*1 сosts, (3) deny photocopying costs to all municipalities the franchise fee. Yet the commodity nor a furnish neither service three cities. surcharge. pays
to the consumer who essence, surcharge, imposed
The municipalities privi-
residents of the
lege utility city being of users within the municipality
limits. furnishes no Since commodity, surcharge is
service or raising a revenue measure. Thus, according to the standard set forth KINDRED, Larry M. Brewster, surcharge this is a tax in Claimant-Appellant, then, sheep’s clothing. Why, special сon- Simply, currence rather than a dissent? against plaintiffs because the took action The AMALGAMATED SUGAR COMPA- wrong parties Presently on this issue. NY, Employer, Defendant-Respondent. appears Utility to me that the Public No. 17790. impose allowed the utilities to “surcharge” on their customers. It is Idaho. therefore the decision of the Commission appealed. which should have been As the (аt plaintiffs did not take that action least review),
such an action is not before us on majority’s
concur in the affirmance of the
summary judgment in favor of the utilities municipalities.
and the Justice,
JOHNSON, concurring and
dissenting. opinion
I concur in all of the
Court, except portion that affirms the City
trial court’s denial costs to the City photocopying charges.
Garden respondent cities filed memoranda of
costs with the trial court within fourteen
days entry judgment required 54(d)(5).
by I.R.C.P. The memoranda of photocopying charges in
costs listed
following amounts:
City of Kuna 53.46 $ City of Meridian $421.25 City City of Garden $439.90 Settling
The trial court’s Order Costs and
Attorney photocopying costs Fees awarded City City
to the of Kuna and the of Meridi- photocopy- failed to
an. The court award
ing City City, costs to the of Garden but
gave explanation omission. should be remanded to the
This issue one three
trial court which should do
things: photocopying costs to аll cities, (2) explain the rationale for
three City photocopying
denying Garden
148
sion
motion for
denied Kindred’s
clarifica-
tion on the basis that the “decision of the
matter
which was
by
affirmed
through operation
has
final
law
beсome
and cannot
be clarified
Thereafter,
way.”
Kindred filed a mo-
tion
de-
for reconsideration which was also
by
nied
the Industrial Commission on the
basis that Kindred should have raised the
past
and
issue of entitlement
prior
Commission,
proceedings
before the
while the case was on
to the Su-
preme Court. The Commission concluded
jurisdiction to
that it lacked
consider the
prior
and adhered to its
order dis-
missing
for clarification.
Boise,
Greenfield,
John F.
for claimant-
This second
followed.
appellant.
Boise,
Dredge,
Richard K.
for defendant-
I.
respondent.
Industrial Commission
BOYLE,
Retained Jurisdiction
Justice.
of the
In
A careful review
record be
compensation
this worker’s
case we
express ruling
fore us does
disclose
are called
detеrmine whether
by
the Industrial Commission
Commission erred in
claimant’s
claimant for the
income benefits owed
motion for clarification of award.
16,
periods May
through
1976
December
(here-
Claimаnt-appellant, Larry Kindred
31, 1983,
1,
January
through
and
1985
Au
“Kindred”)
by Amalga-
employed
after
was
16,
Rather,
gust
record
(hereafter “Amalga-
Sugar Company
mated
spe
reveals that the Industrial Commission
mated”)
Falls,
in Twin
1971
Idaho between
cifically reserved or retained
August
Kindred
and 1984. On
over the case
stated:
leg
caught
fell
left
under the
and his
hereby
The Commission
reserves
resulting in the
of a railroad сar
wheels
future, in
to determine in the
leg
surgical amputation
four inches
changed
the claimant’s condition is
event
above the knee. The facts
ease
treatment,
by
medical
whether
additional
proceedings
before the Industrial Com-
totally
to be
dis-
the claimant continues
set forth in Kindred v. Amal-
mission are
abled or whether the
condition
284,
Co., 114 Idaho
756
gamated Sugar
permanent
changed
condition
I”),
(1988) (hereafter
P.2d
“Kindred
401
added.)
partial disability.
(Emphasis
here.
and will not be restated
Petition for
See
on Denial of
Rehear-
Order
in Kin-
Following this Court’s decision
Cо.,
ing.
Amalgamated Sugar
I,
a motion with
dred
Kindred filed
114
at
II.
argument
agree.
With this
we cannot
Had
jurisdiction
its
Appeal By Permission:
I.A.R. 12
original decisiоn would have been final and
Under I.A.R.
party may
seek
could not have been amended or
permission
appeal
to
interlocutory
from an
any
way following Kindred I.
order
appеalable
which is not otherwise
as
jurisdiction
Commission did retain
right
11(d).
a matter of
under I.A.R.
Gen
under
inappro-
these circumstances it is not
erally,
appeal
an
under I.A.R. 12 will be
priate
accept
for us to
and consider the
permitted when the order involves a con
appeal
permissive
as a
appeal under I.A.R.
trolling question of law as to which there is
Compеnsation
The Worker’s
Act is to
grounds
substantial
opin
for difference of
liberally
construed
in favor of a claim-
ion and
appeal
that an
may
immediate
ma
purposes
ant sincе the humane
for which it
terially advance the orderly resolution of
narrow,
seeks to serve leave no room for
litigation.
Todd,
Budell v.
105 Idaho
technical
Hattenburg
construction.
(1983).
Kindred’s condition. the case was sion’s decision that having re- The Industrial Commission cannot now be clarified appropriate it is that the tained way. However, did since the Commission permit ease be remanded to the Commis- retain it had author- asking sion to consider Kindred’s motion ity clarify to consider Kindred’s motion clarify initial decision Commission to its suggest original its That is not to order. explaining whether it denied Kindred’s clarify оrigi- must claim to total may nal well con- order. merely ruling on that overlooked issue. *4 did not raise clude that Kindred We therefore vacate the Commission’s concerning denial of order claimant’s motion claiming, period fits he is of award and subse- if the so concludes would be quent denial recon- justified modifying in not its order. How- the sideration and remand the case to Com- ever, having jurisdiction, the Com- mission. authority to does have the consider mission attorney appellant; no fees Costs to if it concludes that Kindred’s motion appeal. awarded on Aсcord- issue was raised and waived. vacating in Court’s ingly, I concur BAKES, C.J., JOHNSON and Kindred’s Commission’s order WALTERS, McDEVITT, JJ„ J. Pro award, of his motion for clarification Tem., concur. remanding for Commission to consider motion. BAKES, Justice, concurring Chief specially: matter, then conclusion in this their of the Commission
that the “decision was affirmed which appeal has become final P.2d 312 through operation of lаw and cannot now way,” in any or amended would DUMAW, Claimant-Appellant, Barry E. However, as this assuredly be correct. Cross-Respondent, discovered, recently only Court has in Commission retainеd LOGGING, Employer, and J.L. NORTON was not to our point which Surety, Loggers Exchange, Associated attention, apparently over- and which Cross-Appel Defendants-Respondents, original appeal, by this looked lants. Co., Sugar Amalgamated (.Kindred I). 756 P.2d 18129. No. jurisdiction been called Had the retained Supreme Court of Idaho. attention, by the our or been discovered sponte, appropriate action Court sua dismiss the Kindred would have been to In-
appeal. Reynolds Browning
dustries, However, being unaware of the went the case I, in by this Court
final decision the order of Com- we affirmed which made
mission disability benefits.