dissenting.
As I view the issues involved in this case there are two questions presented, the first of which is: Under the statute authorizing racing and pari mutuel wagering, does the racing commission have any discretionary power in the matter of considering applications for licenses once it is shown that the applicant has complied with all the express requirements of the racing act?
In my judgment this question should be answered in the affirmative. The consideration of the entire Act satisfies me that it was the intention of the legislature to grant a discretionary power to the commission in the matter of issuing licenses, beyond the express requirements of the Act. The provision in section 5 of the Act, which reads, “The commission shall license, regulate and supervise all race meets held in this State * * when considered in connection with the Act as a whole is not the legal equivalent of stating that the commission shall grant the application of all who apply for said license, or all who may meet the express requirements as set forth in the Act.
*516It is apparent from the Act as a whole that the licensee acquires only a “privilege” to act, which is opposed to the proposition that there is any inherent “right” to engage in the business of racing dogs or horses and conducting pari mutuel wagering thereon. We are not dealing with the operation of a business which is inherently lawful, but, on the contrary, with one which, at least in Colorado, has been historically and inherently a gambling enterprise and legalized only by virtue of the Racing Act. It definitely involves the public morals and general welfare and calls for an exercise of the police power in the public interest. In Centennial Turf Club v. Colorado Racing Commission, 129 Colo. 529, 271 P. (2d) 1046, the court said, inter alia, “Our so-called Racing Act as a whole is not a revenue measure, but such portions thereof as provide for the collection of revenue and to be paid into the general fund of the state are revenue measures.”
The trial court in this connection correctly stated the situation when it said, “ * * * viewed in its most favorable light the act must be considered, as in the New Hampshire case, a combination revenue and police measure * * *.” The New Hampshire case to which reference is made is, North Hampton Racing & Breeding Ass’n v. New Hampshire Racing Commission, 94 N. H. 156, 48 A. 2d 472.
In my judgment the Racing Act gave an affirmative grant of authority to the commission to license, to determine the kind, the time and the place of racing meets, and to consider the locations of tracks, and in addition to granting this general authority the Act contained prohibitions pertaining to the power of the commission to act at all in specified instances. The interpretation given the Act by the majority opinion is that the prohibitive language in the statute operates as a grant of ah absolute right to those applicants who fall outside the area of the prohibitions, and as a mandate to the commission to issue licenses where not specifically forbidden to do so. *517With this conclusion I cannot agree. In my judgment the intent of the Act was to tell the commission when it cannot license under any circumstances, but to give discretion to it in the field outside the prohibited area.
The second question presented is: Did the racing commission, in denying the application of petitioner, act arbitrarily, capriciously or unreasonably in the exercise of its discretionary powers?
I believe this question should be answered in the negative. It is fundamental that, in determining whether an administrative body has acted arbitrarily, its ruling should not be set aside if the questions are such that reasonable minds might reach opposite conclusions, and it is not the function of this Court to substitute its own judgment for that of the administrative body. In the instant case the commission made three pertinent findings of fact: (1) That on the eastern slope of Colorado there already were three operating race tracks; (2) that the location proposed in the instant application was approximately forty-five miles from an operating track in Adams county; and (3) that the granting of the license would not be in the best interests of racing as a whole, nor in the best interests of the people of the State of Colorado.
I entertain the view that pari mutuel wagering is not a business which is inherently legal and lawful but, on the contrary, is one which is permitted only by virtue of a statute which calls for an exercise of the police power of the state. Any one of the findings above mentioned is sufficient reason for denying the application, and it does not appear from the record in the instant case that there was any abuse of discretion on the part of the commission. In my judgment their action in denying the application should be upheld.
Mr. Chief Justice Stone and Mr. Justice Clark concur in this dissent,