Opinion
October 17, 1950.
Appeal from the Circuit Court, Dade County, William A. Herin, J.
Louis M. Jepeway, John G. Dauber and Jeptha P. Marchant, Miami, for petitioner and appellant.
Lewis W. Petteway, Tallahassee, D. Fred McMullen, Tampa, and Guyte P. McCord, Jr., Tallahassee, for respondent.
Richard W. Ervin, Attorney General, for intervenor-appellee.
Loftin Wahl, Jacksonville, Walton, Hubbard, Schroeder, Lantaff Atkins, Miami, E.W. Smith, John T. Goree and Graham George, Atlanta, Ga., Scott M. Loftin, Harold B. Wahl, Jacksonville, and John H. Wahl, Jr., Miami, for appellee.
Pursuant to Section 364.20, Florida Statutes 1941, F.S.A., the Florida Railroad and Public Utilities Commission, hereinafter referred to as the Commission, promulgated Rule 1592, prohibiting the furnishing of "telephone or telegraph service when the same is intended for use, will be used has been used or is being used in violation of law. Said Rule shall become effective on April 1, 1950 and shall be binding upon each and every telephone and telegraph company operating within the State of Florida, under the jurisdiction of the Commission on and after said date."
On May 10, 1950, Southern Bell Telephone and Telegraph Company, a New York Corporation, notified Dade County News Dealers Supply Company, a Florida Corporation, by letter that upon demand of the Attorney General of Florida, it would on Saturday morning, May 13, 1950, summarily remove and take from Dade County News Dealers Supply Company all of its telephone and telephone trunk lines, the service board and telephone instruments used in its business, and discontinue furnishing any telephone service to it.
On May 12, 1950, Dade County News Dealers Supply Company filed its bill of complaint in the Circuit Court praying that defendant Southern Bell Telephone Telegraph Company be enjoined from interfering with any telephone communications and services being furnished by defendant to the plaintiff. A temporary restraining order was granted in response to the prayer of the bill of complaint, the Attorney General was permitted to intervene and answers were filed by both the Attorney General and the defendant. On final hearing the temporary injunction was dissolved and the bill of complaint was dismissed on the theory that jurisdiction to consider the issues raised was in the Commission rather than in the Court. We are confronted with an appeal from the final decree so entered.
The first point for consideration is whether or not appellee, Southern Bell Telephone and Telegraph Company was warranted in discontinuing its telegraph and telephone service to Dade County News Dealers Supply Company when notified to do so by the Attorney General on the ground that it was being used for unlawful purposes.
We think this question requires an affirmative answer. Chapter 364, Florida Statutes 1941, F.S.A., authorizes the Commission to regulate and control telephone and telegraph companies. Section 364.20 authorizes the Commission to adopt the rule under attack and provides that it shall be reasonable and just and such as ought to have been made in the premises. The rule does no more than enact the law as it existed at the time and there is not the slightest suggestion that the rule is arbitrary or unreasonable or in some other way may work an injustice on the appellant or its patrons. We think the following cases conclude the question: Hagerty v. Southern Bell Telephone Telegraph Co., 145 Fla. 51, 199 So. 570; Tracy v. Southern Bell Telephone Telegraph Co., D.C., 37 F. Supp. 829; Hagerty v. Southern Bell Telephone Telegraph Co., D.C., 59 F. Supp. 107; McBride v. Western Union Telegraph Co., 9 Cir., 171 F.2d 1.
The rule provides for hearing before the Commission after the service has been discontinued but it has to do with whether or not the party is entitled to have its service restored and under what conditions restoration may be granted. This was the theory on which the court below dismissed the cause and held that he was without jurisdiction to consider it. We think he was correct. In this we do not mean to hold that conditions might not arise in which one whose service is ordered to be discontinued might not be entitled to a hearing before the order is effectuated. This would of course be on a showing that some equitable right was violated, but no such case as that is made here. The question here turns on the illegality of the service, not whether any equitable right is being invaded. If equities are shown to be involved a court of equity would have jurisdiction.
An application for supersedeas was denied by the Circuit Court and by this Court. At the argument on this application by appellant, it was urged that the discontinuance of appellant's telephone service on notice of the Attorney General was in violation of the due process clause of the State and Federal Constitution. F.S.A. Const. Declaration of Rights, § 12; Const. U.S. Amend. 14. George Morris Fay, United States Attorney in and for the District of Columbia v. Nathan Miller, D.C. Cir., 183 F.2d 986, was relied on to support this contention.
As stated in the opinion of the last cited case the purpose of the suit was (1) to enjoin the telephone company from disconnecting complainant's telephone and (2) enjoin the United States Attorney from requesting and coercing such action. The injunction was granted as to both aspects of the suit because there was no evidence that the telephone had been used to place bets in the District of Columbia. Only the United States Attorney appealed from the order. The United States Court of Appeals reversed the judgment of the District Court on the theory that the appellant was not subject to suit because his action was that of the United States. The merits of the case were not discussed or considered so the injunction against the company was not disturbed.
As heretofore stated, if the appellant had assaulted the rule of the Commission on the ground that it was arbitrary and unreasonable, or that it was unconstitutional, or that it was being applied in an unconstitutional manner, or that it was not authorized by statute, then we would be confronted with a question similar to that in the case relied on, but no such challenge is proffered in this case. The Attorney General is clothed with broad power in protecting the public from crime and there must be some showing that he is acting illegally.
What we have said also disposes of the companion case of Dade County News Dealers Supply Company v. Florida Railroad and Public Utilities Commission, except the point raised by Southern Bell Telephone Company as to whether or not it should have been made a party to the cause.
In our judgment the latter point is well taken. The writ was sought to enforce action on the part of the Telephone Company, it was furnishing the service that was being interdicted and we think was a proper party to the cause.
It follows that the order complained of was within the power of the Commission to promulgate, that the Attorney General had power to order the service discontinued when used for an unlawful purpose and that when so notified it was the duty of the telephone company to comply with notice.
Affirmed.
ADAMS, C.J., and THOMAS and ROBERTS, JJ., concur.