For affirmance -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Jacobs, Francis and Proctor. For reversal -- None. The opinion of the court was delivered by Jacobs, J.
[29 NJ Page 48] This is an appeal from the Chancery Division's refusal to grant the plaintiff's request for injunctive
relief against his exclusion and expulsion from the Monmouth Park race track. We certified the appeal on our own motion while it was pending in the Appellate Division.
The defendant Monmouth Park Jockey Club is a New Jersey corporation which operates the Monmouth Park race track at Oceanport. It employs the defendant Thoroughbred Racing Protective Bureau, Inc., a New York corporation, to police the grounds on which its horse races are conducted. On July 2, July 8, and July 9, 1955 the plaintiff Angelo Garifine entered the track after paying the customary admission fee but left when he was requested to do so by a representative of the Protective Bureau. On July 11, 1955 the plaintiff was again requested to leave the track but he refused and was arrested and charged with being a disorderly person. He was acquitted in proceedings before the local magistrate. On December 13, 1956 he filed an action in the Superior Court seeking damages in three separate counts, for malicious prosecution, false arrest, and deprivation of his right to attend the track. On motion the counts, other than the count relating to malicious prosecution, were dismissed. On June 11 and June 12, 1957 the plaintiff attended the races at the Monmouth Park race track, and on June 12, 1957 a representative of the defendants swore out a warrant and complaint charging him with being a trespasser.
On June 19, 1957 the plaintiff filed his complaint in the Chancery Division seeking injunctive relief against his further exclusion and expulsion from the race track. His complaint stated that he had never been convicted of a crime, although he was once charged with being a bookmaker and was acquitted. It also stated that he had inquired concerning the reason for his expulsions and had been told "that he is not wanted, that he is an undesirable, and that his general record and reputation warrants his exclusion." The defendants moved to dismiss the plaintiff's complaint on the ground that they had "an absolute right" to exclude and expel the plaintiff and that consequently he had no claim for injunctive relief. On April 22, 1958 the
Chancery Division granted the defendants' motion and dismissed the complaint. In attacking this action the appellant urges (1) that notwithstanding the holding of the former Supreme Court in Shubert v. Nixon Amusement Co., 83 N.J.L. 101 (Sup. Ct. 1912), the operator of a licensed race track should not have the common-law right to exclude or expel a patron without reasonable cause, and (2) that under the provisions of the Civil Rights Act of New Jersey (R.S. 10:1-2 et seq.) the operator of a licensed race track has no such right.
There was a time in English history when the common law recognized in many callings the duty to serve the public without discrimination. See Arterburn, "The Origin and First Test of Public Callings," 75 U. Pa. L. Rev. 411 (1927). Cf. Burdick, "The Origin of the Peculiar Duties of Public Service Companies," 11 Colum. L. Rev. 514 (1911); Wyman, "The Law of the Public Callings as a Solution of the Trust Problem," 17 Harv. L. Rev. 156 (1904). With the passing of time and the changing of conditions, the common law confined this duty to exceptional callings where the needs of the public urgently called for its continuance. Innkeepers and common carriers may be said to be the most notable illustrations of business operators who, both under early principles and under the common law today, are obliged to serve the public without discrimination; in Delaware, L. & W.R. Co. v. Trautwein, 52 N.J.L. 169, 171 (E. & A. 1889), Justice Depue aptly described this obligation as "a duty imposed by law from considerations of public policy." See Weehawken Tp. v. Erie Railroad Co., 20 N.J. 572, 581 (1956); Messenger v. Pennsylvania R. Co., 37 N.J.L. 531, 533 (E. & A. 1874). Cf. Pinkerton v. Woodward, 33 Cal. 557, 91 Am. Dec. 657, 660 (Sup. Ct. 1867). On the other hand, operators of most businesses, including places of amusement such as race tracks, have never been placed under any such common-law obligation, for no comparable considerations of public policy have ever so dictated. See Madden v. Queens County Jockey Club, 296 N.Y. 249, 72 N.E. 2 d 697, 1 A.L.R. 2 d 1160 (Ct. App. 1947), certiorari
denied 332 U.S. 761, 68 S. Ct. 63, 92 L. Ed. 346 (1947); Greenfeld v. Maryland Jockey Club, 190 Md. 96, 57 A. 2 d 335 (Ct. App. 1948). Cf. Marrone v. Washington Jockey Club, 227 U.S. 633, 33 S. Ct. 401, 57 L. Ed. 679 (1913); Martin v. Monmouth Park Jockey Club, 145 F. Supp. 439 (D.C.D.N.J. 1956), affirmed 242 F.2d 344 (3 Cir. 1957); Watkins v. Oaklawn Jockey Club, 86 F. Supp. 1006 (D.C. Ark. 1949), affirmed 183 F.2d 440 (8 Cir. 1950); Turner and Kennedy, "Exclusion, Ejection, and Segregation of Theater Patrons," 32 Iowa L. Rev. 625, 626 (1947); Annotation "Refusing admission to, or ejecting from, place of amusement," 30 A.L.R. 951 (1924); 60 A.L.R. 1089 (1929); 86 C.J.S. Theaters and Shows, § 31, p. 709 (1954); 52 Am. Jur., Theaters, Shows, Exhibitions, etc., §§ 3, 6, pp. 255, 257 (1944).
In the well-known case of Wood v. Leadbitter, 13 M. & W. 838, 153 Eng. Rep. 351 (Ex. 1845), the court had occasion to deal, not with an exclusion, but with an ejection from the Doncaster race course. The plaintiff had purchased his ticket, had entered the grounds, and had refused to leave when asked to do so because of some alleged malpractices on a former occasion. He was forcibly ejected, and sued in trespass for assault and false imprisonment. In denying recovery, the court took the position that the plaintiff had no easement or similar property right entitling him to remain on the grounds after the request that he leave, but had only a personal license which could be revoked at any time, leaving the plaintiff with only a breach of contract claim. In Hurst v. Picture Theatres, Ld.,  1 K.B. 1 (1914), the court rejected the holding in Leadbitter and allowed recovery in an assault action by the purchaser of a theatre ticket who was forcibly ejected by the proprietor who acted on the mistaken belief that the plaintiff had not paid his admission fee. Lord Justice Buckley expressed the view that it would be neither good sense nor good law to hold that a theatre proprietor had the absolute right to eject a patron who had paid for his ticket and was peaceably occupying his assigned seat; he considered the theatre ticket
to be a license bearing an agreement not to revoke which equity would enforce. See Winter Garden Theatre (London), Ld. v. Millennium Productions, Ld.,  A.C. 173, 189. The Hurst case has been the subject of extensive discussion; some commentators have approved its result as just and equitable, whereas others have disapproved it as violative of principles of real property law. See Winfield, Torts, 389 (6 th ed. 1954); Salmond, Torts 277 (11 th ed. 1953); Wade, "What is a License," 64 L.Q. Rev. 57 (1948); 7 Holdsworth, A History of English Law 328 (1925); Miles, "Hurst v. Picture Theatres, Ltd.," 31 L.Q. Rev. 217 (1915). In Cowell v. Rosehill Racecourse Co. Ltd., 56 Commw. L.R. 605 (1937), the High Court of Australia, with Justice Evatt dissenting, followed Leadbitter and declined to allow recovery in an assault action by a patron who had been ejected after he had refused a request to leave the race track. Similarly, the courts throughout the United States have generally adhered to Leadbitter. See Shubert v. Nixon Amusement Co., supra; Woollcott v. Shubert, 217 N.Y. 212, 111 N.E. 829, L.R.A. 1916 E, 248 (Ct. App. 1916); Finnesey v. Seattle Baseball Club, 122 Wash. 276, 210 P. 679, 30 A.L.R. 948 (Sup. Ct. 1922); Meisner v. Detroit, B.I. & W. Ferry ...