation of the applicable statutes.
Settle order on or before August II, "1955, on one day’s notice.