Newman v. City of Indianola, No. 56702

CourtUnited States State Supreme Court of Iowa
Writing for the CourtHeard before MOORE; MASON; MOORE; LeGRAND
Citation232 N.W.2d 568
PartiesJesse NEWMAN, Appellant, v. CITY OF INDIANOLA, a Municipal Corporation, Appellee.
Docket NumberNo. 56702
Decision Date29 August 1975

Page 568

232 N.W.2d 568
Jesse NEWMAN, Appellant,
v.
CITY OF INDIANOLA, a Municipal Corporation, Appellee.
No. 56702.
Supreme Court of Iowa.
Aug. 29, 1975.

Page 569

P. F. Elgin, of Elgin & Hoyman, Indianola, for appellant.

Darrell Goodhue and James F. Fowler, Indianola, for appellee.

Heard before MOORE, C.J., and MASON, LeGRAND, REYNOLDSON, and HARRIS, JJ.

MASON, Justice.

Plaintiff, Jesse Newman, owns a mobile home park within the city of Indianola. Defendant City owns and operates the municipal electric utility and transmission lines for the production and sale of electrical services within Indianola and in effect has an exclusive franchise for the transmission and sale of electrical power. Charges for the sale of electrical power are made on a rate suchedule fixed and determined by city ordinance.

Plaintiff petitioned for a declaratory judgment to determine the validity of charges made for the extension of electrical service to his mobile home park. The City counterclaimed for monies it claimed were due from plaintiff on account of the extension. The trial court found in favor of Indianola on its counterclaim and plaintiff appeals.

This case presents an uncomplicated factual situation. Plaintiff owns and operates the trailer court which has a maximum capacity of 64 trailers. In connection with this, water is provided to each unit as a part of the rental charge, but each trailer unit is separately metered for electric service. Plaintiff has built and continues to maintain the road system within the trailer park.

Mobile home parks are not a permitted use in Indianola's one and two-family residential zoning classifications but are permitted in the mixed residential zoning classification which also permits multiple dwellings.

August 26, 1971, at plaintiff's request, defendant extended its electrical transmission lines approximately 500 feet along the western border of Newman's mobile home park in order to provide service to three additional mobile home units.

The cost to the City to complete this extension of its system was $473.47 which was the fair and reasonable charge for the installation. Plaintiff, subsequently billed for this amount, has refused to remit payment.

Before plaintiff's request for this particular extension of the electrical transmission lines and the installation and completion thereof by defendant the Indianola city council unanimously adopted two relevant resolutions.

April 11, 1970, saw the adoption of 'A Resolution Setting a Schedule of Charges for New Electrical Installations and Hookups in the City of Indianola, Iowa,' wherein

Page 570

it was provided, 'the City of Indianola shall charge and collect from the developer, owner or builder the following amounts for all new electrical hook-ups or installations made with the city's electrical system after the date of this Resolution.' (Exhibit A).

A schedule of charges was provided for overhead hookups, underground hookups, new subdivision hookups and installation of hookups requested through an unplotted or open area.

July 6, 1971, the city council adopted a resolution entitled 'A Resolution Setting a Schedule of Charges for New Electrical Installations for Commercial, Industrial, and Multiple Dwelling Users in the City of Indianola, Iowa,' wherein it was resolved 'That any developer, builder or owner who obtains a new electrical installation and connection with the city's electrical system to service a commercial, industrial, or multiple dwelling facility shall pay to the city's electrical fund the total reasonable cost expended by the city in making the hookup.' (Exhibit B).

In this resolution provision was made for furnishing an estimate for various types of hookups to be paid to the City before commencement of the installation. Any difference between the estimate and the actual cost was to be adjusted by allowance of credit or payment of additional charges.

These two resolutions, as well as a city ordinance, were the bases of the City's claim against defendant. Plaintiff's petition for declaratory judgment sought determination of the following:

'1. Propriety of charges for extensions of electrical lines within the City of Indianola, Iowa.

'2. The applicability of the Resolutions referred to as Exhibits A and B hereof to a mobile home park.

'3. Whether the seller of electrical power and services can charge for the sale of same in accordance with the rate schedule and also charge for extensions made to the transmission system which extensions are for the purpose of service of additional users.'

The trial court found the City, in providing electric utility service, acts in a proprietary function; that it enjoys discretion whether to extend its transmission lines--as opposed to a public utility which does not--and that this discretion was not abused. It was held the two resolutions were applicable to mobile home parks, but declined to reach questions one and three 'in view of the agreement by Plaintiff to pay for the work.' The court placed '* * * its decision on the basis that there was a request by Plaintiff to Defendant to extend the service and pay the reasonable cost thereof, not on the power under Section 397.27 of the Code of Iowa.'

In finding for defendant on its counterclaim, the trial court held the amount charged was reasonable.

It has been pointed out that the amount in controversy as shown by the pleadings in this matter was $473.47. Rule 333, Rules of Civil Procedure, provides:

'Amount in controversy. Except where the action involves an interest in real estate, no appeal shall be taken in any case where the amount in controversy, as shown by the pleadings, is less than one thousand dollars, unless the trial judge, within thirty days after the judgment or order is entered, certifies that the cause is one in which appeal should be allowed. The right of appeal is not affected by any remission of any part of the verdict or judgment.'

Compliance with this rule is jurisdictional. Benttine v. Jenkins Truck Lines, Inc., 182 N.W.2d 374, 376 (Iowa 1970) and Bridal Publications, Inc. v. Richardson, 229 N.W.2d 771, 773--774 (Iowa 1975).

In the present case plaintiff moved the trial court for a certificate permitting an appeal even though the amount in controversy is less than the jurisdictional amount fixed by the rule. The certificate was granted. Thus, there was compliance with the rule.

Page 571

In this connection we point out issuance by the trial court of the certificate allowing an appeal does not preclude this court from making its own determination of the propriety of the issuance of such certificate. A review of the questions urged for consideration by this appeal convinces us the trial court was correct in this instance in issuing the certificate since those questions involve the future rights and obligations of both a city owning and operating a utility and of those customers requesting electrical service.

I. No complaint is directed toward the rate charged by the municipality for electrical power after installation of the service.

The question is whether a municipality owning and operating an electrical transmission system should be required to absorb as a normal operating cost the fair...

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19 practice notes
  • Fink v. Kitzman, No. C 93-0127.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • March 29, 1995
    ...than words) to the same terms of an agreement," citing Duhme v. Duhme, 460 N.W.2d 415, 419 (Iowa 1977); Newman v. City of Indianola, 232 N.W.2d 568, 574 (Iowa 1975); Sulzberger Excavating, Inc. v. Glass, 351 N.W.2d 188, 193 (Iowa Ct.App.1984)). Unless there is an ambiguity, the questio......
  • Bray v. Department of State, Docket No. 65164
    • United States
    • Supreme Court of Michigan
    • December 1, 1983
    ...N.W.2d 877 (1979); Wikman v. City of Novi, 413 Mich. 617, 634, fn. 9, 683, fn. 59, 322 N.W.2d 103 (1982); Newman v. City of Indianola, 232 N.W.2d 568 (Iowa, 1975); Heavens v. King County Rural Library Dist., 66 Wash.2d 558, 404 P.2d 453 (1965); Hellerstein & Hellerstein, State and Local......
  • Home Builders Ass'n v. West Des Moines, No. 99-2025
    • United States
    • United States State Supreme Court of Iowa
    • May 8, 2002
    ...special benefits conferred." In re Shurtz's Will, 242 Iowa 448, 454, 46 N.W.2d 559, 562 (1951); accord Newman v. City of Indianola, 232 N.W.2d 568, 573 (Iowa 1975). In other words, taxes are for the primary purpose of raising revenue. See City of Hawarden v. US W. Communications, Inc.,......
  • McBride v. City of Sioux City, No. 88-82
    • United States
    • United States State Supreme Court of Iowa
    • July 19, 1989
    ...(rather than words) to the same terms of an agreement. See Duhme v. Duhme, 260 N.W.2d 415, 419 (Iowa 1977); Newman v. City of Indianola, 232 N.W.2d 568, 574 (Iowa 1975); Sulzberger Excavating, Inc. v. Glass, 351 N.W.2d 188, 193 (Iowa App.1984). The substance of such a contract must be deter......
  • Request a trial to view additional results
19 cases
  • Fink v. Kitzman, No. C 93-0127.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • March 29, 1995
    ...than words) to the same terms of an agreement," citing Duhme v. Duhme, 460 N.W.2d 415, 419 (Iowa 1977); Newman v. City of Indianola, 232 N.W.2d 568, 574 (Iowa 1975); Sulzberger Excavating, Inc. v. Glass, 351 N.W.2d 188, 193 (Iowa Ct.App.1984)). Unless there is an ambiguity, the questio......
  • Bray v. Department of State, Docket No. 65164
    • United States
    • Supreme Court of Michigan
    • December 1, 1983
    ...N.W.2d 877 (1979); Wikman v. City of Novi, 413 Mich. 617, 634, fn. 9, 683, fn. 59, 322 N.W.2d 103 (1982); Newman v. City of Indianola, 232 N.W.2d 568 (Iowa, 1975); Heavens v. King County Rural Library Dist., 66 Wash.2d 558, 404 P.2d 453 (1965); Hellerstein & Hellerstein, State and Local......
  • Home Builders Ass'n v. West Des Moines, No. 99-2025
    • United States
    • United States State Supreme Court of Iowa
    • May 8, 2002
    ...special benefits conferred." In re Shurtz's Will, 242 Iowa 448, 454, 46 N.W.2d 559, 562 (1951); accord Newman v. City of Indianola, 232 N.W.2d 568, 573 (Iowa 1975). In other words, taxes are for the primary purpose of raising revenue. See City of Hawarden v. US W. Communications, Inc.,......
  • McBride v. City of Sioux City, No. 88-82
    • United States
    • United States State Supreme Court of Iowa
    • July 19, 1989
    ...(rather than words) to the same terms of an agreement. See Duhme v. Duhme, 260 N.W.2d 415, 419 (Iowa 1977); Newman v. City of Indianola, 232 N.W.2d 568, 574 (Iowa 1975); Sulzberger Excavating, Inc. v. Glass, 351 N.W.2d 188, 193 (Iowa App.1984). The substance of such a contract must be deter......
  • Request a trial to view additional results

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