Iowa-Illinois Gas & Elec. Co. v. Gaffney, IOWA-ILLINOIS

• Decision Date: 11 August 1964
• Docket Number: IOWA-ILLINOIS,No. 51414,51414
• Citation: 129 N.W.2d 832,256 Iowa 1029
• Parties: , 55 P.U.R.3d 293 GAS AND ELECTRIC COMPANY, a Corporation, Plaintiff, v. James P. GAFFNEY, Judge of the Eighth Judicial District of Iowa, Defendant.
• Court: Iowa Supreme Court

Page 832

129 N.W.2d 832

256 Iowa 1029, 55 P.U.R.3d 293

IOWA-ILLINOIS GAS AND ELECTRIC COMPANY, a Corporation, Plaintiff, v. James P. GAFFNEY, Judge of the Eighth Judicial District of Iowa, Defendant.

No. 51414.

Supreme Court of Iowa.

Aug. 11, 1964.

David M. Elderkin, of Barnes, Wadsworth, Elderkin, Locher & Pirnie, Cedar Rapids, R. H. Ivie, of Hart, Shulman, Phelan, Tucker & Ivie, Iowa City, and William B. Waterman, Davenport, for plaintiff.

William F. Sueppel, William L. Meardon, Ansel Chapman, and Jay H. Honohan, Iowa City, for defendant.

SNELL, Justice.

This is an original certiorari action in this court by Iowa-Illinois Gas and Electric Company, a corporation, wherein it is claimed the Johnson District Court, Honorable James P. Gaffney, Judge, exceeded its jurisdiction in executing the mandate of this court. See Iowa-Illinois Gas and Electric Co. v. Iowa City, 255 Iowa 1341, 124 N.W.2d 840, 855.

Plaintiff is a public utility furnishing gas and electric service in Iowa City and other communities. Iowa City Ordinances nos. 2208 and 2209 enacted sometime prior to March 24, 1961 fixed the rates the utility company might charge for such services in the city. The company alleging that the rates so fixed were so low as to be confiscatory sought injunctive relief in the Johnson District Court. Upon the filing of a bond a temporary injunction was issued enjoining the enforcement of the rate ordinances. As of March 24, 1961 new rates in excess of those permitted by the ordinances were put in effect by the company.

Trial in the district court was followed by appeal to and decision by our court. In opinion filed November 12, 1963 we held ' * * * plaintiff has failed to show by the requisite degree of proof that the rates fixed by the city are confiscatory.' (124 N.W.2d 840, 854.) We then further held:

'The principle involved is that plaintiff shall return to such consumers the difference in rates collected by plaintiff and the rates established by ordinances of Iowa City, nos. 2208 and 2209 from March 24th, 1961, to whatever date such ordinance rates are placed in effect by plaintiff after the conclusion of this action.' (Loc. cit. 855)

We directed the filing of a supplemental opinion by the trial court pursuant thereto. Rehearing was subsequently denied and procedendo issued.

Following a district court hearing supplemental decree was filed on March 24, 1964. It was ordered '* * * that plaintiff shall promptly proceed to make refunds to each and every consumer of gas and electricity in Iowa City, Iowa, of the exact amount of the difference in rates collected by the plaintiff from each consumer from March 24, 1961 to March 24, 1964, in excess of ordinances of Iowa City, Iowa, Nos. 2208 and 2209, with interest thereon at 5% per annum, said interest to be calculated as a single factor applicable to the principal amount to which each consumer is entitled, plus sales tax.

'That plaintiff shall mail to each consumer at his last known address, a check for refund as herein set forth, not later than June 1, 1964, the refund, interest and sales tax to be computed to March 24, 1964.'

The decree then set out administrative and compliance procedures to be followed and then 'ordered and decreed that pursuant to authority from the Supreme Court, plaintiff is directed and ordered to place in effect as of March 24, 1964, rates and charges set forth in ordinances Nos. 2208 and 2209 of Iowa City, Iowa, and promptly mail to the Iowa State Commerce Commission a certified copy of said ordinances.

'It is further ordered that a copy of this Findings, Orders, Supplemental Opinion and Decree shall be mailed to the Iowa State Commerce Commission at its offices in Des Moines, Iowa.'

Plaintiff sought, and we granted, certiorari and stayed proceedings upon the filing of a bond in the penal sum of $1,000,000.00. Bond was filed and the writ issued.

I. Our opinion filed November 12, 1963 became the law of the case and it was the duty of both plaintiff and defendant herein to comply therewith. Des Moines Bank & Trust Company v. Iowa Southern Utilities Company, 245 Iowa 186, 188-189, 61 N.W.2d 724 and cases cited.

II. The petitioner in certiorari is the plaintiff and the respondent (inferior tribunal, board or officer) is the defendant. Rule 307, Rules of Civil Procedure, 58 I.C.A.; Penland v. Penland, 255 Iowa 308, 122 N.W.2d 333, 335.

III. An action in certiorari is by ordinary proceedings. Rule 317, Rules of Civil Procedure. It is a separate, independent and original action. State v. District Court, 248 Iowa 250, 256, 80 N.W.2d 555. It is a law action. It is not triable de novo. It is a review to determine whether the acts challenged were legal. Grant v. Norris, 249 Iowa 236, 253, 85 N.W.2d 261.

As a general rule questions or findings of fact are not reviewable on certiorari. 14 C.J.S. Certiorari § 172 quoted with approval in Grant v. Norris, supra.

IV. It was stated and admitted in argument that plaintiff has made the required refunds for the period up to July 4, 1963. The present controversy is accordingly limited to the period subsequent to that date.

V. Prior to July 4, 1963 the authority to set and fix utility rates was in the city council. Iowa City Ordinances nos. 2208 and 2209 were enacted pursuant to section 397.28, 1958 Code of Iowa, I.C.A. This statute in the same form appears in our 1962 Code and remained in effect until July 4, 1963.

The 60th General Assembly by Chapter 286 enacted a public utility regulation act effective as a general law on July 4, 1963. Section 23 of that act repealed, as of that date, the previously existing authority of cities to fix utility rates and placed future regulation of rates in the Iowa State Commerce Commission.

Section 25 of the act provides: 'Nothing herein contained shall be construed to invalidate any proceedings under statutes existing prior to the enactment of this Act; nor shall any action, litigation or appeal pending prior to the effective date of rate regulation of this Act be affected hereby.'

VI. Plaintiff alleges five errors relied on to sustain the writ of certiorari. They are of varying importance, somewhat related and repetitious but will be considered in order.

VII. It is agrued that defendant exceeded his jurisdiction in ordering plaintiff to make refunds by way of damages over and above those occasioned by the issuance of the injunction.

Plaintiff cites and quotes from, but not all of, a sentence appearing in 28 Am.Jur., Injunctions, § 343, page 858. The sentence as it appears in Am.Jur. reads:

'The measure of recovery is the amount necessary to compensate the defendant for losses which he sustained as the actual, natural, and proximate result of the wrong committed by the injunction or restraining order granted, while the latter was alive and operative, and any actual damage suffered by reason thereof is a proper subject of inquiry.'

With this statement we agree. From this premises plaintiff argues that the city's control over rates extended only to July 4, 1963 (the effective date of the repealing statute) and that as a result the injunction was dissolved as of that date. We do not agree. Plaintiff's conclusion is an obvious non sequitur. The injunction was a part of pending litigation unafeected by the act.

Section 25 of the utility act quoted in Division V, supra, provides the exact opposite of plaintiff's contention. Pending litigation was not affected by the act. On the effective date of the act there was litigation pending between plaintiff herein and the city. The litigation had been pending since the issuance of the injunction in March 1961 and continued until the entry of the trial court's supplemental decree in March 1964.

The present certiorari action is a new action and an outgrowth, but not a part, of the original action. See Division III, supra.

While the city's future rate-making power was terminated as of July 4, 1963 the previously enacted ordinances were not repealed automatically. Neither was the injunction previously issued in connection with existing litigation dissolved. By the express terms of the utility act neither the litigation in or decree of the district court nor the mandate of our court was in any way affected. Under our mandate to the district court the only legally established gas and electric rates in Iowa City were those fixed by the ordinances. Until those rates are changed by legally constituted authority as discussed, infra, they constitute the measuring stick from which damages are computed.

Plaintiff argues vigorously that the court does not fix utility rates. We agree. As to that proposition there is no dispute but when the court finds that rates collected are in excess of those permitted by a law or a regulation that is not confiscatory injunction will lie to prevent violation. When there has been a violation by way of excess charged the measure of damage is the difference between what could have been collected under a lawful rate and what was actually collected. We directed the trial court to not interfere with the ordinance rates and to order a refund of excess charges. The trial court acted accordingly.

Since litigation was not affected by the utility act, the only legally established rates were those set by the city ordinances. As long as plaintiff collected rates in excess of those legally established damages continued to accrue.

The injunction against the city was not dissolved nor was plaintiff's bond released. There is nothing in the record to indicate that defendant acted illegally in ordering a refund for the period subsequent to July 4, 1963.

Plaintiff argues that the rates legally in effect subsequent to July 4, 1963 were the rates which it had been charging and which it filed with the commerce commission. We do not agree for the reason that such rates had never been legally authorized.

As of July 4, 1963 plaintiff filed with the commerce commission a schedule showing the rates it...