Appeal, No. 38, May T., 1961, from decree of Court of Common Pleas of Dauphin County, No. 214, Commonwealth Dcdket, 1960, No. 2414, in equity, in case of William P. Heuchert et al. v. State Harness Racing Commission et al. Decree affirmed.
Robert D. Abrahams, with him Frederick D. Lipman, Romain C. Hassrick, and Abrahams & Loewenstein, for appellants.
Harry L. Rossi, Counsel for State Harness Racing Commission, with him Anne X. Alpern, Attorney General, for Commonwealth, appellees.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. CHIEF JUSTICE JONES.
The plaintiffs instituted this suit in equity in the Court of Common Pleas of Dauphin County to enjoin the Secretary of Agriculture and the State Harness Racing Commission from issuing a license to conduct a harness racing track in Philadelphia County to any person or corporation and from otherwise carrying out the provisions of the State Harness Racing Act of December 22, 1959, P.L. 1978, 4 PS § 301 et seq. The defendants, acting by the Attorney General, filed preliminary objections in the nature of a demurrer to the complaint. After argument, the chancellor entered a decree nisi dismissing the complaint. Upon exceptions thereto, the court en banc unanimously confirmed the adjudication and decree nisi and entered the final decree from which the plaintiffs have appealed.
In summary, the State Harness Racing Act provides for a State Harness Racing Commission of three members appointed by the Governor to license annually not more than four corporations to conduct harness race meetings in the Commonwealth with provision for the pari mutuel system of betting by patrons of the tracks. The Commission shall not consider an application for a license "until a majority of the electorate of the county in which the racing plant is located shall have voted in favor of locating a racing plant within the county" at a primary election. Such an election shall be conducted when at least 5,000 registered electors of any county petition the Commission therefor. The Act imposes a 5 percent tax upon the admission price of tickets to harness race meetings and a 5 percent tax upon the amount wagered through pari mutuel betting. All moneys received by the Commonwealth under the provisions of the Act shall be paid into a special State Harness Racing Fund. After the payment of expenses incurred by the Commission, including salaries of the employees thereof, three-fourths of the remaining
moneys shall be paid into the General Fund of the Commonwealth. The balance shall be paid into a special fund known as the Pennsylvania Fair Fund to be distributed annually in specified amounts by the Secretary of Agriculture to county agricultural societies and independent agricultural societies conducting annual fairs or horse races.
On May 2, 1960, the three plaintiffs, taxpayers and residents of Philadelphia, Fulton and Sullivan Counties, respectively, filed the complaint in equity, here involved, against the three members of the Commission and the Secretary of Agriculture to enjoin the Commission from acting pursuant to the provisions of the Act and to enjoin the Secretary of Agriculture from receiving, appropriating or distributing any funds from the Pennsylvania Fair Fund.
The complaint, as amended, summarizes certain provisions of the State Harness Racing Act and alleges that the four counties of Cameron, Forest, Fulton*fn1 and Sullivan have less than 5,000 registered electors; that at an election held on April 26, 1960, in Philadelphia County, 214,630 votes were cast in favor of locating a harness racing plant with pari mutuel betting in the county and that 46,012 votes were cast in opposition thereto; that Article 3 of the Pennsylvania Election Code directs that the county board of elections of each county shall have jurisdiction over the conduct of elections in such county and shall exercise all of the powers granted to it by the Code, including the power to regulate, prescribe and certify petitions for nominations and referenda, and shall perform all duties imposed upon it by the Code; and, finally, that Philadelphia County does not have a county agricultural society or independent agricultural society within the meaning
of the Act. Plaintiffs contended that the Act violates various sections of the Pennsylvania Constitution and Article 3 of the Pennsylvania Election Code, and that the requirement of a favorable vote by a "majority of the electorate of the county in which the racing plant is located" means a majority of the qualified electors and not merely a majority of such as actually voted at the election. If this latter contention is correct, the favorable vote in Philadelphia County would not qualify it as a location for a racing plant.
The preliminary objections in the nature of a demurrer to the complaint, which were filed by the Attorney General, affirmed the constitutionality of the Act and that the favorable vote in Philadelphia County constituted "a majority of the electorate of the County" within the meaning and intent of the Act. All of the facts averred in the complaint were admitted by the defendants and it was further stipulated by all parties that the hearing and argument, which was had on the preliminary objections, should be deemed a final hearing. Thereafter, the court entered the decree nisi, to which reference has already been made, sustaining the preliminary objections of the defendants and dismissing the complaint. It was stipulated by the parties that the argument of the exceptions filed by the plaintiffs to the decree nisi and briefs thereon be waived. Notwithstanding the stipulation, the court en banc considered the exceptions and dismissed them and made the decree nisi absolute and final by decree entered on November 14, 1960.
The appellants assign as error the action of the court below in holding (1) that the Act, and in particular section 20(b) thereof, does not constitute a local or special law regulating the affairs of counties or granting special or exclusive privileges in violation of Article III, § 7, of the Pennsylvania Constitution, (2) that the Act does not create a local or special law
granting special or exclusive privileges or immunities in violation of Article III, § 7, of the Pennsylvania Constitution, (3) that the Act does not provide for appropriations for charitable, educational or benevolent purposes in a manner violative of Article III, § 18, of the Pennsylvania Constitution, and (4) that the vote in Philadelphia County ...