PER CURIAM.
Contention is made by the Relator that Sections 550.03 and 550.08, Florida Statutes, F.S.A., are violative of Sections 2 and 4 of Article 9 and Section 30 of Article 3 of the Florida Constitution, F.S.A. The CHIEF JUSTICE and Justices TERRELL, THOMAS, SEBRING, MATHEWS and DREW are of the opinion that such a contention is without merit and that Sections 550.03 and 550.08, supra, are immune to such constitutional attack.
The contention is also made by the Relator that, in the event such Acts are upheld as valid legislative enactments, the scholarship and charity days provided for therein are to be allocated outside the 120-day racing season which begins by statute on December 1st of each year. The effect of the contention of the Respondents is that Sections 550.03 and 550.08 extended the racing season from 120 days to 126 days and that the charity and scholarship days are not necessarily prior to December 1st or after the end of the 120-day season. The CHIEF JUSTICE and Justices SEBRING, HOBSON and MATHEWS are of the opinion that the scholarship and charity days created by Sections 550.03 and 550.08 must necessarily be awarded either prior to December 1st or subsequent to the 120-day racing season or distributed within such pre-season and post-season period and cannot be allowed within the normal 120-day racing season which begins December 1st. Justices TERRELL, THOMAS and DREW are of the opinion that the allocation of a part of the scholarship and charity dates within the 120-day season was not an abuse of discretion by the Respondents.
Mr. Justice HOBSON is of the opinion that the legislative enactments complained of are immune to the attack herein made but that under certain conditions and under proper attack they might become violative of the Fourteenth Amendment to the United States Constitution.
Specially concurring opinions setting forth the views of certain individual justices are being published herewith.
It is therefore the order of the court that the constitutional objections raised to the scholarship and charity acts, Sections 550.03 and 550.08, Florida Statutes, F.S.A., are without merit and that the Respondents grant to the Relator, Gulfstream Park Racing Association, Inc., a permit in accordance with the application of said Relator now on file so as to permit the said Relator to begin its racing season on March 4, 1954, and to run for 40 consecutive racing days thereafter, Sundays excluded.
It is so ordered.
ROBERTS, C.J., and TERRELL, THOMAS, SEBRING, HOBSON, MATHEWS and DREW, JJ., concur.
TERRELL, Justice.
Gulfstream Park Racing Association, Inc., secured an alternative writ of mandamus from this Court directed to the Florida State Racing Commission, commanding it to modify its order allocating to Tropical Park Race Course, Hialeah Race Course and Gulfstream Park Racing Association, Inc., certain charity or scholarship racing days for the 1953-1954 racing season or to show cause. We are confronted with a return and a motion to quash the alternative writ.
It is first contended that the alternative writ should be quashed because the Board of Control, the University of Florida, the Florida State University, the Florida A. and M. University, Tropical Park Race Course and Hialeah Race Course, interested and necessary parties to the cause, are not made so by the alternative writ.
There is no merit to this contention. The real purpose of the litigation is to adjudicate the validity of the Commission's order relative to racing dates including a fund which is collected and paid into the State treasury for support of charities and scholarships. It is unnecessary to make those not substantially affected parties to the litigation, but even so, they were heard amici curiae and were permitted to file briefs. They are accordingly on notice of the litigation, and for all practical purposes they are parties to the cause. If they had been made parties respondent they could have done nothing more, but since this case is to settle validity and status, their presence as parties to the cause was not essential. State ex rel. Stewart v. Mayo, 160 Fla. 367, 35 So.2d 13; State ex rel. West Flagler Amusement Co., Inc., v. Rose, 122 Fla. 227, 165 So. 60.
The second question challenges the power of respondents to change or alter racing dates that have been once fixed in the manner authorized by statute.
The answer to this question requires consideration of the following statutes, the pertinent part of which is as follows:
1. Section 550.03, F.S. 1953, F.S.A. (Charitable Organizations passed in 1941).
"Provided, however, that the Florida state racing commission may extend said limitations of time for horse and dog racing not to exceed one day at any one track, when such additional day of racing is conducted under the auspices and for the sole benefit of some one or more charitable institutions or organizations, and further provides that for the purposes of this section the University of Miami shall be deemed to be a charitable institution and that a portion of the proceeds available for the charitable purposes in an amount not less than twenty-five per cent thereof shall be paid over to and for the benefit of the University of Miami, and provided further that the total of all profits derived from the operation of such racing on such day including all taxes which would otherwise be received by the state racing commission for such day's operation shall be and become a part of charity fund for which such racing on such days is conducted."
2. Section 550.08, F.S. 1953, F.S.A. (Scholarship Act passed in 1949).
"Provided the state racing commission is authorized to grant one additional day of racing during the race meeting period granted to any track as provided by law, upon application and agreement by any track in which one specific day of any meet shall be set aside, and all profit, less actual operating costs, from such specific day's operations of such track including all taxes payable to the State of Florida or any agency thereof for such day's operation shall be paid into the state treasury for a scholarship fund which shall be administered by the board of control of the institutions of higher learning of the State of Florida for the granting of scholarships for the
purpose of attending the institutions of higher learning of the State of Florida upon such terms and conditions as the said Board may from time to time prescribe.
"(2) The provisions of this section are supplemental to § 550.081 and shall be construed as authority for granting additional days of racing above the total of one hundred and twenty days limitation therein except that each horse race track may run only one additional day as herein provided during its race meeting period as authorized by said law and the one hundred and twenty days limitation therein shall in no event be extended beyond three additional days."
3. Chapter 28,499, Acts of 1953, (Hillsborough County Act.)
"In all counties having a population of not less than two hundred thousand (200,000) nor more than two hundred and seventy-five thousand (275,000) according to the latest official census, the state racing commission is authorized to grant an extra day of racing to each horse or dog track located in the county. This extra day shall be added to any other additional day of racing heretofore authorized by law. This extra day of racing shall be granted by the racing commission upon application and agreement by the race track owner or operator that all profits, less actual operating costs, from such specific day's operations including all taxes payable to the state or any agency thereof for this extra day's operation shall be paid to the trustees or other governing body of any institutions of higher learning located in the county and having comparable curricular standards for entrance and graduation as is prescribed for state senior universities. * * *"
The purpose of these statutes is to permit two extra days of racing to the track owners who apply for permission to do so, the profits, less cost of operation to be available to certain charitable and educational institutions for scholarship purposes. Relator contends that such profits are in fact state tax funds and that the attempt to withdraw them from the state treasury for the stated purposes, absent an act of the legislature so appropriating them, is in violation of Sections 2 and 4, Article IX, of the State Constitution.
More than one substantial reason rebuts this contention. In the first place the profits which accrue from the extra day of racing, as authorized by Section 550.08, is not a tax as that term is currently employed. In common parlance a tax is a forced charge or imposition, it operates whether we like it or not and in no sense depends on the will or contract of the one on whom it is imposed. Klemm v. Davenport, 100 Fla. 627, 129 So. 904, 70 A.L.R. 156; Hiers v. Mitchell, 95 Fla. 345, 116 So. 81.
In the second place the statute does not compel the track owner to race the extra day. It is done "upon application and agreement by any track" and donation of the profits is permissive or voluntary rather than mandatory. The language of the statute is permissive, there is nothing compulsory about the extra day's racing. The exercise ordinarily paid by the race tracks to the state goes into the profits and the quoted statutes exempt the race tracks which voluntarily run the extra day, from payment of taxes and instead direct the proceeds to charitable and educational purposes in the manner provided. Such has been the consistent administrative interpretation which is logical and entitled to great weight. State ex rel. Fronton Exhibition Co. v. Stein, 144 Fla. 387, 198 So. 82. We agree with this interpretation.
Now let us consider the contention that Sections 550.03 and 550.08, Florida Statutes, F.S.A., are violative of Sections 2 and 4, Article IX and Section 30, Article III of the Constitution.
Section 30, Article III inhibits the general appropriation bill, for salaries and other expenses of the State government, containing provisions on any other subject. Section 2, Article IX, has to do with raising revenue for support of the state government and Section 4, Article IX prohibits drawing money from the treasury except in response to appropriation by the legislature. We take it that relator has abandoned it's contention as to Section 4, Article IX since it is not argued in the brief.
As to violation of Section 30, Article III, we have repeatedly pointed out that the purpose of this provision is to prohibit the general appropriation bill for state expenses being laden with items that tend to hamper the conduct of the government. Amos v. Moseley, 74 Fla. 555, 77 So. 619, L.R.A. 1918C, 482. By no stretch of the imagination can we see that the cited acts when reasonably construed violate this provision of the constitution. Neither do we find that said acts violate Section 2, Article IX of the Constitution. It appears to be relator's contention that these acts levy and appropriate state taxes for charities and scholarships which are not public purposes as contemplated by law. We have already held that the imposition was not a tax as generally understood but even if it were, the legislature is the judge of what constitutes a public purpose and was empowered to make the appropriation for scholarships. Overman v. State Board of Control, Fla., 62 So.2d 696. See also Carlton v. Mathews, 103 Fla. 301, 137 So. 815 and State v. Brevard County, 99 Fla. 226, 126 So. 353, where the provision of the constitution in question was discussed and we there held that the command of Section 2, Article IX had reference to such expenditures as the legislature authorizes and which was not prohibited by the constitution. We find no provision of the constitution which prohibits appropriations for scholarships in the institutions of higher learning and relator has pointed out none. We have examined the cases from Missouri, Kentucky and other jurisdictions relied on by relator but they were predicated on statutory and constitutional provisions entirely different from ours and are not in point.
Relator also contends that Section 550.08 (Scholarship Act) authorizes the State Racing Commission, in its discretion, to extend the middle 40 day period of the racing season to the disadvantage of the horse race track that is awarded said period. Such an extension, it contends, is unlawful.
A reading of the act discloses that the one day extension of the racing season was for the sole purpose of providing charities and scholarships as per agreement with the horse race tracks. The scholarship act must be read in connection with Chapter 23,728, Acts of 1947, which provides for allocation of the 40 day period of racing where as many as three horse race tracks operate within a radius of 100 air miles. When so read, the scholarship act is clear and certain and means that when a track applies for the extra days the Racing Commission may allocate such day in any reasonable manner.
In this holding we do not overlook the contention that when the extra days of racing are applied for and allowed, they must not commence earlier that the first of December in any year. This contention is predicated on Section 550.081, Florida Statutes 1951, F.S.A., requiring that "the annual period of operating of such horse race tracks shall begin on December first of each year * * *." It is pointed out that if this requirement is met the dates for Tropical Park track would run from December first 1953 to January 18, 1954, instead of November 30, 1953 to January 16, 1954, as provided by the Commission. All other racing dates would be changed accordingly, where there are three tracks within a radius of 100 air miles of each other.
It is true that the original act fixed the date of opening and closing the racing season but that as now in force it fixes December first as the opening date but leaves the closing date open. It is also true that the charity act and the scholarship act give the Commission some latitude in fixing the race meeting period where additional days of racing are applied for. The Commission construed the act as authorizing them to add the extra days to either end of the 120 day racing period. The effect of their action was to begin the racing period one day earlier, that is to say on November 30, and thereafter each of the three tracks to run 42 consecutive days. We are not convinced that they abused their discretion in so doing. After all is said, the question of regulating horse racing is a statutory matter and so long as done within reasonable bounds, the act of the legislature should be upheld. The questions raised here involve matters of pure legislative discretion and we do not find that the legislature or the Racing Commission has transgressed its authority.
It is accordingly our view that the constitutional objections raised to the scholarship and charity acts are without merit and that when construed together, in the light of their purpose and history they provide for additional days of racing on condition that the profits be allocated to a scholarship fund for attendance at the state institutions of higher learning.
The motion to quash the writ should be granted.
THOMAS and DREW, JJ., concur.