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Kelly v. Illinois Bell Telephone Co.

December 6, 1963

THOMAS F. KELLY, SR., THOMAS F. KELLY, JR., AND GEORGE L. KELLY, CO-PARTNERS DOING BUSINESS UNDER THE NAME AND STYLE OF ILLINOIS SPORTS NEWS, PLAINTIFFS-APPELLEES,
v.
ILLINOIS BELL TELEPHONE COMPANY, AN ILLINOIS CORPORATION, DEFENDANT-APPELLANT, AND UNITED STATES OF AMERICA, DEFENDANT-INTERVENOR, APPELLANT. THOMAS F. KELLY, SR., THOMAS F. KELLY, JR., AND GEORGE L. KELLY, CO-PARTNERS DOING BUSINESS UNDER THE NAME AND STYLE OF ILLINOIS SPORTS NEWS, PLAINTIFFS-APPELLEES, V. THE WESTERN UNION TELEGRAPH COMPANY, A NEW YORK CORPORATION, DEFENDANT, AND UNITED STATES OF AMERICA, DEFENDANT-INTERVENOR, APPELLANT.



Author: Knoch

Before KNOCH and CASTLE, Circuit Judges, and MAJOR, Senior Circuit Judge.

KNOCH, Circuit Judge.

Appellants, Illinois Bell Telephone Company, defendant (sometimes hereinafter called "Illinois Bell"), and the United States of America, defendant-intervenor, are appealing from an order of the United States District Court which permanently enjoined the Illinois Bell and the Western Union Telegraph Company (which did not appeal) from terminating communication facilities presently furnished to the plaintiffs-appellees, Thomas F. Kelly, Sr., Thomas F. Kelly, Jr., and George L.Kelly, co-partners doing business under the name and style of Illinois Sports News.

The facts were stipulated. We need not set them out in full, as they are readily available in the published opinion of the District Court, 210 F.Supp. 456 (1962).

On written notification from the Assistant Attorney General in charge of the Criminal Division of the United States Department of Justice that plaintiffs were using their facilities for transmission and receipt of gambling information in violation of federal law, Illinois Bell and Western Union notified plaintiffs (in April 1962) that they would discontinue service pursuant to Title 18 U.S.C. § 1084(d).*fn1

On May 3, 1962, plaintiffs filed two complaints in the District Court seeking permanent injunctions on the alternative grounds:

1. That their activities do not violate any Federal, State or local law and that therefore the provisions of Title 18 U.S.C. Section 1084(d) are inapplicable to them; or

2. That, if it be determined that the provisions of such section are applicable to them, the section in question is invalid in that it is contrary to the First and Fifth Amendments to the Constitution of the United States.

The United States, allowed to intervene as a defendant, contended:

1. That the activities of the plaintiffs do violate certain Federal and State laws, to wit -

(a) Chapt. 38, Illinois Revised Statutes, Section 28-1(a) (10);

(b) Title 18 U.S.C. § 1084(a);

(c) Title 18 U.S.C. § 1952;

(d) Title 18 U.S.C. § 1953; and

(e) Title 47 U.S.C. § 501.

2. That the provisions of Section 1084(d) in their application to the plaintiffs are valid and not in violation of either the First or Fifth Amendments ...


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