This is a mixed in lieu proceeding and action to enjoin a public nuisance in which the issues to be determined are:
(I) Whether a joint permit issued by the New Jersey Racing Commission (Commission) to the New Jersey Sports
and Exposition Authority (Authority) and Garden State Racing Association (Garden State) to conduct a thoroughbred race meeting at the premises in Cherry Hill of Garden State during the period November 25, 1974 through December 31, 1974 was issued in violation of N.J.S.A. 5:5-43.
(II) Whether the Authority statute, N.J.S.A. 5:10-7(a) prohibited the Authority from operating a thoroughbred racing meet in a place other than the "Meadowlands Complex";
(III) Whether N.J.S.A. 5:5-47 provides for an unconstitutional delegation of legislative power for the lack of adequate, reasonable and clear standards to guide the Commission in authorizing the transfer of racing days from one permit holder to another.
(IV) Whether there has been a denial to plaintiffs of equal protection under the United States Constitution because the revenue received by the State of New Jersey from racing operated by the Authority is limited to .05% under N.J.S.A. 5:10-7(f), while the revenue received from other permit holders in the conduct of racing is 9.15% under N.J.S.A. 5:5-66;
(V) Whether the conduct of horse racing at the premises of Garden State of Cherry Hill during the period November 25, 1974 through December 31, 1974 will constitute a public nuisance, and if in the affirmative, whether such public nuisance is actionable such as to require the issuance of an injunction thereon;
(VI) Whether the action of the Commission in granting the joint application to the Authority and Garden State to operate throughbred racing at the premises of Garden State at Cherry Hill should be set aside as arbitrary, unreasonable and capricious.
Defendant Authority is a body corporate and politic established by N.J.S.A. 5:10-1 et seq., which became effective on May 10, 1971. Under date of May 24, 1972 the Authority, pursuant to the authority of N.J.S.A. 5:10-7, applied to the Commission for a permit to conduct the running
of horse race meetings at the site of the "Meadowlands Complex" in East Rutherford. Thereafter, the Authority commenced the construction of recreation facilities on the land described in the statute, which construction is continuing and will include a thoroughbred horse race track among other facilities. In June 1972 the Authority had been advised by the Commission that a permit to conduct horse racing was approved, and an official permit was issued by the Commission on April 27, 1973.
By letter dated August 16, 1974 the Commission urged the Authority to apply to it for a permit to conduct a meeting for a portion of its available racing dates in 1974 at the facilities of a licensed permit holder in New Jersey, presumably under the authority of N.J.S.A. 5:5-47. Sometime thereafter there was a joint application filed by the Authority and Garden State for permission to conduct a meeting at the track of Garden State during the period November 25, 1974 through December 31, 1974.
On September 24, 1974 the Commission held a meeting at its offices at Trenton to which representatives of Cherry Hill, including the mayor, had been invited at their request, and after hearing the opposition of the mayor expressed at the meeting to the issuance of the permit and the reasons therefor, the Commission proceeded to grant the joint application to operate racing at Garden State.
This proceeding was thereafter instituted by the plaintiffs seeking to void the permit granted for the various reasons above enumerated, and also seeking to enjoin defendants, if the permits were otherwise declared to be valid and effectual, from exercising the permit, upon the ground that the conduct of racing at the premises of Garden State in Cherry Hill during the days in question will constitute an actionable public nuisance.
The various legal questions with respect to the validity of the joint permit will first be considered.
Plaintiffs charge that the grant by defendant Racing Commission of the challenged license is void because it is in violation of N.J.S.A. 5:5-43. It has been established that the joint application of the Authority and Garden State was not filed until September 20, 1974.
N.J.S.A. 5:5-43, insofar as relevant to plaintiffs' argument, provides that:
All applications for dates for horse race meetings after the first year shall be filed with the commission prior to October 15 of each year and shall be acted upon by the commission at a meeting of the commission to be held not later than December 1 of the same year. At such meeting so held the commission shall act upon all applications filed with it prior to October 15 of such year and shall allot to the respective applicants, subject as hereinbefore and hereinafter stated, racing days for the ensuing year. * * *
The argument goes that the Authority did not file its joint application prior to October 15, 1973; therefore, it is asserted, the application is untimely and should have been denied by the Commission.
N.J.S.A. 5:5-43, however, goes on to provide that
While plaintiffs urge this portion of the statute to be inapplicable to the type of joint application under review, it is clear to the court that the language of the statute authorizes the very application here involved.
In the case of applications filed before October 15 of any year, the Commission is directed to act thereon at a meeting to be held not later than December 1 of the same year, by allotting to the respective applicants racing dates for the ensuing year. Thus an applicant to be afforded an opportunity to obtain desired racing dates for the following year must have applied by October 15. Failure to timely file does
not result in forfeiture of the right to be licensed at all, but only forfeits the right to compete with other applicants for favored dates, since presumably they already will have been allotted among those who filed before October 15.
The second portion of the statute was calculated, then, to authorize the tardy filing of an application by an applicant for dates, whether in the current year or for the following or ensuing year. If this were not a proper construction of the statute, a new track which may not have received its approval or may not have completed its facilities until, for example December 15, would be denied the right to operate at all during the ensuing year, even though there were many available dates during the ensuing year, for the technical reason that its application was not filed by October 15. Such a strained construction would reach a result which in this courts view was not intended by the statute.
The court is of the view that the application in question falls within the provisions of the second portion of the statute providing for the filing of a late application and that the Commission had a right and indeed the duty to act thereon within 60 days, with the full right to grant the application if otherwise appropriate to do so.
Plaintiffs next urge that defendant Commission exceeded its powers in granting the joint license because the right of the defendant Authority to hold a license is limited under N.J.S.A. 5:10-7(a) to the "Meadowlands Complex," and since the license here is to run races at a track other than on the grounds of the Meadowlands, plaintiffs say the statutory authority has been exceeded.
The statute which created defendant Authority limited, in section 6 thereof, its power to a "project to be located in the Hackensack Meadowlands upon a site not to exceed 750 acres." N.J.S.A. 5:10-6(a).
N.J.S.A. 5:10-7(a) provides:
The authority is hereby authorized, licensed and empowered to apply to the Racing Commission for a permit or permits to hold and conduct, as part of the meadowlands complex, horse race meetings * * * and to provide a place or places on the race meeting grounds or enclosure for wagering * * *. [Emphasis added]
Another section of the statute creating the Authority, N.J.S.A. 5:10-22, says that "It is the express intent of the Legislature that the powers of the authority to undertake the meadowlands complex shall be limited to the site of the project * * *."
Plaintiffs urge that the combined effect of these statutory references is to make clear that the Legislature did not intend to allow the Authority to share with other racing license holders the right to operate, ...