State, ex rel. SCA Chemical Waste Services, Inc. v. Konigsberg
| Decision Date | 28 June 1982 |
| Citation | 636 S.W.2d 430 |
| Parties | STATE of Tennessee, ex rel. SCA CHEMICAL WASTE SERVICES, INC., Plaintiff-Appellant, v. Charles KONIGSBERG, Jr., M.D., Mph, Director and Health Officer, Memphis and Shelby County Health Department and Christ T. Sanidas, Chief Building Official, Shelby County, Tennessee, Defendants-Appellees, and Delta Tool and Die, Inc.; Ralph Adams; George Cook; People of Woodstock and Board of Commissioners of Shelby County, Tennessee, Intervenors-Appellees. |
| Court | Tennessee Supreme Court |
William M. Walsh, Memphis, for plaintiff-appellant.
Carroll C. Johnson, J. Minor Tait, Jr., Asst. Shelby County Attys., Memphis, for defendants-appellees.
This is a mandamus action. The relator, SCA Chemical Waste Services, Inc., sued defendant Charles Konigsberg, Jr., as the Director and Chief Medical Officer of the Memphis and Shelby County Health Department, to require him to issue to relator a "clean air permit" in connection with the relator's proposed construction of a chemical waste treatment plant in Shelby County. Later, relator amended the action by adding defendant Christ T. Sanidas, the Chief Building Officer of Shelby County, seeking a writ against him to require the issuance of a building permit for the proposed chemical waste treatment plant. Following a hearing on the merits, the Chancellor found the issues in favor of the defendants and dismissed the complaint; relator has appealed to this Court seeking a reversal and a judgment requiring that the two permits be issued.
While the appeal was pending in this Court the relator-appellant filed a motion for consideration of post-judgment facts pursuant to Rule 14, Rules of Appellate Procedure. Most of the alleged post-judgment facts sought to be considered are pleadings and other matters concerning a subsequent suit between the same parties that is now pending in the trial court in Shelby County and are not relevant to this action, but one post-judgment fact sought to be considered is that the "clean air permit" which was the subject of the instant litigation was actually issued by the Shelby County Health Department on January 15, 1981. Rule 14 provides, in part:
"While neither controlling nor fully measuring the court's discretion, consideration generally will extend only to those facts, capable of ready demonstration, affecting the positions of the parties or the subject matter of the action such as mootness, bankruptcy, divorce, death, other judgments or proceedings, relief from the judgment requested or granted in the trial court, and other similar matters."
In our discretion we grant the motion insofar as it disclosed that the "clean air permit" has been issued after the appeal in this case was perfected; in all other things the motion to consider post-judgment facts is denied. We deem it quite inappropriate to consider upon this appeal matters pertaining to subsequent litigation now pending in the trial court in Shelby County.
Since the "clean air permit" has now been issued, we consider that this action, insofar as it sought the issuance of that permit, is now moot. However, for the sake of clarity, it will be necessary to mention the clean air permit and the proceedings in Shelby County with relation to it in the course of this opinion.
SCA Chemical Waste Services, Inc., is engaged in the business of disposing of hazardous wastes in Shelby County and proposes to construct a new facility to process such wastes. On September 4, 1980, it applied to the Memphis and Shelby County Health Department for the issuance of a clean air permit in connection with the proposed construction.
On October 6, 1980, the Council of the City of Memphis and the Board of Commissioners for Shelby County, in joint session, enacted a comprehensive new zoning ordinance to become effective on January 1, 1981. This new ordinance contained a category covering "refuse processing, treatment and storage" and required that a special permit be obtained from both the City Council and the County Commission when authorization for refuse processing, treatment and storage was sought. Prior to the enactment of this new ordinance the area which contained the site of the relator's proposed treatment plant was zoned "heavy industrial" and no special permit was required for a use such as that proposed by the relator. On October 8, 1980, the relator and Illinois Central Railroad entered into a contract which would permit SCA to purchase approximately 30 acres of property located on Fite Road in Shelby County which was to be the site of relator's new waste treatment plant. At that time the zoning governing this piece of property was "heavy industrial" and would have permitted use of the property as intended by the relator for treatment of hazardous wastes.
On October 9, 1980, the relator applied for a grading and building permit from defendant, Sanidas, Chief Building Officer of Shelby County.
On October 22, 1980, the Board of Commissioners for Shelby County conducted a hearing with respect to the issuance of permits which would allow the relator to construct its hazardous waste treatment plant. At this hearing considerable anxiety was expressed indicating fear that the public welfare and safety of the residents of the county would be adversely affected by the construction of relator's plant and the hearing resulted in the adoption by the Commission of a resolution directing all county agencies not to issue any permits to relator for the construction of its hazardous waste treatment plant until January 15, 1981, and provided, further, that relator should meet all applicable standards in effect on January 15, 1981.
On October 27, 1980, SCA, the relator, filed the original complaint in this action against the defendant, Charles Konigsberg, Jr., M.D., Director, Memphis and Shelby County Health Department, seeking a writ mandating him to issue the requested clean air permit.
On November 3, 1980, the Shelby County Commission amended its resolution dated October 22, 1980, making it apply specifically to any proposed plant for hazardous waste treatment. Because of the importance of this resolution to the merits of this litigation, we quote it in full:
Thereafter, on November 13, 1980, relator amended its complaint by adding defendant Christ T. Sanidas, Chief Building Officer of Shelby County, as a party defendant, seeking a mandate requiring him to issue a preliminary grading permit.
Following a trial on the merits, the trial court concluded that the County Board of Commissioners had not acted arbitrarily, capriciously, illegally, unlawfully or beyond its jurisdiction in adopting the resolutions of October 22, 1980, and November 3, 1980; that these resolutions were in all things valid and binding upon the defendants, Konigsberg and Sanidas, and, therefore, that these defendants were under no duty to issue the clean air permit and the building permit as sought by the complaint. Accordingly, the Chancellor dismissed the relator's action.
The first question presented for our decision is whether mandamus may be properly employed to determine the constitutional validity of a statute, ordinance or other legal directive that on its face requires that the defendant official shall not perform the act sought to be required of him by the relator. Defendants, of course, assert that mandamus may not be so used, but relator insists that such a use is proper. We decide this issue in favor of the relator. We have found no reported case deciding the question in this State; authorities from other jurisdictions are divided on the subject. Some courts have held that mandamus lies only to enforce a plain ministerial duty and since a plain ministerial duty cannot exist which is made to appear only by declaring a statute unconstitutional, the writ will not issue if it is necessary to declare unconstitutional a statute in conflict with the alleged duty sought to be enforced. See, 52 Am.Jur.2d Mandamus § 95 (1970) and cases there cited....
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...law, ordinance or resolution is valid if any possible reason can be conceived to justify it." State ex rel. SCA Chem. Waste Servs., Inc. v. Konigsberg, 636 S.W.2d 430, 437 (Tenn.1982). As we found in McCallen v. City of Memphis, "the court's primary resolve is to refrain from substituting i......
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