*1 165 FLORIDA, PAOLI, THE STATE OF on the relation JOSEPH J. JR., WATSON, BALDWIN, B. F. WILLIAM B. TOM CHARLES SWANN, YDE, constituting D. and EMIL as and JAMES JOHNSON Commission, Racing BALD- and the said CHARLES F. State WIN, Commission, Racing as chairman the said State WATSON, JR., secretary the said WILLIAM B. as the of the said Commission, State STATE RACING COMMISSION. (2nd) Term, January 31 So. 6,May En Banc granted Rehearing June 1947. Rehearing July denied Hardee, Bucklew, C. J. Sam & Bucklew, Hardee Dan Chap pell Brown, & Chappell for relator.

Parker, Wigginton, Foster & respondents.

BARNS, J.: herein to was issued of mandamus

An alternative writ moved relator thereupon a return and filed respondents return. respondent’s a notwithstanding writ peremptory and horses of race have been a trainer appears Relator by reason had but respondent been licensed as such named a horse found urine of of benzedrine been in the having com- after immediately respondent Acker a race James all as a at race of trainer mission the license relator suspended a months. period tracks in this state for of twelve alleged: Return Among respondents’ things “ horse as been said . . . had administered to benzedrine immediately taken found to exist a the urine sample ” race, after said . and writ stated: petition

Relator’s the alternative “ James . relator a horse -named was the trainer of . . Park, duly a Acker which won the second at Sunshine race Florida, Hillsborough County, licensed race track located in 30th, 3rd, 1947, the Relator January February on 947. On notify- Commission telegram Racing received a from the State following day, as a . . The ing suspension him of his trainer. . 4th, letter, notify- relator a . . . February your received his he had violated Rules 109 ing suspension, claiming him of Acker, had stimulated and James been that the as in the a benzedrine by the administration of known 30th, January race on 1947. ...” second further alleged: Return Respondent’s “ notified be held hearing . . Relator would . 24th, 1947, February at the hour of 10:00 charges on said on M.,____” A. and duties statutory powers Racing

Among is it shall: provided Commission it “(4) control, regulations super- Make rules and licensees, and applicants, permittees, vision and direction of all race holding, conducting operating for the meets, state, tracks, race or races held in this such provided in their regulations application rules and shall uniform effect, duty control and exercising this power upon made such mandatory commission.” (4) F.S. Section 550.02 F.S.A.

In statutes', said carrying out the said provisions State “Rules promulgated adopted November, 1942, Horse among Racing” day on the 28th said Rules were following, to-wit: administer,

“109. No shall admin- to be permit istered in any whatsoever, externally, manner internally or entered or to be entered depressant, hypnotic orodescrip- narcotic kind drug, tion, prior to a race or work-out.”

“117. The re- trainer shall be insurer the absolute for sponsible condition of the horses entered in regardless of the acts of a third Should the chemical party. or other analysis of saliva or urine or other tests samples prove positive, narcotic, showing any stimu- lant, chemical of any kind or the trainer description, addition, horse may off, suspended or ruled and in the foreman in charge of the groom and person shown to had have the care or attendance horse may be suspended or ruled off in the discretion of the Com- mission, and for a like second or shall be subsequent finding ruled off.”

The rule of the not foregoing Racing Commission does make negligence nor respecting carelessness of the trainer stimulants, depressants, in a hypnotics narcotics found horse entered in a race as a for The rule suspension. cause makes the trainer insurer horse he against enters in a race having been drug. administered such

The rule provides that for the offense first the trainer be suspended or off ruled and for second shall offense he be ruled off.

The substance of evidence before the Commission was to the effect that at the time of the race James was in Acker charge of a groomsman by the been name Valino who had employed by four, weeks; only relator five or six James Acker groomsman placed came first and had some bets on imme- day cash his tickets went to left re- suspension after relator’s race and after the

diately notice. without employment lator’s is affected with horse in this state racing The business of interest, regulations governmental and is a public sovereign power exercise of its police In the control. dealings fair regulations promote may make rules that en- power exercise of this same It is the racing. utilities charges public the rates regulate ables it to reasonable in order to procure monopolies and other natural reasonably regulation When a for services. charges and fair toj is not it purpose a lawful accomplish or to tends promote it estab- arbitrary. being suspended Before capriciously horse and of the “doped” that relator was lished he for which the horse doped had been when the horse careless- His negligence the race. trainer entered was the only persuasive condition is horse’s regard ness manner and extent of as to influence with powers. of its exercise negligence as to “presumption” is no question

There does and the rule charged Relator is not so or carelessness. conduct as the standard of fix or carelessness negligence not makes the his license. relator as a trainer under of the horse certain conditions against the insurer trainer *4 found in default a race. He has been entering upon the rule. is within imposed penalty to the subject One the of a accept privilege cannot benefits contingencies certain being event of privilege suspended of the and the happening then complain suspension upon only The hearing. after a full and fair contingencies specified charge hearing civil a full and fair on the right involved was consistent charge under the and a determination of the Rules He to have received. appears with the which relator proof hearing decision made only complains pursuant of the is merit. complaint without capriciously Relator the is so complains regulation reg- no and When the arbitrary legal as to be of force effect. is in reference matter —horse ulation considered races and is our conclusion that this wagering complaint —it is merit. without is and re-

Relator’s motion for writ denied peremptory discharged. is spondent JJ.,

THOMAS, J., BUFORD, CHAPMAN, concur. C. ADAMS, JJ.,

TERRELL and dissent.

ADAMS, J., dissenting.

I dissent because make the uphold rule to trainer the absolute insurer under of loss of penalty horse valuable is The property rights void. word absolute precludes contrary. evidence establish the The construction in any way other grace. the board only

BUFORD, J.: pertinent

The facts relative to sufficiently this case are 6th, stated in our filed opinion May

On consideration of have reached petition rehearing we 6th, conclusion that our opinion judgment May 1947, was erroneous and be should vacated.

The real this question in case is or not the Florida whether Racing Commission Rule 117 is valid. The rule No. is:

“The trainer shall be the absolute insurer and respon- sible for the regard- condition of the horses entered in a less of the acts of a party. third Should the chemical other analysis of saliva or urine or other tests samples prove posi- tive, narcotic, showing chem- ical kind or description, the” trainer may off, be suspended or ruled addition the fore- man in charge groom

shown to have had the care or attendance of the horse Commission, or ruled off in the discretion of suspended and for like second or subsequent finding shall be ruled off.” suspended relator was under the this application of if the rule under which this was made suspension and, void, is arbitrary therefore, and unreasonable then the action of the relator must fall. suspending *5 Under provisions only of this defenses available (a) to one with are charged its violation that the chemical analysis of saliva or urine samples other tests did prove narcotic, not positive showing of (b) description; kind or chemical or (c) involved, or that of the he not trainer

that fact, if such race. The in the not entered horse was care reasonable exercised usual existed, that by reason horse or that of the the condition after looking necessa- he was he had no control over which circumstances any period for from the horse absent to be rily required exercised usually care all reasonable time, he exercised or that race horses entrusted protection in the care by trainers al- defense to the no would constitute training, for them to rule. of this violation leged reasonable to right interpose

A hearing without law. due process cannot constitute defenses legitimate to by profession relator pursue of the license possession property a valuable in Florida was of a race horse trainer many years for The record shows that in the relator. right trainer; has that he race horse had a professional he been he has and that profession of that knowledge acquired expert honesty and-integrity for good reputation maintained a confidencee this he has the by reason of profession; racing. in horse legitimately engaged respect people rights provision under the him of these valuable To deprive loss him to the subject be to would supra, of rule No. no answer to this of law. It is due process thereof without voluntarily he sub say that Commission to Racing» he applied of this rule when operation mitted himself operate his from the Commission permit and received There is no question in Florida. of race horses as a trainer making Racing Commission action of the State man review judicial racing governing rules are rea determine whether rules cases to damus in proper of the purposes accomplishment sonably appropriate ex rel. Mason et al. races. See State legalizing statutes 413, 165 al., 122 So. Rose, et Fla. Florida Constitution Rights the Bill of 12 of

Section in part: provides life, liberty deprived prop-

“No shall ... of law.” process due erty without *6 Maryland City In of Baltimore on the Circuit Court February Inc., 20, 1946, Assn., of American Trainers the case Maryland George Mahoney constituting al., et al. v. P. et Racing George Commission, P. Ma- and Robert F. Curran honey Racing constituting Maryland Commission, et al. opinion copy

an exhaustive have certified before which we (which binding upon persuasive) us is not us but is that Maryland court had under consideration the rule of the Rac- ing 146d, Commission No. which is as follows: analysis

“If the an Commission finds from of the saliva day urine, or or blood taken from horse on the race in competent ran, which the horse or from other evidence that any drug forty- has been to administered the horse within (48) eight race, hours before trainer shall be (a) penalties prescribed in sub-section hereof whether drug, knowingly carelessly or not he administered the or or permitted analysis it be to administered. The fact that drug shows the aof shall be conclusive evidence knowledge part either that there was of the fact on the guilty permitting that he was of carelessness in administered,” it to be and held the rule invalid. supra, paria 117,

When rule No. is read in materia with readily Florida 109, Commission Rule it is seen No. reading that Rule 109 as follows: permit administer,

“No shall administered any internally externally, whatsoever, manner entered or to be in a entered de- pressant, hypnotic drug, descrip- or narcotic kind or prior prohibits tion, work-out,” to a acts, race or certain while attempts prescribe proof required rule No. to estab- proscribed lish the fact that the acts have been committed regard provides the trainer. In this rule No. 117 in effect proof fact that a horse entered in race has been administered a shall constitute irrebuttable evidence trainer has violated rule No. 109. This is the reason why process rule No. 117 violates the clause due of both our State and Federal Constitutions. Manley Georgia,

In v. State of 279 U. S. L. 73 Ed. Sup. Supreme Ct. said: Court the United States group fact or proof declaring one

“Legislation *7 fact facie evidence an ultimate facts shall constitute prima valid, between what if is rational connection issue is there A facie prima presump- is is to be inferred. proved what the it is against applied tion the whom upon casts particular forward his evidence the duty going with A creating the relates. statute to which point presumption deny to a arbitrary operates that a is or presumption that the due clause process fair it violates repel' opportunity may Amendment. not take fiat Legislative of the Fourteenth involv- of issue judicial of fact the determination place the life, liberty ing property.” Co., 241 American U.S. Sugar Refining

In McFarland v. 899, 498, said: 79, the court Sup. 60 Ed. 36 Ct. L. the of a de- province legislature

“But it is not within of a crime.” guilty individual guilty presumptively clare an To in the case judgments like effect are the decisions and of Emanuel Williams as of Brevard Pollock v. H. T. Sheriff 792, Florida, 4, L. 322 64 Ct. 88 Ed. County, Rep. U.S. Sup. Dolia, 1095; L. Ed. United of America v. Frank 87 States 772, 1519, 463, 473; Heimer 76 Ed. 285 319 U.S. v. Donnan L. 191, 312-331; Alabama, 219, L. Ed. v. 210 U.S. 55 Bailey U.S. Wisconsin, 145; Ed. 46 Schleisinger v. 70 L. Ct. Sup. 260, 270 U.S. 230. Sup. Ct. merely up that No. 117 sets contend Rule

Respondents facie to convict of violation prima proof required standard cites, cases, Clary among of Rule No. 109 and that 411, 123 & N.W. 649 where Ry. M. St. P. Co. Wis. Chicago com had under consideration a rule of the railroad court pany provided: which men limits yard working yard

“Transfer crews within safety during must move at rate to insure weather view, move flag protection.” obscures the must under meaning the word “in- interpreted There the court however, not, rule is sure” and said: “This sentence of the literally duty making as to absolute pass be taken so defendant its impossible upon employees all accidents mean, at so far as the instant case but be taken to least concerned, degree rate of and consequent is speed of control shall be injury having such as to an prevent proximate its cause that the circumstances under evidence an excessive rate of lack of speed consequent control.”

See also the case of Brooklyn Ry. Leonard v. Co. Heights N. Y. charged 'jury where the Sup. court “the inspection the ears and must be sufficient appliances to insure safety against accident” and the passengers court interpreted meaning “to insure” as words used here was not capable of the construction that the words were meant in the an limited sense that company insurer. The words in viz: Rule No.

“The Trainer shall be the *8 responsible absolute insuror and for the condition the regardless of horses entered in a race not, the act third can parties” by stretch be imagination, construed merely to mean shall use such protect reasonable care as will insure or against Therefore, being stimulated or do drugged. we not the cases think cited are here. by Respondent applicable (2)

In the 600,, case of et v. Mahoney Byers, al. 48 Atl. the Court of Appeals Maryland judgment affirmed the the lower court re- by which that court had mandamus quired Maryland to reinstate D. Racing Commission J. Byers as a licensed trainer after his had been sus- license pended by the Maryland Rule under No. 146, alia, supra, Inter the court said:

“The Commission is a creature of Legislature Legislature does possess not under the State Con- power one prevent making charge stitution from a defense to a brought against by him an substituting presump- irrebuttable tion Such a arbitrary, illegal, for facts. law would be capric- facts, ious and hence unconstitutional. ‘That trial arise, lives, where they is one of the securities of the greatest People.’ liberties and estate of the Article 20 Md. Declaration This Rights. prevents rule the trial of facts and calls the revocation of the without cause shown. license State,

“Judge Alvey, for this court Johns v. speaking 363, concerned, 55 Md. said: ‘So far as this case is it conceded, that a statute that should make evidence readily

174 inherent nature

conclusive, not so its own which was showing from force, party means by preclude exactly what That truth, void.’ simply would be (d) of Rule set up paragraph presumption irrebuttable from appellee does—it prevented of the Commission by the Commis- hence conviction the truth and showing (d) is void.” sion of this paragraph under 6th, 1947, be va- should May our judgment We think should aside; Respondents the return of the cated and set issue as should and that writ peremptory be held insufficient prayed.

So ordered. WILLIAMS, ADAMS, Associate JJ., TERRELL and Justice, concur. BARNS, JJ.,

THOMAS, J., dissent. C. CHAPMAN PALMER, husband, PALMER, M. joined ETHEL M. her EDWARD and S. A. MAE GREENE and EDWARD M. PALMER FLORA GREENE, husband, GREENE, OWNBY A. her and S. CATHERINE OWNBY, husband, OWNBY, OF and CITY and C. O. C. O. her FLORIDA, Municipal Corporation. PETERSBURG, ST. Term, (2nd) January 31 So. May 9, En Banc July Rehearing 1947. Rehearing September denied *9 Martin, Appellants. L. D. Flora Mae A. Greene

John C. Blocker for Greene S. Hoffman, Ownby Ownby, Forrest for Catherine C. O. City Lewis appellees. Wray Harry Q. Young, B. St. Petersburg, appellees.

CHAPMAN, J.: Greene, Flora filed A. Greene and Mae appellees, S. County, of Pinellas complaint their bill of in the Circuit Court