Eastern Iowa Light & Power Co-op. v. Interstate Power Co., 53220

• Decision Date: 14 January 1969
• Docket Number: No. 53220,53220
• Citation: 164 N.W.2d 135
• Parties: EASTERN IOWA LIGHT AND POWER COOPERATIVE, Complainant-Appellee, v. INTERSTATE POWER COMPANY, Respondent-Appellant, Iowa State Commerce Commission, Appellant.
• Court: Iowa Supreme Court

Page 135

164 N.W.2d 135

EASTERN IOWA LIGHT AND POWER COOPERATIVE, Complainant-Appellee, v. INTERSTATE POWER COMPANY, Respondent-Appellant Iowa State Commerce Commission, Appellant.

No. 53220.

Supreme Court of Iowa.

Jan. 14, 1969.

O'Connor, Thomas, Wright, Hammer & Bertsch, Dubuque, Edward C. Halbach, Clinton, and Springer, Carstedt & Thompson, Chicago, Ill., for respondent-appellant.

Leo J. Steffen, Jr., Commerce Counsel, and Thomas N. Bolton, Asst. Commerce Counsel, for appellant Iowa State Commerce Commission.

Eckerman, McFerren, Fair & McGrath, Davenport, for complaint-appellee.

SNELL, Justice.

This is an interlocutory appeal, pursued by permission, from the district court's order overruling two special appearances. For convenience Eastern Iowa Light and Power Cooperative will be called 'Cooperative.' Interstate Power Company will be called 'Interstate.' Iowa State Commerce Commission will be called 'The Commission.'

Following a hearing before and as a result of a decision and order by the Commission involving conflicting claims by the two power companies, Cooperative felt aggrieved and attempted to appeal to the district court. Section 490A.13, Code of 1966, authorizes such an appeal. Appeal must be taken within thirty days. Section 490A.14, Code of 1966.

Within thirty days of the Commission's order counsel for Cooperative did two things.

He prepared a notice of appeal by Cooperative to the district court. The notice was addressed to the Commission, Interstate and their several attorneys by name. Neither the form nor content of the notice has been challenged.

He forwarded the notice and seven copies to the clerk of the district court by letter. The clerk was asked to file the original, assign a docket number and note the number on the face of the notice, complete the clerk's certificate on the original and all copies and 'thereafter mail the copies to each of the named persons and organizations as set forth at the beginning of the notice.'

The clerk did as requested. Proof of mailing on file shows that a 'Notice of Appeal' was mailed to each of the parties named. No other notice was attempted.

Interstate and the Commission by separate instruments appeared specially challenging the jurisdiction of the district court on the ground that Cooperative did not serve a notice of appeal on the adverse parties as required by sections 490A.13 and 490A.14, Code of Iowa.

After extensive review of the statutes and authorities relating to the power of administrative agencies and appeals therefrom the trial court concluded that section 490A.2 of the Code authorized the Commission to prescribe a method of appeal and that the challenged notices were pursuant to commission rule 15.6(1). The special appearances were overruled and appeal to our court followed.

We disagree with the trial court as to the power of or attempt by the Commission to prescribe the procedure for appeal from its own orders and reverse.

We conclude that the authorities relied on by the trial court are not controlling in the case before us.

I. Chapter 490A, Code of Iowa 1966, is entitled 'Public Utility Regulation' and delegates considerable power and authority to the Commission.

Section 409A.2 provides:

'Powers-rules. The commission shall have broad general powers to effect the purposes of this chapter notwithstanding the fact that certain specific powers are hereinafter set forth. The commission shall have authority to issue subpoenas and to pay the same fees and mileage as are payable to witnesses in the courts of record of general jurisdiction and shall establish all needful, just and reasonable rules and regulations, Not inconsistent with law, to govern the exercise of its powers and duties, The practice and procedure before it, and to govern the form, contents and filing of reports, documents and other papers provided for in this chapter or in the commission's rules and regulations. In the establishment, amendment, alteration or repeal of any of such rules and regulations, the commission shall be subject to the provisions of chapter 17A. * * *' (Emphasis added)

Chapter 17A mentioned in the statute relates to administrative rules and regulations and submission thereof to the Attorney General and Legislative Departmental Rules Review Committee. There is no issue before us as to the submission and publication of the rules pursuant to Chapter 17A.

Section 490A.2 of the 1966 Code of Iowa, quoted supra, authorizes the Iowa State Commerce Commission to make reasonable rules and regulations pertaining to the practice and procedure before the Commission but delegates no power to prescribe procedural rules as to the manner of serving notice of appeal to the district court.

Appellee disagrees and argues that Commission rules provided for the method of appeal to the district court.

Departmental Rule 15.6(1) provides:

'a. The Commission will prescribe such notices as are required by law in hearings contemplated in sections 3, 6, and 7 of chapter 490A, Code of Iowa. All other pleadings, including briefs, applications for further hearing or rehearing, and notices of appeal shall be served by the party filing same upon all parties to the proceeding, unless otherwise ordered by the commission. Proof of service shall accompany the filing with the commission.

'b. * * *

'c. Unless otherwise provided by the commission, service shall be made by delivering in person or by depositing in the United States mail, properly addressed with postage prepaid, one copy to each party entitled thereto. When any party or parties have appeared by attorney, service upon the attorney shall be deemed service upon such party or parties.' * * *

In the case at bar the Notice of Appeal complied with this rule, i.e., there was proof of mailing.

Sections 3, 6 and 7 of Chapter 490A, Code of Iowa, referred to in the rule, relate to complaints and investigation as to rates and service by a public utility, change of rates and review by the Commission. They are not germane to our problem.

Section 409A.13 of the Code, and the controlling statute provides:

'Appeal to district court. Any party to any proceeding before the commission who is aggrieved by an order therein may take an appeal by serving a notice of appeal upon the adverse party or parties and the commission and by filing said notice of appeal with the clerk of the district court of any county wherein the order of the commission or some part thereof is to take effect.'

It should be noted that the only provision for appeal is 'by serving a notice of appeal.'

II. In this case the statute and rule use the word 'appeal'. The parties have treated the proceedings as an appeal to the district court and not an original proceeding. Rule 56, Rules of Civil Procedure, relates to original notice and not to appeal but the procedural meaning of the words 'served', 'serving' and 'service' as indicated therein. The first paragraph of the rule says:

'Personal notice. Original notices are 'served' by delivering a copy to the proper person. Personal service may be made as follows: * * *'

The methods of service are then enumerated. Nowhere is there any authority for service by ordinary mail. Jurisdiction where the statute calls for serving a notice is not acquired by mailing a letter.

III. Courts do not have authority to sit in judgment upon everything that might come to their attention. Jurisdiction is acquired by statutory procedure. Absent a notice sufficient to meet the statutory requirements there is no jurisdiction even though from other sources there is actual knowledge. Krebs v. Town of Manson, 256 Iowa 957, 962, 129 N.W.2d 744.

Compliance with the rules relative to notice is mandatory. Bice v. Incorporated City of Urbandale, 258 Iowa 1013, 1015, 141 N.W.2d 639.

'The right of appeal is purely a creature of statute. If an appeal is to be taken notice thereof must be given in substantial compliance with the statute. Failure to serve an adverse party within the time provided * * * is fatal to the jurisdiction of the district court.' Merritt v. Interstate Power Company, Iowa, 153 N.W.2d 489, 492.

Section 490A.13, quoted supra, provides for appeal 'by serving a notice of appeal.' Was a notice by mail in the case at bar a 'serving' as required by statute? We have consistently held to the contrary.

In Ellis v. Carpenter, 89 Iowa 521, 523, 56 N.W. 678, we said: 'When service is required it means personal service.'

In Incorporated Town of Casey v. Hogue, 204 Iowa 3, 7, 214 N.W. 729, 731, this appears:

'The statute provides that the appeal is to be taken 'by serving notice thereof' on the clerk of the municipality. It is to be observed that the direction of the statute is that the notice shall be 'served.' When the statutory requirement is that a notice shall be served, and there is no further specific direction in the statute, two things are clearly implied: (1) That the notice shall be in writing; and (2) that it shall be served personally upon the party upon whom service is to be made. It is the general rule that, where a notice is required or authorized by statute in any legal proceedings, it must be in writing.'

In Harrington v. City of Keokuk, 258 Iowa 1043, 1049, 1050, 141 N.W.2d 633, 637, we quoted from and considered State v. Hansen, 244 Iowa 145, 55 N.W.2d 923 in these words:

"The general rule appears to be that unless otherwise provided by statute the service of a notice must be personal. 66 C.J.S. Notice § 18(d); 39 Am.Jur., (Notice and Notices) Section 9.' It was further pointed out that we now have a very definite statement in rule 56 as to the meaning of the term 'served', and that a mailed notice would not comply with personal service as set out in rule 56. It was said: 'We think that the terms 'served' or 'caused to be served', especially when used in connection with Official Notices, have acquired the peculiar and appropriate meaning given to 'service of original notices', in the absence of...