Maryland Racing Commission v. McGee

Hammond, J., delivered the opinion of the Court. The Maryland Racing Commission appeals from an order ⁷¹ of mandamus requiring it to restore the license it had taken from a trainer of race horses after a finding that a drug had been administered to a winning horse trained by him. In the exercise of its statutory duties, the Commission had duly promulgated Rule 111, providing that: “No person shall administer, or cause or knowingly permit to be administered, or connive at the administration of, any drug to any horse entered for a race. Every owner, trainer, or groom must guard, or cause to be guarded, each horse owned, trained or attended by him in such manner as to prevent any person or persons from administering to the horse, by any method, any drug prior to the time of the start of the race which is of such character as to affect the racing condition of the horse.” James McGee, the appellee, had been a trainer licensed by Maryland since the nineteen hundreds, and held a 1956 license.

On March 16, 1956, a horse named “Morning After”, trained by McGee, won the sixth race at Bowie. As was the practice, saliva and urine samples from the horse were taken after the race by the Commission’s representatives and forwarded for chemical analysis. The saliva test was negative but the urine test showed the presence of a drug in the nature of caffeine, which the Commission’s chemist said was a generic term that could embrace amphetamine, benzedrine, cocaine, and morphine. McGee was charged with violation of Rule 111 and the Commission held a hearing, at which an Assistant Attorney General presented evidence for the prosecution.

McGee testified and, by counsel, cross-examined prosecuting witnesses and offered witnesses in his own behalf. The Commission found (1) that the drug had been administered to Morning After prior to the sixth race at Bowie on March 16, 1956; (2) that the drug administered is a stimulant affecting the racing condition of a horse; (3) that McGee was responsible for the guarding of the horse so as to prevent the administering of such drugs; (4) that McGee did not meet this responsibility properly, and on the basis of these findings, found McGee guilty of violation of Rule 111 and suspended his license for a period of six months from April 1, 1956. The record before the Commission shows that the proce ⁷² dures for the taking of the saliva and urine to be tested are designed to insure that the samples be sealed in containers when taken and reach the chemist with the seals intact, identified only by numbers. It is not suggested that the procedure was not followed faithfully in this case and there is no real attack on the validity of the finding of the chemist, who testified that the drug was revealed by the spectrophotometer, an instrument that measures the amount of light passing through a sample.

Different' variations from normal amounts of light give indications of the presence of various drugs. The particular variation here indicated a caffeine type of drug. Tests made on crystals remaining after evaporation by the application of mercuric chloride, gold chloride and black gold confirmed the spectrophotometer. Photographs were taken of the crystals characteristic of the drug and offered at the hearing.

A third test, a color test by the application of malic acid confirmed the first two. The chemist said there was definitely present a drug of the caffeine family. Asked in what quantity, he replied that his test could pick up three to four micrograms, that is, millionths of a gram of caffeine with accuracy, but that in this sample there was “so much there * * * — it was very easy.” The veterinarian for the Commission, asked as to the effect of the drug on horses, testified that caffeine type drugs “are recognized as general stimulants, systemic stimulants on the heart. They would have a tendency to * * * lower the fatigue of muscles, mask the fatigue of muscle fibres” and that this quite possibly would increase the horse’s ability to run.

It is often administered hypodermically, either intravenously, subcutaneously, or intramuscularly. He said also: “It would be practically impossible to differentiate between a horse in normal excitement and a horse that received a normal dose of caffeine. * * * This drug is rather variable in its action on horses.” Only a small percentage of caffeine administered is eliminated through the urine and none, for all practical purposes, through the saliva. It is difficult, if not often impossible, to tell from the appearance or actions of the horse in the paddock whether he has or has not been given a drug. McGee offered evidence to show that he had twenty horses ⁷³ in his care who were stabled at Laurel and vanned to Bowie, when they were to race.

Seventeen of the horses were in one barn, two in another, and the twentieth in a third. McGee employed a seventy-nine year old night watchman who came on duty at six o’clock in the evening and left at five in the morning, and a foreman who relieved the night watchman in the morning and was relieved by him at night. One of the duties of the night watchman was to feed the horses at three-thirty in the morning. After he had fed the seventeen in one barn, he went over to the other barns to feed the horses there stabled.

McGee and each member of his staff, that is, the night watchman, the foreman and the groom, testified that they had not administered any drug to the horse. The horse’s owner and the groom testified that before the race the horse showed no symptoms of stimulation, in their opinion, but was quiet. He did not need a lead pony. McGee testified that the horse was as he always was.

He gave the jockey orders to hit Morning After twice at the starting gate to wake him, describing him as a “lazy horse”. McGee says that the only way the horse could have been drugged was for someone to have taken advantage of the opportunity afforded by the absence of lights at the stable to administer the drug. He added that the watchman could not have been expected to stand at the door of the horses’ stable in 25° weather. He intimated that the individual who might have done it was a former employee.

Before the race, McGee said, he was suspicious that there might be trouble for two reasons. One was that Morning After’s halter was not on him the morning of the day before the race. It had disappeared during the night and they had never found it or what happened to it. The second was that some time before he had caused the man he suspected, who was then working for him as watchman, to be barred from the race track and had refused him a day’s pay the man claimed was due him.

The former employee had gotten very angry and had threatened to make trouble for McGee and to get his money one way or the other. Several days before the race that Morning After won, McGee discovered that the former employee was working on the other side of the barn in which Morning After was stabled ⁷⁴ and this made him uneasy and suspicious, particularly when the halter disappeared. The groom testified that a great deal of coffee was being drunk in the receiving barn when Morning After was brought in before the race. The horse’s owner described it as “a convention of coffee drinkers” and then suggested that the horse might have gotten caffeine in his system by reason of eating straw in the receiving barn on which coffee or coca-cola may have been spilled, or he may have gotten it after the race from coffee or coca-cola being spilled in the drinking water.

He described either possibility as an outside one, “a thousand to one shot”. The testimony showed further that Morning After was the favorite in the race and that he won it by a length and a half. The trial court heard the case on the record before the Commission and, of course, did not see the witnesses. He concluded that there was no evidence in the record to support the Commission’s finding that McGee failed in his duty to guard the horse and, therefore, issued the writ of mandamus requiring the Commission to restore the license.

The Commission argues here that Rule 111 is a valid rule arid that there was evidence to support its finding that McGee failed in his duty to guard the horse against the administration of a drug that would affect his racing condition. The appellees’ counter to this is that the trial court was correct in finding no evidence to support the Commission’s finding that McGee failed to meet the requirements of guarding the horse, that there was no evidence in the record sufficient to show that a drug in the nature of caffeine was administered before the race or to show that there had been given a sufficient amount to affect the racing condition of the horse. Finally, the appellees say that Rule 111 makes the trainer the insurer of the fact that the horse has not been given drugs before a race, because if drugs have been given, it follows that the trainer either gave them himself or was derelict in his duty under the Rule in preventing someone else from giving them, and that so construed, the Rule is unconstitutional and void under the holding of this Court in Mahoney v. Byers, 187 Md. 81 . ⁷⁵ In the Byers case, the rule prohibited the administration knowingly or carelessly of a drug to any horse within forty-eight hours prior to the time of the race in which he was entered, and further provided that if the chemical analysis or other competent evidence showed that a drug had been administered, the trainer should be subject to the prescribed penalty “* * * whether or not he administered the drug, or knowingly or carelessly permitted it to be administered.” The presence of the drug shown by the analysis was made “conclusive evidence” either of knowledge on the part of the trainer or of his carelessness in permitting the drug to be administered. It was argued strongly to the Court in the Byers case that although the rule was set up in the form of a conclusive presumption, it actually made the trainer an insurer as a matter of substantive law, so that if the evidence showed the fact of stimulation and that the individual charged was the trainer, the trainer was responsible.

The Court, in deciding the case, held, however, that an irrebuttable presumption was substituted for proof of the fact that the trainer administered the drug or was careless in allowing it to be administered and that the substitution of an irrebuttable presumption for the facts was arbitrary and unconstitutional. The opinion went on to say: “This irrebuttable presumption destroyed the right of appellee to offer evidence to establish his innocence.” It has been suggested by eminent authorities that the term “irrebuttable” or “conclusive” presumption is a misnomer— indeed a contradiction in terms. 9 Wigmore on Evidence, 3rd Ed., Sec. 2492, p.