May 25, 2017 • By Milton C. Toby
Calumet Farm owned the 1940s: Triple Crown winner and two-time Horse of the Year Whirlaway, Triple Crown winner and Horse of the Year Citation, Horses of the Year Twilight Tear and Armed, Kentucky Derby winners Pensive and Ponder, and nearly a decade’s worth of leading owner titles. For many fans, Calumet was horse racing.
One of the few serious challenges to Calumet’s dominance in the years during and after World War II came from horses owned by Mrs. Elizabeth Arden Graham’s Maine Chance Farm and trained by Tom Smith of Seabiscuit fame. The stable was rolling toward its best year ever in 1945, with soon-to-be juvenile champions Star Pilot and Beaugay running in the Maine Chance colors and near-record earnings in the bank. Then in November the unthinkable happened when allegations of doping began to swirl around Tom Smith.
Rushing to get the story in print, one New York newspaper said that the chemist for the state racing commission “reported traces of ephedrine in the saliva test taken from Mrs. Elizabeth (Arden) Graham.” This was wrong, of course, and must have come as a surprise to Mrs. Graham and her friends who happened upon the article.
The charge was that Smith or his employees, maybe both, were dosing some of the Maine Chance horses with a prohibited stimulant before they raced. Smith eventually would appear before the Belmont Park stewards and members of The Jockey Club—a showdown of racing officials tasked with protecting the sport’s integrity and a prominent, popular trainer fighting to protect his reputation.
In a strange twist, Smith also found himself defending his handling of Seabiscuit in the previous decade.
They were the most improbable pair to grace a winner’s circle in post-World War II America, the flamboyant cosmetics queen from New York and the taciturn man from points west, but for a time, horses owned by Elizabeth Arden Graham and trained by Tom Smith won more money and more important races than almost anyone else. That the Maine Chance horses were winning everything in sight was not a surprise. Smith already was destined for the Thoroughbred Racing Hall of Fame with 1938 Horse of the Year Seabiscuit on his training résumé and Graham’s worldwide cosmetics empire (78 countries and counting at the time) generated enormous piles of cash. Graham could, and often did, outbid anyone for a horse she wanted.
What did surprise everyone was the fact that Smith and Graham managed to maintain any sort of working relationship, let alone a successful one, without killing each other. They were as unalike as any two people could be.
Graham was a hands-on owner like few others in racing, taking an active role in every aspect of the Maine Chance operation. This did not happen often for a woman in the old-boys’ club that horse racing unabashedly was in the 1940s. Along with other prominent owners Mrs. Isabel Dodge Sloan, Mrs. Ethel V. Mars, and Mrs. Payne Whitney, Graham was one of the sport’s pioneers for gender equality. Friends who knew Graham as a suffragette demonstrating in support of women’s rights years earlier would not have expected anything less.
There was a massive rally in 1912 that attracted more than 15,000 women. Many wore red lipstick as a visible sign of solidarity. Graham marched shoulder to shoulder with the women. She also supplied the lipstick, an Elizabeth Arden shade.
Graham had a well-manicured hand in everything that involved her cosmetics business and her racing stable. She decided which horses to buy and which ones to sell. Most of her purchases came at the annual yearling sales, often with the advice of Leslie Combs II, whose Spendthrift Farm would come to dominate the elite yearling auctions in the coming decades. She was savvy enough to heed the advice of Combs and others, but independent enough to ignore it from time to time and rely on her own judgment. She was the final arbiter when it came to decisions about where the Maine Chance horses would race, and she often was in the paddock dispensing riding instructions to jockeys.
“I only want people around me who can do the impossible,” Graham said. In that respect, she could be a trainer’s worst nightmare.
Saddling horses for Maine Chance involved a carefully orchestrated balancing act, good money and good horses on one hand, bizarre demands and incessant meddling on the other. Trainers who balked at Graham’s oversight were summarily fired, some of them just a few hours after being hired; more than 60 conditioned Graham’s horses over three decades.
“A beautiful horse is like a beautiful woman,” Graham said, and she frequently sent cases of creams, salves, and other assorted beauty products from her Elizabeth Arden line for use on the Maine Chance horses. The animals were her “babies” or her “darlings” she said. Graham once insisted that a trainer use her Ardena skin cream for a sore horse because she did not like the disagreeable smell of strong liniment.
The trainer demurred, undiplomatically suggesting that the skin cream was wasted on Graham’s horses. Graham fired him on the spot.
Of all the trainers who shuttled through the revolving door that was a hallmark of the Maine Chance job, Tom Smith was one of the longest tenured and by far the most successful. A sheepherder, cowhand, rodeo blacksmith, and Quarter Horse trainer, Smith eventually made the jump to Thoroughbreds in 1923 when he could not find any other way to make a living. For a quarter-century he led a hardscrabble life racing cheap horses at cheap tracks. Smith’s luck finally took an upward turn in 1934 when he attracted the attention of Charles S. Howard, a California automobile dealer who made an unlikely fortune selling Buicks during the Depression.
Howard had an uncanny knack for recognizing and hiring competent people and then simply leaving them alone to do their jobs. It was a management philosophy that worked equally well for him in business and with his racing stable. He saw in Smith a trainer who was confident in his ability to understand horses and to make them better runners, a man who seemed more comfortable communicating with the animals in his care than with the people around him. Silent Tom was the kind of trainer Howard wanted for his horses.
Undeterred by Smith’s reluctance to talk about his past, or just about anything else; his unconventional training methods; and the fact that the only bed the trainer could afford happened to be in a horse stall at Agua Caliente on the outskirts of Tijuana, Howard hired him. Smith returned the favor two years later.
During a trip east shopping for horses in 1936, Smith saw Seabiscuit for the first time. The horse caught the trainer’s eye. A son of Hard Tack with the immortal Man o’ War another generation back, Seabiscuit was owned by the powerful Wheatley Stable and trained by a legend-in-the-making, James “Sunny Jim” Fitzsimmons.
Most horsemen scanning past performances in the Daily Racing Form during the summer of 1936 would find nothing to distinguish Seabiscuit from any number of other nicely bred, but decidedly unspectacular, horses. If the colt had anything going for him, it was an uncommon durability. Seabiscuit won five times during a demanding 35-race campaign as a 2-year-old in 1935. When Smith first saw the colt, Seabiscuit already had made a dozen starts as a 3-year-old and it was clear that Fitzsimmons, who had won the Triple Crown the year before with Omaha, had little time to devote to an underachiever, which, on a good day, might win a minor stakes race.
Smith saw something else in Seabiscuit, an enormous potential that others did not.
“Get me that horse,” Smith told Howard, who might have had misgivings but who wrote the check anyway.
Smith rehabilitated the overworked and under-appreciated horse, matched him with a one-eyed journeyman jockey named Red Pollard, and two years later won a Horse of the Year title for Howard. Seabiscuit kept winning races, including a highly publicized match race with War Admiral in 1938 and the rich Santa Anita Handicap in 1940.
Seabiscuit became a media star at a time when Depression-weary Americans desperately needed a hero. They turned out in droves at the tracks where Seabiscuit ran, followed his races on the radio, or read about them in the newspapers. The horse’s popularity also was Smith’s ticket to celebrity, but it was attention that the eccentric trainer regarded with contempt. He also had to face the inevitable skepticism from owners and trainers who could not believe that Seabiscuit’s amazing renaissance was accomplished without the help of illicit drugs.
That question must have lingered in the mind of William Woodward Sr., owner of Belair Stud and chairman of The Jockey Club. Woodward’s horses dominated the Kentucky Derby during the 1930s, winning with Gallant Fox in 1930, Triple Crown winner Omaha in 1935, and Johnstown in 1939. Sunny Jim Fitzsimmons trained the Belair horses, and Woodward must have wondered how Smith managed to coax one spectacular win after another from a horse like Seabiscuit, an overlooked Thoroughbred whose obvious talent had gone untapped in the usually reliable hands of Fitzsimmons.
Smith and Howard parted company in 1943, in an amicable split. Smith suffered a serious back injury and Howard needed a replacement trainer for his stable. Finally back on his feet after months of rehabilitation, Smith refused Howard’s offer of a job as farm manager. He was a trainer who wanted horses to train.
A dapper man with the somber demeanor of an undertaker, thinning hair, and glasses, Smith was 66 years old when he started working for Graham. Thanks to a hard life, he looked his age. Smith’s new employer, a zealous promoter of the “Total Beauty” concept and a devotee of her own beauty salons and products, did not. Her true age—she was only six years younger than Smith as it turned out—was not revealed until after her death in 1966.
Graham and Smith got along, usually. She was confident that he was an excellent trainer who would take care of her horses, while he learned to deal with her eccentricities in a diplomatic way.
“I try not to hurt her feelings,” Smith told a reporter, “and yet do it my way.”
Smith’s “way” was good enough to accomplish a feat no other trainer could manage during the 1940s. Warren Wright’s Calumet Farm owned the decade, topping the list of leading owners seven times with horses like Triple Crown winners Citation and Whirlaway and Kentucky Derby winners Pensive and Ponder. Twice horses trained by Smith ousted Calumet Farm from the top spot, first in 1940 when he was training Seabiscuit and the rest of Charles S. Howard’s stable; and again in 1945, his first full year with Maine Chance Farm.
Winning more money in a season than the Calumet powerhouse once in the decade was impressive; doing it twice, for different owners, was the mark of an exceptional trainer. Smith also won a Kentucky Derby for Graham with Jet Pilot in 1947—Calumet’s Faultless finished third that year—but 1945 was the Maine Chance stable’s banner season.
The best horses racing in the Maine Chance colors in 1945 were a pair of 2-year-olds, the colt Star Pilot and the filly Beaugay. Star Pilot won the Futurity Stakes, the Hopeful Stakes, the Pimlico Futurity, and the Ardsley Handicap and was named champion 2-year-old colt. Beaugay posted a record just as impressive, winning each of her first six races, five of them stakes. She also was in front during the early going in Star Pilot’s Futurity, her first race against colts, but she bolted and fell. Beaugay defeated every filly she faced in 1945, though, and was named champion 2-year-old filly.
The official past performances for Star Pilot and Beaugay, chronological race records compiled by the Daily Racing Form in a massive research volume titled Champions, include puzzling notations for both horses: “Previously trained by T. Smith,” indicating a change of trainer sometime late in 1945. Adding to the confusion, Roy Waldron shows up as trainer of Star Pilot for the Pimlico Futurity only and by year’s end Smith’s son, J. W. Smith is listed as trainer of record for both Star Pilot and Beaugay.
But what about Silent Tom?
The reason for the late-season trainer changes for the two champion Maine Chance juveniles is because late in 1945 Smith ran afoul of New York’s anti-doping rules. Following hearings that only muddied the waters and made it difficult to be certain who did what, and when it happened—if anything did happen—stewards for The Jockey Club revoked Smith’s training license for a year.
The hearings and subsequent litigation marked the first serious legal challenges to the “absolute insurer rule” developed a decade earlier around the same time a saliva test developed in Florida for a select few prohibited drugs, mostly illegal stimulants, was introduced to American racing. The rule, which holds a trainer responsible for the condition of his horses even if someone else administers a prohibited medication without the trainer’s knowledge, would become a valuable and much-used tool in racing’s war on drugs. Both US Equestrian, the governing body for horse sports in the United States, and the Fédération Equestre Internationale (FEI), the international governing body for Olympic disciplines, also incorporate versions of the absolute insurer rules in their codes of conduct.
The rationale for the rule is an application of Harry Truman’s famous adage “The Buck Stops Here.” A trainer is the person most likely to have control of horses in his care, or to hire reliable individuals to have that duty in his absence. That responsibility carries with it liability if a horse tests positive for a prohibited medication. When there is a medication violation, the buck stops at the trainer.
The legal machinations surrounding the revocation of Smith’s training license raised serious questions about the validity of a racing rule that required a trainer charged with a medication offense to prove his innocence rather than placing the burden of proof on the authorities. The case also was a harbinger of things to come, including the controversial disqualification of a Kentucky Derby winner a quarter-century later after post-race drug tests were positive for a prohibited painkiller.
The Maine Chance horses were winning at a prodigious clip in 1945, crossing the finish line in front so often that rival trainers and racing officials in New York became suspicious that something more than Tom Smith’s skill was in play. Although everyone acknowledged that Smith’s record was clean, with no medication violations of any kind, investigators from the New York Racing Commission and The Jockey Club began hanging around the trainer’s barn anyway, hoping to catch him in the act of… what, exactly?
Dr. Thomas E. Corwin Jr., who worked as an examining veterinarian at the Jamaica Park receiving barn, reported to the stewards that on Oct. 20, 1945, he had seen Smith and two Maine Chance employees administering a nasal spray of some kind to Lord Boswell and Star Pilot (the year’s champion juvenile colt) “about 15 or 20 minutes prior to going to the paddock for the 4th race.” According to Dr. Corwin, Smith was administering the mystery liquid with an atomizer, a futuristic-looking device that would have been at home in the Buck Rogers comic books and movie serials popular at the time.
The contraption consisted of a short tube with a nozzle on one end and a rubber bulb at the other, and a small glass bowl attached to the middle of the tube. A squeeze on the bulb produced a fine mist of whatever liquid happened to be in the glass bowl. Atomizers were common for dispensing perfume and for nasal congestion remedies.
Acting on the report, Marshall Cassidy, a well-respected steward for The Jockey Club, was put in charge of a clandestine investigation of Smith and the Maine Chance operation. One of the early architects of drug testing in the United States, Cassidy probably was the best choice to head the probe.
A decade earlier, amidst growing recognition that doping horses at American racetracks was a rampant problem and only getting worse, Joseph E. Widener looked across the Atlantic for a solution. A saliva test developed in France was being used with success in detecting at least a few prohibited drugs, and Widener grew interested in installing the new technology at Hialeah Park, the racetrack he owned in Miami. The French saliva test was far from perfect, but anything was better than no drug test at all, which was the untenable situation in the United States at the time.
Cassidy was one of the men Widener dispatched to Europe, and when rudimentary drug testing began at Hialeah in 1934, the testing scheme was one that Cassidy helped adapt from the French model. When The Blood-Horse magazine ushered in the new millennium with a ranking of the 100 most significant events in racing during the 20th Century, drug testing came in 37th, just behind the advent of televised horse racing. Considering the scope of the drug problem that testing was supposed to solve, and the ramifications if it failed, the ranking probably should have been higher.
Cassidy also had a hand in other significant innovations during a career in racing that spanned decades. He was involved in the development of a reliable electric starting gate, the photo finish camera, film patrols, and the establishment of a school for racing officials. When he died in 1968, Cassidy was remembered as Thoroughbred racing’s “Man for All Seasons.”
The investigation, at least initially, turned up nothing that would incriminate Smith. Testifying at a subsequent hearing, Cassidy explained the basis, such as it was, for the investigation:
We had a report from one of the veterinarians saying that he had seen Mr. Smith spray a horse’s nose with a man holding him with a tongue-twitch just before he was to go to the paddock. So we ordered the saliva and urine taken of every winner, and notified the chemist to make every effort to find out, if he could, what was being used, and if it appeared in the saliva, or urine. We had no success in finding anything.
We then continued the observations, and when it became obvious that he was doing this almost every time he won a race, we decided that we would go right in while he was spraying the horse’s nose, take the spray away from him, and have the contents analyzed. But before that, Dr. (Manuel) Gilman got hold of the atomizer that they had used, with only a few drops in the bottle. They couldn’t determine what it was but both Dr. Morgan (C. E. Morgan, chief chemist for the racing commission) and Dr. Gilman “stated that it was tasteless, it was clear fluid, and had no taste whatsoever.”
Putting aside the disturbing image of professional men touching their tongues to an unidentified liquid that they suspected contained a prohibited drug, the sample’s lack of taste would become important a few days later.
Although nothing implicating Smith in any wrongdoing was uncovered during the early days of the investigation, the probe of the Maine Chance operation continued. The investigators finally saw an opportunity on the first day of November 1945, when Smith shipped three horses from his base at Belmont Park on Long Island for a day of racing at the track in Jamaica, a few miles away. The horses were Gay Garland, entered in the second race; Magnific Duel, entered in the third; and Easton Queen, entered in the fourth.
The plan to catch Smith red-handed was simple, and clearly no longer clandestine. Under orders from Francis Dunne of the New York State Racing Commission, communicated by Dr. James G. Catlett; Townsend MacAllister (“Tat” to his friends) and Frank Lorentzen from the Horse Identification Department, accompanied by Frank LaBoyne, would stage a stakeout in the receiving barn where the Maine Chance horses were stabled prior to going to the paddock.
MacAllister was on duty a few minutes prior to the second race when he saw three men in Gay Garland’s stall. According to MacAllister, one man was restraining the filly with a tong twitch, the second man was using an atomizer to spray an unidentified liquid into Gay Garland’s nostrils, the third man was Tom Smith. Gay Garland went on to win the maiden special weight race for 2-year-old fillies as the even-money favorite.
No action was taken at that point, but later in the afternoon Frank Lorentzen reported seeing another of Smith’s horses, a Maine Chance second-stringer named Magnific Duel, being sprayed before he scored in his $3,000 maiden special weight race for 3-year-olds and older at 1-2 odds. This time a stable employee administered the spray and Smith was not present.
In a notarized statement, Lorentzen recounted the incident:
Following out my orders I watched for any signs and saw (the) colored groom come out of stall 4 with a tong twitch followed by another man who I think to be the foreman. After they went into stall 5, I gave them a moment or two and then walked in. I saw them using the atomizer and called Mr. LaBoyne. We immediately went up to stall 5. I entered the stall and as I did, this other person (the foreman) came out of the stall and walked into stall 4 in which they had another horse (Magnific Duel). As Mr. LaBoyne was already in stall 5, I followed the other man to stall 4 and saw him push the atomizer under the straw. He then proceeded to pick up a horse file and started filing the horse’s left forefoot.
I called Mr. LaBoyne and told him to stop looking in the duffle bag in the stall as I knew where the atomizer was. Mr. LaBoyne told me if I knew where it was to pick it up, which I did from under the straw and turned it over to him. We both then took it to Mr. Dunne’s office. (“Mr. Dunne” almost certainly was racing commission steward Francis P. Dunne.) Mr. Dunne, in turn, called Morgan’s Laboratory in Jamaica and made arrangements for us to take it right to them. It was sealed in Mr. Dunne’s office and I took it to the Laboratory and turned it over to Dr. Morgan.
On the morning of November 2, 1945, while the stalls 4 and 5 were empty, I had the opportunity of searching through the straw more thoroughly and found the bulb which goes with the atomizer in stall 4, the same stall in which I picked up the atomizer the previous day.
The atomizer, a “DeVilbiss No. 15” model, its openings sealed with cellophane tape and bearing a wax seal stamped with “N.Y.R.C” on the bottom, arrived at the testing laboratory at 2:45 p.m. on the same afternoon it was recovered from Magnific Duel’s stall. C. E. Morgan, the chief chemist for the racing commission, ran the tests himself and reported the next day that the contents of the atomizer bulb—“13.5 ml. of an almost colorless liquid with a faintly aromatic odor”—contained ephedrine in a concentration of 2.6 grams per 100 milliliters. A stimulant, ephedrine was prohibited by the rules of racing then, and now.
Four days after the stakeout, on Nov. 5, the stewards sent for Smith and asked him, point-blank, to explain the presence of ephedrine. Smith was not represented by counsel at the stewards’ hearing, he was not given an opportunity to question any of the other witnesses, and it was clear from his testimony that he was not even sure why he had been summoned to the Stewards’ Office at Belmont Park. The only notice Smith received was a telephone call from someone advising him of the hearing and asking him to bring the groom for Magnific Duel.
Smith guessed that the stewards’ inquiry had something to do with Magnific Duel, but he was incredulous when confronted with the accusations made against him.
He denied any wrongdoing and offered a plausible explanation for what he believed was an obvious misunderstanding on the part of the stewards. Smith said he actually had two similar atomizers, one with a brown glass bottle containing a mixture of vinegar and salt water, and a second atomizer with a white bottle that admittedly contained a solution of ephedrine.
Smith said that he sometimes used the atomizer with the brown glass bottle to treat horses on the day of a race, but those treatments were not an issue for the stewards. No one was claiming that there was anything illegal about squirting a mist of vinegar and salt water up a horse’s nose. Smith said that he sometimes used an ephedrine solution on his horses during training, especially for bleeders, but he denied ever dosing a horse with ephedrine on race day.
Smith’s assertion that he only used the vinegar and salt water mixture on race days was contradicted, implicitly at least, through the earlier observation by Drs. Gilman and Morgan, who found no taste in the few drops of liquid recovered from an atomizer used prerace by one of the trainer’s employees while Smith observed the administration. Vinegar in the atomizer solution would have had a distinctive and familiar taste and odor.
Smith did not challenge the chemical test that showed ephedrine in the atomizer—serious legal challenges to the reliability of drug tests and the competency of racing chemists still were years away—but he said that he occasionally administered the drug to his horses, but only for training purposes for horses with head colds or for bleeders. Those uses of an ephedrine spray apparently were not violations of the rules. During Smith’s first hearing, before the stewards at Belmont Park, the trainer was told that ephedrine was prohibited only prior to a race.
Smith explained that he had started using an ephedrine-laced atomizer himself to relieve congestion resulting from a broken nose. He reasoned that medication good enough for him was good enough for his horses. Besides, Smith added, the druggist at the Elmont Pharmacy who prepared the ephedrine solution told him that ephedrine was neither a stimulant nor a narcotic of any kind.
Whatever the problems, Smith argued that it was not his fault. The trainer insisted that he never treated a horse with ephedrine on the day of a race and that he never instructed anyone to use the ephedrine atomizer for Magnific Duel prior to the Nov. 1 race at Jamaica Park. The only sensible explanation, he added, was that the assistant must have picked up the wrong atomizer for Magnific Duel by mistake and that was the atomizer seized by LaBoyne.
The official chemist’s report for the liquid found in the seized atomizer identified a solution containing ephedrine and described the sample as “an almost colorless liquid with a faintly aromatic odor.” Dr. James G. Catlett, Supervisor of Horse Examinations and Identification, later testified at a meeting of The Jockey Club that ephedrine was a powerful cardiac stimulant that “increases the frequency of the heart beat” and a respiratory stimulant that increases respiration.
Ephedrine remains a prohibited medication today, a Class 2 drug that has “a high potential to affect performance” according to the Association of Racing Commissioners International. The drug carries a Category “A” penalty, with a recommended one-year suspension and a minimum fine of $10,000 or 10% of the total purse, whichever is greater.
Testifying before the Belmont Park stewards, MacAllister talked about a strange telephone call he received the evening after the stakeout of the receiving barn when he reported the atomizer being used on Gay Garland while Smith observed.
“I was sitting home having dinner and the phone rang and this man said: ‘Is this Tat MacAllister?” and I said: ‘That’s right.’ He said: ‘Do you work for a veterinarian?’ I said: ‘That’s right.’ He said: ‘If I were you, I wouldn’t say anything about what happened today.’ ” The man hung up without identifying himself and there was no follow-up to the threat against MacAllister, at least none that was reported.
The record of Smith’s testimony before the stewards ends on a curious note: “In the opinion of the Stewards, Mr. Smith was extremely nervous which is entirely different from his usual bearing.” The importance of Smith’s demeanor to the factual question of whether he or one of his employees doped Magnific Duel with ephedrine, if it matters at all, is best left to the imagination.
Smith’s insistent claims of innocence on his part and of an unfortunate mistake by a stable employee seemingly were bolstered by one telling fact. Neither Magnific Duel nor any of the other Maine Chance horses in his care ever had tested positive for ephedrine or for any other drug after a race. Dr. Catlett effectively refuted that point, however, when he testified before members of The Jockey Club that testing for ephedrine was difficult. Dr. Catlett added that he was unaware of the drug ever having been found in a saliva test.
Smith had an absolutely spotless record as a trainer. (He did allow that earlier in his career he had been called before officials at Agua Caliente after a horse of his “run bad on time,” but nothing came of it). Nevertheless, and perhaps because his nervousness at the initial hearing was seen as evidence of his guilt, the stewards passed the matter on to The Jockey Club for consideration.
A second hearing began two days later, at the offices of The Jockey Club in Manhattan. Although there was no question about the purpose of this gathering, Smith again received little official notice of the proceeding and almost no time to prepare. More important, the trainer was denied the opportunity to cross-examine the other witnesses who testified and he was not allowed legal counsel.
In a hearing that would determine his future in racing, Smith again was on his own. With Jockey Club Chairman William Woodward Sr. at the helm, backed by stewards A. H. Morris, Joseph E. Davis, Walter M. Jefferts, R. A. Fairbairn, and F. S. von Sade, and no one responsible for advocating on behalf of Smith, the hearing was little more than a formality.
After reviewing laboratory reports confirming a 2.6% solution of ephedrine in the atomizer recovered from Magnific Duel’s stall and hearing the testimony of Dr. James G. Catlett about the stimulating effect of the drug, Smith was called as a witness. Although the stated purpose of the hearing was adjudicating the doping allegations leveled against the trainer, Woodward, for a time, seemed more interested in Seabiscuit than in a non-descript horse named Magnific Duel.
Woodward’s questioning wandered from topic to topic—when and how Smith used an ephedrine solution on his horses, his actions on Nov. 1, the conduct of Maine Chance grooms, the trainer’s financial arrangements with Elizabeth Arden Graham, and the seemingly unrelated fact that Smith and a current employee, stable foreman Ernest Pevler, both worked for Charles Howard.
Things then took a bizarre turn, and an unexpected step back into the past.
“Did you ever use this ephedrine on Seabiscuit in the morning or other times?” Woodward asked Smith. It was an extremely odd question under the circumstances, and may have demonstrated two things: first, Woodward already was taking Smith’s guilt for granted, and, second, he was trying to enhance the reputation of his longtime trainer, Sunny Jim Fitzsimmons.
Seabiscuit was bred and initially campaigned by Wheatley Stable, winning nine races at 2 and 3 while he was in the Fitzsimmons barn. It was Smith, though, who transformed Seabiscuit from a serviceable but decidedly unspectacular runner into a multiple champion and a national hero.
Fitzsimmons also trained horses for Woodward’s Belair Stud and The Jockey Club chairman might have been hoping to establish that Seabiscuit’s success under Smith was a product of something other than the trainer’s skill. Or, maybe he was just curious. Either way, Woodward’s question had nothing to do with the issue at hand.
“No, I did not,” Smith said, “because I did not find anything, well, he never had a head cold or anything. He had leg troubles. That’s all.”
Without missing a beat, Woodward returned to more relevant questions.
Smith received the legal equivalent of the bum’s rush in the hearing, and no one was surprised when The Jockey Club panel voted unanimously to revoke his trainer’s license and redistribute the winner’s purse from Magnific Duel’s race. Smith promptly appealed the revocation to a five-man Joint Board of commissioners from the state racing authority and members of The Jockey Club.
This time, for what it was worth since the Joint Board served as accusers, judge, and jury, Smith finally got the legal process he had been due all along. Thanks to Elizabeth Graham, Smith was represented by a pair of high-powered attorneys, Neil McCarthy and John Cahill.
The hearing began on Dec. 14, with McCarthy and Cahill making a variety of both substantive and procedural legal arguments in Smith’s defense:
- That it was impossible for the investigators to actually have seen anyone spray the ephedrine solution into the nostrils of Magnific Duel; or,
- That the miniscule amount of ephedrine delivered by the atomizer was too small to have had any stimulating effect on the horse; or,
- That Smith had not directed the use of the ephedrine spray for any of the Maine Chance horses entered at Jamaica that day; or, finally,
- That the absolute insurer rule, which held Smith responsible for the condition of his horses even if he was not at fault, was unconstitutional.
Most of the time was spent on the second point, as Smith’s Joint Board hearing turned into a battle of experts who argued that ephedrine either could, or could not, affect a horse’s performance.
The first witness for Smith was Dr. Harry Gold from Cornell University. He created a stir in the hearing room when he testified that ephedrine was not a stimulant unless it was administered to a horse in large doses and that the amount of the drug that could be administered with an atomizer could have had no effect “at all” on Magnific Duel’s racing ability. Dr. Gold added that in a test he had injected Magnific Duel with 100 times the amount of ephedrine present in eight squeezes of an atomizer bulb, and that the horse had shown no reaction at all.
Dr. Dave D. Kastburn, official veterinarian for the District of Columbia, reiterated his colleague’s testimony. Asked if a 3% solution of ephedrine could affect a horse’s speed, Dr. Kastburn said no, “not at all, unless it was an enormous amount, and I’m not sure of that.”
Ernest Pevler, assistant stable foreman at the Maine Chance barn, drew a 30-day suspension for his part in the ephedrine fiasco. He acknowledged that he sprayed Magnific Duel, but said that he did so on his own initiative, without any instructions to dose the horse from Smith. He said that he had picked up the ephedrine atomizer by mistake, thinking it contained the vinegar and salt water solution that Smith used for bleeders.
Dr. Hubert S. Howe, a neurologist from New York, opened the second day of the hearing with testimony supporting the revocation of Smith’s license. Ephedrine stimulated the nervous system, Dr. Howe said, but the basis for his opinion was not clear. Under vigorous cross examination, absent in previous hearings regarding Smith’s training license, he acknowledged that the American Medical Association did not include ephedrine on a list of respiratory stimulants, that the amount of ephedrine administered was a factor, and that dosing with a nasal spray would be the least effective way to administer the drug.
When Dr. Howe admitted that his testimony regarding the stimulating effect of ephedrine was his personal opinion and that he never had tested the drug on a horse, Smith’s attorneys offered to pay his way to California to conduct a test on Magnific Duel. Dr. Howe declined.
Additional tests on Magnific Duel were scheduled after a heated exchange between Neil McCarthy and racing commission member William Langley over the ephedrine tests conducted on the horse by Dr. Gold, one of Smith’s primary witnesses. Langley complained that Dr. Gold had injected ephedrine rather than administering it with an atomizer and that the test did not prove anything about the effect of spraying the drug into a horse’s nostrils. Smith’s attorneys demanded more time for additional tests, and the hearing was recessed without a decision on Smith’s appeal.
The new test on Magnific Duel was conducted later in December by Dr. Bernard L. Oser, another of Smith’s stable of experts, who injected 30 milligrams of ephedrine into the horse’s muscle and then monitored the response with an electrocardiogram. Although the dose was approximately four times the best-guess estimate of the ephedrine actually administered to Magnific Duel prior to the Nov. 1 race at Jamaica, there was no reported response from the horse at all. Neither Magnific Duel’s heartbeat nor his respiration rate ever varied after being dosed with ephedrine and the horse remained “entirely calm,” Dr. Oser told the Joint Board when it reconvened on Jan. 9, 1946. In fact, he added, he knew of no dose of ephedrine that would stimulate a horse.
A month later, on Feb. 15, 1946, the Joint Board unanimously ruled against Smith. The revocation of his trainer’s license would stand.
The Joint Board ruling had two related grounds for its decision.
First came the basic ruling. Regardless of the amount of ephedrine actually administered on race day by Ernest Pevler, the assistant foreman, the Joint Board concluded that the drug was given for the purpose of stimulating Magnific Duel. Under New York’s absolute insurer rule, Smith as Magnific Duel’s trainer of record was ultimately responsible for the condition of the horse.
Based on post-race testing, however, Magnific Duel was clean, with no traces of ephedrine or any other drug in his system. Dr. Catlett already had testified that testing procedures at the time probably would not have detected ephedrine anyway, so a clean post-race drug test carried less weight than might be expected. Even with nothing about the “condition” of the horse to warrant any punishment, the Joint Board finding of intent to affect the outcome of a race was sufficient to warrant punishment. On this basis alone, the Joint Board had little choice but to discipline Smith. The second part of the ruling went beyond a straightforward application of the law as it applied in New York. It was the Joint Board’s attempt to cover all its bases just in case a court later ruled that the absolute insurer rule really was unconstitutional as Smith’s attorneys argued.
Smith had been saddling another horse and was not present when the ephedrine-laced atomizer was used to dose Magnific Duel and there was little evidence that he ordered the use of either atomizer. Nevertheless, the Joint Board ruled that the horse was treated with the trainer’s “tacit consent, if not upon his orders.”
The “tacit” consent portion of the ruling was based on three things: Ernest Pevler’s attempt to hide the ephedrine atomizer from investigators, the assistant foreman’s “demeanor” indicating that he would not have used the ephedrine spray without Smith’s orders or approval, and the failure to call as a witness a groom who had been present prior to Magnific Duel’s race.
Pevler testified that he did not try to hide the atomizer as the Joint Board claimed, however, and speculation about his demeanor was a shot in the dark at best. The Joint Board did not explain what, if anything, the non-witness groom could have said, considering the copious amount of undisputed testimony already in the record regarding the events of Nov. 1. While these might be reasonable and believable explanations that do not necessarily implicate Smith, problems for the trainer remained.
At various times during his administrative hearings, Smith testified about the unreliability of some of his employees and claimed that he had no faith in those men. Under these circumstances, it is difficult to explain away his decision to keep two similar atomizers—one with a solution of salt water and vinegar and one with ephedrine—in the tack room. Such a lack of oversight made Smith’s “someone else did it” explanation difficult to accept.
The backup ruling was both odd and proved to be unnecessary. Although the legislature’s delegation of licensing power to The Jockey Club would be found unconstitutional by a New York court a few years later, the absolute insurer rule was not an issue in that case. In subsequent years, the rule would survive every court challenge brought against it and would become the strongest legal tool in racing’s war on drugs.
The hearings to this point had occurred at the administrative level only, where the fact finders and decision makers also were the same people who accused Smith of wrongdoing in the first place. There was no reason to expect the Joint Board, which included members of The Jockey Club, to second-guess their colleagues who revoked Smith’s license and reverse the penalty in the first place.
Smith lost on every count of his four substantive and procedural legal arguments. Ironically, an argument that Smith’s attorneys did not make might have been a winner.
A private organization based in New York, the primary responsibility of The Jockey Club was, and still is, maintaining the stud book, a registry of Thoroughbred bloodlines. The Jockey Club also had the responsibility, delegated at the time by New York statute, to function as a public entity. The Jockey Club’s responsibilities under this delegation of authority included the power to license, and revoke the license, of a racehorse trainer like Smith. This private/public dichotomy was a problem waiting to be solved.
Six years after the ephedrine controversy, in a case that mirrored Smith’s, the New York Court of Appeal ruled that the state legislature’s delegation of licensing authority to The Jockey Club was unconstitutional. A Joint Board had denied Thoroughbred owner Jule Fink a license to race in New York in 1949 and The Jockey Club had denied Fink a license the following year. The court annulled the actions of the Joint Board and The Jockey Club and took licensing authority away from the organization.
As for Smith, the trainer’s next option was to appeal the license revocation to a New York state court, where he would have the first opportunity to present his case to a truly impartial judge. He scored a minor legal victory in April 1946, when a judge issued a stay of the one-year revocation while his appeal was pending, but the relief was short-lived.
A few weeks later, on May 17, a panel of appellate judges from the First Department of the Supreme Court of New York affirmed the Joint Board. A popular misconception about judicial appeals is that the reviewing court starts from scratch, takes new evidence, and renders an independent decision about guilt or innocence. An appeal is not a completely new trial, however. Instead, the reviewing court searches the record from the earlier proceeding to look for legal errors.
When the appeal asks a court to re-examine an administrative action rather than a decision by a lower court, which was the situation in Smith’s appeal of the Joint Board revocation of his license, the appellate review is even more limited. The question was not whether the Joint Board’s decision to revoke Smith’s license was right or wrong, but only whether there was “substantial evidence” during the hearing to support the revocation. If there was, the lower court decision, right or wrong, would stand.
The court acknowledged that there was a difference of opinion among the many experts who testified at the hearing about the possible effects of ephedrine on Magnific Duel:
Expert opinion evidence, contradictory in view, was received from both sides to the controversy concerning the possibility of the dosage administered in this case acting as a stimulant, particularly in view of the method of its application. Under the controlling authorities we may not consider the weight of the evidence relating to this question. Nor may we choose to believe one set of experts rather than the other. If we could, it might well be that we should arrive at a different conclusion from that arrived at by the board as to whether the evidence established any actual stimulation of the horse.
Judges tend to be very careful about the words used in their opinions, and language in the Smith decision suggests the court believed that the Joint Board got it wrong. Correcting a bad ruling was not the point of the appellate review, however. There was “substantial evidence” supporting the Joint Board, the court explained, and Smith received a “fair” hearing. Those findings were enough for the court to confirm the revocation of Smith’s license.
Elizabeth Graham was supportive of Smith throughout the “calamity” as she called the ordeal, to the point of paying for his attorneys, but she still had a racing stable to run and horses that needed training. She hired Roy Waldron as a stand-in for Smith, and he saddled Star Pilot to win the Pimlico Futurity a couple of weeks after Smith’s license was revoked by The Jockey Club.
Despite some immediate success, Waldron did not last long at Maine Chance. He lost his job soon after the Futurity and Graham turned her horses over to Smith’s son, James, for the 1946 racing season. No reason for dismissing Waldron was given, but a reasonable explanation is that he had little interest in following the elder Smith’s training suggestions made from the sidelines.
The year 1946 should have been a banner year for Maine Chance. Instead it was a disaster. Smith was out of action, officially anyway, although everyone acknowledged that he was calling most of the shots for Graham’s horses. And then on May 2, a barn fire at Arlington Park decimated the stable, killing 23 Thoroughbreds valued at more than a half-million dollars. The only good news accompanying the disaster in Chicago was that Graham’s three Kentucky Derby hopefuls had been vanned to Louisville before the fire and were safe in their stalls at Churchill Downs.
Bettors made the Maine Chance entry the favorite at odds of 11-10, but the best finish for any of the three horses was Lord Boswell’s fourth behind Assault, Spy Song, and Hampden. The other Maine Chance horses, Knockdown and Perfect Bahram, ran fifth and ninth, respectively.
The Jockey Club finally granted Smith a new trainer’s license when he applied a year later, in April 1947. Smith was winning important races before he lost his license and he started winning again almost immediately. On the first Saturday in May he won the Kentucky Derby with Graham’s Jet Pilot in one of the most exciting finishes in the history of the race. The placing judges needed a photograph to determine the order of finish: Jet Pilot by a head over C. V. Whitney’s Phalanx, with Calumet Farm’s Faultless another head back in third.
Silent Tom retired from training in 1954. He died three years later in a California sanitarium after suffering a stroke.
Smith’s unique training methods—he might have been the first horse whisperer among racehorse trainers—attracted a cult following during the Seabiscuit years, but he faded into relative obscurity after his death. His election to the Thoroughbred Racing Hall of Fame in Saratoga Springs, New York, finally came in 2000, decades overdue.
When Smith’s name comes up these days it is inextricably bound with that of the best horse he ever trained, Charles Howard’s Seabiscuit, thanks mainly to Laura Hillenbrand’s best-selling book and the subsequent feature film. His role in the ephedrine scandal of 1945 is less well known, but equally important.
The battles Smith and his attorneys fought in hearing rooms and in court marked the first serious legal challenge to the absolute insurer rule. Although Smith lost in the end, the case set the stage for decades of lawsuits that would raise questions about the reliability of drug tests, the competence of racing chemists, which drugs to prohibit and which ones to allow, the scope of penalties, due process, and just about everything else related to racing’s attempts to control medication.
A quarter-century later, when Kentucky Derby winner Dancer’s Image was disqualified after a disputed positive test for the painkiller phenylbutazone, owner Peter Fuller and a cadre of attorneys and experts launched the second serious challenge to the manner in which racing authorities enforced medication rules. Fuller lost his battle, but eventually won the war. Testing procedures were revised, security at the nation’s racetracks was enhanced, and racing rules were rewritten.
The Kentucky State Racing Commission hearings on the Dancer’s Image disqualification ran for two weeks and attracted large crowds at the state fairgrounds in Louisville. Anyone paying close attention to the proceedings might have heard faint echoes of Silent Tom Smith and his battles with The Jockey Club a quarter century earlier.
After the dust had settled, Francis P. Dunne, a steward for the New York Racing Commission, defended the decision to revoke Smith’s license as matters of necessity and principle:
“The reason the stewards must take an absolutely firm attitude in these cases is because any letting down of barriers might lead to flagrant abuses. We have to be inflexible on the subject of stimulants and every horseman understands the very explicit ruling that applies to these cases.”
Neil McCarthey, a Los Angeles attorney retained by Elizabeth Arden Graham for the Joint Board hearing, understandably took a different view. He questioned the validity of the absolute insurer rule in general and argued that the decision to punish Smith failed to take into account the effect the ruling would have on the trainer:
“Your state attorney general undoubtedly will find this rule (the absolute insurer rule) unconstitutional,” McCarthey said, “for you not only are concerned here with the reputation of racing. You also are concerned with a man’s reputation—and this is the biggest thing at stake. This is a two-fold question: whether an improper medicant was used and whether it affected the racing condition of the horse.”
McCarthey’s prediction about the unconstitutionality of the absolute insurer rule was wrong. During more than 75 years of litigation since the Smith hearings, courts routinely have upheld the absolute insurer rule in racing and in other horse sports.
Smith typically had little to say, in public at least, about the ephedrine affair. Asked by a reporter about the revocation of his trainer’s license, the trainer did say this about The Jockey Club: “Those bastards.”