Opinion
October 31, 1952. Rehearing Denied December 12, 1952.
Appeal from the Circuit Court for Dade County, Charles A. Carroll, J.
Richard W. Ervin, Atty. Gen., Mallory H. Horton, and George E. Owen, Asst. Attys. Gen., for appellant.
Ward Ward and Louis M. Jepeway, and John G. Dauber, Miami, for appellees.
The State of Florida seeks to enjoin Franklin Press, Inc., a Florida Corporation, and W.C. "Busty" O'Brien, alias Walter Keogh, H.S. Melton, R. Garrison, and Bruce Coleman, doing business as Harvey A. Jr. Daily Sports Digest or Harvey A. Jr. Sports Digest, a scratch sheet, from publishing Harvey A. Jr. Daily Sports Digest. It is alleged: (1) that the printing of said scratch sheet is aiding and abetting defendant O'Brien in illegal gambling; (2) that the printing and distribution of said scratch sheet to bookmakers and furnishing wires and telephone facilities to Franklin Press for printing said scratch sheet constitutes a public nuisance, detrimental to the morals and welfare of the general public.
The defendant R. Garrison moved to dismiss the bill of complaint on the grounds: (1) that the complaint is without equity; (2) that the complaint fails to state a case on which equitable relief can be granted. Defendant H.S. Melton, publisher of Harvey A. Jr. Daily Sports Digest, moved to dismiss the complaint for the additional reasons that the complaint does not show the violation of any law of the state of Florida or the United States; that it is an attempt to prohibit him from exercising his constitutional right to publish a newspaper; and that it denies him due process, contrary to the provisions of the State and Federal Constitution; that the bill is not sworn to; that it is without equity; that the State has an adequate remedy at law, and that it amounts to an unreasonable search and seizure. The defendant Franklin Press Inc. also moved to dismiss on the same grounds as other defendants. The chancellor granted each and all the motions to dismiss and this appeal was prosecuted.
The only question with which we are confronted is whether or not the bill of complaint states any ground for equitable relief.
Summarized, the theory of the complaint is that Franklin Press Inc. is engaged in the business of operating a printing press; that it prints a publication known as Harvey A. Jr. Daily Sports Digest, a racing scratch sheet; and that it secures its information for said publication by means of telephonic equipment; that under the guise of publishing a sports publication, defendants are engaged in the operation of a telephonic wire system or service and are furnishing illegal information on horse racing to persons engaged in bookmaking and in the transmission of such information for gambling purposes.
The complaint also alleges that Walter M. Haggerty as agent of W.G. O'Brien, made application to Western Union Telegraph Company for special leased wire service for Harvey A. Jr. Daily Sports Digest to transmit racing information to various places within the State; that said leased wire service had connection with New Orleans, Jacksonville and Miami, where two keyboard transmitters were located, one regular and one reserved; that at various other places in the state teleprinters were connected with the circuit; that Harvey A. Jr. Daily Sports Digest was listed on the circuit at five other addresses in Florida. The complaint also alleges that there was another contract for leased wire service between Western Union and Radio Program Press which provided for an interstate leased Morse circuit from its office in Baltimore to intra-state News service in Jacksonville and to Harvey A. Jr. Daily Sports Digest at Miami and points adjacent to Tropical, Hialeah and Gulf Stream race tracks.
The complaint further alleges that said leased wire circuits and tickers installed in Miami in the name of Harvey A. Jr. Daily Sports Digest were never intended to be, and in fact, are not used for the publication of a bona fide newspaper or sports paper, but were intended to be and are used for the purpose of furnishing information on horse racing to various and sundry bookmakers in Dade County, Broward County and other Florida points who are taking illegal bets on horse races and are furnishing said information to others in furtherance of criminal gambling. It alleges the connection of these circuits with numerous other loud speakers in bookie rooms so that racing information may be broadcast to each said rooms simultaneously; that the purpose of said out of state connections is to provide adequate means for quick dissemination of racing information; that the primary purpose of Harvey A. Jr. Daily Sports Digest is to assimilate, compile, and dispense horse racing information to all horse racing bookmakers and bookie servicemen for gambling purposes; and that Harvey A. Jr. Daily Sports Digest is especially prepared to aid bookmakers in placing bets over telephone; that it is not a bona fide newspaper but is a subterfuge to hide the operations of W.G. O'Brien, the owner and publisher. It sells for 35 cents per copy and its sole purpose is in aid of unlawful gambling.
Such are in brief, the allegations of the bill of complaint. The crux of the case is whether or not these and other allegations state a cause for equitable relief in the light of the governing statutes relied on by the State, the first of which is Section 365.03, F.S.A., which makes the use of a private wire to disseminate information in furtherance of gambling a public nuisance and authorizes its abatement by injunction.
The Legislature of 1951, by Chapter 26820, amended Section 365.03, sometimes known as the "Antibookie Law", to read as follows:
"`Private wire' means any and all `wire service', 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, teletypewriter, loudspeaker, radio, television, or any other means * * *."
Section 550.35, F.S.A., being a part of Chapter 26722, Acts of 1951, also provides:
"It shall be unlawful for any person to transmit by any means whatsoever racing information to any other person, or to relay the same to any other person by word of mouth, by signal, or by use of telephone, telegraph, radio, or any other means, when the information is knowingly used or intended to be used for illegal * * * purposes, or in furtherance of such gambling."
The foregoing statutes including Sections 365.10 and 823.05, F.S.A., are relied on by the State to authorize an affirmative answer to the prayer for injunction.
These decisions construing them are also relied on: Ervin v. Peninsular Telephone Company, Fla., 53 So.2d 647; Federal Amusement Company v. State ex rel. Tuppen, 159 Fla. 495, 32 So.2d 1; Fogarty v. Southern Bell Telegraph Telephone Co., D.C., 34 F. Supp. 251, and others. Appellee meets the contention of appellant with the counter contention that the only thing the bill seeks to enjoin is the publication of a newspaper or racing sheet, while the foregoing statutes and decisions construing them were concerned directly with wires used exclusively for the dissemination of gambling information which it is contended is in no way involved in this case. Pennsylvania Publications, Inc. v. Pennsylvania Public Utility Commission, 349 Pa. 184, 36 A.2d 777, 153 A.L.R. 457; People v. Brophy, 49 Cal.App.2d 15, 120 P.2d 946, 956; Pompano Horse Club, Inc., v. State ex rel. Bryan, 93 Fla. 415, 111 So. 801, 52 A.L.R. 51, and cases of like import are relied on to support this contention.
Appellees further contend that other newspapers in the Miami area carry the same sporting information as Harvey A. Jr. Daily Sports Digest, which, it is contended, is, in fact, a newspaper and should enjoy the same privileges as other publications of its kind. For this reason it is said that bookmaking would not be controlled or diminished in any way by stopping the publication of Harvey A. Jr. Daily Sports Digest. It may be anomalous, in view of the tax gathered from horse racing, that this alleged species of advertising should be penalized; however, that is a matter of legislative policy with which we are not concerned.
We are of the view that the petition fails to state equity so the decree appealed from is affirmed.
Affirmed.
SEBRING, C.J., and THOMAS, HOBSON, ROBERTS and MATHEWS, JJ., concur.
FUTCH, Associate Justice, dissents