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ANY DISCRIMINATION FORBIDDEN. All Lawfully Formed New York Racing Clubs Must Have Licenses. The decision of the New York Court of Appeals affirming the right of the Empire City Club to a license to conduct racing over its track at Yonkers has brought forth the nonsensical suggestion that the Jockey Club may resent the decision and as a protest suspend racing over the New York tracks for a year or two. Being reasonably sensible and law abiding men, the members of the State Racing Commission, the Jockey Club and the controllers of the various racing organizations will accommodate themselves to the new conditions created by the decision. The New York meetings will be more attractive than ever, and all forthcoming as heretofore. It is now quite probable that other racing organizations than those now existent will in time come into being, but what of it? In England the proudest and most fashionable clubs have but four days as the limit of their meetings, and all do reasonably well. If in the long run it comes to something approximately like that iu the neighborhood of New York no harm will be done, and the patrons of racing will more frequently experience the renewal of interest attending the change of racing from track to track. In the meantime outside of providing for Yonkers in the annual assignment of dates, no immediate change cr consequence is to be apprehended. Some of the prosperous up-state cities may organize jockey clubs and ask for a license and dates. Albany, Rochester and Syracuse and perhaps some other cities could carry on limited meetings profitably under good management, and something in that line is likely to be the first real change resulting from the decision, which is as follows, four judges affirming and three dissenting: "Though we do not concur in the doctrine of the majority of the learned Appellate Division that the commission has no discretionary powers over the grant of a license, and that its judgment related purely to the sufficiency of the acts constituting the corporation and not to considerations of public or private policy, we are still of the opinion that the order of the Appellate Division should be affirmed. While the general rule is that mandamus will not lie to compel the performance of a power the exercise of which lies in the discretion of the officer against whom the writ is sought, to that rule there is the well-recognized exception that the action of the officer must not be capricious or arbitrary, and if such be the character of the reasons for refusing to act the writ will lie. "The only specific reasons given by the respondents for refusing to issue the license to the relator are that the racing season allowed by law, to wit, from April 15 to November 15, in each year, has been divided up among six other tracks in the vicinity of New York and the Saratoga Racing Association, that the allotment of dates is a proper regulation of racing and that to grant the relator any dates would interfere with the racing upon the other tracks. None of these considerations in our opinion had the commisison the right to entertain, nor should they have had any influence upon its action. The object of the statute vesting the authority in the commission was to see that racing in the state was properly and honestly conducted, not to prevent competition between the several racing associations nor to secure any special pecuniary benefit to any of them. "There is no provision in the statute authorizing the commission to allot particular dates on which races on the various tracks may be run, but merely to grant or refuse licenses to hold races. If the theory on which the commissioners have acted in this case were to be approved, new incumbents of the office might arbitrarily favor other race tracks and deny the association owning the present tracks, iu which large sums of money have been invested, a license to hold races. Surely the legislature when it authorizes the Incorporation of racing associations never contemplated that the capital invested in the building of the tracks should be subject to such arbitrary, destruction. Though we assume that the appellants have acted in entire good faith and in the belief that they possessed the authority they have sought to exercise, we must nevertheless hold that in point of law their, reasons for rejecting the application of the relator were capricious and arbitrary.1 1
