# Schwarzkopf v. Sac County Board of Supervisors > Supreme Court of Iowa · November 23, 1983 · 341 N.W.2d 1 URL: https://www.frixlaw.com/law-library/cases/9672812 ## Case - **Full name:** Joe SCHWARZKOPF, Et Al., Appellees, v. SAC COUNTY BOARD OF SUPERVISORS, Defendants, State Association of Iowa Rural Water Systems, Inc., Now Known as Iowa Rural Water Association, Intervenor-Appellant, West Central Iowa Rural Water Association, Intervenor-Appellant - **Court:** Supreme Court of Iowa - **Decided:** November 23, 1983 - **Citations:** 341 N.W.2d 1; 1983 Iowa Sup. LEXIS 1720 - **Precedential status:** Published - **Opinion:** Dissent by Harris - **Judges:** Larson, Harris, Schultz, Reyn-Oldson - **Cited by:** 22 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9672812 ## Opinion text HARRIS, Justice (dissenting). I respectfully dissent. “ ‘The Legislature may say what the law shall be, not what it is or has been....’ ” Richardson v. City of Jefferson, 257 Iowa 709, 717 , 134 N.W.2d 528, 533 (1965); Richardson v. Fitzgerald, 132 Iowa 253, 255 , 109 N.W. 866, 867 (1906). I do not doubt the legislature’s power to authorize retroactively the granting of the easements in question. The majority is wrong, however, in holding that the retroactive power to grant the easements amounts to a retroactive vacation of two appellate decisions. It is to be remembered that this controversy, including both prior appeals as well as the present one, was encompassed within a single lawsuit. The prior decisions by the court of appeals establish that the easements were void and that the Sac county board of supervisors acted in excess of its authority in attempting to grant the easements. Plainly the two appellate decisions were final. See Iowa Code § 684.36 (2) (1983). *9 The decisions also finally disposed of all questions involved in the litigation. After the second reversal the matter was returned to district court for entry of an order in accordance with the appellate opinion. The majority seems to suggest there was some indication in the second court of appeals opinion that further matters were to be litigated on remand. I do not so read that opinion. It was succinct and most explicit, concluding: The grant of easement is without legislative authority and is therefore invalid. We need not address plaintiffs second issue as our conclusion above is disposi-tive of that issue. REVERSED. The procedendo issued by the clerk is quoted by the majority, apparently in the belief that its form wording reflects on the scope of the remand. I do not think it does. There was nothing left to litigate. Thereafter intervenors filed their application to adjudicate law points which plaintiffs resisted on the ground that: “[t]he legal issues in this matter have been judicially determined .... ” It would have been inappropriate for the district court at such a juncture to reverse the court of appeals, even though armed with a propitious amendment to Iowa Code section 320.4. The majority misapplies a good rule. When a case is remanded for retrial after appellate reversal, a newly effective statutory change of a procedural matter will be applied in the retrial. Reich v. Miller, 260 Iowa 929, 937-38 , 151 N.W.2d 605, 610 (1967). In Reich we quoted from and relied on 5B C.J.S. Appeal and Error section 1964(e). But, as the same authority elsewhere makes clear, a different rule necessarily applies when an appellate decision, as the one here did, ends the litigation. Where ... the appellate court by its decision and directions puts an end to the litigation, the lower court is without jurisdiction except to comply with whatever directions are made_ Matters disposed of and determined by the opinion and decision of the appellate court cannot be relitigated in the trial court.... Thus, where the appellate court has tried the case de novo, its judgment is final and nothing remains for the trial court to do except to enter the judgment. Except where the cause has been remanded for a new trial, or such procedure is contemplated by statute, the trial court is not authorized or obliged after remand to pass on, or to grant relief as to, rights accruing during the pendency of the appeal, such matters being properly left for adjudication in new proceedings. 5B C.J.S. Appeal and Error § 1965 (1958). Our cases are in accord. Kuhlmann v. Persinger, 261 Iowa 461, 469 , 154 N.W.2d 860, 864 (1967) (where “the vital question involved in the first appeal was settled, ... it became the law of the case, and ... the remand allowed ... no authority to make a contrary order.”); Emery Transportation Co. v. Baker, 257 Iowa 1260, 1264 , 136 N.W.2d 529, 531 (1965) (prior appellate decision on question of jurisdiction was res judicata to date of determination in trial court). Perhaps the Iowa case closest in point is City of Sioux City v. Young, 250 Iowa 1005 , 97 N.W.2d 907 (1959), a case in which the legislature was persuaded to change a principle after it was decided on appeal. We pointed out why the change (retrospec-tiveness of a police pension fund) could not affect the litigation involved in the prior appeal. There, as here, different appeals involved the same parties, the same subject matter and the same cause of action. We said: After we had ... interpreted the amendments the ... General Assembly ... attempted to change the nonretroactive construction we had put upon them.... It must be the contention of the defendant here that the legislature thereby overruled our interpretation of the amendments made by the [prior] General Assembly, and that we are now bound to follow the legislative fiat. We do not agree. The legislature had a right to *10 say whether- its enactments were retrospective or prospective, as applied to future interpretations; it did not have the right to direct the courts how its statutes were to be construed with reference to matters already decided. We have construed the amendments made by the [prior] General Assembly as applied to a certain case; the legislature may not, by later enactment, direct us to change our interpretation as it affects this same litigation. In Richardson v. Fitzgerald, 132 Iowa 253, 255 , 109 N.W. 866, 867 , we said: “... any direction by the legislature that the judicial function shall be performed in a particular [certain] way is a plain violation of the Constitution.” Immediately following this, ... we quoted with approval from Cooley on Constitutional Limitations (7th Ed.) 114: “As the Legislature cannot set aside the construction of the law already applied by the courts to actual cases, neither can it compel courts for the future to adopt a particular construction of a law which the Legislature permits to remain in force.” (Italics supplied.) We further said, at the same pages: “Expository legislation is so uniformly condemned by the courts that we need cite no more than a few of the numerous decisions with our approval for the principle. [Citing authorities.] Id. at 1009-10, 97 N.W.2d at 910-11 (emphasis added). The majority is wrong in surrendering to the legislature a fundamental constitutional power entrusted to the judicial branch of government. We should not make it possible for the legislature to sit in review of an appellate court’s decision on pending litigation, and change its outcome by enactment of a statute to take effect before the decision is complied with by the trial court. I would affirm. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9672812. Public record. Not legal advice.