Appeal, No. 44, May T., 1961, from decision of State Harness Racing Commission, in case of Keystone Raceway Corporation v. State Harness Racing Commission et al. Appeal quashed.
Thomas D. McBride, with him Howard Gittis, Raymond J. Bradley, John T. Macartney, and Oliver, Macartney and Collins, and McBride, von Moschzisker and Bradley, for appellant.
Harry L. Rossi, Counsel, with him Anne X. Alpern, Attorney General, for State Harness Racing Commission and Department of Agriculture, appellees.
Francis W. Sullivan, for appellee.
Before Jones, C.j., Bell, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE BELL.
This appeal in the nature of a special certiorari to bring before us for review the procedure pursued by the State Harness Racing Commission, raises several very important, highly technical and in some respects unusual questions concerning administrative law and procedure and the Constitutionality of certain actions of the Commission.
The present controversy arises out of the grant of a license to Liberty Bell Racing Association, one of the appellees herein, by the State Harness Racing Commission under the provisions of the Act of December 22, 1959, P.L. 1978, 4 PS § 301 et seq. Section 1 of this Act created within the State Department of Agriculture a departmental administrative commission known as the State Harness Racing Commission. The Governor, by and with the advice and consent of the Senate, was authorized to and did appoint the three members of that Commission. The Commission has been given broad
supervisory and regulatory powers over all harness racing in the State at which pari-mutuel betting is permitted or conducted and, subject to provisions not presently relevant, is authorized to license no more tan four corporations in any one year to conduct harness racing at tracks where pari-mutuel betting will take place.
Pursuant to § 7 of the aforementioned Act the present appellants and 12 other corporations, including Liberty Bell Racing Association, filed with the Commission a notice of intention to apply for a license. Thereafter, each applicant was separately and informally interviewed by the Executive Secretary of the Commission. The Commission's counsel was also present at 12 of the 13 interviews while the chairman of the Commission was present at 9 of them. The remaining two members of the Commission attended none of the interviews. However, phonographic recordings were made of the interviews. These interviews were held before "Part I of the Application [for a license]" was filed by any of the applicants and had been characterized by the Commission as intended to give the applicants some knowledge of the information which would be required in completing applications for a license.
On December 15, 1960, "Part I of the Application" was forwarded to each applicant, and a copy of "Administrative Rule #1" was sent to each applicant on January 12, 1961. Completed applications were then filed with the Commission by all applicants*fn1 on or before January 30, 1961. Thereafter, before the Commission's meeting on April 5, 1961, all the Commissioners listened to the phonographic recordings of the above mentioned interviews and reviewed (a) the notices of intention to apply for a track license, (b) Part I of the Application, and (c) the investigation reports
prepared by the State Police of all persons involved in the management of the various proposed tracks.
On April 5, 1961, pursuant to a notice dated March 23, 1961, the Commission held a scheduled meeting. At this meeting the Commission by a 2-1 vote granted Liberty Bell Racing Association one of the four licenses subject to certain conditions.*fn2 By the same vote further action on the other applications was deferred. Counsel for seven of the other applicants, including appellant, were present at the meeting and were allowed to briefly state their contentions that granting a license to Liberty Bell Racing Association was premature and that a full hearing should be held. These contentions and arguments were rejected by the Commission. The meeting was then adjourned.
Liberty Bell Racing Association is the only applicant for a license in Philadelphia County. Appellant Keystone is one of four applicants which seek to construct a racing track and facilities in Delaware County. However, in considering this appeal, it is important to note that both Liberty Bell Racing Association and Keystone Raceway Corporation (appellant) propose to construct race tracks at locations within a 20 air mile radius of ...