Motor Club of Iowa v. Department of Transp.

• Decision Date: 16 March 1977
• Docket Number: No. 2-59619,2-59619
• Citation: 251 N.W.2d 510
• Parties: MOTOR CLUB OF IOWA, Plaintiff-Appellee, v. DEPARTMENT OF TRANSPORTATION of the State of Iowa et al., Defendants-Appellants, Crouse Cartage Company and H and W Motor Express Company, Intervenors-Appellants.
• Court: Iowa Supreme Court

Page 510

251 N.W.2d 510

MOTOR CLUB OF IOWA, Plaintiff-Appellee, v. DEPARTMENT OF TRANSPORTATION of the State of Iowa et al., Defendants-Appellants Crouse Cartage Company and H and W Motor Express Company, Intervenors-Appellants.

No. 2-59619.

Supreme Court of Iowa.

March 16, 1977.

Richard C. Turner, Atty. Gen., and Fred M. Haskins, Asst. Atty. Gen., for defendants-appellants.

Steven C. Schoenebaum, of Swift, Brown & Winick, Des Moines, for intervenors-appellants.

R. Richard Bittner and Larry L. Shepler, of Betty, Neuman, McMahon, Hellstrom & Bittner, Davenport, for plaintiff-appellee.

Heard en banc.

HARRIS, Justice.

This suit was brought to challenge a rule adopted by the commission of the Iowa department of transportation (DOT) establishing a 65 foot length limitation for trucks. In setting the effective date of the rule the DOT specified two conditions. The rule allowing 65 foot trucks was to be effective when the General Assembly passed legislation (1) outlawing studded tires and (2) implementing functional classification of highways. Neither condition was met.

The trial court held the rule was invalid on alternative grounds (1) the conditions, if not ultra vires, were not met and (2) if ultra vires were not separable from the DOT's rule fixing the 65 foot limitation. We find the conditions were ultra vires and inseparable. The rule was accordingly void in its entirety. We affirm the trial court.

Chapter 307, The Code, establishing the DOT, was passed by the 65th General Assembly. The duties of the DOT were outlined in § 307.10, The Code. Special authority with regard to vehicle length restrictions was given in § 307.10(5), The Code, which provides:

"(The commission shall)

"5. Adopt rules in accordance with the provisions of chapter 17A (administrative procedure act) as it may deem necessary to transact its business and for the administration and exercise of its powers and duties. The transportation commission shall also adopt rules, which rules shall be exempt from the provisions of chapter 17A, governing the length of vehicles and combinations of vehicles which are subject to the limitation imposed under section 321.457. The commission may adopt such rules which permit vehicles and combinations of vehicles in excess of the length limitations imposed under section 321.457, but not exceeding 65 feet in length, which may be moved on the highways of this state. Any such proposed rule shall be submitted to the General Assembly within five days following the convening of a regular session of the General Assembly. The General Assembly may approve or disapprove the rules submitted by the commission not later than 60 days from the date such rules are submitted and, if approved or no action is taken by the General Assembly on the proposed rules, such rules shall become effective May 1 and thereafter all laws in conflict therewith shall be of no further force and effect."

This suit was filed February 16, 1976. Plaintiff's standing to sue was challenged and is an issue in this appeal. Intervenors entered the suit March 17, 1976. Standing of the intervenors to defend against the suit and to appeal was established by a special order of this court after a hearing and will receive no further mention.

I. A threshold question is whether the attorney general has authority to continue prosecution of this appeal against the wishes of the DOT. The seven commissioners of the DOT are in sharp disagreement on the question of whether they should increase the lawful limit of trucks to 65 feet. A majority of the commissioners once favored the 65 foot limit, at least if studded tires were banned and functional classification of highways was implemented. But after this appeal was brought the "majority" view became the minority view. After replacement of a commissioner the DOT voted 4-3 to dismiss this appeal and to abide by the decision of the trial court.

The attorney general has refused to do so. He argues the State of Iowa is the real party in interest and contends he is a constitutional officer, free to prosecute and defend any case in which the State is a party or interested. He asserts he possesses complete dominion over all litigation in which he appears in the interest of the State.

It is clear an attorney representing a private client under the same circumstances would be required to dismiss the appeal. See State v. Schmidt, 259 Iowa 972, 145 N.W.2d 631 (1966); State v. Lundstedt, 246 Iowa 355, 67 N.W.2d 450 (1954); Garberson v. Garberson, 241 Iowa 713, 42 N.W.2d 391 (1950); 7 C.J.S. Attorney & Client § 95, pp. 912-914; 4 C.J.S. Appeal and Error § 184, pp. 569-571; 7 Am.Jur.2d, Attorneys at Law, § 138, p. 132; 4 Am.Jur.2d, Appeal and Error, § 195, pp. 703-704; Annot., 91 A.L.R.2d 618, 619-623. The question becomes whether the attorney general's status as an elected state official appearing for a department of state government renders the ordinary rule inapplicable.

In Iowa the attorney general has only the powers given him by statute. In State v. Blyth, 226 N.W.2d 250, 259 (Iowa 1975) we said:

"In this state the duties and powers of the attorney general are defined by statute. He is clothed with common law powers only to the extent codified in the statute. This court has expressed the view the legislature has given him by statute all powers which in its judgment he ought to be permitted to exercise. (Authority)." See also State ex rel. Turner v. Iowa State Highway Com'n, 186 N.W.2d 141, 145-146 (Iowa 1971); State ex rel. Fletcher v. Executive Council, 207 Iowa 923, 223 N.W. 737 (1929); Cosson v. Bradshaw, 160 Iowa 296, 141 N.W. 1062 (1913).

We find only two statutes which might authorize the attorney general's continued participation in this suit.

Section 307.23, The Code, provides a special assistant attorney general shall serve as general counsel for the DOT. That section provides:

"The general counsel shall be a special assistant attorney general appointed by the attorney general who shall act as the attorney for the department and he shall have the following duties and responsibilities:

"Act as legal advisor to the commission, the director, and the various divisions of the department and provide all legal services for the department except for those provided to the board by its counsel.

"The attorney general shall appoint such additional assistant attorneys general as the commission deems necessary to carry out the duties assigned to the general counsel division. * * * ."

If the foregoing section could somehow be construed to authorize the attorney general to act as DOT's special counsel there would still be no reason to believe the relationship between the attorney general and the DOT is anything other than a normal attorney-client relationship. We think § 307.23 was enacted to provide the DOT with a salaried attorney rather than making it necessary to retain private counsel. We do not believe the legislature intended this provision to reduce the DOT's control over its own affairs or litigation. That could deny the DOT effective assistance of counsel.

Section 13.2, The Code, lists the duties of the attorney general. It provides in material part:

"It shall be the duty of the attorney general, except as otherwise provided by law to:

"1. Prosecute and defend all causes in the supreme court in which the state is a party or interested.

"2. Prosecute and defend in any other court or tribunal, all actions and proceedings, civil or criminal, in which the state may be a party or interested, when, in his judgment, the interest of the state requires such action, or when requested to do so by the governor, executive council, or general assembly.

"3. Prosecute and defend all actions and proceedings brought by or against any state officer in his official capacity."

It is apparent §§ 13.2(1) and 13.2(2) give the attorney general authority to prosecute or defend cases in district or appellate courts in the interest of the state. See State ex rel. Turner v. Younker Brothers, Inc., 210 N.W.2d 550 (Iowa 1973).

But the attorney general's role in this litigation was not under either § 13.2(1) or § 13.2(2). Any authority he had to appear and defend under § 13.2 stemmed from § 13.2(3). A department of state government was sued and the attorney general appeared to defend the department, not to assert his vision of state interest.

Nothing in § 13.2(3) indicates that when the attorney general appears, as he did in this case, as counsel for a department of state government his relationship with that department differs in any way from that which ordinarily exists between attorney and client. Far from imposing the will of the attorney general on a branch of government we believe § 13.2(3) merely enables state officers to utilize the services of the attorney general.

In State ex rel. Fletcher, supra, 207 Iowa at 925, 223 N.W. at 738 we recognized the attorney general's unique role as an advocate for various branches of state government and the tensions which may result. We said:

"The procedure adopted herein cannot be approved. As presented, the case carries some of the aspects of a moot one. The legislative call upon the Attorney General to test the constitutionality of the act, by action brought by himself, overlooked the limitations upon the power of the judiciary, and quite ignored the legitimate scope of the powers of the Attorney General. By the very nature of his office, and by statute, he is the legal adviser, both of the Executive Council and of the General Assembly. To require him to maintain this action is to put him in a position which is repugnant to his other official duties. * * *."

The attorney general cites cases from other jurisdictions to support his contention he has absolute control over litigation, not merely in the usual sense of attending the professional matters and details, but also in alone deciding whether suit shall be brought, defended, appealed or not appealed. A number of ...