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Brooke v. Moore

Supreme Court of Arizona

October 18, 1943

WHITFIELD BROOKE and J. P. SMITH, copartners doing business as the ARIZONA KENNEL CLUB, Petitioners,
v.
THAD M. MOORE, JOE HUNT and D. C. O'NEIL, as members and as constituting the ARIZONA TAX COMMISSION, Respondents

Original proceeding in Mandamus. Alternative writ made peremptory.

Mr. George Sorenson and Mr. Mark Wilmer, for Petitioners.

Mr. Joe Conway, Attorney General, and Mr. Earl Anderson, Chief Assistant Attorney General, for Respondents.

OPINION

[60 Ariz. 552] ROSS, J.

The petitioners, Whitfield Brooke and J. P. Smith, copartners doing business as the Arizona Kennel Club, on September 22, 1943, petitioned this court for an alternative writ of mandamus to compel the respondents, Thad M. Moore, Joe Hunt and D. C. C'Neil, members of the Arizona Tax Commission, to issue to them a permit to hold a dog-racing meet at the Nace Municipal Stadium, located adjacent to the City of Phoenix, between the dates of October 23 and November 21, 1943, inclusive, or show cause.

In response to the alternative writ the Attorney General, in behalf of respondents, has filed a motion to quash for the reasons (1) that the petition does not state a claim upon which any relief can be granted or entitling the petitioners to the writ; (2) that granting of a permit for a racing meet under the law is discretionary with the commission and that the commission's determination that "it was not for the best interests of the public at this time to grant the permit" is final. The quesion is, do the defenses set up by the Attorney General excuse the commission from granting the permit prayed for?

[60 Ariz. 553] Section 73-1601, Arizona Code 1939, reads as follows:

"Horse-racing and dog-racing meets may be held in this state only in the manner provided herein. Any person, co-partnership, association, or corporation desiring to hold a horse-racing or dog-racing meet shall make application for a permit therefor to the state eax commission. Said application shall state the names of all persons financially interested in the proposed meet, the name of the manager thereof, the dates when and place where it is desired to hold the same, the class of races to be held, the prizes or other stakes to be offered, and such information as the commission ay require."

The petition for the writ conforms in the minutest detail with such section. It shows petitioners' application to the commission is in regular form and, in substance, it is as this section provides.

Section 73-1602, Id., reads:

"If the commission, after investigation, shall find that

Page 212

the reputation of the applicant for honesty, integrity, and fair dealing is good, and that the plan submitted for such meeting is not objectionable, it may grant the application. No such racing meet shall be held for a period longer than thirty (30) days."

The commission does not question that "the reputation of the applicant for honesty, integrity, and fair dealing is good," nor does it object to the plan submitted by the petitioners for such meet. All these things appearing, the statute, section 73-1602, states the commission "may grant the application" for a racing meet. The sole question for our decision is the meaning that shall be given the word "may" as used in the above context. In other words, is it to be given a permissive or a mandatory meaning. If the former meaning is ascribed to the word, the legislature has made it possible for the commission to grant permits for dog racing (and also horse racing) only to such persons or concerns as the commission may be inclined [60 Ariz. 554] or disposed to favor and to reject all other applications for proposed meets. Was such a result intended or contemplated by the lawmakers in ...


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