Judicial Review of an order of the Oregon Racing Commission.
Howard Bergman, Deputy County Counsel, Portland, argued the cause for petitioners. With him on the brief was Charles S. Evans, County Counsel, Portland.
Al J. Laue, Assistant Attorney General, Salem, argued the cause for respondents. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Robert E. Thompson, Beaverton, filed a brief of amicus curiae for Multnomah Kennel Club, an Oregon corporation. With him on the brief were Thompson, Adams & Lund, Beaverton.
Fort, Judge. Schwab, Chief Judge. Thornton, Judge, dissenting.
Multnomah County Fair Board, petitioner herein, applied to the Oregon Racing Commission for a license to conduct ten days of dog racing. The Commission granted it a license for five days. The Board appeals, contending that the Racing Commission both as a matter of law and of fact erred in not granting the license for the full ten days applied for.
ORS 462.270, setting forth the duties of the Commission, includes the following:
"(2) The commission shall be the sole judge of whether or not a race meet shall be licensed and shall specify the days and dates and number of days the meet shall continue and the number of races per day.
ORS 462.050 provides in part:
"(1) Every person making application for a license to hold a race meet shall file the application with the commission. It shall set forth the time, place and number of days the applicant desires the meet to continue * * *.
"(3) * * * If the license is granted, but for fewer days than applied for, the excess of the deposit shall be returned promptly to the applicant." (Emphasis supplied.)
ORS 462.125 provides in part:
"(1) The commission shall determine the number and classes of race meets to be held in any calendar year.
"(2) Not more than 130 days of racing, exclussive of racing days authorized to designated licensees pursuant to subsection (4) of this section, shall be held in any metropolitan area in any year. Sixty-five of such days shall be allocated to race meets for horses (class A) and 65 days to race meets for animals other than horses (class B). If the commission does not receive and approve license applications for all of the 65 days allocated to either class of racing, the unallocated days may be added to the racing days allocated to and available for the other class of racing.
"(3) As used in subsection (2) of this section, 'metropolitan area' means:
"(a) Multnomah, Clackamas and Washington Counties.
"(b) Marion and Polk Counties.
"(c) Linn and Benton Counties.
"(d) A county other than those designated in paragraphs (a), (b) and (c) of this subsection.
"(4) Each licensee designated in ORS 462.057 may be granted up to 10 days of racing to be held within the county in which the ...