State Ex Rel. Broward County Kennel Club., Inc. v. Rose

Per Curiam. Relator is the only licensed dog track in Broward County. The object of the present proceeding in mandamus is to require the respondents, as and constituting the State Racing Commission, to reconvene and rescind the action by which they undertook to limit relator’s racing season in Broward County to begin December 28, 1936; and end April 10, 1937, to co-ordinate with a similar racing season set for the adjoining County of Dade wherein there are more than one dog and more than one horse track. Section 4 of Chapter 17276, Acts 1935 (Chapters 14832, Acts 1931, as amended), provides as follows: “Hereafter horse race track meetings shall be held during the period extending from and including the 10th day of December in each year to and including the 10th day of April the following year and hereafter dog race track meetings shall be held only during the period extending from and including the 1st day of December in each year and including the 10th day of April the following year; Provided, that both horse race and dog race meetings shall be limited as to number of racing days as provided in' Section 8 of Chapter 14832, Laws of Florida, Acts of 1931, and provided further no race or racing shall be permitted on Sunday.” Subsection 1 of Section 2 of Chapter 17276, supra, provides that the State Racing Commission shall be empowered as follows: “(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 *290 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." (Emphasis supplied.) In setting dates for relator, the State Racing Commission-construed the proviso to Subsection 1 of said Section 2, above, as if it read as follows: “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,” whereas, the proviso contains the: additional language, “at the option of said dog track.” The racing season prescribed by the statute consists of both dates and days. In counties where more than one track is licensed to operate, the State Racing Commission has statutory authority to prescribe both dates and days of racing to be allowed the several tracks, subject only to the require1 ment that dates and days shall be apportioned on a fair and impartial basis. State, ex rel. West Flagler Amusement Co., v. Rose, et al., 122 Fla. 227, 165 Sou. Rep. 60. In counties where there is but one licensed dog track the', language of the statute itself fixes ninety days as the maximum number of days each track “shall be entitled to operate.” This means that if any dog track in such one track county wants to operate the full number of days it is “en1 titled” by the statute itself to do só without reference to any action by the Racing Commission. And the statute itself in its use of the additional phrase,, “at the option of said dog track,” as employed in the proviso to Subsection 1 of Section 2 of Chapter 17276, supra, obviously intended that a dog race track located in a one track county should enjoy the “option,” absent any action by the Racing Commission, to select the particular dates *291 upon which it could expend its permissible ninety days of dog racing that the statute had already said it was “entitled to operate” in the preceding part of the. same statutory proviso. Under the proviso to Subsection 1 of Section 2 of Chapter 17276, supra, respondents, Racing Commissioners, were without statutory power to fix either the dates or the days of racing for relator as the operator of a licensed dog track in the one track county of Broward, therefore the peremptory writ of mandamus should issue as prayed for, and it is so ordered. Peremptory writ of mandamus awarded. Whitfield, C. J., and Ellis, Terrell, Brown and Davis, J. J., concur. Buford, J., dissents.