State v. Cent. States Elec. Co., No. 47020.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtBLISS
Citation28 N.W.2d 457,238 Iowa 801
Decision Date29 July 1947
Docket NumberNo. 47020.
PartiesSTATE v. CENTRAL STATES ELECTRIC CO. (TOWN OF JEWELL JUNCTION, Intervener).

238 Iowa 801
28 N.W.2d 457

STATE
v.
CENTRAL STATES ELECTRIC CO. (TOWN OF JEWELL JUNCTION, Intervener).

No. 47020.

Supreme Court of Iowa.

July 29, 1947.


Appeal from District Court, Hamilton County; Sherwood A. Clock, Judge.

As finally submitted, the issues joined were between the intervenor and the defendant, and the relief prayed for in the petition of intervention was for a judgment declaring that the defendant had no right or franchise to operate a plant for the generation of electricity in the intervenor or to use its streets and other public places in the transmission thereof. There was a trial to the court, and from a judgment and decree denying the relief prayed for by intervenor, and in favor of the defendant, the intervenor, alone, has appealed. The judgment and decree is affirmed.

[28 N.W.2d 458]

Gerald O. Blake, of Jewell, for appellant.

Barnes, Chamberlain, Hanzlik & Wadsworth, of Cedar Rapids, Maher & Mullen, of Fort Dodge, and C. E. Richman, of Cedar Rapids, for appellee.


Lloyd Karr, Co. Atty., of Webster City, for plaintiff.

BLISS, Justice.

This action was commenced by the filing of a petition, on July 26, 1945, by the acting county attorney of Hamilton County, Iowa, naming the State of Iowa, as plaintiff, and against the Central States Electric Company, as defendant. The petition did not purport to be filed on the relation of the county attorney or the acting county attorney, or of anyone else, nor at the request of any court, or officer, or private citizen of the state. But from a resolution of the council of intervenor, adopted July 17, 1945, it appears that the county attorney was requested to institute the suit in the name of the State of Iowa to secure a final determination of the validity and legality of ordinance No. 64 of intervenor, and of the franchise granted thereby to the defendant.

The petition alleged that intervenor was an incorporated town, and defendant owned and operated therein an electric light and power distribution system, under an alleged franchise, granted by the town council on March 16, 1939, known as Ordinance No. 64, which, for various reasons alleged, was not legally passed or adopted, and was null and void and granted no rights to the defendant. These reasons will be noted in discussing intervenor's propositions relied upon for reversal.

The prayer of the petition, in substance, was, for judgment declaring that the defendant had no right or franchise to operate its said plant, and that ‘said ordinance was void, illegal and of no effect.’ There was also a prayer for such other and further relief ‘as may be just and equitable in the premises.’

On August 17, 1945, defendant filed a motion to dismiss the petition of plaintiff, for reasons stated, in substance, as follows:

[28 N.W.2d 459]

1, The facts alleged do not entitle plaintiff to the relief demanded; 2, the cause is commenced by the State, alone, and not by any relator, or by leave of court granted to any citizen; 3, the petition on its face shows that the franchise was granted to defendant, and by reason thereof it is lawfully exercising it; 4, the cause is barred by the Statute of Limitations; 5, more than six years had passed since the granting of the franchise, and plaintiff's action is barred by laches; 6, defendant has constructed, maintained and operated its plant in reliance on the franchise, and plaintiff is estopped by its conduct; 7, plaintiff's action is a collateral attack on the franchise, and there is no allegation that the town of Jewell Junction had no power to grant the franchise; 8, any alleged irregularities in the adoption of the ordinance do not invalidate the franchise since the ordinance was approved by a vote of the electors; the mayor and one councilman were not disqualified and had they been, they were, nevertheless, de facto officers.

Other divisions of the motion were to strike and to make more specific.

On October 11, 1945, defendant amended its motion to dismiss, and stated as its reasons, that: Plaintiff's counsel, in open court, having asserted that plaintiff was seeking a declaratory judgment in this case whereas it appeared from the allegations of the petition that it was an action in quo warranto, defendant added the following grounds to its motion to dismiss, towit: (1) The allegations of the petition conclusively show there is no justiciable controversy entitling plaintiff to seek a declaratory judgment; (2) plaintiff is not a party to the franchise agreement between the town of Jewell Junction and the defendant, and has no such interest in the cause as would entitle it to maintain the action or to obtain the relief prayed for.

Thereafter, and on October 25, 1945, the Town of Jewell Junction filed its petition of intervention, alleging, in substance, that it claimed the right to intervene in said cause, and it joined plaintiff in seeking the relief demanded by plaintiff in its petition, and asserted the same rights as were asserted by the plaintiff; that it was a duly organized municipal corporation, a user of electric energy, and was the entity from which the defendant claimed to have secured its franchise. It further alleged that it made every allegation of plaintiff's petition a part of its petition of intervention as if fully rewritten therein, and ‘that a real and substantial controversy is involved herein, that the interests of this intervenor and the defendant are adverse, and that this action is justiciable in character and that a judgment determining the validity of the alleged franchise claimed by this defendant will determine the future of all parties.

‘That the determination of the questions raised in this cause are of great public concern and the final determination of the questions herein involved will be a guide to public officers of the intervenor in the future, and that it now becomes necessary for this intervenor to ascertain whether this defendant is lawfully using the streets of Jewell Junction, Iowa, under a lawful and legal grant of franchise, or whether this defendant is usurping the rights of a franchise and using said streets and other public places without lawful authority to so do.

‘Wherefore intervenor prays relief for itself as prayed in plaintiff's petition and particularly does it pray that the validity of the alleged franchise of defendant be fully and finally determined and that the rights and interests of this intervenor be fully protected and for such other and further relief as may be deemed just and equitable in the premises.’

On October 31, 1945, defendant filed its motion to dismiss the petition of intervention, alleging therein, in substance, many of the grounds of the motion to dismiss plaintiff's petition, and alleging further: that from the granting of the franchise ‘it has continued to serve the citizens * * * giving them satisfactory service at rates that are not questioned in this proceeding; * * * and there is no claim made in the petition that this defendant has violated any of the provisions of the franchise; that for the reasons aforesaid the Town of Jewell Junction is estopped from pleading its own irregularities as an excuse for questioning the rights of this defendant to carry on its business according to the terms of said franchise, * * *

[28 N.W.2d 460]

and is estopped from claiming that its own irregularities vitiated the terms of the franchise, and that it therefore can create an artificial justiciable controversy by reason of its own irregularities, when no complaint has been made by the defendant thereof and the franchise has in no way been violated by the defendant; that if any justiciable controversy exists it is one manufactured by the intervenor.’

On November 13, 1945, and after plaintiff had elected as a matter of record to assert that its action was one for a declaratory judgment, the district court of Hamilton County, speaking through Judge Clock, ruled upon defendant's motion to dismiss plaintiff's petition. In sustaining the motion and holding that the county attorney had no right or authority to initiate an action for a declaratory judgment on behalf of the State, the court, in its ruling, said: ‘This weakness of plaintiff's petition is tacitly recognized by the petition of intervention filed by the Town of Jewell Junction. The question then arises as to whether or not the weakness has been obviated by the petition of intervention. It seems clear to the Court that the action has not been properly initiated by anyone authorized to bring the State into the litigation and therefore the petition of intervention could not arise to any higher dignity than the original action. Therefore solely upon this naked ground, as set forth, the motion to dismiss is sustained and the ruling is to be construed as without prejudice to the right of the Town of Jewell to initiate an independent action, as no ruling is made with reference to the substance of its contentions in the petition of intervention.’

On November 30, 1945, the plaintiff, State of Iowa, by the County Attorney of Hamilton County, perfected its appeal to the Supreme Court of Iowa from the district court's ruling of November 13, 1945. The intervenor did not appeal from that ruling.

On December 12, 1945, the district court, through Judge Clock, filed this ‘Explanation of Ruling,’ towit, ‘It appearing that there is some confusion as to whether or not the Court has ruled upon the Motion to Dismiss the petition of intervention filed by the town of Jewell, this explanation is filed.’ (The court then stated that it had no knowledge that such a motion had been filed when the ruling was made, and had no thought that such a motion was submitted.) The Court then continued: ‘The motion attacking the petition of intervention stands undisposed of so far as the Court is concerned.’

On December 19, 1945, the district court, through Judge John M. Schaupp, passed upon defendant's motion to dismiss the petition of intervention. The court overruled the motion and held that...

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18 practice notes
  • Iowa Farm Bureau Fed'n v. Envtl. Prot. Comm'n & Iowa Dep't of Natural Res., No. 12–0827.
    • United States
    • United States State Supreme Court of Iowa
    • July 11, 2014
    ...N.W.2d at 806. We have also applied the doctrine to more serious errors in election or appointment. See State v. Cent. States Elec. Co., 238 Iowa 801, 818, 28 N.W.2d 457, 466 (1947) (applying the doctrine to a mayor and city councilman who accepted positions as trustees contended to be inco......
  • Pierce's Estate, In re, No. 48326
    • United States
    • United States State Supreme Court of Iowa
    • November 17, 1953
    ...of wills * * *.' The above rules are remedial and should be given a reasonably liberal construction. State v. Central States Electric Co., 238 Iowa 801, 819, 28 N.W.2d 457, 466; Katz Investment Co. v. Lynch, supra, 242 Iowa 640, 647, 47 N.W.2d 800, 804, 805, and citations; Melsha v. Tribune......
  • State v. Olson, No. 49158
    • United States
    • United States State Supreme Court of Iowa
    • November 12, 1957
    ...382, 386, 70 N.W. 592; Bremer County v. Schroeder, 200 Iowa 1285, 1287, [249 Iowa 545] 206 N.W. 303; State v. Central States Electric Co., 238 Iowa 801, 818, 28 N.W.2d 457, 466; Walker v. Sears, 245 Iowa 262, 266-267, 61 N.W.2d 729, III. There is likewise no merit to defendant's contention ......
  • Katz Inv. Co. v. Lynch, No. 47775
    • United States
    • United States State Supreme Court of Iowa
    • May 8, 1951
    ...have not appealed they are entitled to urge here this contention, rejected by the trial court. State v. Central States Electric Co., 238 Iowa 801, 819, 28 N.W.2d 457, 466. See also Pohler v. T. W. Snow Const. Co., 239 Iowa 1018, 1022, 33 N.W.2d 416, 418; Shaw v. Addison, 236 Iowa 720, 734, ......
  • Request a trial to view additional results
18 cases
  • Iowa Farm Bureau Fed'n v. Envtl. Prot. Comm'n & Iowa Dep't of Natural Res., No. 12–0827.
    • United States
    • United States State Supreme Court of Iowa
    • July 11, 2014
    ...N.W.2d at 806. We have also applied the doctrine to more serious errors in election or appointment. See State v. Cent. States Elec. Co., 238 Iowa 801, 818, 28 N.W.2d 457, 466 (1947) (applying the doctrine to a mayor and city councilman who accepted positions as trustees contended to be inco......
  • Pierce's Estate, In re, No. 48326
    • United States
    • United States State Supreme Court of Iowa
    • November 17, 1953
    ...of wills * * *.' The above rules are remedial and should be given a reasonably liberal construction. State v. Central States Electric Co., 238 Iowa 801, 819, 28 N.W.2d 457, 466; Katz Investment Co. v. Lynch, supra, 242 Iowa 640, 647, 47 N.W.2d 800, 804, 805, and citations; Melsha v. Tribune......
  • State v. Olson, No. 49158
    • United States
    • United States State Supreme Court of Iowa
    • November 12, 1957
    ...382, 386, 70 N.W. 592; Bremer County v. Schroeder, 200 Iowa 1285, 1287, [249 Iowa 545] 206 N.W. 303; State v. Central States Electric Co., 238 Iowa 801, 818, 28 N.W.2d 457, 466; Walker v. Sears, 245 Iowa 262, 266-267, 61 N.W.2d 729, III. There is likewise no merit to defendant's contention ......
  • Katz Inv. Co. v. Lynch, No. 47775
    • United States
    • United States State Supreme Court of Iowa
    • May 8, 1951
    ...have not appealed they are entitled to urge here this contention, rejected by the trial court. State v. Central States Electric Co., 238 Iowa 801, 819, 28 N.W.2d 457, 466. See also Pohler v. T. W. Snow Const. Co., 239 Iowa 1018, 1022, 33 N.W.2d 416, 418; Shaw v. Addison, 236 Iowa 720, 734, ......
  • Request a trial to view additional results

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