*1 intеrvening period in the owner-lessor the negligence the injury. prior ver- the jury’s is whether remaining sole question of the evidence. weight the manifest
dict was against was offered defendant the accident only explanation that a wind” “high present of one witness the testimony can- We in the area of plant night question. the inference testimony outweighs nеgli- that this say record; therefore, the jury’s created other facts gence must be sustained. verdict
Accordingly, the court is judgment appellate of the circuit court of Cook reversed and judgment entered the above verdict is reinstated. County jury reversed;
Appellate Court circuit court affirmed. (No. 41183. Racing Brennan, vs. Illinois Appellee, Bоard
Jean al., et Appellants. Opinion Rehearing March May denied filed 1969. Ward, JJ.,
Schaefer, dissenting. Underwood General, Springfield, Clark, Attorney G. William *2 and A. Groves, Genis, Zola O’Toole, Bernard (John J. of for counsel,) appellants. Coghlan Coghlan, of L. Chicago, and (James Joyse, of counsel,) appellee. Klingbiel the delivered Mr. opinion Justicе
court : The race horse Illinois Board revoked the Racing Brennan, trainer’s of for viola- license the plaintiff, Jean tion of In an action its rules. administrative review that the rule under which his license was plaintiff charged unreasonable, revoked was and him and deprived of due of He law. also chairman process charged matter, of the Board was from in this acting disqualified first, statute, under the because he interested financially and, second, in the of the race tracks because operation combined the functions an of investigator, prosecutor, in this judge which was aby initiated proceeding private of which the chairman was corporation himself a salariеd officer. The trial court found that the chairman of the Illi- nois matter, Board was not to act in Racing this disqualified but also Board, found the rule of the for violation of which the revoked, license was plaintiff’s was unconstitu- tional and void. The court therefore reversed the of order the Board and directed that the license be plaintiff’s rein- statеd. The Board has directly this appealed court.
The rule in question, incorporates verbatim sec- tion of Act, the Horse Racing reads as follows: “The 3.2 trainer shall absolute insurer of and be responsible for the condition of horses entered him in a race-regard- less the acts of a third party. Should chemical or other tests, of salivа or urine analysis other show samples, kind or the Board presence any drug any description, in its discretion or revoke the license of suspend trainer, horse, the the stable foreman in charge other have had the care or groom, shown to attendance of the horse.” Ill. Rev. Stat. ch. par. 37C — 3. The facts are The was the trainer undisputеd. plaintiff horse, Unbested, which was the winner of the sixth race at Hawthorne Race on Course September A conducted after the race re- urinalysis immediately Ritalin, vealed the in the urine presence horse’s psychic stimulant Board’s Rules of prohibited by Racing. testified that he an '10 plaintiff had fired about employee race, beforе days and on the date the race preceding he saw that around the and told him to employee premises stay from barn. also away testified that so plaintiff far as he knew Ritalin had not been administered to his *3 horse in the or three to the race four-day period prior of fact the officer question. findings by hearing desig- nated the Board did not include the any that finding was, himself, misconduct or that plaintiff guilty any had been the horse. negligent guarding embodied the Board’s rule statutory provision authorizes the of a on the trainer without imposing penalty act or omission on any his for what amounts to the part, aof someone else committing felony by Ill. Rev. Stat. (see 8, ch. and the par. 37h1), before us is questiоn whether such a measure can be aas exer upheld legitimate cise of We think it cannot. police power.
Under the reasonable be police power may requirements course, to fraud and imposed, protect public against deceit, but not be they may and must bear a arbitrary, they real-and substantial relation to the welfare. public Whether the means have such a and are es- employed relationship reasonable is a sentially which is subject review question McLaughlin, Products Co. v. the courts. (Carolene Act of Milk the Filled cited In the case 62.) Ill. of de milk, regardless filled sale of any which prohibited observed This court fraud, held invalid. or was ception with resрect to offer proof right to the vendor it denied fraud, pre creating and that a statute adulteration and rebut a fair to deny opportunity sumption operates it contravenes due law. process rule Ill.2d Com., In Control Shoot v. Liquor for a revoca Control Commission Liquor provided who license of anyone pur tion liquor suspension Under the chases a Federal stamp. occupational wagering license of voided who Criminal Code the any person as a to be used knowingly permits premises gambling The license of one who the Federal had place. purchased Commission, was there stamp suspended by although no evidence of on his It gambling premises. ap thаt under Federal law the owner ma peared pinball chine was whether or required purchase stamp the machine was used In administrative re gambling. view the Commission’s order was proceedings reversed and was found to be unconstitutional. This court agreed, saying fact that “Notwithstanding State impose regulations traffic more liquor than stringent would or allowable in permitted other businesses, the of such restraints imposition must neverthe less be in with constitutional keeping restrictions.” The court went on to say licensees have to fair right licenses, treatment the revocation of their and that the Commission’s rule “is subject to the vice unfairly penalizes licensees on basis of improper, arbitrary unreasonable Ill.2d presumptions.” *4 In Mahoney v. Byers (1946), Md. A. 2d 187 600, the stimulative drug benzedrine was found in a sample of saliva taken from the horse a winning steeplechase race. On the basis of this fact alone the Maryland Racing trainer, pursuant the license of
Commission suspended “whether such penalty to authorize a rule purporting carelessly or or knоwingly not he administered drug, declared The rule further administered.” it to be permitted of drug presence that the shows analysis “The fact knowledge that there was evidence either be conclusive shall was guilty trainer or that he the fact on the part of re-On it to be administered.” carelessness of permitting the order after finding court set aside the suрerior view void. This the irrebuttable presumption affirmed, “The is a commission saying of court appeals does not and the Legislature of the Legislature creature under Constitution prevent the State power possess him a defense to charge brought against from one making for facts. Such an irrebuttable presumption substituting and hence un- arbitrаry, capricious, a law would be illegal, constitutional.” an there even evidentiary
In the case at bar is not pre- licensee is without act penalized showing sumption. There on his whatsoever. is no proof or neglect part horse, much less he even doping he knew in it. He loses his because license solely actively particiрated conduct, of which had no of someone else’s personal a fundamental It is knowledge. principle Anglo-Saxon justice personal responsibility penalties not be inflicted on one because another’s acts. As observed, in the case court Maryland Mahoney “This irrebuttable destroyed presumption right appelleе to offer evidence to establish his innocence. If ‘just’, this is the term ‘unjust’ then Md. at meaning.” 187 A. at 2d 86-7,
In State Paoli v. ex rel. Baldwin Fla. 165, (1947), 159 2d a trainer’s So. license was under au suspended al commission in terms thority racing providing, bar, most identical those the case that “The trainer shall be the insurer absolute of and for the con- responsible *5 acts race, in a regardless the horses entered dition of * * that disclosed The evidence of a third party horse winning of the in urine found benzedrine that revealed further the race. It was after immediately day, that bets had placed in of the horse charge groomsman race after the immediately tickets that he went to cash his the groomsman that the trainer was suspеnded when The Florida Supreme notice. left his employment void, that out pointing Court held the commission’s is a valuable right, of a trainer’s license property possession be no defense that under the commission’s rule would after the trainer have exercised care may looking due occurred the condition of the horse or the incident control, and reason of over he had no circumstances that the rule defenses which did not such legitimate permit failed to accord with due of law. We think similar process conclusion must can follow the case bar. Before people in this fashion must first be shown to have penalized they somehow been at fault.
Even if we could аccept that dismisses as argument merely “unfortunate” the fact that are innocent persons suffer, made to there is still no assurance that the rule offers operation more than does one based protection fault, or that it has a real and substantial to relation of race track protection fraud or deceit. pаtrons against thought these “absolute insurer” provisions pre- sumably induce the trainer to take precautions against with the tampering horse. But this is no more than would do anyway, under based on penalty provisions tradi- tional fairness, principles since the of fail- consequences to take ing precautions would be the same. It would seem that thе only applications rule which would not be equally covered one based on fault would be io situations which the trainer could not have prevented We see anyway. little if any tendency penalty-without-fault provisions reduce frequency Indeed, crime. it is not unlikely otherwise be committed which would may offenses wishing or others former
occur. employees Disgruntled abe simple rule to at the trainer well find the back get He his license. him to lose and effective means of causing it was doped could be who penalized regardless horse. prohibit
No power question presented horses, or to require or stimulants to of drugs administering such against reasonable measures to be tаken for protection *6 insurer, at the But peril the trainer an absolute acts. making be, how innocent may of his license of losing regardless is and unreasonable. Board claims it be impossible
The would practically de- “if rule and horse racing every regulation regulate charged or motives of a upon knowledge pendent a But even if аssume the statement to with violation”. we one, an accurate it is no answer to the argu- be plaintiff’s is a constitutional ments. Administrative convenience not substitute for the of individuals. rights a rule based on .traditional of culpa-
Under principles the circumstances in horse busi- bility prevailing racing ness be such as to of close require showing super- vision оn the of the trainer he can be before found part Indeed, free of to have been there is negligence. virtually a trainer is in a that could do nothing position not case, in a as been particular necessary required having the exercise of care due for the horse. circuit
The court of Cook was correct in County holding void, and will be affirmed. judgment
Judgment affirmed. Schaefer, Mr. dissenting: Justice I cannot with the limited view of the agree majority’s the State from of power public scope protect to which horse manipulations racing particularly That view seems to rest doubt as susceptible. largely upon feeling enactment of the legislative to the wisdom tendenсy penalty-without-fault “little if any there is It is horn- the crime.” of to reduce frequency provisions for kind are of this law, that considerations book however not for courts. legislature, states Rule embodied statutory provision trainer on the horse rule of imposes substantive law which horse, his regardless absolute for the condition of liability therefore, of fault his part. question, whether such a a conclusive raises presumption provision misconduct or the State lacks but whether fault is not power absolute Such impose liability. legislation unusual. For in the course example, holding presi- dent and having general manager corporation guilty Food, violated the Federal and Cosmetic Act by Drug ship- ping interstate commerce misbranded adulterated drugs, whatever on any showing wrongdoing part, Court out that the Supreme pointed prosecution “is based on a now familiar type legislation whereby penalties serve as effective means of regulation. Such legis- lation with the conventional dispenses requirement criminal conduct—аwareness of some In the wrongdoing. interest larger good the burden of puts acting *7 a hazard otherwise innocent upon but standing relation to a responsible danger. public United v. States * ** Balint, U.S. 66 L. 250, 604, ed. S. Ct. 258 41 301. there doubtless be under a Hardship statute which thus penalizes transaction though consciousness of wrong- be totally doing wanting. Balancing relative hardships, has Congress preferred place those who upon have at least the opportunity themselves of informing the exist- ence of conditions for the imposed protection of consumers commerce, before in illicit rather sharing than to throw hazard innocent public who are wholly helpless.” Dotterweich, United States v. 280-81, U.S. 277, 320 284- 48, L. Ed. 85, 88 51, 53. Act a somewhat similar The Control imposes Liquor under Act. It vicarious licensees liability pro upon nature con : or omission of whatsoever vides act “Every Act, a of this violation of of the any provisions stituting officer, director, or other or by any manager agent employee licensee, be the act of shall be deemed and held to licensеe, or licensee such or and said employer employer as if said act or omis shall be in the same manner punishable him sion had been done omitted Rev. by (Ill. personally.” a who Stat. ch. And owner 1967, 43, 185.) par. property leases tavern to liability for is property subject purposes under Act to who as injury Control one suffers Liquor of the an evеn result sale intoxicated liquor person, the owner is of the though entirely knowledge transaction. Ill. Rev. Gibbons 135; Stat. chap. par. also, Kansas, Cannaven, v. See Van Ill. Oster v. 376. U.S. L. Ed. further, statute makes goes present explicitly horse, the trainer an insurer of the condition of his “re- But, of the acts of a third gardless my party.” opinion it does not that reason fоr violate the constitutional rights Horse racing by legalized plaintiff. accompanied is to fraudulent gambling peculiarly susceptible manipula- tion. One of the to be major problems guarded against the artificial stimulation or depression horse. cannot itself protect this kind of betting public against fraud, effect, nor can its adverse far sо as the public concerned, remedied, be bets must parimutuel considerations, after off each These immediately race. paid the General justified my opinion, Assembly imposing the trainer the to take whatever are neces- duty steps the brief but critical sary, during period immediately pre- race, to insure his horse is in condition. ceding рroper That is not recital of duty discharged retrospective the race aroused before conduct of a dis- suspicions
361 v. McGee See, Com. Racing Maryland charged employee. A. Md. 128 2d 69, 212 (1957), 419. Md. v. Byers (1946), cites Mahoney majority 187 however, case,
81, in that A. 2d 600. rule involved 48 the an insurer’s responsibility. did not trainer impose Instead, the shows fact that anаlysis that “the provided either evidence the shall be conclusive presence drug that there was of the fact knowledge part trainer or that he was of carelessness permitting guilty it to the trainer’s actual be administered.” Under court held fault was the ultimate fact and the to be proved, conclusive which the finding required presumption ultimate fact from fact showed analysis due Tot v. violated presence (See, drug process. States, United In U.S. L. Ed. State 463, 1519.) 319 87 Baldwin, ex rel. v. Paoli 2d Fla. So. 165, 627, 159 31 closely divided on court applied, rehearing, reasoning to an Mahoney case insurer rule like the one before later, us. Some years court Maryland distinguished case, and Mahoney sustained the оf a rule validity an absolute on trainer imposed liability to so guard horses that no could be administered. Rac- drug Maryland Com. v. McGee 212 ing Md. A. 2d (1957), 69, 128 419.
Other courts whose like the opinions, second Maryland case, are not mentioned have majority, considered and sustained like that now before legislation us. Sandstrom v. Horse Board Racing 2d (1948), 401, Cal. California 31 P.2d cert. den. L. U.S. Ed. State 369; 189 335 v. West Com. Virginia Racing W. (1949), Va. 179, S.E.2d v. Ohio State 263; Fogt Racing Com. (1965), 3 Ohio 2d App. N.E.2d join Ward, JJ., this dissent.
Underwood