(dissenting).
I dissent.
A. The Board exceeded its authority in adopting regulations 105, 106 and 107.
(1) The Board ivas limited to “refuse disposal“ regulations.
Section 12-12-11(A) (3), N.M.S.A.1953 (Repl.Vol. 3, 1973 Supp.) reads:
The board is responsible for environmental management and consumer protection. In that respect, the board shall promulgate regulations and standards in the following areas:
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(3) liquid waste; and solid waste sanitation and refuse disposal. [Emphasis added].
The Board adopted “SOLID WASTE MANAGEMENT Regulations”. Regulation 108 provided for “Disposal”.
The Board was limited to regulations and standards affecting “solid waste sanitation and refuse disposal”.
The' Environmental Improvement Act (E.I.A.) makes no provision for the “storage”, “collection” and “transportation” of “solid waste”, nor does the statute authorize the adoption of regulations to cover these subjects. Nevertheless, the Board adopted regulations covering “storage”, “collection” and “transportation” of solid waste, being Regulations 105, 106 and 107.
The Board’s only claim of authority is that the Legislature assigned the power to the Board to fulfill its responsibility for environmental management and consumer protection.
It is a mystery to me how management of “refuse disposal” can be extended by the Board to cover management of the “storage”, “collection” and “transportation” of refuse.
The word “refuse” is not defined in the Act or in the regulations. It does not appear elsewhere in the Act or the regulations.
Neither the majority opinion nor the Board has shown any authority by which the Board had the power to adopt regulations concerning “storage”, “collection” and “transportation” of refuse, when its authority was limited to “refuse disposal”.
It is a fundamental rule in administrative law that an administrative body has only such power as is conferred on it by law. These powers include those expressly granted by statute and those fairly implied therefrom. Brininstool v. New Mexico State Board of Education, 81 N.M. 319, 466 P.2d 885 (Ct.App.1970). No matter how well intentioned, administrative bodies must comply with the law to prevent any abuse of it. Continental Oil Co. v. Oil Conservation Com’n, 70 N.M. 310, 373 P.2d 809 (1962).
E.I.A. did not vest unbridled or arbitrary-power in the Board to adopt regulations.
The Board exceeded its authority when it adopted Regulations 105, 106 and 107. They are void.
(2) Gallup and Artesia are not bound.
Section 12-12-13 (C) provides that notices of a public hearing “shall be published in a newspaper of general circulation in the area [affected]”. Gallup and Artesia each have a newspaper — The Gallup Independent and The Artesia Daily News. No notice was published in these newspapers. The municipalities were not notified and they were not present at the hearings. The regulations are not binding on them. Bri-ninstool, supra.
B. Regulations are otherwise defective.
(1) Regulation 105-STORAGE, is not applicable to municipalities.
Regulation 105 is not applicable to municipalities. It applies to “any person”.
Regulation 107, TRANSPORTATION, says that the municipality “shall provide transportation”.
Regulation 108, DISPOSAL, says that the municipality “shall dispose of solid waste”.
Regulation 105, STORAGE, does not say that the municipality “shall provide storage facilities”.
What is meant by the word “person” ?
Section 12-12-6 gives the Board authority to adopt regulations applicable “to persons”.
“The word ‘person’ may be extended to firms, associations and corporations.” Section 1-2-2(E), N.M.S.A.1953 (Repl.Vol. 1).
The word “corporations” does not include “municipal corporation”. It applies only to private corporations. City of Los Angeles v. Eighth Judicial District Court, 58 Nev. 1, 67 P.2d 1019 (1937); State v. Central Power & Light Co., 139 Tex. 51, 161 S.W.2d 766 (1942); City of Dallas v. Halford, 210 S.W. 725 (Tex.Civ.App.1919); In re Mountain View Public Utility District No. 1, 359 P.2d 951 (Alaska, 1961); Feemster v. City of Tupelo, 121 Miss. 733, 83 So. 804 (1920). They are dealt with under separate titles in the statutes. City of Tyler v. Texas Employers’ Ins. Ass’n, 288 S.W. 409 (Tex.Com. of App.1926); City of Webster Groves v. Smith, 340 Mo. 798, 102 S.W.2d 618 (1937).
(2) Regulation 106-COLLECTION, is not applicable to municipalities.
Regulation 106(A) is not applicable to municipalities. It is applicable only to persons “serving a municipality”. It provides for “at least once weekly collection”. Collection of what? The regulation is silent.
Regulation 106(b) provides that “any person who is responsible for the control of parks, recreational areas and highway rest areas shall provide collection for recreational wastes . . . . ”
By Regulation 101(B), the Board defined the word “person” to include a “political subdivision” such as a municipality. By this power, the Board has displaced the Legislature. This it cannot do. It is not a regulation contemplated by the Act. Even if it were, the Legislature cannot delegate authority to a board to adopt rules or regulations which abridge, enlarge, extend or modify the statute. State v. Ashby, 73 N. M. 267, 387 P.2d 588 (1963).
In 1965, the Legislature adopted a Comprehensive Code affecting municipalities. Laws of 1965, ch. 300. Section 14-1-2(G), N.M.S.A.1953 (Repl.Vol. 3) defines a “municipality” as “any incorporated city, town or village, whether incorporated under general act, special act or special charter, and H class counties.” From this definition, the Board has no power to create a “municipality” out of the word “person”.
When the Legislature wants to define a “person” as a “political subdivision”, it will do so. See, § 59-14-3, N.M.S.A.1953 (2nd Repl.Vol. 9, pt. 1). This falls within the Occupational Health and Safety Act referred to in § 12-12-11, subd. A(9) of Environmental Improvement Act. See § 12-9-4(H) of the Radiation Protection Act; § 12-14-2(C) of the Air Quality Control Act, both of which are also referred to in § 12-12-11, subd. A (9).
The Board’s definition of “person” as a “political subdivision” is void.
C. E.I.A. did not repeal Article 49 of the Municipal Code.
E.I.A. was adopted in 1971. It makes no reference to “municipalities”. It does not declare whether municipalities are subject to or exempt from the regulations of the Board. The Act covers “refuse disposal”.
Prior thereto, in 1965, the Legislature enacted Article 49 of the Municipal Code. It covers collection and disposal of “refuse”. Sections 14-49-1 to 14-49-7, N. M.S.A.1953 (Repl.Vol. 3).
The Board claims that it has sovereignty over municipalities in this area. The ma-j ority opinion grants that power.
The Legislature enacted the Municipal Code and the E.I.A. In the Municipal Code, the Legislature specifically delegated to the municipality the authority and power to regulate the collection and disposal of “refuse”. In E.I.A. the Legislature granted to a Board the power to manage and regulate “refuse disposal”.
The question to decide is: Did the E.I. ^ A. impliedly repeal Article 49 of the Municipal Code ? The answer is “No”.
First, it is established law in New Mexico that repeals by implication are not favored, and will not be held to exist where a general statute conflicts with a statute special in scope. State ex rel. Armijo v. Romero, 32 N.M. 178, 253 P. 20 (1927); State v. Lujan, 76 N.M. 111, 412 P.2d 405 (1966); Saiz v. City of Albuqtierque, 82 N.M. 746, 487 P.2d 174 (Ct.App.1971); Santa Fe Downs, Inc. v. Bureau of Revenue, 85 N.M. 115, 509 P.2d 882 (Ct.App.1973). This rule is applicable here. The Municipal Code is specific in scope; E.I.A. is general.
Second, the Legislature did not manifest its intention that E.I.A. supercede Article 49 of the Municipal Code.
In Ellis v. New Mexico Const. Co., 27 N.M. 312, 319, 201 P. 487, 490 (1921), the Supreme Court said:
A statute is repealed by implication, though such repeal is not favored, where the legislative intent is manifest that the latter statute should supersede the former, and such intent is manifest where the Legislature enacts a new and comprehensive body of law which is so inconsistent with and repugnant to the former law on the same subject as to be irreconcilable with it, and especially does this result follow where the latter act expressly notices the former in such a way as to indicate an intention to abrogate. [Emphasis added],
E.I.A. does not manifest a legislative intention to repeal Article 49 of the Municipal Code. It does not cover the same subject. It does not expressly notice Article 49 in any manner to indicate an intention to abrogate.
But if we desire to be comforting to environmental protection, we can say that "refuse disposal” was abrogated by implication. But common sense shows that “collection” of refuse was not abrogated. The Legislature did not grant to the Board any powers of domination whereby it can, by regulation, usurp the authority granted to municipalities. The Board was not intended to be the “Autocrat of the Breakfast Table”.
D. E.I.A. is not a “Solid Waste Disposal Act”.
New Mexico is one of the few states in the union under which “regulations by the appropriate agency constitute the sole basis for state involvement, no solid waste statute having been enacted.” 1 Grad, Treatise on Environment Law, § 4.02.
The federal Solid Waste Disposal Act of 1965, 42 U.S.C.A. § 3252(5), defines the term “solid waste disposal” as “the collection, storage, treatment, utilization processing, or final disposal of solid waste.”
E.I.A. does not. If the Legislature had intended to include collection, storage and transportation of solid wastes, it would have adopted a “Solid Waste Disposal Act” and it would have defined solid waste disposal.
Section 12-12-11(A) (3) gave the Board the right to adopt regulations and standards in the area of “liquid waste; and solid waste sanitation and refuse disposal”. The Act did not define any of those terms.
The Legislature, not the administrative agency, has the power or authority to legislate on “solid waste disposal”.
E. The Environmental Improvement Act does not provide for any enforcement against municipalities.
Section 12-12-14 provides:
A person who violates any regulation of the board is guilty of a petty misdemeanor. This section does not apply to any regulation for which a criminal penalty is otherwise provided by law.
As heretofore shown, a municipality is not a person. If a municipality refuses to abide by the regulations adopted by the Board, the statute makes no provision for the enforcement thereof. Neither is the remedy mandamus. Mandamus is a remedy for a clear legal duty. State v. Vigil, 74 N.M. 766, 398 P.2d 987 (1965). No such clear legal duty exists under the Board’s regulations to compel a municipality to undertake storage, collection, transportation and disposal of solid waste.
If any municipality fails in its statutory duties in this area, the citizens affected thereby can and will compel compliance.
Conclusion
Environmental improvement and consumer protection is in its infancy. Its purposes are praiseworthy. But in the area of solid waste refuse disposal, the Legislature has imposed the burden on the municipals ty.
If the Legislature desires to place the municipality under the aegis of the Board, it should amend E.I.A. to include municipalities, repeal Article 49 of the Municipal Code, enact a Solid Waste Disposal Act, define its terms to guide the Board in the adoption of regulations, and provide remedies for enforcement of the Act.
When this is accomplished, citizens will be protected by way of “health, safety, comfort and economic and social well-being”.