Opinion
February 6, 1951. On Petition for Rehearing August 3, 1951.
Richard W. Ervin, Attorney General, George M. Powell and George E. Owen, Assistant Attorneys General, for Petitioner.
Howard P. Macfarlane of Macfarlane, Ferguson, Allison Kelly for Peninsular Telephone Company and Lewis W. Petteway for Florida Railroad and Public Utilities Commission, Respondents.
On February 13, 1950, the Honorable Richard W. Ervin, Attorney General of Florida, in writing, requested the Florida Railroad and Public Utilities Commission to require the manager of the Peninsular Telephone Company, of Tampa, Florida, to explain the installation of four telephones in a shack situated opposite the Sunshine Park Racing Course in Pinellas County, Florida, which telephones were being used for the dissemination of horse race information for gambling purposes as prohibited by the provisions of Chapter 25016, Acts of 1949, Laws of Florida, Chapter 365, F.S.A. On February 16, 1950, a notice of hearing was by the Railroad Commission issued and served on the Peninsular Telephone Company requiring it to appear on March 1, 1950, before the Commission and answer the charges preferred against it by the Attorney General of Florida to the effect that it had and was violating the terms and provisions of Chapter 25016, supra, commonly known as the "Anti Bookie" law.
On February 11, 1950, an Assistant Attorney General wrote the President of the Peninsular Telephone Company about the violation of the "Anti Bookie" law and pertinent language thereof is viz.:
"* * * I hereby notify you that telephone bearing number H-3977, located in a shack across the road from Sunshine Park Race Track, has been, and was this day used for an illegal purpose, towit, the dissemination of bootleg horse race information for use by bookies.
"Our investigation disclosed that there were four telephones at the above described location until yesterday morning, at which time two of your linemen removed three telephones their numbers being unknown to this writer. Today, together with Mr. W. Linhart, representing the Florida Railroad and Public Utilities Commission, Mr. Roy F. Finkbein in charge of Sunshine Park Police and Mr. Wilbur James Chief Deputy Sheriff Pinellas County, we found the above described remaining telephone being used in the above mentioned shack, by two men who gave their names as Alfred M. Olsen and Al Opperman, who readily admitted that they were using a lookout turret on the shack for the purpose of securing information from the `toto board' inside the race track, using binoculars and reading the information into the telephone which they stated was a part of the Continental race track wire service which service is a type that is prohibited by the Florida `Anti Bookie' law enacted at the last session of the legislature * * *."
The record reflects considerable testimony adduced by the respective parties. The Railroad Commission made reference in its order challenged here to facts established by the testimony as not being in serious dispute. Pertinent parts thereof are viz.:
"The testimony disclosed that on February 10, 1950, James B. Toney, an Assistant Attorney General of Florida, in the performance of his official duties, made a survey and investigation of Sunshine Park Racing Course and its immediate vicinity for the purpose of ascertaining, if possible, whether or not any `private wires' were being used for the purpose of disseminating racing information for gambling purposes or in furtherance of gambling contrary to the provisions of Chapter 25016, supra. During the course of his investigation Toney discovered a `shack' directly opposite and across the road from the race track. The appearance of this `shack' aroused his suspicions and he paid particular attention to it through the day. While the `shack' was thus under surveillance a Peninsular Telephone Company truck drove up to the `shack' and two workmen began cutting telephone lines and removing telephones from the `shack.'
"The so-called `shack' was a wooden structure approximately eight or nine feet wide and twelve or thirteen feet long. On the roof of the building were two turret-shaped towers with vents on the side directed to the tote-board and the finish line of the race track. In the larger turret the investigator found a telephone bearing the number H-3977. Access to the telephone tower was by means of a ladder inside the building extending up to a large hole in the ceiling. Three telephones were removed by the workmen while Toney watched. Telephone number H-3977 was left in the tower.
"On the following day the investigator observed a pair of binoculars within the vents of the larger tower, and together with the head of the track police and a deputy sheriff of Pinellas County he went to the `shack'. At the time there were two men in the `shack' who admitted that they were employed by Continental News Service and were telephoning racing news to New York. According to the evidence in this case Continental News Service is a nationwide news service principally engaged in furnishing bookmakers with racing information.
"On February 11 the investigator notified Peninsular Telephone Company of his findings and requested that all telephone service to the `shack' be discontinued and that the telephone facilities be removed. On the following day the `shack' and the telephone located therein disappeared and have not been located.
* * * * * *
"* * * About this time the telephone company had applications for three individual line telephones, two from a man named John Arthur and one from A.M. Olsen who was the man Toney found in the `shack' at the time of his investigation and who claimed to be an employee of Continental Press Service. These applications were serviced by using the old Delaney-Burney circuit and one from the track switchboard for Arthur and circuit H-3977 for Olsen. Arthur was assigned Numbers H-1281 and H-1686. Olsen was assigned number H-3977. Telephones H-1281 and H-1686 were cancelled on February 8, 1950 and one of the two circuits was reinstated on the track switchboard. The other was left dead. Arthur's two telephones and Olsen's telephone were each installed in the `shack' or the `wire house'. The Arthur telephones were being removed at the time Toney made his first investigation of the `shack'. Telephone H-3977 listed in the name of A.M. Olsen was suspended on January 12, 1950 by the telephone company at the request of the Attorney General's Office.
"All of the foregoing telephone facilities, with the exception of the toll circuit LD-2, were exchange telephone facilities so set up that each separate telephone call of necessity went through the regular telephone exchange and was handled by the telephone company in exactly the same mechanized way as all other exchange telephone calls. In using these facilities it was necessary in each instance for the calling party to designate the party or number with which connection was sought. The toll circuit, LD-2, was operated in exactly the same way except it was handled by the toll board whereas the other facilities were handled by the exchange board. These facilities in their mechanical operation differ vastly from `leased wires' or `private wires' in that the latter type facilities direct wires between two or more designated locations or parties and communication between them is not dependent upon the assistance of some intervening agency or operator such as the exchange operator or toll operator. `Private wires' or `leased wires' do not afford communication between the subscriber and all other subscribers of an exchange nor does it afford regular toll service between the subscriber and all others who are available for long distance or toll messages."
It appears by the record that at the time of installation of the phones deposits were made with the respondent in an amount ranging from $300.00 to $500.00 and one of the billing addresses, if the amount should exceed the deposits as given to the respondent, was Dade County News Supply Company, 136 N.W. First Court, Miami, Florida. A.M. Olsen and John Arthur were about the "shack" but neither of them testified at the hearing. The telephone wires ran from the grandstand of Sunshine Park Racing Course to the "shack". Racing information was taken from the "tote board" and then transmitted through the "shack", situated opposite the race track and by long distance calls connected through the regular telephone exchange of the respondent. An admission was made by two men at the "shack" that they were employed by the Continental News Service and were telephoning racing news to New York. The Continental News Service was engaged principally, as shown by the record, in supplying bookmakers with racing information. The telephones in question were used to supply racing information, as reflected by the following language of the Commission's order:
"* * * Under the circumstances of the present case and the physical layout involved there could be little doubt in anyone's mind concerning the purposes and use of the facilities installed by the telephone company in the `shack' just opposite the finish line and tote board of Sunshine Park Race Track. The record of long distance calls made over said telephone facilities confirm the rather obvious use of said facilities. * * *"
The record reflects that some two or three years prior to the enactment of Chapter 25016, supra, telephone wires were installed by employees of the respondent about Sunshine Park Race Course upon informal requests and that this practice continued in a per forma manner into the 1949-1950 racing season. The employees of the respondent telephone company charged with the duty of installing the telephone equipment at the "shack" for the 1949-1950 racing season, and prior years, were not clothed with discretion or executive authority and apparently were not informed of the terms and provisions of Chapter 25016. An official of the respondent testified that immediately after being informed on February 11, 1950, that the services of his company were being used to aid in the dissemination of gambling information, such services were discontinued by an order of the executive. Likewise he brought to the attention of other officials and employees of his telephone company the several terms and provisions of Chapter 25016 and gave instructions to the effect that the same should be observed and obeyed. It does not clearly appear that the officials of the telephone company were informed or had knowledge that its facilities were being used for the dissemination of gambling information during the 1949-1950 racing season contrary to the provisions of Chapter 25016.
When the respective parties concluded the taking of testimony before the Railroad Commission, counsel for the Peninsular Telephone Company moved that the Railroad Commission enter an order of dismissal on grounds: (1) the Railroad Commission was without jurisdiction and had no lawful authority to investigate the complaint of the Attorney General; (2) the four telephones complained of were not prohibited by the several provisions of Chapter 25016; (3) it was not shown that the respondent had knowledge that the four telephones were being used for an illegal purpose; (4) it does not appear that the telephone company knew or had reasonable grounds to believe that its facilities were being used by its subscribers contrary to the provisions of Chapter 25016. The Railroad Commission sustained the motion to dismiss and the language of its order is viz.: "From the evidence adduced in this proceeding the Commission finds as a matter of fact and as a matter of law that the telephone facilities in question were not `private wires' as that term is defined and used in Chapter 25016, Laws of Florida, Acts of 1949, and that by reason thereof this complaint should be dismissed."
The Attorney General, on petition for writ of certiorari filed in this Court, contends that the order of the Florida Railroad and Public Utilities Commission dated July 24, 1950, is void, invalid and contrary to law and the Railroad Commission in the entry thereof neglected and failed to observe the essential requirements of the law. Various reasons are advanced to sustain his contention, one of which is as follows: The Railroad Commission placed upon Chapter 25016 "a construction that if permitted to stand will hinder and prevent the successful enforcement of the statute, and the control of gambling as intended by the Legislature of the State of Florida by its adoption; and that this construction of the respondent Railroad Commission, if permitted to stand, will improperly handicap the law enforcement officers of the State of Florida in the performance of their duties under said Act, and will narrow and close the avenues of enforcement in a manner not intended by the Legislature."
Section 1(d) of Chapter 25016, F.S.A. § 365.01(4), supra, provides: "(d) `Private wire' means any and all service equipment, facilities, conduits, poles, wires, circuits, systems by which or by means of which service is furnished for communication purposes, either through the medium of telephone, telegraph, Morse, teletypewriter, loudspeaker or any other means, or by which the voice or electrical impulses are sent over a wire, and which services are contracted for or leased for service between two or more points specifically designated, and are not connected to or available for general telegraphic, telephonic or teletypewriter exchange or toll service, and shall include such services known as `special contract leased wire service', `leased line', `private line', `private system', `Morse line', `private wire', but shall not include the usual and customary telephone or teletypewriter service by which the subscriber may be connected at each separate call to any other telephone or teletypewriter designated by him only through the general telephone or teletypewriter exchange system or toll service, and shall not include private wires used for fire or burglar alarm purposes, nor telegraph messenger call boxes and circuits used in connecting therewith, time clock circuits used for furnishing correct time service, nor telegraph teleprinters when these teleprinters terminate in the telegraph companies' offices and are not directly connected between two customers, nor any private wires used by any department or agency of the United States government or of this state or by any municipality or other political subdivision of this state". (Emphasis supplied.)
Section 2 of Chapter 25016 makes it 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 the furtherance of gambling or for gambling purposes or for any person knowingly to use any private wire in dissemination in the furtherance of gambling or for gambling purposes.
Section 4 of Chapter 25016 provides that it shall be unlawful for any public utility to furnish to any person any private wire, except in pursuance of a written contract signed by the person contracting for said private wire and responsible under the terms of the contract for the payment for the service, and by the person in possession or control of any place or location designated in the contract for installation or connection of said private wire, which contract shall include a detailed written statement of the purpose for which the private wire is intended to be used.
Section 9 of Chapter 25016, supra, provides that it shall be unlawful for any person, who has been furnished a private wire by any public utility in accordance with the provisions of this Chapter to use such private wire for any purpose other than specified in the contract provided for in Section 4 hereof. Section 10 of said Chapter provides: "To further effectuate the purposes of this Act [25016], it is hereby provided that the contract first referred to in Section 4 hereof, shall constitute prima facie evidence that such private wire will be used in furtherance of gambling or for gambling purposes, where it shall appear in such contract, or otherwise, that such private wire will be used, is intended to be used or has been used for the dissemination of information pertaining to any horse-racing * * *."
Section 15 of said Chapter provides: "This Act shall be deemed an exercise of the police power of the State of Florida for the protection of the public welfare, health, peace, safety and morals of the people of the State of Florida, and all of the provisions of this Act shall be liberally construed for the accomplishment of this purpose". (Emphasis supplied.) The Act supra regulates public utilities in furnishing to others private wire services to be used for the dissemination of information for gambling purposes.
The two men, Alfred M. Olsen and Al Opperman, admitted they were using the lookout turret on the "shack" for the purpose of securing information from the "tote board" inside the race track, using binoculars, and reading the information into the telephone which was a part of the Continental race track wire service, and from the "shack" were telephoning this gambling information to New York through the exchange or toll boards of the telephone company. On final hearing, the Railroad Commission dismissed the complaint of the Attorney General. The order was bottomed on the theory that the facilities of the telephone company employed in the transmission of the above gambling information were not "private wires", as defined in Section 1(d) of Chapter 25016.
It is the duty of this Court, in the construction of statutes, to ascertain the intention of the Legislature and effectuate it. Beebe v. Richardson, 156 Fla. 559, 23 So.2d 718. The Legislature, in the enactment of Chapter 25016, supra, made it unlawful for public utilities to furnish to others private wire service and prohibited the use thereof in the dissemination of information for gambling purposes. Section 15 provides that the courts must give all of the provisions of the Act a liberal construction for the accomplishment of the purpose. The purpose to be accomplished was to prevent the use of private wire service in the dissemination of information that may be used for gambling purposes.
The construction placed upon the Act by the Railroad Commission contravenes the expressed intention of the Legislature when the Act is considered in its entirety. The evil to which the several provisions of the Act was directed was to prevent and make unlawful the use of the wires of the public utilities of Florida in the dissemination of gambling information, whether or not the wires complained of were "private wires", a "leased line", a "special contract leased wire", or a "private system" is not of great significance. The record discloses that these wires were being used for purposes contrary to the several provisions of Chapter 25016, supra.
We are unable to sustain the construction placed upon the Act by the Railroad Commission. The petition for writ of certiorari is granted and the order complained of is quashed. The cause is remanded for further proceedings.
On Petition For Rehearing.
Grounds 5, 6, and 7 of the petition for re-hearing filed in this cause by the Peninsular Telephone Company, a respondent, raised the constitutionality of Chapter 25016, Acts of 1949, Laws of Florida, commonly known as the "Anti Bookie Law". F.S.A. § 365.01 et seq. It is contended that the Act is void and unconstitutional on various grounds, among them being that the Act reflects an unreasonable exercise of the police power of the sovereign State of Florida. Our answer to this contention is that the unconstitutionality of the Act is raised here for the first time on petition for rehearing. An examination of the original briefs of counsel, as well as the transcript, fails to disclose that the contention was ever presented to or considered by this Court in this cause prior to the filing of our opinion on January 19, 1951. The constitutionality of the Act, however, was here sustained in the case of McInerney v. Ervin, Fla., 46 So.2d 458.
The petitioner further contends that the opinion placed on certain provisions of the Act a construction never intended by the Legislature in that it ignored, abandoned and held for naught the definitions set out in the Act of "private wires", "leased wires", "private system" and "special contract leased wires". Likewise, too much emphasis in the opinion was placed on the terms and provisions of the Act which prohibited the use of "private wire service" in the "dissemination of information" which may be used for "gambling purposes."
It appears by the record, and the Railroad Commission found as a matter of fact, that a subscriber of the petitioner was using its recently installed telephone facilities situated in the "shack" opposite the finish line and the tote board of Sunshine Park Race Track in disseminating gambling information. Gambling information was sent over petitioner's wires from the tower on the "shack" by long distance to the Continental News Service in New York City. It is contended that the above dissemination of gambling information does not fall within the inhibitions of the Act because the telephone line used by the subscriber in transmitting this information was not a private wire as defined in the Act.
The following quotations taken from the title and body of the Act appear to be an answer to the contention:
"An Act to Regulate Public Utilities in the Furnishing to Others of Private Wire Service and Other Similar Service for the Dissemination of Information, to Regulate the Use of Such Services and Prohibit the Use of Same for Gambling Purposes, and to Provide Remedies and Penalties for the Enforcement Thereof." (Emphasis supplied.)
"Section 15. This Act shall be deemed an exercise of the police power of the State of Florida for the protection of the public welfare, health, peace, safety and morals of the people of the State of Florida, and all of the provisions of this Act shall be liberally construed for the accomplishment of this purpose." (Emphasis supplied.)
"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 Sections 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." (Emphasis supplied.)
"Section 4. It shall be unlawful for any public utility to furnish to any person any private wire, except in pursuance of a written contract signed by the person contracting for said private wire and responsible under the terms of the contract for the payment for the service, and by the person in possession or control of any place or location designated in the contract for installation or connection of said private wire, which contract shall include a detailed written statement of the purpose for which such private wire is intended to be used * * *." (Emphasis supplied.)
"Section 7. All contracts between a public utility and any person for private wire in effect on the date this Act becomes law and all written contracts between a public utility and any person for private wire entered into after the effective date, and approved by the commissioners, shall be subject to review and examination by the commissioners under the procedure stated in the preceding section whenever a written request therefor is made upon the commissioners by the Attorney General, or the State Attorney of any circuit in Florida, in which the said private line or any part thereof is located; and if the commissioners find that said private wire is being used for the transmission of information or advices for gambling purposes or in furtherance of gambling, the commissioners shall order the public utility to cancel said contract and give notice thereof to the contracting parties. * * *." (Emphasis supplied.)
"Section 9. It shall be unlawful for any person, who has been furnished a private wire by any public utility in accordance with the provisions of this Act, to use such private wire for any purpose other than that specified in the contract provided for in Section 4." (Emphasis supplied.)
Section 1(d) of Chapter 25016, Laws of Florida 1949, F.S.A. § 365.01(4), defines "private wire" and expressly excludes from such definition "the usual and customary telephone or teletypewriter service by which the subscriber may be connected at each separate call to any other telephone or teletypewriter designated by him only through the general telephone or teletypewriter exchange system or toll service * * *." However, the telephone wire or service which was used by the subscriber in the instant case cannot be classified as "the usual and customary telephone * * * service * * *". The private wire involved in this suit was by the subscriber used for the transmission of gambling information. The subscriber obtained the information while in the tower of the "shack". The "shack" was situated opposite the finish line and the tote board of Sunshine Park Race Track. The gambling information was obtained and immediately transmitted by long distance telephone to New York City to the Continental News Service for dissemination. The Railroad Commission correctly held that the facts reflected by this record were within the inhibitions of Chapter 25016, supra. It was not established that executives of the telephone company had knowledge of its unlawful use by the subscriber. Knowledge of an unlawful use of the telephone service by a subscriber is an essential element under the provisions of Chapter 25016. The prohibition of the dissemination of gambling information on the part of telephone utilities, or their subscribers, was the end to be obtained by this legislative enactment.
It is a rule of statutory construction that courts will consider the language of the Act, the subject regulated, the purpose designed to be accomplished and the means adopted in the accomplishment of the purpose. Where the intent of the Act is clear upon its face and when, standing alone, it is susceptible of but one construction, that construction must then be given. McCamy v. Payne, 94 Fla. 210, 116 So. 267. The legislative intent is the polar star by which courts must be guided and such intent must be given effect, even though it may appear to contradict the strict letter of the statute. Scarborough v. Newsome, 150 Fla. 220, 7 So.2d 321.
It is further contended that the Railroad Commission was without jurisdiction to hear the complaint of the Attorney General filed with it on February 13, 1950. The answer to the contention is Section 12 of Chapter 25016, supra, and language viz: "For the purpose of enforcing the provisions of this Act the Florida Railroad Commissioners shall have all the powers granted to it under the laws of the State of Florida." (Emphasis supplied.)
The petition for a rehearing is denied.
ADAMS and HOBSON, JJ., and OGILVIE, A.J., concur.