Wylie Bros. Contracting Co. v. Albuquerque-Bernalillo County Air Quality Control Bd.
Decision Date | 05 September 1969 |
Docket Number | No. 252,ALBUQUERQUE-BERNALILLO,252 |
Citation | 80 N.M. 633,459 P.2d 159,1969 NMCA 89 |
Parties | WYLIE 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. |
Court | Court of Appeals of New Mexico |
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:
'(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;
'(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:
'* * *.
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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