Holloway v. Purcell

• Decision Date: 25 April 1950
• Citation: 35 Cal.2d 220,217 P.2d 665
• Court: California Supreme Court
• Parties: HOLLOWAY et al. v. PURCELL, Director of Department of Public Works et al. Sac. 6039.

Page 665

217 P.2d 665

35 Cal.2d 220

HOLLOWAY et al. v. PURCELL, Director of Department of Public Works et al.

Sac. 6039.

Supreme Court of California, in Bank.

April 25, 1950.

Rehearing Denied May 22, 1950.

E. Vayne Miller, George W. Artz, Jr., and H. D. Jerrett, all of Sacramento, for appellants.

Fred N. Howser, Attorney General, Timothy W. O'Brien, Deputy Attorney

General, C. R. Montgomery, Robert E. Reed, Russell S. Munro and Harry S. Fenton, all of Sacramento, for respondents.

TRAYNOR, Justice.

Plaintiffs appeal from a judgment for defendants entered after a demurrer to their complaint was sustained without leave to amend.

This action was brought by plaintiffs as taxpayers to enjoin the proposed relocation of a section of Route 3, part of the state highway system extending from Sacramento to the Oregon state line via Yreka. Streets & Highways Code § 303. The complaint alleged that defendants, the Director of the Department of Public Works and members of the California Highway Commission, intend to abandon the part of Route 3 that runs along Auburn Boulevard between the cities of Roseville and Sacramento past the places of business of plaintiffs, and to establish a 'proposed new substitute highway * * * over an entirely new location from the established Route 3' by the construction of a freeway about a mile and a half to the northwest, connecting with the North Sacramento freeway at its present terminus. It was alleged that none 'of said defendants acting in a representative capacity, or otherwise acting in any manner whatsoever, have or has, the power or authority to change, alter, relocate, re-route or substitute said State Highway Route 3, or any portion thereof as aforesaid, or to abandon or relinquish, or to do any of the things hereinbefore charged against said aforenamed defendants.' An injunction was sought 'restraining the defendants and each of them from acquiring real property for, and from performing any engineering work on, and from entering into any contract or contracts for, and from preparing, acknowledging, or approving any schedules relating to, and from preparing or honoring any warrants in relation to, and from performing any day labor or administrative work for, or on the construction of said proposed new supposed substitute highway in lieu of a portion of said Route 3 of the California State highway System as alleged and described herein.' The trial court in a memorandum opinion held that the proposed relocation was within the statutory and constitutional authority of the state highway commission, and entered a judgment sustaining defendants' demurrer without leave to amend and dismissing the complaint.

There is ample statutory authority for the state highway commission to relocate any part of the state highway system. Streets & Highways Code section 71 provides: 'The commission may alter or change the location of any State highway if in the opinion of the commission such alteration or change is for the best interest of the State.' See also, Streets & Highways Code §§ 72, 73, 75, 90, 193. In doing so, 'the commission may retain or may summarily vacate and abandon any portion of a State highway which portion has been superseded by relocation, except in case such abandonment would cut off all access to the property of any person which, prior to such relocation, adjoined the highway. The commission shall either retain such highway or relinquish it to the county.' Streets & Highways Code § 835. It is not contended that, even if the state highway commission were summarily to abandon the old highway, all access to the property of any person would be cut off The proposed relocation by the commission is not prohibited by Streets & Highways Code section 303, which designates only the termini of Route 3 (Sacramento and the Oregon state line), and one point along the route (Yreka). The commission may properly relocate any part of the highway within the designated points when in its opinion 'such alteration or change is for the best interest of the State.' Streets & Highways Code § 71; People v. Gianni, 130 Cal.App. 584, 586, 20 P.2d 87. The Federal Highway Act, to the provisions of which the state has assented (Streets & Highways Code § 820), expressly provides for the revision or relocation of state highways, such as Route 3, that are a part of the primary Federal Aid System, by the state highway commission with the approval of the Federal Bureau of Roads. 23 U.S.C.A., § 6; Singeltary v. Heathman, Tex.Civ.App., 300 S.W. 242, 245.

Plaintiffs contend, however, that the location of Route 3 is fixed by the terms of the State Highways Act of 1909, Stats. 1909, c. 383, pp. 647-652, under which it was acquired by the state in 1915, and cannot be changed until the principal and interest on the indebtedness authorized by that act has been paid. In their view the statutes authorizing the relocation of state highways constructed or acquired under the 1909 act are unconstitutional on the ground that they accomplish a repeal of the provisions of that act in violation of Article XVI, section 1 of the California Constitution. ^* This contention is without merit.

The State Highways Act of 1909 provided for the construction and maintenance of 'a continuous and connected state highway system running north and south * * * traversing the Sacramento and San Joaquin valleys * * * by the most direct and practicable routes' at a total cost of eighteen million dollars to be financed by the issuance and sale of state highway bonds. Bonds in the amount of five million dollars issued under the 1909 act have not yet been paid and discharged. Although the 1909 act prescribed only the termini of the highway system and not the location of any of the highways, plaintiffs rely on two sentences in section 8 of the act, the first of which provides:

'The highway constructed or acquired under the provisions of this act shall be permanent in character and be finished with oil or macadam or * * * both, or of such other material as in the judgment of the said department of engineering shall be most suitable and best adapted to the particular locality traversed.' (Italics added.)

Plaintiffs interpret permanence to preclude changes from established routes. There is no support for so narrow a construction. The sentence specifically relates permanence to character of construction, not to location as is evident from the words 'finished with oil or macadam or a combination of both, * * * as in the judgment of the said department of engineering shall be most suitable and best adapted to the particular locality traversed.' In specifying hard surface materials it envisages highways that are built and maintained to endure. There is no implication that the site selected will remain forever. Trippeer v. Couch, 110 Or. 446, 454-457, 220 P. 1012; Stoppenback v. Multnomah County, 71 Or. 493, 500, 142 P. 832. A duty to construct and maintain highways 'permanent in character' does not preclude relocation or realignment of highways to meet the changing needs of traffic. The sense of 'permanent' in the statute is durable, not perpetual. No one can predict how long a highway will serve the purposes for which it was constructed. The first sentence in section 8 upon which plaintiffs rely requires that highways be constructed of durable materials to insure a free flow of traffic over highways that are adequate to carry it, not to compel the perpetuation of routes that have outlived their original usefulness.

The second sentence of section 8 on which plaintiffs rely provides: 'All highways constructed or acquired under the provisions of this act shall be permanently maintained and controlled by the State of California.' (Italics added.)

The requirement of permanent maintenance is not one of permanent location. The purpose of this requirement is obviously to insure state maintenance of the highways so that the burden of maintenance will not fall upon the counties. This provision must be read in connection with the preceding sentence, to the effect that the counties are responsible for the interest on the bonds issued by the state. After the relocation of the part of Route 3 now proposed has been concluded the state will still be controlling and maintaining the highway specified as part of the system described in section 4 of the 1909 act, namely, 'a continuous and connected state highway system running north and south * * * traversing the Sacramento and San Joaquin Valleys * * * by the most direct and practicable routes.' The requirement of permanent maintenance does not preclude the state from relocating a highway and thereafter maintaining it as relocated. Thus, the Maryland Court of Appeals, interpreting a statute requiring the state to maintain a highway bridge, held that the state could relocate the bridge to meet changed conditions. The 'obvious purpose (of the statute) was to provide that, so long as the bridge at that point was used as a connection between state highways, the commission should keep it in safe repair, but it did not mean that, when in the judgment of the commission, acting in the public interest, it became desirable to relocate the highway approaches to it, and to connect those approaches by a bridge, they could not abandon the old and useless bridge and make that change.' Huffman v. State Roads Comm., 152 Md. 566, 581, 137 A. 358, 364; Texas & Pacific Ry. Co. v. City of Marshall, 136 U.S. 393, 403, 10 S.Ct. 846, 34 L.Ed. 385; Raines v. Terrell County, 169 Ga. 725, 151 S.E. 509, 611; Rode v. State Highway Comm., 58 N.D. 249, 225 N.W. 801, 803.

The 1909 act provided that a system of state highways 'shall be constructed and acquired as and in the manner provided by law by the department of engineering of said state', § 1, that the department of engineering should select the routes of highways to be constructed, § 4, procure land and rights of way therefor by donation, dedication, lease, or condemnation, and...