Northwestern Public Service Co. v. City of Aberdeen

• Decision Date: 28 July 1976
• Docket Number: 11592,11600 and 11601,11593,Nos. 11446,s. 11446
• Citation: 244 N.W.2d 544,90 S.D. 627
• Parties: NORTHWESTERN PUBLIC SERVICE COMPANY, a corporation, Plaintiff and Appellant, v. CITY OF ABERDEEN, a Municipal Corporation, et al., Defendants and Respondents. NORTHWESTERN PUBLIC SERVICE COMPANY, a corporation, Plaintiff and Respondent, v. CITY OF ABERDEEN, a Municipal Corporation, et al., Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 544

244 N.W.2d 544

90 S.D. 627

NORTHWESTERN PUBLIC SERVICE COMPANY, a corporation, Plaintiff and Appellant, v. CITY OF ABERDEEN, a Municipal Corporation, et al.,

Defendants and Respondents.

NORTHWESTERN PUBLIC SERVICE COMPANY, a corporation, Plaintiff and Respondent, v. CITY OF ABERDEEN, a Municipal Corporation, et al.,

Defendants and Appellants.

Nos. 11446, 11592, 11593, 11600 and 11601.

Supreme Court of South Dakota.

Argued May 25, 1976.

Decided July 28, 1976.

Raymond Schutz, Siegel, Barnett, Schutz, O'Keefe & Ogborn, Aberdeen, John B. Wehde, Benson, Beach, Wehde & Martin, Huron, for plaintiff.

Charles B. Kornmann, Richardson, Groseclose, Kornmann & Wyly, Robert D. Miller, Aberdeen, for defendants.

DUNN, Chief Justice.

Plaintiff Northwestern Public Service Company brought these actions for declaratory judgments against defendants, City of Aberdeen, Robert Nikolas, Al Westby, Mae Zemlicka and Allen Gates, as members of the City Council of Aberdeen, and Jeff Solem, as Mayor of Aberdeen, to determine the validity of a city ordinance regulating electric rates. From verdicts of the Circuit Court of the Fifth Judicial Circuit upholding the ordinance, the plaintiff appeals claiming that the trial court erred (1) in upholding the validity of the ordinance, (2) in not finding that laches and estoppel applied to the defendants by their acquiescence in the new rates over a considerable period, (3) in not finding that plaintiff substantially complied with the ordinance as to its 1973 increase, and (4) in ordering refunds on an individual basis rather than a lump sum. Defendants also appeal alleging that the trial court erred (1) in applying the wrong statute of limitations, (2) in permitting an offset of decreases in electric rates as against the illegal increases, (3) in figuring interest from the date of the judgment instead of the dates of the rate increases, and (4) in not finding that defendants were entitled to recovery for conversion, including attorney fees and costs. We affirm in part and reverse in part.

Plaintiff, a South Dakota corporation supplying electric services to, among others, the City of Aberdeen and its residents, commenced declaratory judgment actions to determine whether a city ordinance regulating electrical rates for the City of Aberdeen was in effect on July 1, 1973. Defendants answered that Aberdeen City Ordinance No. 741, approved July 29, 1952, was in effect and that plaintiff must comply with the provisions of that ordinance.

A counterclaim was also filed on behalf of defendants and citizens of Aberdeen for an accounting and refund of charges in excess of that allowed by Ordinance 741, interest on such overcharges, and temporary and permanent injunctions to restrain plaintiff from an August 13, 1973 rate increase. Such temporary injunction was denied by the trial court on October 5, 1973, but the court did order a $350,000 surety bond by plaintiff to compensate those customers suffering losses should Ordinance 741 be declared valid.

By Ordinance No. 749, effective May 7, 1953, and by Ordinance No. 878, effective September 9, 1958, the City of Aberdeen had on two occasions revised its ordinances. Both of these ordinances stated that they were 'a revision of all of the ordinances of the City heretofore adopted,' and both contained the following repealer clause:

'All ordinances and parts of ordinances in conflict with the provisions of this ordinance or relating to the subject matter of this ordinance and not reenacted as part of this ordinance, except as stated in this Chapter, are hereby repealed * * *.'

The ordinances then contained several specific exceptions to this repealer. Among these, both ordinances excepted 'ordinances establishing maximum rates and charges for electric energy * * *.'

On December 12, 1969, the City of Aberdeen adopted Ordinance No. 1230 which, too, was designated 'a revision of all of the ordinances of the City heretofore adopted.' Ordinance 1230 contained the same repealing clause as Ordinances 749 and 878, but the phrase 'ordinances establishing maximum rates and charges for electric energy' was not a part of the exceptions to the repealer. Plaintiff contends that this shows 'unmistakable legislative intent' to repeal Ordinance 741. Plaintiff urges that Ordinance 1230 as a subsequent statute revising a whole body of law repealed the former law, and that any omissions must be looked upon as deliberate. State v. Welbes, 1898, 11 S.D. 86, 75 N.W. 820. While this repeal of Ordinance 741, if effective, would not affect a July 22, 1969 rate increase, it would permit an August 13, 1973 rate increase.

Plaintiff further contends the following:

1. Estoppel and laches should be applied to the defendants to prevent them from claiming any refunds from either of the rate increases, defendants having acquiesced in plaintiff's substantial investments in electric facilities in reliance upon higher utility rates.

2. Plaintiff substantially complied with the requirements of Ordinance 741 upon discovering it.

3. Defendants' counterclaim for refunds is subject to SDCL 15--2--15, a two-year statute of limitations upon recovering moneys into the treasury of the City of Aberdeen.

4. If Ordinance 741 is determined still in effect, certain rate decreases should be declared illegal and offset as a credit against any refunds from rate increases.

5. If refunds are ordered, these should be submitted to the court by plaintiff in a lump sum with the court ordering disbursement.

Defendants claim that the taking and keeping of the funds from overcharges is conversion by plaintiff in violation of SDCL 21--3--3 and that costs and attorney fees should be assessed.

The issue of the validity of Ordinance 741 was tried to the court on November 19 and 30, 1973. The court ruled that Ordinance 741 was in full force and effect. The court also found no basis for estoppel or laches against the City of Aberdeen. The remaining issues were raised in the trial court on May 14 and 15, and July 1, 1974. On October 22, 1974, the court ruled:

1. That plaintiff was enjoined from violating Ordinance 741.

2. Overcharges from 1969 and 1973 rate increases should be refunded individually with interest of six percent from August 13, 1973, for the 1973 increase, and from August 12, 1974, for the 1969 increase.

3. Defendants were not entitled to any recovery for conversion, costs, or attorney fees.

4. Plaintiff was entitled to credit for decreases in rates made voluntarily.

5. Refunds were ordered until May 1974, but limited to a two-year period prior to September 11, 1973, pursuant to SDCL 15--2--15 and 15--2--16.

To repeal Ordinance 741, either an express or an implied repealer must be present in Ordinance 1230. For repeal of a law to be express it must be 'literally declared,' Argo Oil Corp. and State v. Lathrop, 1955, 76 S.D. 70, 75, 72 N.W.2d 431, 434, and must "leave no doubt as to what statute is intended." Pattermann v. City of Whitewater, 1966, 32 Wis.2d 350, 145 N.W.2d 705, 708. Ordinance 1230 does not mention Ordinance 741 by name nor use any of the terms plaintiff claims refer to Ordinance 741 in Ordinances 749 and 878. We cannot conclude that there is no doubt as to whether Ordinance 741 is included in the repeal, and therefore must conclude that there is no express repeal.

Upon seeking to discover an implied repeal, we are faced with the general rule.

'The courts do not favor repeals by implication, and it is the duty of this court to give effect to both enactments if their provisions can be reconciled.' Brookings County v. Sayre, 1928, 53 S.D. 350, 354, 220 N.W. 918, 920.

See also Jacobi v. Clarkson, 1932, 60 S.D. 401, 244 N.W. 535; 82 C.J.S. Statutes § 291 c; 73 Am.Jur.2d, Statutes, § 397.

Plaintiff's contention that an omission in a revision operates to repeal the former ordinance, State v. Welbes, 1898, 11 S.D. 86, 75 N.W. 820, does not determine the issue. It merely raises the question of legislative intent. When doubt exists concerning revision of a law, we must look at the law existing, Lewis v. Annie Creek Mining Co., 1951, 74 S.D. 26, 48 N.W.2d 815, and at the consequences of the implied repeal of such law.

Plaintiff also urges the court to look at the former law, particularly the differences between the 'saving clauses' in Ordinance 1230 and Ordinances 749 and 878. This court, however, has ruled that the so-called 'blanket repeal' which seeks to repeal all laws inconsistent to the repealer, 'of course adds nothing to the repealing effect of the statute.' A 'manifest and total repugnancy' is required. Jacobi v. Clarkson, 1932, 60 S.D. 401, 404, 244 N.W. 535, 536. Furthermore, in Reaney v. Union County, 1943, 69 S.D. 392, 10 N.W.2d 762, this court stated:

"A mere change of phraseology, or punctuation, or the addition or omission of words in the revision or codification of statutes, does not necessarily change the operation or effect thereof, and will not be deemed to do so unless the intent to make such change is clear and unmistakable." 69 S.D. at 396, 10 N.W.2d at 763.

Not only is such 'unmistakable' intent lacking in Ordinance 1230 but the ordinance also contains the additional proviso 'franchise ordinances and other ordinances granting special rights to persons or corporations' in its listed exemptions to the repealer. Such proviso did not appear in Ordinances 749 and 878. By the addition of this proviso, Ordinances 1230 and 741 are not 'so incompatible and inconsistent they cannot, by any reasonable construction, be reconciled and allowed to stand together in toto.' Hauck v. Bull, 1961, 79 S.D. 242, 246, 110 N.W.2d 506, 508.

Looking at the consequences of an implied repeal, plaintiff urges that the City of Aberdeen sought to relinquish its control of electric rates. Where under a certain reading of an ordinance the city commission 'would seem to have grossly failed to perform its duty' of conserving the public interest, '(t)he ordinance should have such...