New-York tribune., 1907-06-15
MAY RACE AT Y0NKERS.
THE EMPIRE TRACK WINS.
appellate DiUision Decides Against
State Commission.


fight for a license to hold a running race meet
ing at its track. near Yonkers unless the State
Racing Commission, through its counsel, decides
TO take the case to the Court of Appeals. The
Appellate Division of the Supreme Court, in
Brooklyn, handed down decision yesterday re-
versing the decision of the lower court denying
the Empire City Trotting Clubs petition for Il
peremptory writ of mandamus to compel th9
State Racing Commission to grant license 7"
hold a race meeting. and granted the relie-
sought.
James Russell Soley. counsel for James But
ler president of the Empire City Trotting Club,
said yesterday that he considered the opinion
of Justice Woodward clear and able statement
of the law defining the powers and duties OF
the State Racing Commission. and that it de-
stroys entirely the theory of an unlimited dis
cretion. which was held by Justice Mills III
Westchestcr County.
The Empire City Trotting Club has been try
ing to get a license to hold a running meet
ing for three years. The State Racing Com
mission has seen fit to refuse the application or
the ground that a meeting at Yonkers would
not be for the best interests of the sport. H X
Knapp member of the State Racing Commits
sion when advised of the decision at Ciravesend
yesterday. said that he had nothing to say. as
the announcement was news to him. Welton c.
Percy and Franklin Bartlett. who acted as coun-
sci for the State Racing Commission. will prob
ably consult with the members of the commits
sion within the next few days and determine
whether an appeal will be taken. inasmuch as
Justice Hirschberg wrote a dissenting opinion.
The four justices who concurred in the opinion
yesterday Woodward, Hooker jerks ard
Miller.
Unless stay is granted and the case is car
ried to a higher court the Empire City Trottins
Club will probably hold a meeting in August.
when there is racing in the Metropolitan dis
trict. This would conflict with the meeting OF
the Saratoga Racing Association at Saratoga.
Justice Woodward wrote the opinion and said.
in part, follows:
The relator seeks peremptory. mandamus direct
la5 t'e STATE NaclhS commission 70 issue "a II
the year ls07 and the learned court at Special
@ % chaPr G 30 @ of s laws Of
lS5, commonly known as the racing law. the
absolute discretion in the matter of granting or
statutory Qualifications to make it competeat to
receive such license. The appeal Of the relator
at Special Term has ftIIv disposed Of ali of the
Incidental questions in harmony with the REALTORS
We are persuaded. however. that the court has
words OF Section OF the act. suggestng discretion
sive meaning attributed to them. We might reach
lature may not be presumed TO have enacted legis-
latlCn or a general character IN response TO a
termination Of a commission. which IL has
no control, TO determine arbitrarily whether the
law shall have any active force. II the ConstruC
ton put upon IL by the learned court at Special
power Of a commission with a hve years term OF
office for It's members to prevent all running or
steepiechase races within the State OF New York
during that period though @ millions Of dollars have have
tSe eHPemaed IN gooG tn mp"h me hne the4Ty tSs S
statute they shall have. THE power and right
ss or da and to- o and
dHE r0,ns or running ~ races az + such % ms
the dominating provision. the active force Of the
is An act for the interpretation Of associations
for the Improvement OF the breed Of horses and 70
regulate the same. and 70 establish state racing
commission and al OF the provisions OF the act
breed ~ horses could have been attained under the
general corporation laws OF this state. except in the
Every intelligent man knows the purpose OF this
LEGISLATION Us primary object was not not & 70 form
horses in the sense that that term would be ordi-
Citations Tor the purpose Of conducting race meet
ings under the provisions Of Section and those
thus maintained in finely bred horses Would pro-
duce the contemplated improvement in the breed OF
horses 1t was not to organize breeding associa-
tons-these could have been formed under the gen
creation OF racing associations for the Indirect
couragement Of high breeding. and it is not to be
discussion which this measure brought forth in tho
rv At s caprc of tbTt commso1eps 5 or that
It was intended TO vest in such commissioners
Soas iGsy Of Po&sF the state tS promote or rum any ' ere
It has never been the policy of this state. far
as we are able to discover to create corporations,
requiring large investments of capital, and then
leave such corporations To the mercy OF commits
sion oWihg n" oblkttlollS 10 SuCh CoLpoIaiioIs,
and until such q purpose Is clearly Indicated by
such powers by construction.
II be safely assumed that when the Legis-
lature provided for the formation of such corpora
tions. and in its third section provided that amy
corporation formed under the provisions Of this
act II claimed in its certificate of organization,
and II It shall comply with all the provisions of
this act shall have the power and right to hold
each year. and to hold, maintain and conduct trot-
@ tendeI Or TO rVe his right W to the coTper"on When
a power and n right are specifically given to an in
the enjoyment of that power and right must be
granted by necessary Implication unless the act
Itself denies the same for it is IA rule of universal
application thot the greater contains the less.
The discretion vested In the commissioners is not
the corporation shall have-these are given by the
statute itself and vest upon the organization of
whether the corporation has complied with the pro,
with the power and right TO conduct the race meet
ines No license is required for the trottinS
10 be held that the license Is required and the
primary purpose of the license Is bring the races
toned: II Is TO regulate the exercise of the power
and right which belongs TO the corporation. and
be found in the fact that the applicant has failed
ioemse and proper Does mot require nj sI6s 6e
applicant 10 show that there other races
or any OF the various considerations which might
appeal 10 the reason preJudices. special interests
passions or other motives of the Individual mem
# the commissioners already had the power TO
ized under this act 20 have license II was OBJ
viousy unnecessary to enact this provision But
the truth Is the commission never had any dis
cretionary powers In reference a corporation
the sufcency Of the acts constutina the crn 20
,i4 ana nor 10 considerations of public private