Request By:
Hon. Robert P. Benson, Jr.
Suite 1234
United Kentucky Bank Building
One Riverfront Plaza
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; George Geoghegan, III, Assistant Deputy Attorney General
This is in answer to your letter dated July 26, 1983 in which you pose a question regarding the interpretation of KRS 230.361(3). You specifically inquire whether a portion of the gross revenues retained from inter-track para-mutual wagering, after payment of the para-mutuel tax, should be applied to the purse of the track conducting the wagering or the track telecasting the race.
KRS 230.361(3) provides in pertinent part:
"Gross revenues retained from such wagering, after payment of the pari-mutuel tax only, shall be applied to purses in the same percent ratio as gross revenues from on-track pari-mutuel wagering, after payment of the pari-mutuel tax only, are applied to purses. "
Under KRS 230.300 the Racing Commission licenses and awards racing dates to the association conducting and telecasting the horse race. Under KRS 230.361(2) the Racing Commission permits a licensed racing association to conduct pari-mutual wagering on racing conducted at another licensed association. Although both associations involved in inter-track wagering operate only through permission granted by the Racing Commission, a state agency, they are nevertheless engaging in their activities solely for the purpose of making a profit. The authority exercised by the Racing Commission in licensing a racing association and in permitting the operation of inter-track pari-mutuel wagering does not affect the health, education, and welfare of the public.
In Parker v. Rash, 314 Ky. 609, 236 S.W.2d 687, 689 (1951), the Court of Appeals said:
". . . The imposition of restrictions upon the use of property by legislative bodies has been recognized as a valid exercise of the police power. It can only be justified in serving some real public interest. No such power exists to promote particular enterprises of private persons."
If KRS 230.361(3) is interpreted so as to require a portion of gross revenues retained by the association conducting the wagering to be turned over to another association, it would constitute a taking of property for a nonpublic purpose. This would be an invalid exercise of the police powers. Thus KRS 230.361(3) would be in violation of the Kentucky Constitution.
In George v. Scent, Ky., 346 S.W.2d 784 (1961) the Court of Appeals restated one of the primary rules of statutory construction. The Court said that when construing an ambiguous statute, a construction incompatable with the Constitution must be rejected in favor of one which is compatable. Consequently, in order for KRS 230.361(3) to pass constitutional muster the portion of the statute quoted above must be interpreted as requiring a portion of the gross revenues received from inter-track pari-mutual wagering, after taxes, to be applied to the purses of the association conducting the wagering.