This is an application for an injunction pendente lite in an action in which the plaintiff seeks to have the defendants restrained from enforcing a certain alleged order addressed to the Atlantic Garden Athletic Club prohibiting it from allowing the plaintiff to engage in a boxing contest under its auspices. The papers now before the court show that the plaintiff has engaged in the vocation of boxing for the greater part of his life; that he has engaged in about 370 ring contests and has held the title "champion of the world" and is now "the light heavyweight champion boxer of the world." The affidavits set forth with great detail the many boxing contests or prize fights in which the plaintiff has engaged and a long record of his achievements in this sphere of activity. The defendants named in the complaint are the New York State Athletic Commission and the individual members who now compose that commission. The plaintiff on December 24, 1913,
The affidavits submitted on behalf of the defendants show that the plaintiff is 51 years of age and that, in the opinion of the members of the commission and of the physician whom they consulted, the plaintiff is incapacitated by reason of his age and physical condition from competing in a boxing contest. These allegations as to the plaintiff's physical condition are controverted by the plaintiff and by the evidence of physicians who have examined him. The issue of fact thus created is primarily for the determination of the State Athletic Commission rather than a court of equity. The plaintiff asserts that said order deprives him of his right to pursue a lawful calling without "due process of law" and deprives him of his "liberty," as that term is used in the Fourteenth Amendment to the Federal Constitution; that it impairs the obligations of the plaintiff's contract with the Atlantic Garden Athletic Club, and that it is in excess of the jurisdiction conferred by law upon the New York State Athletic Commission. It is necessary to determine whether these claims have merit. The first contention urged, that the order of the defendants deprives the plaintiff of his right to pursue a lawful calling without "due process of law", and deprives him of his "liberty", as that term is used in the Fourteenth Amendment to the Federal Constitution, is the plea which is so frequently urged against every police regulation which either our State or Federal Government attempts to enforce.
The specific offense of prize fighting was unknown to the common law (Sullivan v. State, 67 Miss. 346), although those
A glance at the Penal Law of the State will reveal a variety of occupations and activities in which the citizen is denied the right to exercise his liberty. No matter how comprehensive and elastic the provisions of the Fourteenth Amendment of the Federal Constitution may have been held to be, these provisions do not protect those liberties which civilized States regard as properly subject to regulation by its Penal Law. Whenever the State declares that certain acts theretofore legal shall constitute a crime, it removes such act from the free field and
Liberty is a word with a double meaning. In a negative sense it means freedom from restraint. In a positive sense it secures freedom by the imposition of restraint. It is in this positive sense that the State in the exercise of its police and general welfare powers promotes the freedom of all by the imposition of such restraints upon some as are deemed necessary to secure the general welfare. In view of the character of the occupation in which the plaintiff is engaged, he has the right to pursue it only insofar as the State authorizes him so to do. The limitations imposed by the laws of this State upon the pursuit of this particular vocation renders it lawful only when pursued under the control and jurisdiction of the State Athletic Commission. It will be necessary to inquire as to the extent of the jurisdiction of the State Athletic Commission in order to determine whether the order against which the plaintiff complains was within its lawful authority.
Before doing so it is necessary to make brief reference to the contention of the plaintiff that the order of the Athletic Commission impairs the obligations of the plaintiff's contract with the Atlantic Garden Athletic Club. In reference to this contention, it is only necessary to point out that if the order is a valid order and lawfully prohibits the licensee from allowing the plaintiff to engage in a boxing contest under its auspices, the fact that such order makes impossible the carrying out of a contract which the plaintiff has already made is of no legal significance. Where prize fighting is prohibited by law an agreement to engage in a prize fight is a conspiracy to engage in a crime, and as such illegal and void (Seville v. State, 49 Ohio St. 117).
It is necessary to determine the extent of the authority which the defendant Athletic Commission possesses under the law creating it in order to ascertain whether the order against which the plaintiff complains is in excess of its jurisdiction. The New York State Athletic Commission was created by chapter 779 of
Such regulations provide that any club, corporation or association which violate part I of rule 25 of such regulation shall forfeit its license. The provisions of the statute referred to above, taken in connection with the legislative purpose in creating the New York State Athletic Commission, leave no doubt in my mind that the commission was designed to impose such restrictions upon boxing and sparring contests as would promote its development as a sport, while at the same time this control should be so exercised that certain brutal or dangerous features which have sometimes attended such contests should, as far as possible, be done away with. In the case now before the court, the order of the defendant, State Athletic Commission, in prohibiting its licensee, the Atlantic Garden Athletic Club, from allowing the plaintiff to engage in such a contest cannot be said to be arbitrary or capricious. That order is based upon the judgment of the members of the commission after having taken the advice of a competent physician, that to allow the plaintiff to engage in such a contest would be to run the risk of serious injury to him. The risk to the plaintiff in engaging in such a contest is not a consideration purely personal to him.
I conclude that the commission had jurisdiction to make the order against which the plaintiff complains, and that as there is no evidence that the commission in making such an order were actuated by unworthy motives or that they have acted arbitrarily or capriciously, there is no ground for interference by a court of equity with the operation of the order of the commission.