Delier v. Plymouth County Agricultural Society

Seevers, J.

i. AGK.TOUL tuhatj fair: liorse-raomg: premi" I. As contemplated by statute, in cases where the amount in controversy is less than one hundred dollars, certain questions have been certified upon which it is said to be desirable to have the opinion of the Supreme Court, among which are the following:

*483 “ 1. Does section 1114 of the Code of 1873 prohibit horse-racing at county agricultural society fairs, and on its grounds, such as is contemplated by the petition in this case?

“2. Is an agreement, such as is alleged in the petition, made by such society with the owner of a trotting horse, whereby said society promises to pay a sum of money to the winner of the race, against public policy?”

“ 3. Can the plaintiff maintain an action for the recovery of money won on such race, as is contemplated and described in said petition?”

It is provided by statute: “All county agricultural societies shall annually offer and award premiums for the improvement of stock, tillage, crops, implements, mechanical fabrics, articles of domestic industry, and such other articles and improvements as they may deem proper. And they shall so regulate the amount of premiums and the different grade sof the same, that small as W’ell as large farmers and artisans may compete therefor.” Code, § 1109.

It is insisted this section does not confer upon agricultural societies the power to “ offer a premium to the winner at a horse-race to be held on its grounds during the continuance of its annual fail’.” It is made the duty of such societies to “offer and award premiums for the improvement of stock.” That an improvement in the size, strength, and capacity of horses is desirable there can be no doubt. "Why not also in speed? Counsel practically concedes this is so but say such an improvement is less desirable than “weight, strength, style, and tractability.” This may be true, but why should “ style ” be regarded as a more desirable improvement than speed. However this may be, the defendant, we think, had the power to determine that to increase the speed of horses was a desirable improvement. The means by which this was to be accomplished is discretionary. That is, the society must determine in what way the desired result can be best reached. Should it be thought best to offer a preminm for a trial of strength, *484 the society has the power to do so. It follows, we think, a premium may be offered for a trial of speed. It matters not what it may be called, unless it is prohibited by statute, or is contrary to public policy.

But it is said that no one but farmers and artisans can compete for the premiums. This we do not think is the proper constuction of the statute. The premiums and grades are to be so arranged that all farmers and artisans may compete therefor. But other persons are not prohibited from competing, and we think the object of the statute is to encourage development and progress, and that competition is open to all persons instead of being confined to a class or classes.

2___. ' Section 1114 of the Code is as follows: “No person shall be permitted to sell any intoxicating liquors, wine, or beer of any kind, or be engaged in any gambling or horse-racing, either inside the enclosure where any county or district [or State] agricultural society fair is being held, or within one hundred and sixty rods thereof, during the time of holding such fair; and any person found guilty of any offense herein enumerated shall be fined in a sum not less than five nor more than fifty dollars for every such offense.

This section does not in terms prohibit the society from allowing trials of speed or horse-racing as a means of improving the stock of horses. The word person may include-corporations. Code, § 45. But in order to ascertain the meaning of the statute under consideration, it must be read and construed in connection with section 1109 of the Code, before quoted. We have seen that under the last section agricultural societies have the power to offer and award premiums for the improvement of the speed of horses, and as a means to this end they may allow hoi'se-racing. This being so, we do not think the prohibition in this respect in section 1114 applies to races for the purpose afoi’esaid, when controlled by the society. It seems to us if the General Assembly had intended to prevent such societies from offering premiums for *485 the fastest horse to be tested by a race, it would have so said i:i languuge that could not be misunderstood.

3.--: gambling: public policy, Gambling, or the making of any bet or wager, is prohibited by statute, Code, § 4028; but horse-racing is not, except on a public highway. Code, § 4071. The offering of a premium is not a bet or wager. “ In a wager or bet there must be two parties, and it is known before the chance or uncertain event upon which it is laid is accomplished, who are the parties who must lose or win. In a premium or award, there is but one party until the act, thing or purpose for which it has been offered has been accomplished. A premium is an award or recompense for some act to be done. A wager is a stake upon an uncertain event.” Alvord v. Smith, 63 Ind., 58 ; Hams et al. v. White, 81 N. Y., 532 . The only case coming under our notice which apparently holds otherwise is Bronson Agricultural and Breeders Association v. Ramsdell, 24 Mich., 441 . In that State, however, there was a statnte prohibiting “all running, trotting or pacing of horses * * * for any bet * * * or award,” and it was made a penal offense to contribute or collect any “money, goods or things in action for the purpose of making up a purse, plate, or other valuable thing to be raced for * * contrary to law.” This statute is much broader than' ours and therefore the cited case is not applicable.

Erom what has been said it is apparent the transaction set forth in the petition is not contrary to public policy.

The two first questions must be answered in the negative, and the third in the affirmative.

4. --: preentitled to. II. The fourth question is as follows. “Do the facts stated in the petition show the plaintiff to be the real party in interest and entited to sue for the money in question in this case?” The plaintiff had charge of and entered the mare for the race. Re paid the entry fee and thereby became entitled to the premium if earned. This question must be answered in the affirmative.

*486

6. :-: protest. lit. The fifth is as follows. “Is notice and protest given by plaintiff to the officers of the defendant, as set forth in the petition, sufficient to estop the defendant from paying (the money offered to the winner) to the owner of the horse called Woodbury Chief) or otherwise incur a liability to the plaintiff? ”

The averment in the petition is in effect the same as if it had been stated that notice was given to the defendant.

This on demurrer would have been clearly sufficient. It is possible that on motion the plaintiff would have been compelled to state to what officer or person tbe notice was given.

This question must be answered in tbe affirmative.

Affirmed.