Horse betting rule 405

These rules, if adopted, will not go into effect until after the Remington Park meet at the earliest probably sometime in August, unless the OHRC determines some should be adopted as emergency rules. Public notice has been posted regarding the intent of the racing commission to make a number of rule changes.

The public comment period is now open and anyone can read and or provide verbal or written comment to the racing commission office regarding the proposed changes. New language is underlined and language they are taking out has been lined through to strike it out. It is very important that all horsemen, owners, trainers, veterinarians, etc. No such finding was made. Nor would such a finding be essential to the imposition of liability by way of suspension of a trainer's license for violation of rule That this is so is obvious from a conclusion upholding the imposition of strict liability as a proper exercise of the police power.

The board found that Sandstrom was the trainer of Cover Up and that an analysis of the urine sample taken after the race showed the presence of a caffeine type alkaloid. Those findings, supported by undisputed evidence, brought Sandstrom within the operative scope of rule On appeal Sandstrom has advanced an additional ground for invalidating his suspension. He asserts that rule is not a legitimate exercise of delegated authority, that is, that insofar as that rule is based on the statutory grant of power to the board to prescribe rules, regulations and conditions under which horse racing is conducted Bus.

Objections that might be worthy of consideration if the court were dealing with an act of Congress are removed. Highland Farms Dairy v. Agnew, U. Under the doctrine of the separation of the powers of government the lawmaking function is assigned to the Legislature Cal. Cabaniss, Cal. Laws, Supp. By section 19 it was provided that the act should not become effective until the people should ratify a constitutional amendment approving it.

At the election held June 27, , section 25a, article IV of the Constitution was adopted. It provides: "Sec. The Legislature may provide for the regulation of horse races and horse race meetings and wagering on the results thereof.

The provisions of an act entitled 'An act to provide for the regulation and licensing of horse racing, horse racing meetings, and the wagering on the results thereof; to create the California Horse Racing Board for the regulation, licensing and supervision of said horse racing and wagering thereon; to provide penalties for the violation of the provisions of this act, and to provide that this act shall take effect upon the adoption of a constitutional amendment ratifying its provisions,' are hereby confirmed, ratified, and declared to be fully and completely effective; provided, that said act may at any time be amended or repealed by the Legislature.

That the Constitution may permit the Legislature to delegate powers may not be doubted. The Constitution may even authorize the Legislature to confer additional powers which are cognate and germane to its purposes upon a constitutional board or commission, and may further provide that such powers are unlimited by any other provisions of the Constitution.

See Const. Eshleman, Cal. The continuance of the grant of power into section , Business and Professions Code, did not affect its status as previously ratified and confirmed. See Bus. The delegation of authority here considered has constitutional support.

The judgment is reversed. Gibson, C. I concur. While at first thought the rule which we uphold appears to be a harsh one I am persuaded [31 Cal. The effect of the decision simply is that a trainer is held penally responsible on his warranty that a horse entered by him in a race has not been "doped. Contrary to the suggestion which has been made in argument the trainer is not defenselessly liable to punishment for the act of another person; he is liable only for his own act or omission; i.

The trainer can protect himself by protecting the horse and by checking its condition at the last reasonably possible moment before the race. If he finds that despite his earlier care the horse has been drugged he must, of course, withdraw it from the contest; from the time of the last condition check until the race it is not unreasonable that the trainer shall be held to the responsibility of either so guarding the animal as to preclude its being drugged or of withdrawing it from the race.

In my opinion, there is no sound legal basis for the decision upholding rule of the Horse Racing Board. All of the cases relied upon for that conclusion are based upon evidence tending to prove the connection of the defendant with the prohibited act. In each of them, the defendant was found guilty because of his own conduct, or that of his agent, or upon evidence tending to show his negligence. But the horse trainer may be held responsible for the acts of third persons over whom he had no control and against which he may have taken every precaution.

The rule in effect declares, "No matter who drugged the horse, or under what circumstances it was done, the trainer must pay the penalty, with no right to show any facts negating his connection with the prohibited act. McFarland v. American Sugar Ref. In cases of alleged violation of due process, it is the invasion of the right of the individual citizen which determines the validity or invalidity of a rule or a statute and not the rights of the public generally.

It may be conceded that Sandstrom's suspension is not upheld upon the ground of a conclusive presumption that he administered a narcotic or other stimulant. But for the same reason that such a presumption would be invalid, the rule, which "operates to deny a fair opportunity" to the trainer to show facts negating his responsibility, should likewise be held void.

The situation here is not unlike that in Manley v. Georgia, U. I dissent. The majority opinion sustains as valid a rule of the California Horse Racing Board which imposes liability without culpability--guilt without fault or knowledge that a wrong had been perpetrated or that the rule had been violated.

Under this rule an innocent person may be condemned and punished without evidence that he did, or intended to do, or permitted to be done, any wrong whatsoever. In fact, this result could be obtained even if it were conclusively shown that such innocent person did everything possible to prevent the violation of such rule or was overpowered by a wrongdoer and rendered helpless while the unlawful act was being consummated.

The exercise of vigilance, diligence, care, precaution and fidelity to duty honestly and faithfully performed is of no avail. The suspended axe falls and the innocent victim is decapitated. To deprive the trainer of his license under such circumstances would not be founded upon 'just cause,' and for that reason, the Rule as construed and applied by the Board in this case is arbitrary, unreasonable and capricious, and inconsistent with the provisions of the chapter on Horse Racing, particularly sections and That portion reading 'shall be the absolute insurer regardless of the acts of third parties,' and basis for suspension is inconsistent with the authority of the Board to make reasonable rules and to limit suspension orders to cases where just cause is established.

In my opinion rule , as here applied, violates every precept of justice as established by the Constitution and laws of the United States and this state. It is unconstitutional and out of harmony with the American system of justice, and may appropriately be labeled as "un-American. Tot v.

Turnipseed, U. Alabama, U. Natural Carbonic Gas Co. Henderson, U. California, U. But the majority argues that since the rule in question may not be considered as establishing a presumption it does not come within the rule announced in the above cited cases. Such argument is fallacious. No rational mind can deny that rule goes farther than any of the statutes involved in the above cited cases in depriving the complaining party of due process [31 Cal.

The presumption involved in each of the above cited cases was rebuttable, but it placed upon the defendant the burden of disproving the fact presumed. Can it be said that if the statutes in those cases had imposed liability without fault, that such statutes would not have been stricken down as violative of the due process provisions? I do not think that the majority of this court will so contend.

In every case where a statute imposing absolute liability was sustained, such liability was predicated upon proof that the party held liable was in control of the agency which caused the injury from which the damage resulted. The argument on behalf of the defendant in those cases was not that the injury or damage did not result from its operation, but that there was no proof of negligent conduct on its part.

This is quite a different matter than holding a defendant liable without proof that it set in motion the agency which caused the injury or damage. The majority opinion states: "Rule may not be deemed to establish a conclusive presumption to the effect that evidence of the presence of a drug in a horse is proof that the trainer drugged the horse. Since Rule may not be considered as establishing a presumption it is not within the scope of the limitations imposed either by sections and , Code of Civil Procedure, or by Schlesinger v.

It is a veiled denial of the obvious--a smoke screen which attempts to obscure the patent objective of the rule. Let us analyze this argument. It states: "Rule may not be deemed to establish a conclusive presumption to the effect that evidence of the presence of a drug in a horse is proof that the trainer drugged the horse. The majority opinion calls it "strict responsibility. But this does not render it immune to the due process provisions of the Constitution. Certainly, if a statute which purports to create liability by mere fiat is violative of the due process provisions, a rule of an administrative agency which comes within that category, would likewise fall in the face of those provisions.

It has been said that governments are instituted for the purpose of protecting and advancing the rights and ideals of the people, and that ours is a government "of the people--by the people--for the people. As a fortress for the protection of these rights our judicial system was established.

Out of this system has developed what is commonly termed the American system of justice which contemplates that before a person can be deprived of life, liberty or property he must be accorded due process of law. While the term due process of law has been the subject of various interpretations by the judicial tribunals of this country, I think it can be said that there has been no departure from the basic concept that in order to fulfil the requirements of the due process provisions there must be a charge sufficient to inform the person against whom it is directed, of its nature; such charge must be presented to a legally constituted tribunal having jurisdiction to determine the issues raised thereby; that notice of such charge must be given to the person against whom it is directed and a hearing had, at which evidence must be produced sufficient to sustain the charge.

It may be conceded that all of the requirements of due process except the last mentioned evidence to sustain the charge have been met in this case. But instead of producing evidence the state relies upon rule adopted and promulgated by the California State Horse Racing Board which purports to substitute for evidence of guilt a mere fiat, namely, that the administering of a drug to a horse entered in a race is chargeable to the trainer without regard to his knowledge of the fact or ability to prevent it.

It is my position [31 Cal. This position finds ample support in the authorities. In Manley v. Georgia, supra, at page 6, the court said: "A statute creating a presumption that is arbitrary or that operates to deny a fair opportunity to repel it violates the due process clause of the Fourteenth Amendment.

Bailey v. Mere legislative fiat may not take the place of fact in the determination of issues involving life, liberty or property. American Sugar [Ref. United States, supra, where the Court said at pages and "An indictment charges the defendant with action or failure to act contrary to the law's command. It does not constitute proof of the commission of the offense.

Proof of some sort on the part of the prosecutor is requisite to a finding of guilt; it may consist of testimony of those who witnessed the defendant's conduct. Although the Government may be unable to produce testimony of eye witnesses to the conduct on which guilt depends, this does not mean that it cannot produce proof sufficient to support a verdict. The jury is permitted to infer from one fact the existence of another essential to guilt, if reason and experience support the inference.

In many circumstances courts hold that proof of the first fact furnishes a basis for inference of the existence of the second. The Congress has power to prescribe what evidence is to be received in the courts of the United States. The section under consideration is such legislation. But the due process clauses of the Fifth and Fourteenth Amendments set limits upon the power of Congress or that of a state legislature to make the proof of one fact or group of facts evidence of the existence of the ultimate fact on which guilt is predicated.

The question is whether, in this instance, the Act transgresses those limits. The first is that there be a rational connection between the [31 Cal. We are of opinion that these are not independent tests but that the first is controlling and the second but a corollary. In every criminal case the defendant has at least an equal familiarity with the facts and in most a greater familiarity with them than the prosecution. It might, therefore, be argued that to place upon all defendants in criminal cases the burden of going forward with the evidence would be proper.

But the argument proves too much. If it were sound, the legislature might validly command that the finding of an indictment, or mere proof of the identity of the accused, should create a presumption of the existence of all the facts essential to guilt. This is not permissible. And this we think enough to vitiate the statutory provision.

An examination of these cases discloses that in none of them was a statute or rule involved which created absolute liability without proof that the defendant or his agent or employee was in control of the agency which caused the injury or damage, and none of the cases there cited involve a statute or rule of an administrative agency which purports to create liability without such proof. The majority opinion also argues that: "The state, in the exercise of its police power, may regulate public race tracks and places of public amusement.

There is no question but that the state may regulate and even prohibit gambling and this feature of the horse racing enterprise clearly comes within the purview of the police power of the state. However, when it comes to the matter of training horses and racing them independent of the gambling feature of the enterprise, I doubt if the state has any power to place restrictions thereon. It is obvious that only because people desire to wager upon the outcome of horse races the state has any power to control the handling or treatment of horses so long as such treatment is humane.

But conceding that the entire horse racing enterprise because of its gambling features is now within the purview of the police power of the state, it does not follow that the state may violate the due process provisions of the federal and state Constitutions under the guise of exercising its police power. It may be said that all criminal cases come within the purview of the police power.

Yet it is well settled that: "A law which would practically shut out the evidence for the accused and thus deny him the opportunity for a trial would substantially deprive him of due process of law, and be invalid; a law which makes an act prima facie evidence of a crime over which the party charged had no control, and with which he had no connection, is clearly invalid.

Similarly, an ordinance which throws upon the defendant the burden of proving his innocence of a crime is void. The majority opinion argues that: "Rule is designed to afford the wagering public a maximum of protection against race horses being stimulated or depressed by making the trainer the insurer of the horse's condition," and that "Should responsibility be imposed only for actual guilty participation or culpable negligence, as petitioner contends, there would exist a possible field of activity beyond the affirmative protection thereby afforded to patrons of the pari-mutuel system.

The closer the supervision to which the trainer is held, the more difficult it becomes for anyone to administer a drug or [31 Cal. It is a matter of weighing expediency against injustice, or, putting it in another way, does the benefit to that portion of the public who desire to engage in the "sport of kings" outweigh the injustice to an individual whose right to earn his livelihood in his chosen profession is lost because it is impossible for him to prevent a violation of the rule?

Having had some experience in the care and training of horses not of the racing type I take judicial notice of the fact that a trainer does not sleep with his horse, nor is he with him during all his waking hours. I also think it is reasonable to assume that notwithstanding the utmost vigilance is practiced by the trainer, there is nevertheless a possibility that stealthy culprits may be able to administer a drug to a horse without the trainer's knowledge.

Whether the fact could be ascertained by the trainer before he permitted the horse to enter the race, is problematical. The opinion prepared by Mr. Justice Shenk states that: "Detection of the condition may not be possible until long after the race has been run and the pari-mutuel winners paid off.

Justice Schauer he states that: "The trainer can protect himself by protecting the horse and by checking its condition at the last reasonably possible moment before the race. It seems, however, that the test applied in this case urine would probably not be possible to apply before the horse was entered in the race.

Moreover, it would also seem that if any reliable test could be made before the race, such test would be made under the supervision of the racing board to protect the wagering public against fraud. Be that as it may, such considerations are of little value in [31 Cal.

As hereinbefore stated, the rule establishes a conclusive presumption of guilt when a test discloses that a horse entered in a race has been drugged. Such a rule is far more unreasonable and arbitrary than any of the statutes creating rebuttable presumptions which were held invalid as violative of the due process provisions by the United States Supreme Court in the decisions hereinbefore cited.

As stated by Mr. Justice Cardozo in Morrison v. Not only is there no necessity; there is only a faint promotion of procedural convenience. The triers of the facts will look upon the defendant sitting in the court room and will draw their own conclusions. If more than this is necessary, the People may call witnesses familiar with the characteristics of the race, who will state his racial origin. The only situation in which the shifting of the burden can be of any substantial profit to the state is where the defendant is of mixed blood, the white or the African so preponderating that there will be no external evidence of another.

But in such circumstances the promotion of convenience from the point of view of the prosecution will be outweighed by the probability of injustice to the accused. One whose racial origins are so blended as to be not discoverable at sight will often be unaware of them. If he can state nothing but his ignorance, he has not sustained the burden of proving eligibility, and must stand condemned of crime. The government argued that under a prima facie presumption originally in force there had been a loss of revenue.

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