CARROLL v. CALIFORNIA HORSE RACING BOARD

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District Court of Appeal, Third District, California.

CARROLL v. CALIFORNIA HORSE RACING BOARD.*

Civ. 6103

Decided: August 25, 1939

Earl Warren, Atty. Gen., and Ralph H. Cowing, Deputy Atty. Gen., for appellant. Leo R. Friedman, of San Francisco, T.B. Cosgrove and Homer N. Boardman, both of Los Angeles, and Burton K. Wheeler, for respondent.

The appellant herein, California Horse Racing Board, has appealed from the judgment of the superior court in and for the county of Sacramento, ordering a writ of mandate to issue to the appellant, requiring it to rescind its orders, acts, and resolutions taken and done on February 27, 1937, and October 6, 1937, suspending to and including the 31st day of December, 1937, the license of petitioner, Thomas J. Carroll, to act as a trainer of horses under the “California Horse Racing Act”, and also requiring said board to rescind, revoke, cancel and annul the order and action of the Board of Racing Stewards of the racing meet held at Santa Anita Park, Arcadia, California, beginning December 25, 1936, and ending March 6, 1937, suspending petitioner.

The trial court held that the order of the California Horse Racing Board suspending said license was invalid upon the grounds that no notice or hearing was given petitioner. Appellant contends the law does not require notice or hearing in this instance, that sufficient notice was given and hearing had, that petitioner was absolutely responsible for the condition of his horse, and that therefore the judgment is erroneous and should be reversed.

The facts are as follows: The petitioner herein applied to the horse racing board for a trainer's license to authorize and permit him to train horses entered in races upon the outcome of which wagers are made. His application, signed by him, contained the following statement: “I do hereby assent and agree as a condition precedent to receiving said license that I will strictly comply with Chapter 769, of the Statutes of 1933 of the State of California, and the Rules and Regulations of the California Horse Racing Board, and I further agree that the said license may be at any time summarily revoked, canceled, temporarily suspended or withdrawn by the said California Horse Racing Board.”

A trainer's license for one year was issued to petitioner on January 1, 1937, expiring December 31, 1937, and contained the following statement: “This license to act as a trainer was granted to the above named person, whose signature appears on the back hereof, with the understanding that same may at any time be revoked, canceled, temporarily suspended or withdrawn by the California Horse Racing Board.”

Petitioner was in the employ of one Norman W. Church, the holder of an owner's license. Said Church was the owner of a horse named “Proclivity”, which was entered in Race No. 4 at the Santa Anita track on January 1, 1937. One E.L. Fitzgerald appears on the race entry record as trainer. He was not, however, at that particular time the trainer in charge of the horse Proclivity, he being sick, and petitioner was actually in charge of the horse on that particular day.

The horse racing board, under the authority vested in it by the California Horse Racing Act, formulated many rules for the government and regulation of horse racing where bets may be made. Subdivision (d) of rule 146, provides as follows:

“If any person administer a drug, stimulant, narcotic or any other chemical, internally or by hypodermic method prior to a race to affect the action or temperament of a horse, or shall use in a race or while in training, appliances, mechanical or electrical, other than the ordinary whip and spur, every person so offending shall be ruled off.

“Any owner, trainer, foreman, groom, stable employee, or any other person connected with any stable, found with any drug, stimulant or narcotic in his possession while upon the premises of any race track shall be ruled off and such possession shall be deemed sufficient evidence for such ruling, without further proof.

“The use of medicine of any kind, or anything, except feed or water, for twenty-four (24) hours before a horse is to take part in a race is forbidden, except that medicine may be given in cases of emergency under the supervision of a veterinarian licensed by the Board. Veterinarian and trainer shall immediately report such action to the stewards.

“Equipment as prescribed by the California Horse Racing Board for the administration of saliva test will be required at all meetings. All horses will be subject to this, or any other test, ordered by the Stewards, either before or after the race, or both, as prescribed in Rule 38. Should the examination prove positive, and the test show the presence of a prohibited drug or chemical, owner and trainer of the horse shall be ruled off for life.”

Following the race, which was won by Proclivity, a saliva sample was taken of the said horse, which sample was submitted to chemists selected by the horse racing board. A report thereon was made by the chemist on January 7, 1937, showing general reactions to alkaloids “positive”, that the characterization of the alkaloid “resembles strychnine”, physiological test “faintly bitter”, conclusion “Alkaloidal tests—positive”, which report was filed with the horse racing board and the Board of Stewards of Santa Anita track.

Strychnine is a heart stimulant which would cause a horse to run an exceptional race.

The rules and regulations of the California Horse Racing Board provide that among other officials of a race there shall be three stewards. The stewards of a racing meet are employees of the association, person, or corporation conducting the racing meet. They are not employees of the horse racing board. Their authority extends only to the particular racing meet and for the duration thereof. Their general purpose is to conduct and supervise the racing meet. The stewards have general supervision and authority over owners, trainers, jockeys, grooms and other persons attending the horses and over all officials of the meeting, and also over the premises where the meeting is conducted. All questions pertaining directly to racing arising during the period of the meeting are determined by the stewards. The stewards may suspend, for no greater period than the duration of the meeting, anyone whom they have authority to supervise, or they may fine not exceeding $200. All such suspensions and fines must be reported to the California Horse Racing Board, and under no circumstances have the stewards power to extend the punishment inflicted on any one track to another track or meeting without specific sanction from the California Horse Racing Board. Stewards have power to exclude from all places under their control persons who are warned or ruled off and they may exclude persons guilty of corrupt or fraudulent turf practices.

On January 16, 1937, the Board of Stewards of Santa Anita Park held a special meeting to consider the matter of the presence of a drug or chemical in the saliva of Proclivity. At this hearing the chemist who made the analysis of the saliva sample testified in effect that strychnine was present in the saliva of the horse.

The board of stewards held further meetings on January 19, 1937, and January 21, 1937. On January 22, 1937, the board of stewards suspended or ruled off the racing meet trainer Fitzgerald, but later, on January 27, 1937, found that Fitzgerald was not actually in charge of the horse the date of the race by reason of illness and set aside the suspension of Fitzgerald and thereupon suspended or ruled off petitioner Carroll pending further investigation.

Following the meeting of January 22, 1937, the action of the board of stewards was reported to the horse racing board. On January 26, 1937, the horse racing board, at a meeting, studied and discussed the reports which had been received concerning the positive saliva test of the horse and decided to await a complete report and further investigation of the case before taking any action. Petitioner Carroll appeared before the board on January 26, 1937, and was questioned in regard to his knowledge of the matter and at said time acknowledged that he was in charge of the horse and that Fitzgerald was absent on the day of the race. Subsequent meetings were held by the stewards and by the horse racing board from time to time and further investigations were being made by the horse racing board up to October, 1937. On October 6, 1937, the horse racing board adopted the following resolution:

“Whereas, the Board of Stewards, duly appointed, qualified and acting for the term of the 1936–1937 racing meet at Santa Anita Park, California, have heretofore suspended Thomas J. Carroll as a trainer from participating in said racing meet; and

“Whereas, the California Horse Racing Board has heretofore continued said suspension indefinitely until further investigation could be made; and

“Whereas, said investigation has now been completed and all of the members of the Board have considered all of the information, evidence and reports concerning the drugging of the horse Proclivity on January 1, 1937; and

“Whereas, said board finds from said investigation that the said horse Proclivity did run in the race meeting held at Santa Anita Park on January 1, 1937, and was in fact drugged; and

“Whereas, Thomas J. Carroll was then and there the trainer of said horse;

“It Is, Therefore, Resolved, that the trainer's license heretofore issued to Thomas J. Carroll be, and it is hereby suspended to and including the 31st day of December, 1937.”

So far as is necessary for the purpose of this opinion, the California Horse Racing Act (Stats.1933, chap. 769, p. 2046, and as amended, Stats.1935, chap. 719, p. 1943) provides as follows:

“Section 1. No person, association or corporation shall hold or conduct or assist, aid or abet in holding or conducting, any meeting within the State of California, whereat horse racing with wagering on the results thereof shall be permitted, except and unless such persons, association or corporation shall comply with the provisions of this act and be licensed to conduct a horse race meeting, as provided in this act.

“Sec. 2. There is hereby created and established the California Horse Racing Board, hereinafter called the board, which shall be vested with the powers and charged with the duties in this act specified, and also with the powers necessary and proper to enable it to carry out fully and effectually the purpose of this act. The jurisdiction and supervision of said board shall extend to any and every person or persons, association or corporation that shall hereafter hold or conduct any meeting within the State of California whereat horse races shall be held or conducted upon the results of which there shall be wagering and to every such race and every such race meeting and each and every thing having to do with the operation thereof; and this board shall not have jurisdiction, supervision or control over any contests of speed and endurance of man or beast except horse races upon the results of which there shall be wagering.

“Sec. 3. Said racing board shall have full power to prescribe rules, regulations and conditions consistent with the provisions of this act under which all horse races, upon the results of which there shall be wagering, shall be conducted within the State of California. Said board shall make rules governing, permitting and regulating mutual wagering on horse races under the system known as pari-mutuel method of wagering, which shall be conducted only by such licensee and only within the enclosure and only on the dates for which such horse racing has been licensed by the board. * All other forms of wagering or betting on the result of a horse race shall be and remain illegal and any and all wagering or betting on horse races outside the enclosure where such horse races shall have been licensed by the board shall be and remain illegal.

“All horse owners, riders, agents, trainers, stewards, starters, timers, judges and others acting as officials at any such racing meeting shall be licensed by the board, pursuant to such rules and regulations as the board may adopt, and by the payment of a license fee as fixed and determined by said board. All licenses shall be granted for a period of one year and shall be valid at all race meetings in said State during said period. Said licenses shall be subject to revocation and no person shall be eligible to, or permitted to participate in such racing unless so licensed, and only during the time such license remains unrevoked. No qualified person shall be refused such license, nor shall such license be revoked without just cause.”

It is further provided in said section 3 that the board may at any time require the removal of any employee or official employed by any licensee thereunder and in any case where it shall have reason to believe that such employee or official has been guilty of any dishonest practice in connection with horse racing and has failed to comply with any condition of such licensee's license, or has violated any rule, law or regulations of said board. Also, that the board shall have power to summon witnesses before it and to administer oaths or affirmations to such witnesses, whenever, in the judgment of the board, it becomes necessary for an effectual discharge of its duties.

Section 9 provides, among other matters, that all licenses provided to be granted under the provisions of the act, including those granted pursuant to the provisions of section 3 thereof, shall be subject to all rules, regulations and conditions from time to time prescribed by the board and shall contain such conditions as shall be deemed by said board necessary or desirable for the purposes of this act. Such license shall be subject to suspension or revocation by the board in any case where the board shall have reason to believe that any condition of its license has not been complied with or any law or any rule or regulation of such board shall have been broken or violated; and if any license is suspended or revoked, said board shall state publicly its reason for so doing and cause an entry of such reasons to be made on the minute book of the board, and the action shall be final; provided, however, that the propriety of such action shall be subject to review, upon questions of law only, by the superior court of the county or city and county within which such license was to be exercised, the action of the board to stand unless and until reversed by the court.

It is well settled in this state that betting on horse races may be prohibited by law. In the case of In re O'Shea, 11 Cal.App. 568, 105 P. 776, the validity of section 337a of the Penal Code of this state, commonly called the Racetrack Bill, was before the Appellate Court. In that case the violation alleged involved the betting and wagering on a dog race. At page 571 of 11 Cal.App., 105 P. at page 777, of the decision the court said: “It has long been the practice in this country for the Legislature of the state, or the legislative body of municipal corporations, to pass laws prohibiting and punishing any practice or business the tendency of which, as shown by experience, is to weaken or corrupt the morals of those who follow it, or to encourage idleness, instead of habits of industry, and to prohibit and punish gambling in the various forms in which it is practiced. Such regulations, when not in conflict with general laws, or with the constitution or charter under which they are enacted, are universally upheld by the courts. In fact, it has been said that gambling in its many forms may be rightfully suppressed and punished, and that the question is no longer open for discussion in this country. Harper v. Commonwealth, 93 Ky. 290, 19 S.W. 737; Ex parte Tuttle, 91 Cal. 589, 27 P. 933.”

Under the law of this state as it stood prior to the enactment of the California Horse Racing Act of 1933, betting upon horse races in this state was absolutely prohibited. By said horse racing act betting upon horse races under the pari-mutuel system was legalized. Under the terms and conditions of the act itself and the rules and regulations prescribed by the racing board by the act, the license issued to petitioner was one permitting him to act as a trainer for horses participating in races authorized under the act and as to which bets were made.

The legislature, having power to prohibit such betting, had, of course, the power also to permit the betting upon horse races under such regulations and restrictions as it might see fit, in its discretion, to impose. In considering the questions involved herein, we think there is a marked difference to be noted in cases falling under the practice governing in matters, such as gambling, saloons, and the like, which may absolutely be prohibited, and those businesses, callings or occupations which may be conducted or followed as a matter of right, and which, under the police power, are subject only to such reasonable, proper regulations as may be necessary. In the case of Angelopulos v. Bottorff, 76 Cal.App. 621, 245 P. 447, 448, where the revocation of a restaurant keeper's license was involved, the court said: “There appears to be some conflict in the authorities relating to the power of the city council to revoke a license without notice, apparently due to the fact that the distinction has not been kept clearly in mind between a right to do business and a privilege to engage in certain occupations, usually attended by acts inimical to the public welfare, such as the keeping of saloons. But whatever the rule is in other states, it is now well settled in California that the fundamental right to engage in a business or occupation otherwise lawful and not inimical to the public welfare is different from occupations considered as a mere privilege, and is surrounded with certain constitutional safeguards, among which is the right to be heard, and the further fact that this right cannot be taken away except by due process of law.”

Under the horse racing act it has been noted that the legislature specifically provided that the governor could not remove members of the California Horse Racing Board without preferring charges and affording them an opportunity to be heard. However, as to licensees, there is absolutely no reference whatever to any requirement for notice of any kind or provision for a hearing. We are satisfied that the legislature, in omitting to provide for notice and hearing as to licensees preliminarily to the suspension or revocation of their licenses, intended that there should be none. In fact, the successful conduct of racing meetings where betting is permitted, with all of the known evils following in the wake of such betting, must absolutely depend upon the vigilance, the uprightness and the efficiency of the racing board stewards and other officials of the racing meetings, and upon the formulation of adequate clear and far-reaching rules and regulations, with strict and impartial enforcement of the requirements of the horse racing act and such rules and regulations as may be prescribed thereunder.

It is, of course, unquestioned that the occupation of training horses is a perfectly legitimate one, but when such occupation is used in connection with the training of horses which are to participate in races conducted under the horse racing act where wagers are made and for which, under the act, a license is required, the rights of the person so licensed are limited to the purposes and conditions imposed by the horse racing act and the rules and regulation prescribed by the racing board.

We are satisfied that it was the clear intention of the legislature that the racing board should have the right to suspend or revoke licenses granted under the act and under the rules and regulations of the board and that in suspending the license of petitioner herein no constitutional right has been violated. No notice and opportunity to be heard were given to the petitioner in any of the proceedings held before either the stewards or the racing board. The fact that petitioner was called before the board and gave testimony or made statements in connection with his knowledge of the matter could not, in any view, be held to constitute notice or opportunity for hearing.

In connection with the granting of licenses in these matters where discretion is vested in the board, commissioner or other officer to issue licenses under regulatory acts, what is said by the Supreme Court in the recent case of McDonough et al. v. Goodcell, Commissioner, etc., 91 P.2d 1035, is, we think, enlightening concerning the constitutional question involved herein. At page 1041 it is said:

“It is insisted that the bail bond statute fails to provide for notice and a hearing; that since this is so the statute is invalid, and that therefore the hearing conducted by the Commissioner was entirely ineffectual to afford due process. The answer is that the notice and hearing which it is insisted the statute fails to provide for could in any event be only such notice and hearing as would afford due process when it is contemplated that some constitutional right is claimed to be invaded. Here the hearing was not for the purpose of affording the petitioners an opportunity to resist an invasion of a constitutional right but was for the purpose of enabling the commissioner fairly and intelligently to determine whether a right should be granted to the petitioners, namely, a right to engage in a business the conduct of which, without a permit, was unlawful.

“Nor did the order of the commissioner denying the permit deprive the petitioners of their property without due process. True, the statute had the effect of terminating their right to do business without a permit, but owing to the nature of the business, the legislature had the right to so terminate it conditionally, under its constitutional power to regulate such business. ‘Where the purpose of the statute is to protect the public from unfit persons, it is constitutional, although it disqualifies a person, by reason of past acts, from continuing in the practice of his profession or from remaining in his business.’ 12 Corpus Juris, p. 1106, sec. 815, and cases there cited.”

In McDonough et al. v. Goodcell, Commissioner, etc., supra, the question involved concerned the right of the McDonoughs to have issued to them a permit to conduct a bail bond business, which application was denied, while in the instant proceeding the right to suspend, after issuance of the license or permit, is involved. Nevertheless, as to the constitutional questions under consideration, the principle enunciated in McDonough et al. v. Goodcell, Commissioner, etc., supra, seems particularly applicable.

It is contended by appellant that by his assent in writing, and over his signature, to the condition in the license that said license might at any time be revoked, canceled, temporarily suspended or withdrawn by the racing board, petitioner thereby was estopped to complain of the action of the racing board in suspending his license. On the other hand, it is contended by petitioner that the foregoing conditions contained in the license issued to petitioner imposed an unauthorized condition upon the enjoyment of the rights granted by the statute; that in reality the trainer was given a choice of submitting to the requirement that converted the right granted by statute into a privilege resting in the pleasure of the board, or of forfeiting his right to engage in his profession and to sacrifice the experience of years of training. We question that it is material to the disposition of this matter to determine the effect of the assent to the imposed condition concerning the attempted reservation of the right to suspend or revoke. The general rule respecting licenses or permits to conduct occupations or businesses otherwise prohibited seems to be as stated in 37 Corpus Juris, page 247, section 109: “One who accepts and acts under a license on the condition that it may be revoked at discretion whether such condition is imposed by statute, ordinance, or the license itself, thereby assents to said condition, and is estopped to question the right to revoke, and such estoppel applies, even though no notice of an intention to revoke is given to him. The licensee accepts the conditions upon which the license is granted to him.” State ex rel. Bluemound Amusement Park v. Mayor of the City of Milwaukee, 207 Wis. 199, 240 N.W. 847, 79 A.L.R. 281, 284; 3 McQuillen on Municipal Corporations, sec. 1108; 6 R.C.L. 447, sec. 442.

The license granted herein was a mere privilege. It did not constitute a contract or property or a vested right. One who accepts and acts under a license on the condition that it may be revoked at discretion, whether such condition is imposed by statute, ordinance or the license itself, thereby assents to said condition and is estopped to question the right to revoke, and such estoppel applies even though no notice of intention to revoke is given to him. 37 Cor.Jur. 247, sec. 109. As a general rule, a license to practice a profession, trade or occupation can be revoked only after the licensee has been given notice, an opportunity to be heard and to obtain and present witnesses in his behalf. Under some acts and ordinances, however, particularly as to privileges or occupations which may prove to be harmful to public health, morals, safety or public welfare, the license may be summarily revoked without giving the licensee notice or an opportunity to be heard, and such a statute or ordinance is not in this respect unconstitutional or void. 37 Cor.Jur. 248, sec. 112.

We are satisfied that, even in the absence of an assent to the conditions which have just been discussed, under the horse racing act and the rules and regulations of the racing board, the right to suspend and revoke existed without charges being preferred without notice, and without affording an opportunity to be heard, subject only to the condition that the racing board could not revoke the license except where just cause existed.

As has been noted, the horse racing act provided that the licenses be granted for a period of one year, subject to revocation and that no qualified person shall be refused such license, nor shall such license be revoked without just cause. In granting the license to petitioner the racing board, at least impliedly found that he was qualified. This qualification existed at least until the board, by its final order, suspended petitioner's license for the remainder of the year. The suspension, as has been stated, was made on October 6, 1937, and was to be to and including December 31, 1937. As the license expired on the latter date in any event, the suspension was, in effect, a revocation of the license. The act also provided that the license should be subject to suspension or revocation by the board in any case where the board should have reason to believe that any condition of the license had not been complied with or any law or any rule or regulation of such board shall have been broken or violated. If any license is suspended or revoked, the board should state publicly its reason for so doing and cause an entry of such reasons to be made in the minute book of the board, and the action should be final; provided, however, that the propriety of such action shall be subject to review, upon questions of law only, by the superior court.

Assuming that the final action of the board was in fact a revocation of the license rather than a suspension, the question arises as to whether there was just cause for this action. The finding of the racing board that the horse was in fact drugged is binding upon this court. A careful examination of the transcript of the evidence and proceedings as introduced before the lower court fails in its ultimate analysis to show that petitioner was guilty of any overt act in connection with the drugging of the horse. It is not for the courts in this proceeding to consider the circumstance that petitioner was the trainer of the horse on that particular day owing to the illness of the regular trainer but it was a circumstance which the racing board could consider in connection with all of the other facts and circumstances appearing before it in determining the proper action to be taken by it. Also, for the proper and effective regulation of horse racing where wagering is permitted, it is vitally necessary that the absolute final responsibility for the condition of the horses before entering the race should rest somewhere. The racing board has placed that absolute final responsibility upon the owner and trainer of the horse. We think this to be a reasonable and proper condition to be imposed and that in its imposition no constitutional right is violated.

The meaning of the words “cause” or “just cause” as used in the statute exercising the police power in the state to regulate an occupation usually attended by acts inimical to the public welfare apparently has not been decided by the appellate courts of this state. If we accept the definition of the words “just cause” as meaning that there is required the presence of substantial grounds, especially by legally sufficient evidence as a basis upon which action by the racing board could be taken, still we think it cannot be here said, as a matter of law, that there was no just cause for the board's action. Also, we are satisfied that under the particular statutory enactment here involved, a use of the words “just cause” does not imply or require that charges should be made, notice of hearing given and an opportunity to be heard afforded. In matters of this kind the racing board acts only in an administrative capacity and is not vested with any judicial functions. It is authorized to exercise a wide discretion. In People v. Monterey Fish Co., 195 Cal. 548, at page 558, 234 P. 398, 402, 38 A.L.R. 1186, it is stated: “The Legislature may, without violating any rule or principle of the Constitution, confer upon an administrative board or officer a large measure of discretion, provided the exercise thereof is guided and controlled by rules prescribed therefor.”

In the case of In re Halck, 215 Cal. 500, 11 P.2d 389, 391, it is said that: “If the commissioner acts to the prejudice of an applicant, capriciously, arbitrarily, or solely without basis of right, his act may be supervised and controlled by the courts.”

In the case of McDonough v. Goodcell, Commissioner, et al., supra, at page 1040, it is said: “It is the settled general rule of law in this state that where the legislature has by statute clothed an administrative officer with power to ascertain the facts with reference to the fitness of an applicant for a permit to engage in a business subject to regulation under the police power and has vested in such officer the discretion, based on the facts ascertained, to grant or deny a permit to engage in such business the courts will not interfere with the exercise of such discretion except in the case of an abuse thereof.”

The rules and regulations of the racing board having placed the responsibility for the condition of the horse upon the owner and trainer, those persons were thereby made insurers of the condition of the horse. Therefore, the racing board, having taken into consideration all of the circumstances appearing before it, together with the fact that petitioner was the trainer of the horse at the time, and that he was by reason thereof responsible for its condition and an insurer of such condition, had reasonable grounds upon which to base its action in suspending petitioner's license for the remainder of its period; that it did not act arbitrarily or abuse the discretion vested in it, and that it did not so act without just cause.

The many very serious evils resulting from the indiscriminate wagering upon horse racing in this state prior to the enactment of legislation many years ago absolutely prohibiting such wagering, is well known. It is evident that it was the intention in the enactment of the horse racing act to prevent the recurrence of such evils, so far as it was humanly possible, and if the requirements of the horse racing act and the rules and regulations of the horse racing board are reasonable and necessary to prevent such evils attending horse racing where wagering is permitted under the law, it becomes a matter of the exercise of legislative discretion and one which may not be questioned by the courts. In the case of In re Hall, 50 Cal.App. 786, at page 789, 195 P. 975, at page 976, it is said: “There is no certain test whereby the reasonableness of a police measure may be definitely measured in any given case. It is a matter resting in human judgment. So the line between what is reasonable and what is not, marking the bounds of the constitutional authority of the legislative department, is one often difficult of ascertainment, rendering it necessary, in all doubtful cases, for the judiciary to defer to the wisdom of the law-making body. But when the boundary has been plainly passed, the duty of the court to repel the encroachment and so uphold the Constitution is absolute. It has no discretion in the matter. ‘Reasonableness' is not synonymous with ‘expediency.’ Matters of expediency are wholly for legislative cognizance; while reasonableness is subject to judicial inquiry. As applied to a law, ‘reasonableness' is manifestly not what extremists upon the one side or the other would deem fit and fair. As it is well put in one of the cases, reasonableness is what ‘from the calm sea level’ of common sense, applied to the whole situation, is not illegitimate in view of the end attained. In Ex parte Whitwell, supra [98 Cal. 73, 32 P. 870, 19 L.R.A. 727, 35 Am.St.Rep. 152], the court said: ‘Legislation of this character * cannot be justified by the mere possibility of the danger which it ostensibly seeks to avert. It must rest upon the fact that experience has demonstrated that such danger, in the absence of such legislative regulation, is one which may reasonably be anticipated as the probable result of conducting such business, notwithstanding the exercise of ordinary care to prevent it.’ ”

Measuring the question of the reasonableness of the requirements of the horse racing act and the rules and regulations of the racing board with the rule of reasonableness as defined in the foregoing quotation from In re Hall, supra, and considering the fact that experience has demonstrated that the danger in the absence of legislative regulation is one which may reasonably be anticipated as a probable result of permitting wagering upon horse racing, notwithstanding the exercise of ordinary care to prevent it, it seems clear that the conditions and requirements imposed by the horse racing act and the rules and regulations of the racing board are not only reasonable but are absolutely necessary.

Reference is also made to the rule of the racing board requiring that horses entered in a race be placed in a receiving barn one hour before the race, under certain conditions and restrictions imposed by the rules of the racing board, and by reason of such fact, it is contended sufficient opportunity is not allowed the trainer, under the restrictions imposed, to afford a proper observation of the horse, and that thereby the effect of the rule making the trainer responsible is so modified that the trainer should not properly be held to be an insurer of the condition of the horse. We think that this was a matter addressed to the sound discretion of the racing board and does not constitute a question of law which may be reviewed by this court in this proceeding.

We have considered all of the questions raised and which we deem necessary to a determination of this appeal. We conclude that under the horse racing act it was not necessary to file any charges against petitioner, to give notice of hearing or to afford him an opportunity to be heard, and that the legislature, in dispensing with these requirements in the horse racing act, violated no constitutional rights to which petitioner herein was entitled; that the rules and regulations of the racing board applicable to the matters herein involved, including the rule delegating to the stewards the right to suspend, were reasonable and properly necessary to carry into effect the purpose and objects of the racing act. The racing act did not provide for the appointment of the stewards. That particular office was created by the racing board in its rules and regulations. The stewards are the creatures of the racing board and their acts must necessarily be under the supervision and control of the racing board. We have no doubt as to the authority of the racing board to vacate and set aside the action of the stewards in suspending petitioner if said board should, in the exercise of its discretion, deem it proper.

From these conclusions, therefore, it follows that the judgment requiring the California Horse Racing Board to rescind the action and resolution, both of itself and of the stewards involved herein, should be and the same is hereby reversed.

MONCUR, Justice pro tem., delivered the opinion of the court.

We concur: PULLEN, P.J.; TUTTLE, J.