(dissenting). I cannot find, on the record before us, the prejudice and bias offensive to my Brother. I find, on the contrary, only a painstaking and conscientious weighing of many considerations in order to arrive at a conclusion consistent with the paramount public interest. This conclusion, which cut down the number of days of racing to all applicants, was characterized as unlawful by applicant Hazel Park Racing Association, Inc., petitioner herein. In my opinion such characterization is groundless, and I believe, further, that this Court is without the authority to substitute its judicial discretion for the administrative discretion reposed' in the racing commissioner by the legislature.
That the widest possible discretion was confided in the commissioner by the legislature admits of no doubt. The only restriction imposed upon him with regard to racing-meet licensing is that of reasonableness. Leach v. Racing Commissioner, 340 Mich 202. The reason for the legislative liberality is obvious. We are here in the field of the public morals. It is not uncommon in this country that legislation pertaining to gambling, liquor, and the like, vest in the controlling boards or officials summary and broad discretionary powers. Cooper, Administrative Agencies and the Courts, p 42 et seq. Theirs is a public trust peculiarly susceptible to abuse and corruption and often the target of powerful influences. The court of appeals of Kentucky, to which we might accord a shade of deference with respect to matters involving horse racing, described the problem in realistic terms in State Racing Com*11mission v. Latonia Agricultural Association, 136 Ky 173, 181, 184 (123 SW 681, 25 LRA NS 905):
“The races attract large numbers of people at the courses. Many indulge in bets on the results of the races. Moral laxity ensues. There is great temptation to fraud by the betters of heavy stakes, as by bribing jockeys, doctoring'horses, and other pernicious practices. Scandals result. Such conditions are inimical to the public welfare.”
And:
“Any amusement which calls together vast throngs of people, which excites in them passion or conduces to excesses, which is nearly always attended with gambling and attracts among its patrons common gamblers, and idle and vicious members of society, may be prohibited. Of course, then, it may be regulated.”
The West Virginia court recently expressed itself in similar terms: '*
“Whatever may be said in favor of horse racing,! and much can be said, it must be admitted that great evil attends its practice, such as calls for the intervention of the State, under its police power, to the end that such evil be minimized so far as it is possible to do so. This intervention and control is exercised under the police power of the State, and the use of that power rests with the legislature. The police power is broad and sweeping, inherent in sovereignty and, except as restricted by constitutional authority, or natural right, which, in effect, is unlimited.” State, ex rel. Morris, v. West Virginia Racing Commission, 133 W Va 179, 192 (55 SE2d 263).
Not surprising, then, is it that our State has regulated the field, and with a care commensurate with the dangers which it presents to our people. The legislature has created the office of racing commissioner.* It has given him “full power” (section 5, *12• CLS 1954, §431.5 [Stat Ann 1953 Cum Supp §18.-945]) to prescribe the rules, regulations and conditions under which horse racing shall be conducted ■within this State. He must govern the betting on races by proper rules. He regulates the size of the “purse” offered-for the race. He has the power (section 9, CL 1948, §-431.9 [Stat Ann 1953 Cum Supp § 18.949]) “to reject any application for a racing-meet license for any cause which he may deem sufficient” (the clause here under consideration). We will not recite his other manifold duties, powers and responsibilities. Suffice it to say that the legislature has confided to his discretion a power as broad as the necessities which brought it into being.
Not all statutory schemes follow the same pattern. In dealing with these grave problems in the field of public morals different States attempt different solutions. Thus in the State of New York, from which jurisdiction came the case of People, ex rel. Empire City Trotting Club, v. State Racing Commission (1907), 190 NY 31 (82 NE 723), cited by my Brother with notation of statutory dissimilarities, the statute permitted the commission far less discretion than our statute. As the New York opinion points out, “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 a license to hold' races,” and the duration of the racing season was itself fixed by law. I thus do not disagree with the result of the New York decision in view of the New York statutes, but I cannot accept the language of the opinion as helpful on our particular problem.
What brings about the present charge of prejudice? A very simple situation. When making up his-schedule'of -racing dates for 1955 the commission•,er was faced,with requests (for dates) from 3 groups, as against 2 for the previous year. He accordingly *13eliminated 2 days from the application of the Michigan Racing Association, 4 days from Michigan Racing Charities, Inc., 3 days from petitioner, Hazel Park Racing Association, and 1 day from the harness-race meetings. He thus prescribed the same number of racing programs for the 1955 season as had prevailed for the past 2 years. None of the groups so curtailed has charged the commissioner with arbitrary and prejudicial action with the exception of petitioner, Hazel Park Racing Association, Inc. We will now examine such charge in some detail.
An obvious solution for the commissioner’s problem, arising from an increased number of applications, was an increase in the number of racing dates. This he decided against. He stated:
“There has been general agreement in recent years among the racing commission, the racing associations, horsemen’s groups and local civic and business groups that the present length of the racing season was adequate to satisfy the needs of the sport and that an expansion of the racing program would be detrimental to the Detroit area.”
In addition, he considered, as he put it, “the important obligation of the racing commission to consider the views of a large segment of the public in Michigan who are strongly opposed to any horse racing which includes legalized pari-mútuel wagering.”
We find nothing improper, nothing arbitrary, nothing prejudicial, in the commissioner’s eonsideration of these factors. The legislature has left the number of racing days to his discretion. He exercised it and arrived at his decision, namely, not to enlarge the season but rather to leave it the same as the past season, and the season before that. Is this decision a wise-one ? That question is not for us. It is *14.Ms’decision, not ours. Our only question, in view . of the charges made, to put it bluntly, is whether he was acting' fairly and honestly in reaching this deci.sion. I believe he was.
■ I am impelled to comment further at this juncture that if the legislature had meant that the commissioner grant in full the requested dates of every applicant, without putting a ceiling on the number of racing days, it would not have clothed him with discretion. For discretion implies selection, the power to choose, to weigh, and to evaluate, yes, even the power to be wrong.
Haying reached this decision, that it was, not in the public interest that he enlarge the racing season, the commissioner’s next problem, in his own words, was this:
“The principal problem that respondent had to .face was how to fit a thoroughbred charity meeting ■into the schedule without increasing the total racing days. With 3 groups ashing for dates, it was no longer possible to give each group the total that they were asking for.”
It is contended that the commissioner’s selection of'the' Michigan Racing Association plant for the running of nonprofit racing and the allocation of racing days made by him to all applicants, was arbitrary and prejudicial to Hazel Park. Was it?
The word “arbitrary” in the law has a definite meaning. An arbitrary decision is a decision reached without a basis which would justify reasonable and honest view in making such conclusion. It is whimsical, freakish, outlandish. We must carefully distinguish the case of poor judgment, even should it be exercised by the commissioner (which I do not imply). That is offensive to no law. It vitiates no decision. The reason is clear. The legislature, in its wisdom, has not prescribed that the commission*15er’s human judgment be “correct” in order that it be valid. We are not concerned, then, either, with unwisdom or downright error. We look only to see whether the commissioner exercised a judgment according to his best lights, however dim or bright .they might be, or whether he gave vent only to his spleen, as Hazel Park charges.
How, then, did the. commissioner reach the judgment described? The record leaves the matter in no doubt. He considered such elements as the expressed desires of horsemen, the size and character of the' tracks, the merits and deficiencies of the barn areas,' paddocks, and jockey quarters, the facilities provided for the comfort and convenience of the. public, and the ease of access to the tracks from major population centers. He considered the relative values of the 2 plants. He noted that neither track ran in direct competition with the other, since each enjoyed a monopoly on its assigned operating dates, thus moneys spent and admission figures, he reasoned, could not “provide a true test of the public’s preference.” He compared the seating arrangements at the 2 plants, the situation of the selling and cashing windows, the washroom facilities. He was of the opinion that the Hazel Park jockeys’ room was inadequate and thus was an obstacle to the smooth operating of the racing program at that track. He noted that the “fields at Hazel Park are limited to 10 horses,” a limitation not obtaining with it's competitor. He commented on the differences in the drainage of the 2 tracks. I will not continue the list of factors weighed, though it is far from complete. The conclusion he reached was that:
“It seems reasonable to allocate a larger share of the total to the association which provides the most extensive and comfortable facilities to the public and the best track and barn area facilities to' the horsemen.who provide the sport.”
*16"Thus his decision:
“I find that it will he in the best interests of the public and the horsemen to have a longer season at the Michigan Racing Association than at Hazel Park. Even so, the profit-making dates at the 2 plants are still fairly close, being 56 at MRA as against 53 at Hazel Park.”
I find nothing arbitrary in a decision reached after a weighing of such factors. It is, in fact, the antithesis of an “arbitrary” decision. Whether the commissioner was right or whether he was wrong in many of his conclusions (i.e., is a 5/8th’s mile track inferior to a mile track?) I have no way of knowing* upon this record. Fortunately, those questions are not before us.
But, pursues the petitioner, the commissioner is prejudiced against us, and thus his conclusions were not fairly arrived at. The charge is Hazel Park’s and the burden of proof is on it. We indulge in no presumption that a public officer has not done his duty. In fact, the presumption is that he has. Leach v. Racing Commissioner, 340 Mich 202. What are we shown? A mass of argumentative trivia, in the main, so unsubstantial as not to merit comment. Thus:
“The commissioner says by corollary that we áre out of step with nearly every other leading race track in America. He says this, though we are the leading’ race track in this area.”
But other specifications are of a more serious import, and I shall address myself to those cited by my distinguished Brother. The commissioner, it is said, demanded a certified copy of the order of this Court in the case of Hazel Park Racing Association, Inc., v. Racing Commissioner, 336 Mich 508, before he would act in accordance with its holding. To my-mind this discloses -no animus towards Hazel Park. *17It is a commonplace for laymen, for banks, for trust companies, and others, to require certified copies of court orders before acting pursuant thereto.. A layman might well be advised to insist thereon. It is said, also, as indicative of animus, that the commissioner in 1954 refused to issue plaintiff a meet license without an opinion of the attorney general. The commissioner’s letter to the attorney general on this subject states that: “I am convinced that there was one important fact not brought to the Court’s attention” in the above case. He therefore requested an opinion from the attorney general. In legal language he was asking whether or not the doctrine of res judicata applied on the facts as he understood them. I would say he was well advised to seek counsel on this question. The strength of Hazel Park’s allegations of prejudice and .animus may well be tested by the flimsy character of such charges.
Finally, it is charged that the commissioner’s refusal to allocate equal charity racing dates to petitioner is indicative of his bias against it. It is not clear to me, on this record, that petitioner wanted any charity racing at its plant whatsoever, save on its own terms. It is noted that Dr. Harry W. Lindy, president of the Michigan Thoroughbred Owners’ Association, stated at the public hearing on racing dates held on February 8, 1955, as follows:
“We wanted to discuss charities and we were met with unofficial replies that Hazel Park was not interested in this proposal. They didn’t even have the decency to let us sit down and talk with them. They told us that if the plans involved were so good to take .them to New York. We have naturally leaned to the; racing association that has cooperated with us. We worked with the MEA and as result we found that the door at Hazel Park was closed.”
. .Whatever may .have .. been, the . final. attitude of Hazel Park on this matter (and we note that it “re*18serve's upon this, record its right to challenge the validity of any award • of racing-meet days to any eleemosynary and/or‘nonprofit corporation”), it is clear that the letter submitted by charitable groups, asking for charity racing dates at Hazel Park, requested dates from October 10, 1955, to October 15,' 1955. These dates would have involved an extension of .the racing season beyond .that fixed by the commissioner. If we conclude, as I do,- that the commissioner’s decision not to expand the' racing season past the time allotted in previous years, and to bring' it to a close on October 5th, was within his reasonable discretion, it would follow that he was. justified in rejecting the request submitted, not only on the ground of its tardy submission but also, as he put it, for the reason that “there are practical limits to. the length of the Michigan racing season, as well as many good reasons why it would not be desirable to extend the season beyond its length in recent years.” In this 'regard I will also note that I com-' pletely reject petitioner’s argument that the- allocation of any racing date's to charities is made at “the expense of plaintiff’s season.” There is no vested right in any traffic affecting the public morals. So far, indeed, is this principle carried that licenses in this area of the law may be revoked in many jurisdictions - regardless of the presence or absence of licensee’s personal fault. The cases are collected in 3 ALR2d 107. The only season petitioner has is that granted to it by the commissioner of racing after his consideration of all the pertinent facts. If it is his reasonable conclusion that the public welfare is better served by the allocation of certain dates to deserving charities than to petitioner, that is a matter within his sound discretion, at least until and unless the legislature, which reposed in Mm discretion limited only by rule of reason, sees fit to *19■restrict the scope thereof. (See PA 1955, No- 240 .) A similar error is found in petitioner’s assertion that a new hearing should be had “looking toward equal profit days of fiat racing * * * and equal days of charity racing.” The commissioner’s criterion in the performance of his statutory duty is not equality to all applicants but the public welfare. Had the legislature wished equal racing days for all, it would have been easy to have so said. It did not do so. It created a commissioner and gave him a broad discretion. Nor can any past agreement between Hazel Park and the Michigan Racing Association splitting up the racing season in accordance with their wishes bind the commissioner. He is the guardian of the public welfare in this area and he may not surrender this public trust to the self-interest of private corporations.
The short of the matter is simply that the commissioner has displeased Hazel Park. He also displeased its competitor, whose spokesman expressed himself in the following terms:
“The charity dates were no secret from the beginning and it appeared to us that they would be a good thing for racing. I might say that we are not altogether satisfied with the result. In this proposed schedule we have had to trade a week of good days for a week of bad days and we are not pleased with that. However, the commissioner has a very difficult job and has put in a lot of time on it and we will cooperate.”
The displeasure felt, however, by Hazel Park does not warrant the strictures visited upon the commissioner by it. Par from bias, prejudice, or arbitrariness, I find only a conscientious public official performing a difficult and complex task in a thoroughly painstaking manner. Whether he is wise or unwise, *20whether he exercises good judgment or poor, are matters not onr concern, and in the interests of judicial self-restraint, I am careful to express no opinion thereon. I will simply say that I am satisfied as to his integrity.
Writ should be denied. No costs, a public question.
Sharpe, J., concurred with Smith, J.PA 1933, No 199, as amended (CL 1948 and CLS 1954, § 431.1 et seq. [Stat Ann and Stat Ann 1953 and 1955 Cum Supp § 18.941 et seg.]).