Pike v. Southern Bell Tel. & Tel. Co., 6 Div. 470

• Decision Date: 24 March 1955
• Docket Number: 6 Div. 470
• Citation: 263 Ala. 59,81 So.2d 254
• Parties: , 9 P.U.R.3d 335 May PIKE v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY.
• Court: Alabama Supreme Court

Page 254

81 So.2d 254

263 Ala. 59, 9 P.U.R.3d 335

May PIKE v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY.

6 Div. 470.

Supreme Court of Alabama.

March 24, 1955.

Rehearing Denied May 19, 1955.

Further Rehearing Denied June 23, 1955.

Gibson, Hewitt & Gibson, Birmingham, for appellant.

Edw. W. Smith and John A. Boykin, Jr., Atlanta, Ga., and Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.

Copeland & Copeland, Gadsden, Jas. H. Willis, Birmingham, amici curiae.

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 is 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. * * *'

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 provision of the tariff is to be literally construed, 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 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 reasoning of the above case that the Telephone Company could not have adopted a valid tariff in this particular. Such a '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 source 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 withdrawal of telephone service from the plaintiff's premises and to compel defendant to restore plaintiff's service. In its answer the telephone company alleged that the 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 pure 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 be 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...