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District Court of Appeal, Second District, Division 2, California.


Civ. 15922.

Decided: July 09, 1947

Fred N. Howser, Atty. Gen., and Walter L. Bowers, Asst. Atty. Gen., for appellants.

This is an appeal from a judgment granting petitioner's (respondent herein) application for a writ of mandate to compel the California Horse Racing Board and the members thereof (appellants) to cancel an order which the board had made suspending petitioner's license and privilege to train horses in the state of California for the period of six months after August 12, 1946.

Conceded Facts

Petitioner was duly licensed as a trainer of horses for the year 1946 by the California Horse Racing Board pursuant to the provisions of section 19510 of the Business and Professions Code. On October 7, 1946, respondent board pursuant to notice theretofore given held a hearing at which petitioner was present and upon oral and documentary evidence produced at such hearing found ‘that analysis of urine sample taken from the horse Cover Up after running in a race at Del Mar Race Track, in San Diego County, California, on August 12, 1946, showed the presence of a caffeine type alkaloid, and that W. L. Sandstrom was the trainer and had the care of said horse at the time of and immediately prior to the running of said horse in said race.’ Thereupon respondent board decided that Rule 313 of the California Horse Racing Board had been violated by petitioner and suspended his license for a period of six months.

So far as material here Rule 313 of the California Horse Racing Board provides:

‘The Trainer shall be the absolute insurer of and responsible for the condition of the horses entered in a race, regardless of the acts of third parties. Should the chemical, or other analysis of saliva, or urine samples, or other tests, prove positive, showing the presence of any narcotic, stimulant, chemical, or drug of any kind or description, the Trainer of the horse may be suspended or ruled off, and in addition, the Foreman in charge of the horse, the Groom signing the Pre-Race Examination Slip and Paddock Certificate, and any other person shown to have had the care, or attendance, of the horse may be suspended or ruled off, in the discretion of the Board.’

The trial court held that Rule 313 of the board was arbitrary, unreasonable and capricious, and issued a writ of mandate requiring respondents to restore petitioner's license.

Proposition Urged by Respondent Herein (Petitioner in the Superior Court)

Rule 313 of the California Horse Racing Board (a) is not a legitimate exercise of delegated authority, (b) is arbitrary, unreasonable and capricious, and (c) is contrary to the provisions of sections 1837 and 1978 of the Code of Civil Procedure.

This proposition is untenable.

(a) Section 3, chapter 769, Statutes of 1933, p. 2047, provides in part as follows: ‘Said racing board shall have full power to prescribe rules, regulations and conditions under which all horse races, upon the results of which there shall be wagering, shall be conducted within the State of California. * * * 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, * * *.’

Section 9 of the same act contains this provision: ‘All licenses provided to be granted under the provisions of this act, including those granted pursuant to the provisions of section 3 hereof, shall be subject to all rules, regulatios 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.’

Finally, section 19 of the act reads thus: ‘This act shall take effect upon the adoption of a constitutional amendment ratifying its provisions.’

This act known as the ‘Horse Racing Act of 1933’ was given express constitutional sanction on June 27, 1933.1 It was pursuant to the authority vested in respondent board by the Horse Racing Act of 1933 and Article IV, Section 25a of the California Constitution that Rule 313 was adopted. Therefore respondents' authority to adopt the rule in question stems from the Constitution of the state of California in an amendment to such instrument duly adopted by the people of this state. Hence no question arises of a legislative delegation of authority to adopt the rule here in question. Such authority comes directly from the Constitution of the state.

(b) With the wisdom of the legislation we have no concern. Our inquiry is limited as to whether the action of respondent board was arbitrary, unreasonable or capricious. (Pacific States Box & Basket Co. v. White, 296 U.S. 176, 182, 56 S.Ct. 159, 80 L.Ed. 138, 101 A.L.R. 853; Ferrante v. Fish & Game Commission, 29 Cal.2d 365, 374, 175 P.2d 222.) Our state Constitution entrusts the jurisdiction, supervision and regulation of all horse racing in this state, upon the results of which there shall be wagering, to respondent board. The board must be presumed to have knowledge of the conditions which underlie and motivate its regulatory action in the enactment and adoption of rules, and unless it is demonstrated that those rules are not founded upon a reasonable factual basis the court should not interfere with the exercise of such discretion vested in the board.

Rule 313 makes the Trainer the ‘absolute insurer’ of the condition of the horses under his care entered in a race regardless of the acts of a third party. This is a reasonable obligation imposed upon such trainers by the board. The law pertains only to horse races ‘upon the results of which there shall be wagering’ or ‘on the result of which there is wagering.’

One of the objects of the law is to protect the public in wagering on horse races. Essential requisites for the protection of the public in such cases are that the horses entered in a race shall be in the best possible condition and that a race is not subject to manipulation by means of artificial stimulation or depression of any of the horses entered therein. It is a matter of common knowledge that in horse racing it is practically impossible to detect any one in the act of administering drugs or stimulants to a horse before a race. All that can be done with certainty is to establish by chemical analysis of samples of the urine and saliva of a horse, taken immediately after the race, that a drug has been administered. To make a trainer liable for the sound condition of a horse he enters in a race upon which there is wagering, even though he does nothing to bring about the unsound condition of the animal and has no knowledge of such condition, is not unreasonable, arbitrary or capricious. It simply places upon the trainer, who has held himself out as being skilled in the handling and care of horses, the duty of insuring and protecting at all times prior to a race the horses in his care. He guarantees to the public that through his vigilance, care and watchfulness no one has been in a position to tamper with the animals under his charge. Such an obligation imposed upon the trainer is a reasonable one, tending to eradicate the pernicious habit of doctoring horses for the purpose of defrauding the public of their money which has been wagered upon the outcome of horse races.

In principle we see no difference between the present obligation placed upon the trainer for the benefit of the public and the absolute liability placed upon the owner of a dog for the damage which it may do if it bites a person who is in a public place, or who is lawfully in a private place, including the property of the owner of such dog (Stats.1931, p. 1095, vol. 1, Deering's Gen.Laws, 1931, p. 174, Act 384a; Goldberg v. Rabuchin, 65 Cal.App.2d 111, 149 P.2d 861), or the obligation placed upon the dispenser of unwholesome or adulterated food to respond in damages to an unjured purchaser even though the seller has no knowledge of such adulteration or unwholesomeness, and had no part in bringing about such a condition. (Wolfe v. Great Atlantic & Pacific Tea Co., 143 Ohio St. 643, 56 N.E.2d 230.)

The Jockey Club of New York, recognized as the parent organization of horse racing in North America, has enforced similar rules for many years. This together with the fact that Rule 313 has been in force in this state for over 14 years without its reasonableness having been questioned is persuasive of the fact that such rule is neither unreasonable, arbitrary nor capricious. We are, of course, aware that these latter facts would not justify our holding if the rule was in fact unreasonable, arbitrary or capricious. On the other hand, such facts do support our conclusion on this phase of the case.

Smith v. Cole, 270 App.Div. 675, 62 N.Y.S.2d 226, is not here in point for the reason that in such case there was evidence before the board from which the trainer's responsibility for the treatment administered to the horse could have been established. Although Mahoney v. Byers, Md., 48 A.2d 600, is pertinent, this court cannot adopt the reasoning in the Maryland case. Decisions from other states are merely persuasive, and in the last analysis the effect which we give to such decisions depends upon the soundness of the reasoning supporting the conclusions reached. Hence we decline to follow it.

(c) Section 18372 and section 19783 of the Code of Civil Procedure are inapplicable to the present case. Those sections pertain to rules of evidence and not to matters of substantive law. In the present case Rule 313 simply makes the trainer the absolute insurer of the condition of the horse under his charge. There is no rule of evidence or procedure involved. It is analogous to the rule of substantive law which makes a common carrier of goods absolutely liable for the safe carriage of the same against all injuries except, (1) an inherent defect, (2) an act of a public enemy of the United States, (3) an act of the law, (4) an act of God, or (5) an act of the owner. (Section 2194, Civil Code.)

The judgment is reversed with directions to the trial court to enter a judgment in favor of appellants and to discharge the alternative writ of mandate heretofore issued.


1.  Article IV, Section 25a of the Constitution provides as follows: ‘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 race 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.'

2.  Section 1837 reads thus: ‘Conclusive or unanswerable evidence is that which the law does not permit to be contradicted. For example, the record of a court of competent jurisdiction cannot be contradicted by the parties to it.’

FN3 Section 1978 of the Code of Civil Procedure reads: ‘No evidence is by law made conclusive or unanswerable, unless so declared by this code.’.  FN3 Section 1978 of the Code of Civil Procedure reads: ‘No evidence is by law made conclusive or unanswerable, unless so declared by this code.’

McCOMB, Justice.

MOORE, P. J., and WILSON, J., concur.

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