Man O' War Racing Ass'n v. State Horse Racing Commission

Dissenting Opinion by

Mb. Justice Cohen :

Pennsylvania has long enjoyed horse racing, both standardbred and thoroughbred. One need only be a visitor at a county fair to recognize that horse racing in one form or another is a tradition in Pennsylvania. What the legislature accomplished by Act of December 11, 1967, P. L. 707, was to authorize the setting up of gambling facilities at horse races contrary to existing law. In effect, the legislature has granted immunity from the impact of the Act of June 24, 1939, P. L. 872, §605, 18 P.S. §4605 (setting up or establishing gambling places), §603, 18 P.S. §4603 (maintaining gambling devices or apparatus), §606, 18 P.S. §4606 (enticing persons to visit places used for gambling), §699.5, 18 P.S. §4699.5 (running horses for money), to those licensed to conduct pari-mutuel betting at horse races.

The grant of permission to establish gambling places in the Commonwealth should not be bestowed without the most stringent safeguards on the exercise of the grant by the sovereign. Both this act and the act that permits harness racing are deficient in this respect. Neither act required hearings to establish the factual basis necessary to evaluate the proper action and hence are void for vagueness.

In Ashbacker Radio Corp. v. Federal Communications Commission, 326 U.S. 327, 90 L. ed. 108 (1945), the United States Supreme Court held that where there are multiple applications for one vacancy, the Commission can decide which application should be granted only after a public hearing on all of them. This same procedure has been adopted and followed by the Pennsylvania Liquor Control Board. In the event there is more than one applicant for a vacancy, a grant is made by the Board only after an open hearing on each application.

The Commission recognized this deficiency in the act when it established “ad hoc hearings” upon its own initiative. But the procedure which they established does not in my opinion qualify as a hearing, nor does it afford an applicant procedural due process. Unsworn testimony was accepted, cross-examination was not permitted, and there was no requirement that all information be presented publicly. This restrictive procedure was a “hearing” in name only and served as a screen behind which the Commissioners could bestow the licenses in whatever manner they desired.

I dissent.