Summary
In Southern Bell Tel. Tel. Co. v. State ex rel. Transradio Press Service, Fla. 1951, 53 So.2d 863, 866, an effort was made by a mandamus proceeding to compel the telephone company to install teletypewriter service and connect the service with a radio station.
Summary of this case from Southern B.T. T. Co. v. Nineteen Hundred One COpinion
June 1, 1951. Rehearing Denied July 2, 1951.
Appeal from the Circuit Court, Dade County, George E. Holt, J.
Richard W. Ervin, Atty. Gen., George M. Powell, George E. Owen and Mallory H. Horton, Asst. Attys. Gen., for appellant.
Louis M. Jepeway and John G. Dauber, Miami, for appellee.
On petition of Transradio Press Service, Inc. alternative writ of mandamus was directed to Southern Bell Telephone and Telegraph company, hereinafter called telephone company, commanding it to install teletypewriter service and connect its office in Miami with Radio Station WINZ of Miami Beach, and Radio Station WTTT of Coral Gables or show cause why it refuses to do so. The Attorney General was permitted to intervene and is resisting the installation of the service. Radio Station WINZ was also permitted to intervene for the purpose of seeking relief against the telephone company similar to that sought by petitioner.
The answer of the telephone company alleged that it declined to furnish the service because of letter from the Florida Railroad and Public Utilities Commission, dated February 8, 1951, prohibiting it from doing so. The answer of the Attorney General alleges in substance that Transradio Press Service, Inc. furnishes and provides racing information to bookmakers and others engaged in gambling or in the furtherance of gambling, that it is advised that persons engaged in gambling or the furtherance of gambling are the recipients and users of said information, that it knowingly transmits racing information to persons engaged in gambling or the pursuit of gambling, well knowing that the said customers are engaged in an illegal business. There were other allegations of similar import in the answer but the trial was had on the issues made by the answer to the petition.
The chancellor found that Transradio Press Service Inc. and intervenor, Radio Station WINZ, were engaged in gathering, furnishing and distributing current, general and worldwide news, including sports and other athletic news services, throughout the United States and foreign countries and that said petitioner and the intervenor were exempt from the provisions of Chapter 25016, Acts of 1949, now Chapter 365 F.S.A. Peremptory writ of mandamus was accordingly issued commanding the telephone company to install and furnish the private wire equipped with teletypewriter including telephone service and equipment. This appeal is from the decree so entered.
Several questions are urged but the crucial point for determination is whether or not the trial court committed error in holding that Transradio Press Service, Inc. and Radio Station WINZ are within the exemptions provided by Section 365.04 F.S.A. the pertinent part of which is as follows: "This section shall not apply to any private wire furnished for use in radio broadcasting, or to any private wire furnished for use by any protective service operating under a franchise granted by any municipality, or to any private wire furnished for use in interstate commerce, or to any private wire furnished for use of newspapers of general circulation, or press associations furnishing their news service * * *."
The quoted statute was part of Section 4, Chapter 25016, Acts of 1949, commonly known as the bookie bill. Its purpose as expressed in the title and at least a half dozen times in the body of the act, was to forbid public utilities, under penalty of law, to furnish private wire service to be used for gambling purposes or in the furtherance of gambling. Read in isolation there might be some basis for the contention that petitioner is exempt from the provisions of the act, but when read in connection with other provisions, there is no basis whatever for such a contention. If the information that petitioner gathers and distributes is used for gambling purposes, or in the furtherance of gambling, it is contraband and not permitted to circulate. Section 4 is tied to the subsequent provision of the act and when read with them this conclusion is inescapable.
The trial court grounded his judgment for peremptory writ of mandamus on the exemption provision of Section 365.04 F.S.A. and the fact that no evidence was produced showing that petitioner was using the information it collects and distributes for gambling purposes. It is true, that the cause was tried on the issues made by the answer of the Attorney General to the petition for alternative writ, but there was involved in these issues that of whether or not petitioner, who was a press association gathering and distributing general and worldwide news of all kinds, is exempt under the statute drawn in question. This was the main question urged and relied on by petitioner in his brief, he does not deny its potentialities for gambling purposes. It was a question of law and the burden was on it (Section 11 of the Statute) to "show that the private wire has not been used, or is not being used, or is not intended for use in the furtherance of gambling". Petitioner labors under the impression that it is exempt and has ad lib to circulate the news it collects, regardless of how or for what purposes it is used.
We do not so interpret the statute. At the outset the title states that its purpose is to regulate furnishing private wires by public utilities and prohibits their use for gambling purposes, Section 2, makes it unlawful for any public utility to furnish a private wire to disseminate gambling information. Section 3 makes such use a public nuisance subject to abatement under Sections 64.11 and 64.15, Florida Statutes 1941. Sections 5, 7, 10 and 11 of the Act have to do with the duties of the Attorney General and the Railroad and Public Utilities Commission in the matter of making contracts, to regulate and enforce the provisions of the Act. The first part of Section 4 has to do with contractual conditions under which private wires may be furnished. The latter part, which is the exempting provisions relied on by petitioner, does not refer to "this act" but it refers to "this section", so the only reasonable deduction is that the exemption provided for had reference to the contract provisions in the forepart of the section and nothing more. All subsequent sections of the act qualify section 4 and when read en masse there can be no doubt of the legislative purpose to ban rather than exempt gambling information. To hold that the exemption related to the act as a whole, would not only destroy its purpose, it would in effect say that the legislature purposely wrote a "joker" in the act to accomplish this.
In McInerney v. Ervin, Fla., 46 So.2d 458, 463, we upheld the validity of Chapter 25016, Acts of 1949, and while we were not confronted with the direct question presented here, we were confronted with a situation closely related to it. We held that the "difference between the private wire service banned by Chapter 25016 and the service of similar character furnished by newspapers, and other periodicals is mainly one of speed and organization whereby the information secured can be placed in the hands of the purchaser and used for gambling purposes before it is published and becomes public property." To now hold that radio service is exempt from the provisions of Chapter 25016 would amount to a recession from what we said in McInerney v. Ervin and would render ineffective other legislation on the question.
Appellants also contend that petitioner should have sought relief before the Florida Railroad and Public Utilities Commission or that it should have made said commission a party to this proceeding. This contention is based on the charge that the Railroad and Public Utilities Commission had investigated appellee's application, had rejected it and promulgated an order for a hearing. The Railroad and Public Utilities Commission had jurisdiction of the case. Dade County News Dealers Supply Co. v. Florida Railroad Public Utilities Commission. Dade County News Dealers Supply Co. v. Southern Bell Telephone Telegraph Co., Fla., 48 So.2d 89 Section 12 of Chapter 25016 provides for appeals from orders of the commission in the same manner that other appeals are taken from orders made by it. So there can be no doubt that the legislature intended that such proceedings should be initiated before and conducted by the Railroad and Public Utilities Commission. The act does not prohibit the use of appropriate remedies before the court and while we think it should have been brought before the Commission the question is here and squarely presented, so we are disposing of it rather than imposing the burden on litigants of litigating the cause in another forum.
It is next contended that petitioner is a New York corporation, has never qualified to do business in this State and is therefore not authorized to litigate any cause in the Courts of Florida.
It appears that when this question was raised, petitioner immediately filed his application with the Secretary of State for a permit to do business in Florida and with it he submitted all the necessary prerequisites to obtain a certificate of qualification. Under the doctrine announced in Burton v. Oliver Farm Equipment Sales Co., 121 Fla. 140, 163 So. 468, petitioner would be deemed qualified to conduct his suit or transact any other business in the State.
It is accordingly our view that proceedings resisting the enforcement of Chapter 25016 should be instituted and conducted before the Florida Railroad and Public Utilities Commission, that the quoted provision of Section 4 does not exempt petitioner from those provisions condemning the use of its private wire to disseminate information in furtherance of gambling or for gambling purposes and that when challenged by the commission or the Attorney General it becomes the duty of the challenged applicant to show that its private wire has not been used, is not being used or is not intended to be used for gambling purposes. As pointed out in McInerney v. Ervin, supra, this is a matter relating to the public morals, is subject to police regulation and does not clash with freedom of the press or the interstate commerce clause.
To this extent the judgment appealed from is reversed without prejudice to appellee to show that its private wire has not been used, is not being used or is not intended to be used for gambling purposes. In all other respects it is affirmed.
Affirmed in part, reversed in part.
SEBRING, C.J., and CHAPMAN, THOMAS and HOBSON, JJ., concur.
ADAMS, J., dissents.
ROBERTS, J., not participating.