Pike v. Southern Bell Telephone and Telegraph Co.

On Rehearing.

MAYFIELD, Justice.

Counsel for the appellee insist with great vigor that Section 6 of the Constitution of Alabama 1901 affords no protection against an abuse of “due process of law” except in criminal cases. In support of this position they cite the holding of the Supreme Court of Rhode Island in Sepe v. Daneker, 76 R.I. 160 , 68 A.2d 101 , and Taglianetti v. New England Tel. & Tel. Co., R.I., 1954, 103 A.2d 67 , construing a provision of the Rhode Island Constitution similar to art. 1, § 6 of the Alabama Constitution of 1901. Regardless of what position the Supreme Court of Rhode Island may have taken in the interpretation of their own Constitution, the Supreme Court of Alabama has consistently and repeatedly required due process of law in civil, as well as criminal cases. In the civil case of Almon v. Morgan County, 245 Ala. 241, 246 , 16 So.2d 511, 515 , it was said:

“Procedural due process, broadly speaking, contemplates the rudimentary requirements of fair play, whether in a court or an administrative authority, which include a fair and open hearing before a legally constituted court or other authority, with notice and opportunity to present evidence and argument; representation by counsel, if desired ; and information as to the claims of the opposing party, with reasonable opportunity to controvert them. Garrett v. Reid, 244 Ala. 254 , 13 So.2d 97 ; Shields v. Utah Idaho Cent. R. Co., 305 U.S. 177 , 59 S.Ct. 160 , 83 L.Ed. 111 ; Morgan v. United States, 304 U.S. 1 , 58 S.Ct. 773 , 82 L.Ed. 1129 ; 42 Amer.Jur. 479; Frahn v. Greyling Realization Corp., 239 Ala. 580 , 195 So. 758 .”

In State ex rel. Steele v. Board of Education of Fairfield, 252 Ala. 254, 260 , 40 So.2d 689, 695 , which was a petition for mandamus, this court, in speaking of an administrative hearing, said:

“While no particular form of procedure is prescribed for such hearings, due process must be observed. Such is the rule generally as to hearings provided for by statute before administrative agencies. (Citing cases.) * * * ”

In the case of Zeigler v. South & North Ala. R. R. Company, 58 Ala. 594, 598, 599 , Justice Stone said:

“ ‘Due process of law undoubtedly means, in the due course of legal proceedings, according to those rules and forms which have been established for the protection of private rights * * *. They were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice.’ — Cooley Cons.Lim. 355.

“Due process of law implies the right of the person affected thereby to be present before the tribunal which pronounces judgment upon the question of life, liberty, or property, in its most comprehensive sense; to be heard, by *72 testimony or otherwise, and to have the right of controverting, by proof, every material fact which bears on the question of right in the matter involved. If any question of fact or liability be conclusively presumed against him, this is not due process of law.” [Emphasis supplied.]

The cases of Wise v. Miller, 215 Ala. 660 , 111 So. 913 ; Life & Casualty Ins. Co. of Tennessee v. Womack, 228 Ala. 70 , 151 So. 880 ; Byars v. Town of Boaz, 229 Ala. 22 , 155 So. 383 ; Ridge v. State ex rel. Tate, 206 Ala. 349 , 89 So. 742 , are all civil cases. In each of these cases, in discussing whether there was or was not a denial of due process, the court assumed as axiomatic that due process of law in civil cases is constitutionally guaranteed in Alabama. In our most recent pronouncement on this subject, in the case of Phillips v. Hinkle, Ala., 78 So.2d 800, 804 , decided March 10, 1955, this court quoted the language in Dearborn v. Johnson, 234 Ala. 84 , 173 So. 864, 867 , as follows:

“ ‘Nor 'do we think the invalidity of this act is to be rested upon the. theory of a denial of due process of law. Our cases recognize, in line with the authorities generally, that the due process clause of the Constitution (section 6) is applicable to tax proceedings, and it was so declared by this court in State Tax Commission v. Bailey & Howard, 179 Ala. 620 , 60 So. 913 ; State Tax Commission v. Tennessee Coal, Iron & R. Co., 206 Ala. 355 , 89 So. 179 . It only remains to ascertain what is necessary to meet the requirements of due process. * * * ’ ”

While it is true, as argued by appellee’s counsel, that art. 1, § 6, Constitution of Alabama 1901, begins “That in all criminal prosecutions, the accused * * * ”, it must be remembered that in the instant case the supposed justification for removing appellant’s telephone was that the appellant was accused of using the telephone for criminal purposes. Art. 1, § 6, supra, continues “nor be deprived of life, liberty, or property, except by due process of law; * * [Emphasis supplied.]

In addition to the protection afforded appellant by the law of Alabama, the Fourteenth Amendment to the Federal constitution prohibits any State of depriving any person of life, liberty or property without due process of law. Even Rhode Island admits this provision of the Federal Constitution is applicable to civil cases. Notice and hearing, which were denied the appellant before her telephone was summarily removed, are the backbone of due process. The Supreme Court of the United States in the Alabama case of Simon v. Craft, 182 U.S. 427 , 21 S.Ct. 836 , 45 L.Ed. 1165 , said:

“The proceedings in a state court, in order to constitute due process of law under U.S.Const. 14th Amend., need not be by any particular mode, if they .constitute a regular course of proceedings in which notice is given of the ¡claim asserted, and an opportunity afforded to defend against it.” [Emphasis supplied.]

Eminent counsel for the appellee next argue that due process was not violated because the scope of Title 48, Sections 57, 63 and 79, Code of Alabama 1940, are broad enough to countenance an appeal by the appellant, to the Public Service Commission to have her telephone service restored. By the same token, if the police commissioner’s request was based on fact rather than mere suspicion, he had a right to apply to the Public Service Commission for an order directed to the telephone company to discontinue the subscriber’s telephone; and thereby afforded the appellant notice and hearing as required by due process in advance of his summary action.

Distinguished counsel for the City of Birmingham says, in his brief amicus curiae :

“We feel that in the fight for law and order and against lawlessness in all forms the courts should not be astute to place obstacles in the way of effective crime prevention by the duly constituted law enforcing agencies, or to deprive such agencies of any rational and effective means of crime prevention.”

*73 The same argument might he made on behalf of wire tapping, involuntary confessions, unreasonable search and seizure, and suspension of the writ of habeas corpus. However, it is the experience of the English-speaking people that due process and the other fundamental guarantees of the Bill of Rights are the cornerstone of individual liberty, and that these basic rights can neither be disregarded nor eroded away by the winds of an ever-strengthening executive branch of the government.

The application for rehearing is denied.

SIMPSON and STAKELY, JJ., concur.

LAWSON, J., concurs in the result.

LIVINGSTON, C. J., and GOODWYN and MERRILL, JJ., dissent.