Decision Favors Kentucky Betting, Daily Racing Form, 1907-10-22


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DECISION FAVORS KENTUCKY BETTING Below is given the full decision rendered March 29, 1S99, in the case of the Latonia Agricultural and Stock Association against Donnelly, tax collector, etc., and went up on appeal from the Circuit Court of Kenton County. The Latonia Association sought to enjoin the collection of taxes upon its franchise assessed by the Board of Aaluation and assessments for the year 1S97, pursuant to Section 4077 of the Kentucky statutes, which provides for the payment of franchise taxes by corporations and associations having or exercising any special or excursion privilege or franchise not allowed by law to natural persons: "Appellant exists by virtue of a special charter granted by the legislature, which confers upon it, in addition to the usual and ordinary powers granted to private corporations, the right of perpetual existence arid authority to acquire not exceeding 200 acres of land, and by the fourth section of its charter it is provided that the association may lay out upon its grounds a track or tracks, course or courses for ruunlng or trotting races, and may conduct sueli races and award such stakes, premiums or purses as It may determine, and it may sell or permit to be sold on its grounds pools on any and all races that may be run or trotted upon its course or grounds. "Appellant is not among the enumerated corporations liable to a franchise tax, nor can it be said to be a like company, corporation or association to any of those therein designated; and it is liable for the payment of the tax in question, if at all, by virtue of the fact that it has or exercises a special or exclusive privilege or franchise not allowed by law to natural persons. "The chief power and business granted to the appellant by the terms of its charter is the right to conduct a race course and sell pools on all races j that may be run or trotted upon its course. The right to sell pools or permit them to be sold is an important and valuable adjunct to the business which plaintiff is authorized to conduct, and it is doubtless a source of considerable profit to it, and without this privilege in all probability it Avould be unable to profitably conduct the enterprise in which it is engaged. "The first question to be determined is whether this is a special and exclusive privilege or franchise not allowed by law to natural persons. The right to sell pools, and, in fact, simple gaming, without any objectionable accompaniment, was not j ordinarily punishable at common law. But in. this state there are statutes making it an offense, either general or under special circumstances. Every contract, conveyance, transfer or assurance for the consideration, in whole or in part, of money, property or other thing won, lost .or bet in any game, sport, pastime, wager, or for the consideration of money, property, or other thing lent or advanced for the purpose of gaming, or lent or advanced at the time of any betting, gaming, or wagering to person then actually engaged In betting, gaming or wagering, shall be void. Kentucky Statutes, Sec. 1055. "And Section 1950 provides for the recovery of the money paid by the loser from the winner thereof, or any transferee of the AvinnCr liavinj notice of the consideration, by suit Avlthln five years after the payment, transfer or delivery. By Section 19G0 the setfing up of any machine or contrivance used in betting, whereby money or other tiling is Avon or lost, is made a felony; but by Section 1901 it is provided that the provisions ot section 1900 shall not apply to persons Avho sell combination or French pools on any regular race track during the races thereon. "We are of the opinion that this provision of appellants charter legalizes the sale of pools made by it, or under its authority, on its grounds, and protects it against the civil liability denounced by the statute against natural persons Avho are engaged in the same or similar occupations; and it, therefore, becomes, and is valuable, special and exclusive privilege within the meaning of the statute, and renders appellant liable for the payment of the franchise tax provided by the statute. "In view of the conclusion which. Ave have reached, on this point, it will be unnecessary to consider other suggestions made by counsel for appellees as to appellants liability. For the reasons indicated the judgment is affirmed."

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