(dissenting).
Appellant, plaintiff below, brought action at law against appellee claiming damages for cutting off or discontinuing her telephone service. As last amended, the complaint consisted of three counts. Count 1 charged appellee with “negligently” cutting off telephone service; count 2, with “wantonly” cutting off such service; and count 3, with “willfully, wantonly, maliciously, intentionally, and wrongfully” cutting off such service. Appellee’s demurrer to the complaint, as last amended, was overruled. Thereupon appellee entered two pleas. The first was a plea of the general issue. Plea 2 was as follows:
“Plea 2. On April 6, 1951, the defendant was engaged in business in the City of Birmingham, Alabama, as a public utility furnishing intrastate and interstate telephone service to the public.
“Prior to April 6, 1951, a telephone with call number 6-9171 was installed by defendant in a place of business at 1535 Twentieth Street, Ensley, being operated by plaintiff or plaintiff and her husband, and said telephone was therein on April 6, 1951, and was the only telephone in said premises either on April 2nd, 1951, or April 6, 1951.
“Defendant further avers that it received a letter dated April 2, 1951, from the Commissioner of Public Safety of the City of Birmingham, Alabama, who was at the time the responsible law-enforcing agent of said City, and who was in charge of its Police Department, advising the defendant that the said telephone facilities furnished by the defendant at the said premises known as 1535 Twentieth Street, Ensley, a place within the corporate limits of the said City and subject to its police jurisdiction, were being used for illegal purposes, and directing the defendant to remove said telephone facilities. Said letter was in words and figures as follows:
“ ‘April 2, 1951
“ ‘Mr. C. L. Lott, District Manager,
“ ‘Southern Bell Telephone & Telegraph Company,
“ ‘Birmingham 3, Alabama
“ ‘Dear Mr. Lott :
“ ‘This is your order to remove the attached list of telephones which are used for illegal purposes. These telephones are not to be reconnected without a Court order or advice from me.
“ ‘Sincerely yours,
“ ‘/s/ Eugene “Bull” Connor
Commissioner of Public Safety.’
“Attached to said letter was the list of telephones referred to therein, which, in the part thereof here pertinent said:
“ ‘Lewis Pike, white, male, lives at 1117 Thirteenth Avenue, South, and has telephone listed 4-3075 and 4-1420. Lewis Pike also operates a negro beer joint at 1535-20th St. Ensley — Telephone 6-9171. He is a well-known lottery operator in the City, operating the Joe Louis Lottery House and has at least three cases pending in the various Courts.’
“The defendant avers that, acting in compliance with the order contained in said letter from the Commissioner of Public Safety of the said City, a communication was addressed to the plaintiff under date of April 5, 1951, by the defendant in words and figures as follows, to-wit:
“ ‘We have information which indicates that the telephone facilities and service being furnished you by this company have been used in connection with unlawful activities. Therefore, this is to notify you that on April 6, 1951, all telephone service at the present time being rendered to you at 1535-20th Street, Ensley, will be discontinued.
‘“/s/ C. L. Lott
“ ‘District Manager.*
*66“Said communication was delivered to the person in charge of said premises at or immediately preceding the time of the removal of said telephone facilities, and the defendant did, on April 6, 1951, remove said telephone facilities with call number 6-9171 from said premises, viz.: 1535 Twentieth Street, Ensley, in an orderly, lawful and proper manner and unless this be wrong, defendant was guilty of no wrong on the occasion complained of.”
The appellant demurred to plea 2, assigning thirty-eight separate and several grounds. The demurrer being overruled, appellant moved for a non-suit, which was granted. This appeal presents for review the propriety of the action of the court in overruling the demurrer- to plea 2.
As I see it, the question presented for decision is whether, under the facts averred in plea 2, appellee was justified in discontinuing appellant’s telephone service. Spe-¡ cifically, the question is whether appellee,; in removing appellant’s telephone pursuant i to the instructions from the Commissioner of Public Safety of the City of Birmingl ham, was justified in accepting the order-of said Commissioner as reasonable cause to believe that the telephone was being used for an illegal purpose. Appellant’s insistence is that appellee, as a public utility, must serve the public without discrimination and that she has been unjustly discriminated against by the discontinuance of her telephone service; that plea 2 does not show that either she or her husband personally used the telephone for illegal purposes nor that they had any notice or knowledge that it was being used for illegal purposes or that they permitted any one to use said telephone for illegal purposes. It is further contended that the discontinuance of service deprived her of her property without due process of law in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States.
The position taken by the Telephone Company is that the instructions from the Commissioner of Public Safety for removal of appellant’s telephone because of its use, as stated in said instructions, for illegal purposes, constituted reasonable cause for the Company to believe the telephone was being illegally used, thus justifying its removal.
It does not appear that this question has heretofore been before this court. However, it has been dealt with in other jurisdictions, but not with unanimity in the decisions.
My research discloses that when the question has been considered in other jurisdictions, there has usually been involved the reasonableness of a statute, a rule of a state or federal regulatory body, or a rule of the public utility. It is apparent that our problem, as presented by the pleadings, is somewhat different. Here, no statute or rule is involved. The question, then, simply stated, is whether the Telephone Company, in the absence of a statute or rule on the subject, is justified in discontinuing service when requested to do so by a responsible law enforcement officer who represents to the Company that such service is being used for illegal purposes. (As I see it, the principle applicable here would likewise be applicable if a statute or rule were involved.) My view is that the Telephone Company is justified in relying on the representations of such law enforcement officer as to the illegal use of the service and, accordingly, should not be liable for damages when service is discontinued at the request of such officer.
It is generally held that a public utility, by reason of the very nature of its business, is obligated to furnish “its service or commodity to the general public, or that part of the public which it has undertaken to serve, without arbitrary discrimination.” 73 C.J.S., Public Utilities, § 7 b, p. 999. But it cannot be required to furnish service for illegal purposes. 52 Am.Jur., Telegraphs and Telephones, § 93, p. 123; Nichols, Public Utility Service and Discrimination, Chap. VII, § 9, p. 196. As thus stated in 52 Am.Jur., Telegraphs and Telephones, Cum.Supp. § 84.1:
“It is the duty of a telephone company to furnish service and facilities *67without discrimination in favor of or against anyone who will pay the applicable tariff rate and abide by the reasonable regulations of the utility. But a telephone company’s duty to furnish service is limited to lawful service, and it cannot be compelled to furnish service for purposes which are illegal, * *
In the light of these principles, is it not a reasonable and practicable rule of law which says that a utility is justified in discontinuing service when a responsible law enforcement officer notifies the utility that such service is being used for illegal purposes and requests that the service be discontinued because of such illegal use? I think so; and this conclusion finds support in the following cases, among others: McBride v. Western Union Tel. Co., 9 Cir., 1948, 171 F.2d 1, 3, 4; King v. Seamon, Fla., 1952, 59 So.2d 859, 861; Dade County News Dealers Supply Co. v. Florida Railroad & Public Utilities Commission and Dade County News Dealers Supply Co. v. Southern Bell Tel. & Tel. Co., Fla., 1950, 48 So.2d 89, 90; Hagerty v. Southern Bell Telephone & Telegraph Co., 1940, 145 Fla. 51, 199 So. 570; Dente v. New York Telephone Co., Sup., 1944, Westchester County, 55 N.Y.S.2d 688, 690, 691, 692; Application of Manfredonio, 1944, Westchester County, 183 Misc. 770, 52 N.Y.S.2d 392, 393; People ex rel. Restmeyer v. New York Telephone Co., 1916, 173 App. Div. 132, 159 N.Y.S. 369, 370.
In the case of McBride v. Western Union Tel. Co., supra [171 F.2d 3], appellant sought to compel the telegraph company to restore wire service to him. The company based its refusal to restore service on Federal Communication’s Tariff Regulation 219 (8) which provided as follows:
“ ‘Facilities furnished under this tariff shall not be used for any purpose or in any manner directly or indirectly in violation of any federal law or the laws of any of the states through which the circuits pass or the equipment is located, and the telegraph company reserves the right to discontinue the service to any drop or connection or to all drops and connections when it receives notice from federal or state law enforcing agencies that the service is being supplied contrary to law.’ ”
The court there said:
“The telegraph company was notified by the Attorney General for California in writing that such illegitimate use of the drops was being made in several cities in California and by the Sheriff of Kern County, California, that such use was being made in the city of Bakersfield, California. McBride does not complain that the places of such illegal misuse are not sufficiently described, but that the statement of the notices of illegal use are not substantiated. We do not agree that the notifying officers are required to supply to the telegraph company the probative facts to be adduced in court in the trial! of the cases of violation stated in the1 notices.
“McBride’s complaint contained two causes of action. We can see no essential difference between them. In both he states that the telegraph company should be ‘required by order of the court to continue to supply plaintiff with such facilities.’ (Emphasis supplied.) He contends, however, that his second cause of action requires the telegraph company to disregard the notices of the law enforcement officers because they concern a past wrongdoing and treat it as beginning de novo a litigation for the supplying of the telegraphic and drop services which the company refuses him.
“The effect of such a construction would make nugatory the provisions of Section 219(8). A new illegal use would follow to be stopped only long enough for the bringing of another such suit as here. The process of law violation would continue indefinitely with only minor stoppages by an impotent Attorney General. The telegraph company may rely on the Attorney General’s and the county sheriff’s notices as sufficient to justify the *68telegraph company’s refusal to restore the services, which, as both complaints describe it, would be' a continuing of past services.” (Emphasis supplied.)
In Hagerty v. Southern Bell Telephone & Telegraph Co., supra, the Attorney General of the United States advised the telephone company that Hagerty was using the company's facilities to promote lottery schemes in Florida and elsewhere and demanded that the service be discontinued on pain of being held to account for aiding and conspiring in the violation of the Federal anti-lottery laws. The Attorney General of Florida also advised the telephone company that Hagerty “was using its telephone facilities to aid in the maintenance of' gambling houses or in the promotion of gambling” contrary to the laws of Florida, and requested that the service be discontinued. In response to these demands, the telephone company notified Hagerty that service would be discontinued. Hagerty thereupon filed his bill in equity and secured a temporary restraining order directed to the company prohibiting it from discontinuing the service. The company filed its answer interposing as a defense its right to discontinue service because of the alleged violation of state and federal laws and the demand made on it by the state and federal prosecuting officers. The trial court upheld the answer of the telephone company. On appeal, the Florida Supreme Court has this to say [145 Fla. 51, 199 So. 571]:
■ “Here we are concerned with the power of a court of equity to relieve a public service corporation from furnishing a service in the face of a threat of prosecution. * * * The law is well settled that the aid of a court of equity to prevent the discontinuance of telephone service which is being used to facilitate book making in violation of the law or in the promotion of any other gambling scheme or device will not be enforced. * * *
* * * * * *
“We therefore hold that the answer of the Telephone Company presents a good and legal defense to the bill of complaint * *
In the later- Florida- cases of Dade County News Dealers Supply Co. v. Florida Railroad & Public Utilities Commission and Dade County News Dealers Supply Co. v. Southern Bell Tel. & Tel. Co., supra, the Supreme Court of that- state held that the telephone company was warranted in discontinuing service to the News Dealers Supply Co. when notified to do so by the Florida Attorney General because such service was being used for unlawful purposes. There under 'consideration was Rule 1592 of the Commission which became effective on April 1, 1950. Said rule contained the following:
“Whenever any such utility is notified in writing by any state or Federal law enforcement officer acting within his apparent jurisdiction, either directly or through this Commission, that certain telephone or telegraph facilities or any part thereof, are being used or have been used in violation of any Federal law or the laws of the State of Florida, then such utility shall disconnect and remove such facilities and discontinue all telephone and telegraph service rendered over said facilities.”
Pursuant to this rule, the telephone company notified the News Dealers Supply Co. that the Attorney General of Florida had demanded that all facilities furnished by the telephone company to said Supply Company be discontinued, and that, therefore, all such services would be terminated. A bill was filed and a temporary restraining order was issued to prevent the telephone company from interfering with the telephone service then being furnished. On hearing in the trial court said restraining order was dissolved and the bill dismissed. On appeal, the Supreme Court of Florida said [48 So.2d 90] :
“The first point for consideration is whether or not appellee, Southern Bell Telephone and Telegraph Company was warranted in discontinuing its telegraph and telephone service to Dade County News Dealers Supply Company when notified to do so by the Attorney General on the ground that *69it was being used for unlawful purposes.
“We think this question requires an affirmative answer. Chapter 364, Florida Statutes 1941, F.S.A., authorizes the Commission to regulate and control telephone and telegraph companies. Section 364.20 authorizes the Commission to adopt the rule under attack and provides that it shall be reasonable and just and such as ought to have been made in the premises. The rule does no more than enact the law as it existed at the time and there is not the slightest suggestion that the rule is arbitrary or unreasonable or in some other way may work an injustice on the appellant or its patrons. We think the following cases conclude the question: Hagerty v. Southern Bell Telephone & Telegraph Co., 145 Fla. 51, 199 So. 570; Tracy v. Southern Bell Telephone & Telegraph Co., D.C., 37 F.Supp. 829; Hagerty v. Southern Bell Telephone & Telegraph Co., D.C., 59 F.Supp. 107; McBride v. Western Union Telegraph Co., 9 Cir., 171 F.2d 1.” [Emphasis supplied.]
The opinion in King v. Seamon, supra, discloses that Rule 1592, considered in the Dade County News Dealers Supply Co. Cases, supra, was subsequently enacted into law. In construing such enactment, the court cited with approval the construction of the rule as announced in the Dade County News Dealers Supply Co. Cases, supra.
In Application of Manfredonio, supra, the petitioner’s telephone service was discontinued and the telephone removed by the telephone company, acting upon request of the Mt. Vernon Police Department which informed the telephone company that the telephone was being used by petitioner for gambling and bookmaking. Petitioner brought suit for restoration of telephone service. The court said:
“The first question is: Had the telephone company the right to act upon the request of the police department without an independent investigation of its own? The court holds that it was the duty of the respondent to so act, otherwise it might .well run the risk of becoming a party to criminal activities and also because sound public policy requires it in the first instance to aid the authorities in their efforts to enforce the law. The police department refuses to rescind its request and the respondent declines to restore the service without such rescission or by order of the court. In this stand the court holds that the telephone company is within its rights.”
In the later case of Dente v. New York Telephone Co., supra [55 N.Y.S.2d 689], telephone service was discontinued by the telephone company “after it had received a letter from the Chief Inspector of the Mount Vernon Police Department, the purport of which was, that he had received information from the New York Police Department, with other information, which led him to believe that the telephone in question was being used for an unlawful purpose, to wit, bookmaking, and requested the respondent [telephone company] to forthwith discontinue the service, and not to reinstate the same without the approval of the Police Department.” The court said:
“The service was thereupon discontinued, which was taken in accordance with the long established practice of the respondent, namely, to terminate a subscriber’s service upon the request of the police, whenever the police claim it is being used allegedly to violate the law, and not to restore the same until the police officials had approved the restoration of the service. * * *
“The question here presented is, was the respondent justified in discontinuing the service upon a mere naked request of the police authorities, without any independent investigation of its own that there was reasonable grounds to believe that the telephone was being used for an unlawful purpose? In other words, was there legal right to refuse petitioner telephone service upon the mere action of the police department objecting to the furnishing of *70such service, especially where the action of the police department may be arbitrary, unreasonable and discriminatory, and based on mere suspicion ? Or •does the telephone company have to ■wait until there has been either a conwiction showing the unlawful use of the phone, or some court action on the part of the police authorities? Here, concededly none was taken.
******
“The courts of this State have repeatedly given sanction to the basic proposition or rule that where the Police Department has objected to and disapproved of furnishing of telephone service on the ground that it is being used for an unlawful purpose, the telephone company has a legal right to refuse such service. * * *
******
“What steps must the telephone company take before discontinuing the service at the request of the Police Department? Must it conduct a separate and independent investigation of its own, for which concededly it has no facilities? Or is it justified in relying upon the representations of the law enforcing authorities that they have information that the phone is being used for unlawful purposes ?
“It was conceded upon the argument that if the telephone company had knowledge of its own that one of its phones was being used for an unlawful purpose, then it would be its duty upon its own initiative to discontinue the same. Is the rule different when the •company is informed by the law enforcing authorities that the phone is being •so used? Does the law require that a telephone company shall at its peril determine the legality of an order of the Police Department directing a telephone service be not restored to premises in which the police have requested a removal of the service for alleged illegal use?
“I am mindful that the position of the respondent may frequently work hardship' and injustice, and here the evidence obtained by the Police Department, that the law was being violated, is tenuous.
“Following the memorandum of Mr. Justice Davis of this Department, in Application of Manfredonio, 183 Misc. 770, 52 N.Y.S.2d 392, I hold that the telephone company was within its rights in discontinuing service upon the request of the Police Department without an independent investigation of its own. * * * Ü
In People ex rel. Restmeyer v. New York Telephone Co., supra, the proceeding was to require the telephone company to furnish telephone service to the relator. The telephone company had removed the telephone from relator’s saloon upon complaint of the police authorities that the premises and telephone were being used by the relator in conducting a pool room for receiving and registering bets on horse racing. On the question of whether service should be restored, the court said as follows [173 App.Div. 132, 159 N.Y.S. 370]:
“The affidavit of Officer Beine is quite circumstantial in describing the betting transactions carried on by the relator, and leaves no room for doubt that the relator was persistently violating the law against pool selling and using his telephone as an important factor in that illegal business. Beine is corroborated in every particular by Officer Canfield. In view of these facts the police were justified in regarding the relator’s place as an unlawful resort, and their request to the telephone company to discontinue the telephone service therein was entirely proper and in the interest of law and order. It is certainly not an unlawful or oppressive use of police power to interrupt telephone service by arrangement between the police and the telephone company in a case where the telephone is being used, as it was in this case, to carry on a criminal business. Speaking generally, the telephone company is bound to furnish service to all who pay its proper charges and obey its reasonable regulations, but it is not required to fur*71nish such service to those who are reasonably sure to use it for an illegal purpose.”
Although there is authority to the contrary, Andrews v. Chesapeake & Potomac Telephone Co., 1949, D.C.D.C., 83 F.Supp. 966, 968, 969; Giordullo v. Cincinnati & Suburban Bell Telephone Co., Ohio Com. Pl., 1946, 71 N.E.2d 858, 859; People v. Brophy, 1942, 49 Cal.App.2d 15, 120 P.2d 946; Whyte v. New York Telephone Co., Sup., 1947, New York County, 73 N.Y.S.2d 138, 139; Shillitani v. Valentine, 1945, New York County, 184 Misc. 77, 53 N.Y.S.2d 127, 130, 131, 132, 134. I am persuaded that the , principle approved in the line of cases hereinbefore discussed is fair, reasonable and practicable and, being in aid of law enforcement, accords with sound public policy. Therefore, I respectfully dissent from the majority holding. It is to be noted that appellant is not without recourse to have her right to telephone service judicially heard and determined. Code 1940, Tit. 48, §§ 57, 63, 79.
LIVINGSTON, C. J., and MERRILL, J., concur in the foregoing opinion.