Pike v. Southern Bell Telephone and Telegraph Co. , 263 Ala. 59 ( 1955 )

MAYFIELD, Justice.

A statement of this case appears in the dissenting opinion. The primary question here for consideration is whether or not the appellee Telephone Company was justified in removing the appellant’s telephone. The appellee’s asserted justification of this act was that it had received notification from Eugene “Bull” Connor, Commissioner of Public Safety of the City of Birmingham, that this telephone was being used for “illegal purposes”.

It is clear that the Telephone Company, like any other public utility, which .lis granted a monopoly, has a duty to serve !the general public impartially, and without ¡arbitrary discrimination. This right of service extends to every individual who-complies with the reasonable rules of the Company. The subscriber is entitled to equal service and equal facilities, under equal conditions. 86 C.J.S., Tel. & Tel., Radio & Television, § 71, p. 83; City of Birmingham v. Southern Bell Telephone & Telegraph Co., 234 Ala. 526, 176 So. 301.

It is equally clear that the Telephone Company may properly refuse to furnish its service for a purpose or business which is patently illegal or a public nuisance. But, mere suspicion that such service is desired for purposes contrary to the public interest will not justify refusal. 86 C.J.S., Tel. & Tel., Radio & Television, § 65, p. 80; Western Union Telegraph Company v. Ferguson, 57 Ind. 495.

In Andrews v. Chesapeake & Potomac Telephone Co., D.C., 83 F.Supp. 966, 968, 969, the defendant Telephone Company received a letter from the United States Attorney stating that the plaintiff (subscriber) was using his telephone in violation of the gambling statutes and requested that the telephone be discontinued. When , the Telephone Company complied with the request of the United States Attorney, the subscriber brought a petition for injunctive relief. There the court said:

“A public utility, such as a common carrier, a telegraph company, or a telephone company, must serve all members of the public without discrimination or distinction. * * * that a person may be of bad character does not deprive him of the right to receive service from a public utility. ‡ ‡ ‡

“ * * * a telephone company may refuse to furnish or may discontinue service that has been furnished if the service is used for a criminal purpose, such as violation of the gambling statutes. The burden of proof, however, is on the public utility to establish the fact that the service is being used or is about to be used for a criminal purpose. s)c * *»

In the above cause, the tariff of the Telephone Company contained a provision that service could be discontinued if any law enforcement agency advised that it was being used, or will be used, in violation of law. Speaking of this tariff provision and the letter of the United States Attorney, the court said:

“ * * * Obviously, if this provi- . sion of the tariff is to be literally con- / strued, it is not valid. A public utility may not deprive a member of the / public of his rights to service merely / / because it receives a notice from a law*/ enforcement agency that he is using the service for illegal purposes. A public utility may refuse, and, in fact,, must, refuse, service if to its knowledge the service is being used for illegal purposes. This fact must, however, be established. To confer what would amount to judicial, power on a ' law enforcement officer and to exercise such power ex parte would be violative of due process of law and would deprive members of the public of their legal rights. * * *

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“The effect of the letter from the United States Attorney is another matter. Its function, as the Court sees, it, is none other than merely to convey information to the telephone company I, and place the telephone company on notice of what the United States Attorney believes the situation to be. The telephone company, for example, may have a right, if it sees fit to do so, to request the United States Attorney to disclose whatever evidence he has in support of the information contained in the notice. The telephone company, must make its own decision whether the evidence is sufficient to justify discontinuance of the service. The company acts at its peril. * * * ”

In the instant case, as far as the record reveals, there was not even a “tariff” of the telephone company to justify their discontinuance of this appellant’s telephone service. We do not think this point controlling, however, and agree with the rea-] soning of the above case that the Tele-i phone Company could not have adopted a ] valid tariff in this particular. Such a I “tariff” would have been a denial of due ¡^process of law.

In that portion of the opinion in People v. Brophy, 49 Cal.App.2d 15, 29, 30, 120 P.2d 946, 954; dealing with whether receipt by the Telephone Company of a letter from the State Attorney General stating that Brophy was using his telephone in bookmaking and requesting its removal would constitute a defense in a suit by Brophy against the Telephone Company for removal of the telephone, the court said:

“It is evident * * * that the law vests no authority in the office of the Attorney General to order a telephone company to discontinue its service, and this being true, the telephone company was not bound to abide by the order of the Attorney General, as was done in the circumstances disclosed by the record herein.

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“ * * * the so-called affirmative defense was invalid and therefore raised no issues. In both substance and effect it amounted to no more than a recital of certain information that respondent telephone company had received, and the sotcrce thereof added nothing to its value as a defense.” [Emphasis supplied.]

In Giordullo v. Cincinnati & Suburban Bell Telephone Co., Ohio Com.Pl., 71 N.E.2d 858, 859, 860, the plaintiff brought an action to recover damages for the with-; drawal of telephone service from the plain-J tiff’s premises and to compel defendant to\ restore plaintiff’s service. In its answer* the telephone company alleged that thd Chief of Police had requested that plaintiff’s telephone be removed claiming that he was using his telephone for bookmaking. On demurrer by plaintiff, the court said:

“The telephone company required the plaintiff to get the OK of the Chief of Police before it would give plaintiff telephone service and withdrew the same upon the request of the Chief of Police, all without any hearing as to the gambling charges — that is police government pwe and simple. [Emphasis supplied.]

“The court agrees with counsel too that such a hook-up between the Telephone Company and the Chief of Police is in utter disregard of the fundamental rights of the citizenry of this city; but the court must disregard the alleged hook-up in passing upon plaintiff’s demurrer except to say that the Telephone Company can not excuse its actions in withdrawing plaintiff’s telephone service on the claim that it did so upon the request of the Chief of Police.

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“If that is true (that plaintiff was using the telephone for bookmaking) it seems to the court that the defendant had the right to withdraw plaintiff’s telephone service. When it comes to the trial of this case the Telephone Company will he required to prove that defense by preponderance of the evidence and the letter of the Chief of Police requesting defendant to withdraw plaintiff’s telephone service will not even be proper evidence in the case.” [Emphasis supplied.]

In Shillitani v. Valentine, 184 Misc. 77, 53 N.Y.S.2d 127, 131, 132, the petitioner sought a writ of mandamus to compel the restoration of telephone service. Petitioner’s telephone had been removed by the police at the time of his arrest for bookmaking. On his acquittal of the charge, petitioner applied to the telephone company to have telephone service restored. The .police department did not approve the restoration of his telephone and for that reason the company refused to restore it.

The holding of the court in granting the writ was, in part, as follows :

“ * * * a telephone company may not refuse' to furnish service and facilities because of mere suspicion or mere belief that they may be or are being used for an illegitimate end; more is required (People v. Brophy, 49 Cal.App.2d 15, 120 P.2d 946, supra; Western Union Tel. Co. v. Ferguson, 57 Ind. 495); nor because the character of the applicant is not above reproach, nor because such person is engaged in immoral or illegal pursuits, where they have no connection with the service applied for. Godwin case, supra. [Godwin v. Carolina Tel. & Tel. Co., 136 N.C. 258, 48 S.E. 636, 67 L.R.A. 251, 103 Am.St.Rep. 941, 1 Ann. Cas. 203.] * * *

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“Neither the police commissioner nor the police department has any jurisdiction or authority over the matter of furnishing, discontinuing or restoring telephone service to the public, nor in any other way, so far as I am aware; his or its approval or disapproval in that regard are meaningless insofar as any legal effect is concerned; they possess no more power in that respect than a stranger; each is utterly without such power whatever, however much the views and attitude of the commissioner or the department may by indirection be enforced, as, for example, by the arrangement or understanding between the police and the telephone company, * * *»

The appellate division modified the order of the trial court so as to direct a dismissal of the petition upon a finding that the petitioner was, in fact, using his telephone for criminal activities. 269 App.Div. 568, 56 N. Y.S.2d 210. On appeal to the Court of Appeals, the holding of the appellate division was affirmed, 296 N.Y. 161, 71 N.E.2d 450, 451. The court said in part:

“Since the record justifies the conelusion that petitioner was engaged in conduct violative of section 986 of the Penal Law, it follows that he failed to establish * * * a clear legal right to the relief sought. Under the circumstances of this case, there was no warrant for compelling the telephone company to reinstate its service for petitioner.

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“Neither the Police Commissioner nor the Police Department is given any authority by statute to pass upon or regulate applications for telephone service, or to require a.telephone company to withhold or discontinue its service. * * *

“Whether or no service should be terminated or discontinued is a decision that must" be made by the - telephone company. That power — as well as duty — rests with the public utility, and it may not delegate the one or avoid the other. True, the company is free to consult with the Police Department or with any other law enforcement agency, and may be guided in its action by the advice received. But whether the action is justified or warranted must be determined by the telephone company upon the facts presented. * * * ”

Shillitani v. Valentine, supra, was followed in Whyte v. New York Telephone Co., Sup., 73 N.Y.S.2d 138, and in Dees; Cigarette & Automatic Music Co., Inc., v. New York Telephone Co., 184 Misc. 269, 53 N.Y.S. 651, wherein the respondent Telephone Company was ordered to reinstall petitioners’ telephones. In both cases, the Company had refused service on the request of the police department. We are aware that the courts of several jurisdictions have taken a contrary view; nevertheless, we are convinced that the rule enunciated ins the foregoing cases is sound and should be followed by the courts of Alabama. The cases supporting the contrary view are ably collected in the dissenting opinion and require no further comment.

Upon its factual situation, the instant case is even weaker than the cases which we have heretofore reviewed. A contrary holding would be particularly disturbing when we consider the questions which are left unanswered by the Company’s plea. This plea does not even allege that the appellant’s telephone was, in fact, being used in a manner which would justify its removal. The allegation is merely that the appellee received notice from Eugene “Bull” Connor, Commissioner of Public Safety, and was thereby ordered to remove the telephone. The letter from Commissioner Connor, which the company claims clothes them with immunity, merely states that the telephone is being used for “illegal purposes.”

Attached to the letter to the Company from the Commissioner was a list which included remarks concerning one Louis Pike —presumably the husband of appellant. It was stated that Louis Pike “is a well-known lottery operator in the city.” As was stated in the foregoing cases, the questionable character of the telephone subscriber is not justification for a Company, which holds a monopoly, to discontinue the service. Obviously, this principle is doubly applicable where both the character and the occupation of the person assailed is someone other than the subscriber.

“Criminal” and “illegal” are not interchangeable terms. While it is argued by the appellee that the “illegal” use referred to concerned bookmaking operations, such does not appear in the notice received by the Telephone Company. Stripped to its bare essentials, Commissioner Connor’s letter makes two allegations against Louis Pike. First, that he “operates a negro beer joint”. Regardless of whether such activity be laudable, it is not criminal or even-“illegal”. Secondly, that Pike operates the1 Joe Louis Lottery House and has at least three cases pending in the various courts. The “pendency” of a criminal case cannot be used as a predicate for punitive action under the American system. The present tendency and drift towards the Police State , gives all free Americans pause. The unconstitutional and extra-judicial enlargement of coercive governmental power is a frightening and cancerous growth on our body politic. Once we assumed as axiomatic that a citizen was presumed innocent until proved guilty. The tendency of governments to shift the burden of proof to citizens to prove their innocence is indefensible and intolerable. |

We are not able to glean from the bare conclusions set up in the letter of the Commissioner, whether it is claimed that the “illegal” use of the telephone was by the appellant, her husband, or a total stranger. From aught that was alleged in the plea, except for the conclusion of the Commissioner, no “illegal” use of any type was made of this telephone by any one.

The notice alleged to have been received by the Telephone Company was couched in the terms of a direct order from the Commissioner of Public Safety. What is the source of Mr. Connor’s authority to issue such an order? We know of none. And we hold that none exists.

If we took a contrary view, it would naturally flow and follow that the telephone company would be justified in acting on the notice of any over-zealous law enforcement official who, without evidence, and on mere suspicion, is impressed with the bad character or occupation of a particular telephone subscriber. The letter from Commissioner Connor set up in the plea is no defense. It is the Telephone Company’s burden to show that the use being made of the telephone did, in fact, justify its removal.

These depredations of a subscriber’s legal right to telephone service constitute a denial of due process guaranteed by the Constitution of 1901, art. 1, § 6. The gratuitous and arbitrary action of a police official is no justification for an abridgement of this right. To hold that the Telephone Company is justified in discontinuing service by “order” of a police official would require judicial recognition of a police power which does not exist. The bald assertion of an executive officer, be he the Attorney General of the United States or a constable of ;some remote beat, cannot be accepted as a [substitute for proof in the judicial process. No presumption arises as to the sufficiency of evidence based on a law enforcement officer’s conclusions.

Appellee’s plea No. 2 alleged no defense to the cause of action and the nisi prius court erred in overruling the challenging demurrer.

Reversed and remanded.

SIMPSON and STAKELY, JJ., concur. LAWSON, J., concurs in the result. LIVINGSTON, C. J., and GOODWYN and Merrill, JJ., dissent.