As the majority opinion points out, the commission's rules do not require a horse entered in a race to be kept on the permit holder's grounds. It may be stabled elsewhere and brought to the track shortly before the race is actually run. While on the premises, a horse is under the immediate control and care of its owner, trainer and jockey.
The evil which the regulation is designed to prevent is stimulation. Yet it is apparent that this evil would rarely result from the act of the permit holder, his employees or agents but would most often arise from the acts of others having direct access to the horse either on or off the premises. If horses were to be quarantined for a period prior to a race, and the quarantine was subject to the permit holder's active control and supervision, the responsibility of the permit holder would be more apparent. *Page 84
In considering the reasonableness of the present rule, I believe four factors stand out: (1) The harshness of the penalty imposed, (2) the ability of the permit holder to prevent the evil and protect his interest, (3) the probable degree of success that the rule will provide in preventing the evil, and (4) the availability of other means to accomplish the purpose. On all four grounds the present rule is hard to justify.
The penalty is permit revocation which may result in the destruction of a substantial investment. The established practices in handling animals, which the commission sanctions, at least in the sense of permitting them, render it difficult for the permit holder to prevent the evil. (It might be noted that permit holders include county agricultural societies.) The effectiveness of making the permit holder an absolute insurer of the conduct of others, who are themselves already liable, is dubious. Finally, alternative means such as effective control of access to the animal are available and apparently have not been tried.
For the reasons stated in the majority opinion and herein, I concur. *Page 85