Wylie Bros. Contracting Co. v. Albuquerque-Bernalillo County Air Quality Control Bd.

Citation80 N.M. 633,459 P.2d 159,1969 NMCA 89
Decision Date05 September 1969
Docket NumberNo. 252,ALBUQUERQUE-BERNALILLO,252
PartiesWYLIE BROS. CONTRACTING CO., Sandia Battery and Manufacturing Co., Inc., and Dale Seymour, d/b/a Coronado Wrecking & Salvage Company, Appellants, v.COUNTY AIR QUALITY CONTROL BOARD, Appellee.
CourtCourt of Appeals of New Mexico
Charles C. Spann, Grantham, Spann, Sanchez & Rager, Lewis R. Sutin, Sutin, Thayer & Browne, Albuquerque, for appellants
OPINION

OMAN, Judge.

This is a direct appeal from the actions of appellee in adopting air pollution control regulations pursuant to the Air Quality Control Act enacted in 1967, being §§ 12--14--1 to 12--14--13, N.M.S.A.1953 (Repl. Vol. 3, 1968). The appeal has been taken pursuant to the provisions of § 12--14--7(A) and (B), N.M.S.A.1953 (Repl. Vol. 3, 1968), and appellants seek to have said regulations set aside on the grounds specified in § 12--14--7(C), N.M.S.A.1953 (Repl. Vol. 3, 1968).

The relevant powers and duties of a board, and the provisions for judicial review of regulations adopted pursuant thereto, are set forth in the statutes as follows:

' § 12--14--5. Duties and powers of board.--A. The board shall prevent or abate air pollution.

'b. The board may:

'(1) Adopt, promulgate, publish, amend and repeal regulations consistent with the Air Quality Control Act (12--14--1 to 12--14--13) to prevent or abate air pollution, including regulations prescribing air standards within the geographic area of the board's jurisdiction, or any part thereof. Regulations shall not specify the method to be used to prevent or abate air pollution. Any regulation promulgated under this section shall be consistent with federal law, if any, relating to control of motor vehicle emission. In making its regulations, the board shall give weight it deems appropriate to all facts and circumstances, including but not limited to:

'(a) character and degree of injury to or interference with health, welfare and property;

'(b) the public interest, including social and economic value of the sources of air contaminants;

'(c) technical practicability and economic reasonableness of reducing or eliminating air contaminants from the sources involved and previous experience with equipment and methods available to control the air contaminants involved;

' § 12--14--6. Adoption of regulations.--Notice and hearing.--No regulation or emission control requirement or amendment or repeal thereof shall be adopted until after a public hearing by the board within the area of the state concerned. Hearings on regulations of state-wide application shall be held at Santa Fe. Notice of the hearing shall be given at least thirty (30) days prior to the hearing date and shall state the subject, the time and the place of the hearing and the manner in which interested persons may present their views. The notice shall also state where interested persons may secure copies of any proposed regulation or air quality standard. The notice shall be published in a newspaper of general circulation in the area affected. Reasonable effort shall be made to give notice to all persons who have made a written request to the board for advance notice of its hearings. At the hearing, the board shall allow all interested persons reasonable opportunity to submit data, views or arguments orally or in writing and to examine witnesses testifying at the hearing. Any person heard or represented at the hearing shall be given written notice of the action of the board. The board may designate a hearing officer to take evidence in the hearing. No regulation or emission control requirement or amendment or repeal thereof adopted by the board shall become effective until thirty (30) days after its filing with the supreme court law librarian.'

' § 12--14--7. Validity of regulation.--Judicial review.--A. Any person who is or may be affected by a regulation adopted by the board may appeal to the court of appeals for further relief. All appeals shall be upon the record made at the hearing, and shall be taken to the court of appeals within thirty (30) days after filing of the regulations with the supreme court law librarian.

'B. The procedure for perfecting an appeal to the court of appeals under this section consists of the timely filing of a notice of appeal with a copy attached of the regulations from which the appeal is taken. The appellant shall certify in his notice of appeal that arrangements have been made with the board for preparation of a sufficient number of transcripts of the record of the hearing on which the appeal depends to support his appeal to the court, at the expense of the appellant, including three (3) copies which he shall furnish to the board.

'C. Upon appeal, the court of appeals shall set aside the regulation only if found to be:

'(1) arbitrary, capricious or an abuse of discretion;

'(2) not reasonably related to the prevention or abatement of air pollution; or

'(3) otherwise not in accordance with law.'

Appellee is a joint municipal-county board created in accordance with the provisions of § 12--14--4, N.M.S.A.1953 (Repl. Vol. 3, 1968). In addition to provisions for the creation of municipal boards, Class A county boards, and joint municipal-county boards, the Act provides that the State Board of Public Health (now succeeded by the Health and Social Services Board of New Mexico, §§ 12--1--27 to 12--1--31, N.M.S.A.1953 (Repl. Vol. 3, 1968)), is the State Board, with jurisdiction in all areas of the State, except within the boundaries of municipalities and Class A counties which have elected, by adopting an appropriate ordinance, to assume jurisdiction for the administration and enforcement of the Act. Section 12--14--3, N.M.S.A.1953 (Repl. Vol. 3, 1968).

We must first dispose of appellee's contentions that this court is without jurisdiction: (1) to pass upon the validity of regulations adopted by a board created and organized under the Act, or (2) to entertain this particular appeal because of lack of standing by appellants to appeal.

The first question, restated, is whether this court has the authority and power to review on appeal the air pollution control regulations adopted by a board, and to set aside such regulations if found to be arbitrary, capricious, an abuse of discretion; not reasonably related to the prevention or abatement of air pollution; or not otherwise in accordance with law. We answer that the court does have this authority and power.

Appellee's position is that the actions of a board in adopting regulations are legislative in nature and that this court lacks jurisdiction to review actions of this nature.

Article VI, § 29 of the Constitution of New Mexico provides as follows relative to the appellate jurisdiction of this court:

'* * *. It (Court of Appeals) may be authorized by law to review directly decisions of administrative agencies of the state, and it may be authorized by rules of the Supreme Court to issue all writs necessary or appropriate in aid of its appellate jurisdiction. In all other cases, it shall exercise appellate jurisdiction as may be provided by law.'

Appellee concedes that the powers delegated to a board by the Legislature are partially administrative, but contends the power exercised in the adoption of regulations is legislative and the procedures prescribed by the Act in the exercise of this power are not reviewable by this court. It claims to have faithfully followed these procedures and, for the sake of the question now being considered, we assume compliance therewith.

The adoption of regulations is legislative in nature, in that regulations prescribe rules of conduct. However, the adoption of air pollution control regulations, even though an exercise of the police power for the protection of human health, animal and plant life, property and the use thereof, and the general welfare of the public, is still a proper function of a board, in that the regulation-making power exercised in this function is conferred on a board for the accomplishment of the general objectives and policies announced by the Legislature in the Air Quality Control Act. Compare State v. Spears, 57 N.M. 400, 259 P.2d 356, 39 A.L.R.2d 595 (1953); Crain v. First National Bank of Oregon, Portland, 324 F.2d 532 (9th Cir. 1963); United States v. Rosenzweig, 25 F.Supp. 811 (M.D.Pa.1939); First Industrial Loan Co. of California v. Daugherty, 26 Cal.2d 545, 159 P.2d 921 (1945); Sutherland v. Ferguson, 194 Kan. 35, 397 P.2d 335 (1964). See also, 1 Davis, Administrative Law Treatise, ch. 2 (1958).

Appellee contends it has been properly vested by the Legislature with this regulation-making power because it is a municipal-county board, and the Legislature can constitutionally delegate legislative powers to municipalities and Class A counties as local governments, but not to administrative agencies. It cites as authority in support of its position, 6 McQuillin, Municipal Corporations, § 24.37 (3d Ed. 1949) and 16 Am.Jur.2d, Constitutional Law, § 250, p. 500 (1964). It also contends the constitutionality of delegating legislative powers to cities and counties as local governments is implied in Purcell v. City of Carlsbad, 126 F.2d 748 (10th Cir. 1942); Bowdich v. City of Albuquerque, 76 N.M. 511, 416 P.2d 523 (1966); City of Santa Fe v. Gamble-Skogmo, Inc., 73 N.M. 410, 389 P.2d 13 (1964); Town of Mesilla v. Mesilla Design Center & Book Store, 71 N.M. 124, 376 P.2d 183 (1962); Munro v. City of Albuquerque, 48 N.M. 306, 150 P.2d 733 (1943); Fancher v. Board of County Commissioners, 28 N.M. 179, 210 P. 237 (1921); Agua Pura Co. v. Mayor & Bd. Ald., 10 N.M. 6, 60 P. 208 (1900); Donalson v. San Miguel County, 1 N.M. 263 (1859).

We assume that the delegation of legislative authority to political subdivisions, relative to governmental control over matters local in scope, is not subject to the general principle prohibiting the delegation of general legislative authority to administrative agencies....

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