McInerney v. Ervin

• Decision Date: 21 March 1950
• Citation: 46 So.2d 458
• Parties: McINERNEY et al. v. ERVIN, Attorney General, at al.
• Court: Florida Supreme Court

Page 458

46 So.2d 458

McINERNEY et al. v. ERVIN, Attorney General, at al.

Supreme Court of Florida, en Banc.

March 21, 1950.

Pat Whitaker, Tampa, and Vincent C. Giblin, Miami, for appellants.

Lewis W. Petteway, Tallahassee, D. Fred McMullen, Tampa, Guyte P. McCord, Jr., Tallahassee, Richard W. Ervin, Attorney General, George M. Powell, Howard S. Bailey, Reeves Bowen and Fred M. Burns, Assistant Attorneys General, for appellees.

TERRELL, Justice.

The legislature of 1949 enacted Chapter 25016, F.S.A. § 365.01 et seq., regulating the lease and use of private wires by public utility companies. Sections two and three of said act are as follows:

'Section 2. It shall be unlawful for any public utility knowingly to furnish to any person any private wire for use or intended for use in the dissemination of information in furtherance of gambling or for gambling purposes, or for any person knowingly to use any private wire in the dissemination of information in furtherance of gambling or for gambling purposes.'

'Section 3. The use of any private wire for use in the dissemination of information in furtherance of gambling or for gambling purposes is hereby declared to be a public nuisance and subject to abatement as provided for in Section 64.11, 64.15, both inclusive, Florida Statutes, 1941, but this remedy of injunction shall be in addition to and not in lieu of any remedy provided by this Act or otherwise provided for by law.'

May 18, 1949, appellants filed their bill for declaratory decree, naming the Attorney General and Florida Railroad and Public Utilities Commission and defendants. The bill prayed, (1) That the Court decree said act to be unconstitutional and void because of conflict with applicable provisions of the State and Federal Constitutions. (2) In the event the Court does not see fit to decree said act to be unconstitutional and void in toto, then it construe the words in 'furtherance of gambling' including other provisions of the act so as not to make unlawful the dissemination of information by complainants which may be used by the recipient to facilitate illegal gambling transactions, or that the rights, status or business of the plaintiffs be not affected by said act. The bill also prayed for injunction to forestall enforcement of the act until its validity could be determined. A motion by defendants to dismiss the bill was granted and the plaintiffs appealed.

Appellants urge ten questions for adjudication. Question one has to do with whether or not this is such a case as may be comprehended under the declaratory decree Statute, Chapter 87, F.S.A. In conjunction with this question there is also presented the question of whether or not this is a suit against the State, condemned by Section 22, Article III of the State Constitution, F.S.A.

A casual reading of Chapter 87, F.S.A. necessitates an affirmative answer to the first phase of this question. See also Ready v. Safeway Rock Co., 157 Fla. 27, 24 So.2d 808, in which the scope and purpose of Chapter 87 was discussed. As to the second phase of this question, a negative answer is equally as impelling. Curry v. Woodstock Slag Corporation, 242 Ala. 379, 6 So.2d 479; State v. Louis Pizitz Dry Goods Co., 243 Ala. 629, 11 So.2d 342; Work v. State of Louisiana, 269 U.S. 250, 46 S.Ct. 92, 70 L.Ed. 259; Harrington v. Cobb, Tex.Civ.App., 185 S.W.2d 133; Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 172 A.L.R. 837.

Further supporting the answer to both these questions the logic of Mr. Borchard in his excellent treatise on Declaratory Judgments, Second Edition, page 876 is pertinent. 'The avalanche of legislative and administrative decree which characterizes modern government has brought in its train an increasing number of commissions and officials whose powers, as they affect private activity, are a constant source of objection, doubt, debate, and dispute. For the more speedy and convenient settlement of differences, administrative tribunals in growing number have been established, for under a constitutional government the jurisdiction and powers of official bodies are always a subject of judicial challenge and review. Hence the constitutionality of statutes and ordinances and the validity and legality of an administrative action thereunder are a constant subject of litigation.'

It is now generally recognized that the citizen should have the most inexpensive, speedy and expeditious method possible to raise the myriad of questions that arise under the statutes and administrative acts. The Declaratory Judgments Act not only enables the citizen to do this, but it enables the government to raise questions that beset it in its dealings with the citizen. Whether the question is raised by the citizen or the government through its properly constituted officers, it is not a suit against the State prohibited by the State Constitution.

So much for the secondary question in the case. The dominant or key question is whether or not Chapter 25016, Acts of 1949, can be upheld as a valid police regulation, despite the limitation on state legislative power by the commerce clause of Federal Constitution. Article 1, Section 8, Clause 3, the applicable part of which is, 'to regulate Commerce, with foreign Nations, and among the several States.'

Appellants contend that this question requires a negative answer. They support this premise with the thesis (1) That Congress has preempted the field of interstate and foreign communications by the enactment of the Federal Communications Act of 1934, 47 U.S.C.A. § 151 et seq., and having done so, it is not a subject on which the State can legislate. (2) That the State under its police power is without authority to impose such a burden as Chapter 25016 imposes on interstate commerce. (3) That appellants are engaged in the business of gathering and transmitting, in interstate commerce, harmless information that cannot be prohibited by State or Federal law. (4) Under the guise of its police power, the State is powerless to erect a barrier at the State line, so as to exclude the transmission of harmless information by radio, telephone or telegraph messages which it may determine is used for immoral purposes. (5) The state is without power to discriminate between appellants and newspapers of general circulation which are engaged in gathering and disseminating the same type of information. (6) Appellants have no interest whatever in the use of the information gathered and distributed by them and should not be held criminally liable for the use its subscribers make of it, even though they may use it for immoral purposes.

Sections 2 and 3, Chapter 25016, as quoted in the forepart of this opinion, make it unlawful for a public utility to furnish any one a private wire for use in the dissemination of information for gambling or for gambling purposes. Both sections 2 and 3 condemn the use of any private wire for the disseminating of gambling information. Other provisions of the act require any public utility which leases a private wire to any customer, to furnish the Florida Railroad and Public Utilities Commission duplicate copies of its contract for furnishing such service. The act also provides that said contracts constitute prima facie evidence that the private wire is used for sambling purposes. It is further provided that in any proceeding before the Railroad and Public Utilities Commission, affecting the cancellation of said service, the burden of proof shall be on the person contracting for the private wire to show that it has not been used, nor is it intended to be used, for gambling purposes. There are other provisions and qualifications in the act which are not necessary to recite or refer to here.

By its very terms, Section 15 of Chapter 25016 is 'an exercise of the police power of the State of Florida for the protection of the * * * people of the State of Florida'. It is hardly necessary to point out that the legislature has power to single out, condemn and punish such acts as it deems injurious to public morals. If furnishing information about horse racing or bookmaking fall in that category, it may resort to such means as are reasonable and within constitutional limitations to supporess it. It may also employ such means and instrumentalities as are necessary to cope with and subdue any moral evil. Human ingenuity to outwit and suppress crime should certainly keep pace with the ingenuity of those who would devise and commit it.

It follows that the legislature was well within its power in providing that contracts for private wire service under conditions stated, constitute prima facie evidence that it is used for gambling purposes. It was also within its power in imposing the burden on the contractor for the wire service to show that it was not, nor was it intended, to be used for gambling purposes. The legislature has always been permitted to impose more severe methods to suppress moral evils than it has other provisions conyinced that these and other provisions of Chapter 25016 do not run counter to the commerce clause of the Federal Constitution. It may be that other effective means could have been employed, but this was a matter for legislative determination.

The cases are legion in which the Supreme Court of the United States and the State Supreme Courts have adjudicated points similar to that involved in this case. The net result of these holdings is that there is no hard and fast rule to determine when a State Statute lays an undue burden on interstate commerce in violation of the Federal Constitution. Every case must turn on its peculiar facts. These facts must answer the question, whether or not Congress has entered the filed, and if it has not, does the State regulation disrupt lines of communication essential to uniformity....