OFFICIAL OPINION NO. 19

OFFICIAL OPINION NO. 19 Horse Racing-Appointment of Horse Racing Stewards, Judges and Starters. 1. Stewards, judges and starters of horse race meetings cannot be appointed by the State Horse Racing Commission because the Act of December 11, 1967, P.L. 707, 15 P.S. §2651 et seq. only gives the Commission Rower to approve them. 2. Horse racing officials which are not Erovided for by statute. can be appointed pursuant to regulations of the State Horse Racing Comm1ss10n. Joseph L. Lecce, Chairman State Horse Racing Commission Harrisburg, Pennsylvania Dear Mr. Lecce: Harrisburg, Pa. April 9, 1974 We have been requested to determine whether the State Horse Racing Commission has the authority to appoint stewards and other officials under the Act of December 11, 1967, P.L. 707, 15 P.S. §2651 et seq. It is our opinion, and you are hereby advised that the State Horse Racing Commission does not have the power to ap- point stewards, judges and starters who are required to conduct thoroughbred horse race meetings under existing legislation, but only has the right to approve them. It is also our opinion that the Commission does have the power to appoint other individuals who are employed at thoroughbred horse race meetings and not specifically covered by statute. Section 10 of the aforesaid Act, 15 P.S. §2660 speaks to the hir- ing of officials at horse race meetings: "At all thoroughbred horse race meetings licensed by the State Horse Racing Commission in accordance with the provisions of this act, qualified stewards, judges and s~a_rters shall be approved by the commission. Such of- f1c1als shall enforce the rules and regulations of the State Ho~se Racing Commission and shall render regular written reports of the activities and conduct of such race meetin_gs to the St?-te Horse Racing Commission. The com- pensat10n of such Judges and starters shall be fixed by the ~tate Horse ~facing Commission and paid by the corpora- t10n conductmg such race meeting." (Emphasis added) . . T_he State Horse Racing Commission has construed this statue as g1vmg therr: t~e right to ?-PPOint the person(s) who are to be hired by an asso~1at10n to f~n~t10n as stewards, judges and starters.1 The Horse Racmg Comm1ss10n believes that there can be better control over the conduct of hqr~e racing meetings if they have exclusive c~ntrol over these md1v1duals who are responsible for the opera- t10n of the horse race meetings. OPINIONS OF THE ATTORNEY GENERAL 67 However, ~rom the statutory language cited above, it is apparent t~at the Legislature delegated to the State Horse Racing Commis- s10n only the power of approval over stewards, judges and starters. That the word "approved" should be construed as giving the Horse Racing Commission appointive powers cannot hold under close scrutiny. The Pennsylvania State Harness Racing Commission, from whose statute2 the above-quoted provision is derived, has never ap- pointed nor construed its statute as giving it a,I?pointive powers. Moreover Webster's New Collegiate Dictionary (1973) defines "ap- prove" as: "to have or express a favorable opinion of; to accept as satisfactory; to give formal or official sanction ". "Appoint" on the other hand is defined as meaning: "to fix or set officially; to name of- ficially". Thus the two words have entirely different connotations and applying the Statutory Construction Act cannot be interchanged. "(a) Words and phrases shall be construed according to rules of grammar and according to their common and ap- proved usage; but technical words and phrases and such others as have acquired a peculiar and appropriate mean- ing or are defined in this part, shall be construed accor- ding to such peculiar and appropriate meaning or defini- tion." 1 Pa. S. §1903 (Emphasis added). The Legislature has used the word "appoint" in giving the State Horse Racing Commission permission to" ... appoint such deputies, secretaries, officers, representatives and counsel as it may deem necessary ... " 15 P.S. 2651. We must assume from this that the Legislature intended the State Horse Racing Commission to have the power of approval only over those positions established by Section 10, 15 P.S. §2660. 1. The present Rt:!zs of Racing and Administrative Rules of the State Horse Racing Commission contain the following regulation: "All three stewards, all Veterinarians, Clerks of Scales, Horse Identifiers, Starters and Assistant Starters, shall be appointed by the Racing Commission. All other racing officials listed in §1602 shall be appointed by the Association subject to the approval of the Racing Commission. In place of a Veterinarian any other suitable person may be ap- pointed by the Commission to supervise the taking of various tests required by the Rules and the Commission. The compensation of all racing officials shall be fixed by the State Horse Racing Commission and paid by the corporation conducting such race meeting." (Emphasis added). Rule 16.03. 2. Section 8 of the Act of December 22, 1959. P.L. 1978. 15 P.S. §2608 .. reads as follows: "At all harness race meetings licensed by the State Harness Racing Com- mission in accordance with the provisions of this act. q.ualified judges and starters shall be approved by the commission. No person shall be approved as a judge or starter unless he shall be licensed by The United States Trotting Associa- tion as a duly qualified pari-mutuel race meeting official. Such officials shall en- force the rules and regulations of the State Harness Racing Commission and shall render regular written reports of the activities and conduct of such race meetings to the State Harness Racing Commission. The compensation of such judges and starters shall be fi xed by the State Harness Raci ng Commission and paid by the Corporation conducting such race meeting." (E mphasis added). 68 OPINIONS OF THE ATTORNEY GENERAL It should also be pointed out that in states (notably ~ew Jersey and New York) where officials are appointed, _th_ere l~ statutory authority to do so.3 In. i:iennsylvama, admn!-Is~rative deter- minations must have a basis m law and must be w1thm the granted authority. See, 71 P.S. §186. Therefore, regulations that pertain to the appointment of stewards, judges and starters by the State Horse Racing Commis- sion cannot be sustained under present legislative authority. Officials, such as veterinarians and horse identifiers, may, however, be ap_pointed by the Commission under the authority given them by Section 12 of the Act, 15 P.S. §7652 which states in pertinent part that: "(a) Pursuant to the provisions of this act, the State Horse Racing Commission shall have power to supervise general- ly all thoroughbred horse race meetings in this State at which pari-mutuel betting is conducted. The commission may adopt rules and regulations not inconsistent with this act to carry into effect its purposes and provisions and to prevent circumvention or evasion thereof." The a_ppointment pursuant to regulations of the State Horse Rac- ing Commission of a veterinarian and horse identifier, two positions where independence from the corporation conducting a race meeting is paramount, is not inconsistent with the Act. We therefore conclude, and you are hereby advised, that stewards, judges and starters cannot be appointed by the State Horse Racing Commsission since, under existing legislation, the Act only gives the Commission power to approve them. Officials who are not provided for by statute can be appointed pursuant to regulations of the State Horse Racing Commission when not incon- sistent with other provisions of the Act. Very truly yours, Robert J. Dixon Deputy Attorney General Israel Packel Attorney General 3. N.J. S.A. 5:5-37:."The said commis1jio11 111aydesignateaste1m.rd, a certified public accou_ntant of this State as supervisor of mutuels, and a veterinarian licensed to practice .1 n the State, to serve !J-t any horse race meeting held under permit issued unde.r this act. The compensation of such representatives shall be fixed by the com- m1ss10n and shall be p~1d weekly by the holder of a permit at whose horse race track such representatives shall serve ... . " (Emphasis added). CL.S. Unconsol. Law. C h~p. 101 §9-a: "There shall be three stewards to supervise ~a~ h runnmg race meetmg conducted pursuant to section seven of this act. One of such stewards shall be the offmal ste1Card·ojthe stnte racing commission, one shall be appomted by the Jockey club or by the national steeplechase and hunt associa- tion as may be apf!ropriate, and one _shall be appointed by the corporation or assoc1at10n conductmg such race meetmg .... " (Emphasis added). OPINIONS OF THE ATTORNEY GENERAL 69