Houston Compressed Steel Corp. v. State

• Decision Date: 25 June 1970
• Docket Number: No. 15638,15638
• Citation: 3 ERC 1487,1 ERC 1416,456 S.W.2d 768
• Parties: , 3 ERC 1487 HOUSTON COMPRESSED STEEL CORP. d/b/a Byer's Barge Terminal et al., Appellants, v. The STATE of Texas et al., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 768

456 S.W.2d 768

1 ERC 1416, 3 ERC 1487

HOUSTON COMPRESSED STEEL CORP. d/b/a Byer's Barge Terminal

et al., Appellants,

v.

The STATE of Texas et al., Appellees.

No. 15638.

Court of Civil Appeals of Texas,

Houston (1st Dist.).

June 25, 1970.

Rehearing Denied July 23, 1970.

Edward L. Lasof, Houston, for appellants.

Joe Resweber, County Atty., James R. Doxey, Asst. County Atty., Houston, Crawford C. Martin, Atty. Gen., Nola White, First Asst. Atty. Gen., Alfred Walker, Executive Asst. Atty. Gen., Roger B. Tyler, Vince Taylor, Malcom Smith, Richard W. Chote, Asst. Attys. Gen., Austin, for appellees.

PEDEN, Justice.

Appeal from two orders temporarily enjoining the appellants from outdoor burning of railroad boxcars as prohibited by regulations adopted by the Texas Air Control Board under Article 4477--5, Vernon's Ann.Civ.St., the Texas Clean Air Act.

Byer's Barge Terminal processes and sells scrap metals. The plaintiff, Harris County, and the State of Texas, intervenor on behalf of the Texas Air Control Board, alleged that Byer's was violating the Clean Air Act by outdoor burning of the wood from old boxcars, a method it used to salvage the scrap metal from them. The trial court granted a temporary injunction on February 17, 1970 to limit the hours of the outdoor burning and on February 27, 1970 granted a second one which prohibited outdoor burning pendente lite.

Pursuant to Sec. 3.09(a) and Sec. 3.10(c) of the Act, the Texas Air Control Board has passed Regulation II, which limits outdoor burning to certain specifically named purposes, such as domestic fires, campfires and those set to control range grass or forest trees. The outdoor burning of the boxcars was clearly prohibited by Regulation II, and the appellants had not been granted a variance by the Board as it was permitted to do under the provisions of Sec. 3.21 of the Act.

The appellants present eight points of error, complaining that 1) the temporary injunction of February 17 was void, 2) denial of motion to dismiss contempt charges based on the February 17 injunction was error, 3) filing the suit for injunction and penalties was premature under the primary jurisdiction doctrine, 4) the Act is unconstitutional, 5) the appellants have been deprived of their property without due process of law, 6) the field of air pollution law has been preempted by the Federal Air Pollution Control Act, 7) the trial court erred in preferentially setting the case for a trial on the merits, and 8) the order entered on February 27 is void. We sustain the first of these points and overrule the other seven of them.

In its order entered February 17 the trial court granted the defendants' motion for a continuance until the Board passed upon their application for a variance. The order also specifically limited the number of boxcars which appellants could burn and the hours when they could burn them. It contained a recital that the court had heard no evidence from the witnesses present and it did not set forth the reasons for its issuance. In the order of February 27 it was stated that the order of February 17 was rescinded. However, it also stated that the court's ruling on the matter of contempt, concerning the defendants' alleged violation of the order of February 17, was reserved until the trial on the merits .

The temporary injunction provisions of the February 17 order were void by reason of the deficiencies noted. Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517, 519 (1961); Millwrights Local Union No. 2484 v. Rust Engineering Co., 433 S.W.2d 683 (1968); City of Houston v. Shober, 362 S.W.2d 886 (Tex.Civ.App.1962, writ ref. n.r.e.); Rule 683, Texas Rules of Civil Procedure. The order is no longer in effect, so we notice it only because the trial court indicated that the contempt matter was still pending. The point does not present reversible error.

By our holding unenforceable the injunction provisions of the February 17 order we do not intend to suggest that the appellants are exempt from the civil penalty provisions of Sec. 4.01(c) of the Act.

Appellants' second point does not present a matter which is properly before us. The contempt motions have not been ruled upon.

Turning to the appellants' third point, we do not consider this an appropriate case for application of the principle of primary jurisdiction.

"The doctrine of primary jurisdiction is that the courts cannot or will not determine a controversy involving a question which is within the jurisdiction of an administrative tribunal prior to the decision of that question by the administrative tribunal, where the question demands the exercise of sound administrative discretion requiring the special knowledge, experience and services of the administrative tribunal to determine technical and intricate matters of fact, and a uniformity of ruling is essential to comply with the purposes of the regulatory statute administered. The principle is derived from a consideration of the nature of the question and of the inquiry and the action required for its solution."

Kavanaugh v. Underwriters Life Ins. Co., 231 S.W.2d 753 (Tex.Civ.App.1950, writ ref.), citing 42 Am.Jur. 698--699.

There was little, if any, dispute as to the facts for determination by the trial court in the instant case: did the appellants come within an exception to the prohibition against outdoor burning or had they obtained a variance from the Board? Neither question involved 'technical and intricate matters of fact' as described in Kavanaugh, supra.

Where the issue is one inherently judicial in nature, the courts are not ousted from jurisdiction unless the Legislature, by a valid statute, has explicity granted exclusive jurisdiction to the administrative body. Gregg v. Delhi-Taylor Oil Corp., 162 Tex. 26, 344 S.W.2d 411 (1961).

Sec. 1.05 of the Act provides that the Board is the principal authority in the state on matters relating to the quality of the air resources in the state and for setting standards, criteria, levels and emission limits for air content and pollution control. The Act does not provide that the Board is the exclusive authority. The Board has no enforcement power of its own. The only effective means of securing compliance with the Act is by instituting suits for injunctions or penalties or both. Sec. 4.02(a) provides that the district court is the proper forum for enforcing the Act and the Board's orders.

Pursuant to Sec. 3.09(a) of the Act, the Board has passed regulations designed to control the level of emissions into the air of air contaminants. Sec. 3.10(c) specifically authorizes the Board 'to adopt rules and regulations to control and prohibit the outdoor burning of waste and combustible material,' and Regulation II meets that purpose.

The trial court, by its order of February 27, did not seek to exercise an administrative function. It merely enjoined further violation of Regulation II by outdoor burning until a variance was obtained from the Board or until a trial of the case on the merits.

Appellants' assertion that the Texas Clean Air Act is an attempt to legislate in a field preempted by a federal statute, Title 42, § 1857, U.S.C.A., is without merit. Sec. 1857(a)(3) states that 'The Congress finds * * * that the prevention and control of air pollution at its source is the primary responsibility of States and local governments; * * *.' The federal Act is replete with evidence that cooperation between the states and the federal government in air pollution control is to be actively encouraged. See Sections 1857(b)(3), 1857a(a), 1857d(b) and 1857d(d)(1)(A).

We also overrule the appellants' seventh point of error, that the trial court erred in giving the case a preferential setting for trial on the merits after notice of appeal had been given. The point seems to be based on the theory that by then jurisdiction over the matter had passed from the trial court to this court.

The Act specifically provides that suits brought under this Act shall be given precedence over all others.

The Court of Civil Appeals did not acquire jurisdiction over the appeal from the interlocutory order until the appeal bond had been filed and the record had been filed in the appellate court. Rule 385, Texas R.C.P.; Walker v. Cleere, 141 Tex. 550, 174 S.W.2d 956 (1943). The record reflects that the preferential setting was made prior to the perfecting of the appeal, thus at a time when jurisdiction over the case was still in the trial court. Further, a trial court is authorized to proceed to trial on an application for permanent injunction despite the pendency of an appeal from the granting of a temporary injunction in the same case. South Atlantic & Gulf Coast District of I.L.A., Indep. v. Harris County--Houston Ship Channel Navigation District, 360 S.W.2d 181 (Tex.Civ.App.1962, writ ref. n.r.e.); International Ass'n of Machinists, Local Union No. 1488 v. Federal Ass'n of Accessory Workers, 133 Tex. 624, 130 S.W.2d 282 (1939). Finally, no harm will arise from the setting, because the date chosen has now passed and the trial court is awaiting the outcome of this appeal before hearing the application for permanent injunction.

Appellants' eighth point is that the February 27 order was void. In the order the trial court made several findings of fact, including one that the probable right to an injunction in this case is based on the existence of the Texas Clean Air Act. The appellants contend that the Act cannot form the basis of a probable right because it is unconstitutional. We will discuss that question later.

As noted, Regulation II, adopted by the Board, prohibits outdoor burning of waste material or other combustible material (with certain specific exceptions). Its purpose is 'to establish controls on the outdoor burning of waste or other combustible material to prevent undesirable levels of air contaminants in the atmosphere,' but it does not set up permissible limits of toxicity or density of smoke produced.

The...