Neary v. Town of Los Altos Hills, 18220

• Decision Date: 10 August 1959
• Docket Number: No. 18220,18220
• Citation: 172 Cal.App.2d 721,343 P.2d 155
• Court: California Court of Appeals Court of Appeals
• Parties: George H. NEARY, Jr., Ethyl Neary, Neary Enterprises, a partnership, Neary Rock Quarry, Inc., a corporation, Plaintiffs and Respondents, v. TOWN OF LOS ALTOS HILLS, a municipal corporation, City Council of the Town of Los Altos Hills and Sidney W. Treat, Leighton M. Bledsoe, Ray Hoefler, John Fowie, and Easton C. Rothwell, as members of the City Council of the Town of Los Altos Hills, Henry Paulman, City Clerk of the Town of Los Altos Hills, J. L. McKenna, Chief of Police of the Town of Los Altos Hills, Gardner Bullis, City Attorney of the Town of Los Altos Hills, Melvin A. Hawley, Sheriff of the County of Santa Clara, Defendants and Appellants.

Page 155

343 P.2d 155

172 Cal.App.2d 721

George H. NEARY, Jr., Ethyl Neary, Neary Enterprises, a partnership, Neary Rock Quarry, Inc., a corporation, Plaintiffs and Respondents, v. TOWN OF LOS ALTOS HILLS, a municipal corporation, City Council of the Town of Los Altos Hills and Sidney W. Treat, Leighton M. Bledsoe, Ray Hoefler, John Fowie, and Easton C. Rothwell, as members of the City Council of the Town of Los Altos Hills, Henry Paulman, City Clerk of the Town of Los Altos Hills, J. L. McKenna, Chief of Police of the Town of Los Altos Hills, Gardner Bullis, City Attorney of the Town of Los Altos Hills, Melvin A. Hawley, Sheriff of the County of Santa Clara, Defendants and Appellants.

No. 18220.

District Court of Appeal, First District, Division 1, California.

Aug. 10, 1959.

Hearing Denied Oct. 7, 1959.

Robin D. Faisant, City Atty., Los Altos, Cal. (Gardner Bullis, Los Altos, Leighton M. Bledsoe, San Francisco, of counsel), for appellants.

Marlais & Hover, San Jose, for respondents.

BRAY, Presiding Justice.

Defendants appeal from a judgment restraining them from enforcing an ordinance prohibiting the operation of trucks in excess of 12 tons gross weight on the streets of Los Altos Hills. ^*

Questions Presented.

3. Alleged error in rejection of evidence. in entirely prohibiting use of the town's streets to vehicles over 12 tons weight?

2. Were the findings supported?

3. Alleged error in rejection of evidence.

Facts.

Since 1927 plaintiffs have owned a rock quarry located in the unincorporated area of Santa Clara County. It has been in continuous operation since March, 1935. From 1951 to August 31, 1956, it was operated by Sondgroth Bros. under a lease. The rest of the time it was and now is operated by plaintiffs. Nine persons are employed. Its equipment is valued in excess of $250,000. The quarry is not operated on weekends, but from Monday through Friday from 8 a. m. to 4:30 p. m. A water truck is used to wet down the roads and quarry property, which is bounded north, east, and west by the city limits of Los Altos Hills. To the south it is bounded by mountains, the first ridge of which has an elevation of about 1,000 feet, the grade of elevation being approximately 40 per cent. No trucks are operated by plaintiffs. The quarry products are transported in trucks owned or operated by plaintiffs' customers without any control by plaintiffs of the route they travel to and from the quarry.

The only roads to the quarry are through certain town streets which have been used since 1935 for the transportation of materials from the quarry. The nearest public road to the quarry property, other than the said town streets, is approximately 3 1/2 miles distant south of the quarry to which there are no connecting roads, public or private, from the quarry. There are no rail facilities at or near the quarry. To get to and from the quarry, trucks must travel on town streets for approximately one mile. The area of the town through which these streets pass is hilly and sparsely populated. Other streets feed into these. On the route usually traveled by the trucks there are 13 homes within the town limits.

The town was incorporated in January, 1956. On June 20, the city council enacted ordinance No. 17, 'An Ordinance * * * Regulating Traffic Upon the Public Streets and Providing Penalties for the Violation Thereof.' Section 145 provides:

'Section 9-145. In accordance with the Code of the State of California and in addition to the provisions thereof, all truck traffic in the Town of Los Altos Hills over the public streets and highways thereof shall be subject to the following regulations: * * *

'(c) No truck shall be operated on any street or public way in the Town of Los Altos Hills, which vehicle with load and including any tractor has a maximum gross weight of over 12 tons (24,000 lbs);

'(d) There shall be excepted from the provisions of this subdivision of Ordinance No. 17 any vehicle subject to the provisions of Section 50 1/4 of the Public Utilities Act [Public Utilities Code, §§ 1031-1036]; also any vehicle owned by a public utility while necessarily in use in construction, installation, or repair of any public utility; also any commercial vehicle coming from an unrestricted street having ingress or egress by direct route to and from a restricted street when necessary for the purpose of making pickups or deliveries of goods, wares and merchandise from any building or structure located on any restricted street, or for the purpose of delivering materials to be used in the actual and bona fide repair, alteration, remodeling or construction of any building or structure upon such restricted street and for which a building permit has been previously obtained.'

Most of the trucks carrying rock from the quarry weigh much more than the 12 ton maximum limit.

November 30, 1956, the town posted signs on its streets stating that trucks over that gross weight limit were prohibited. Thereafter drivers of three trucks carrying crushed rock from the quarry were arrested or cited for violating the tonnage limit, whereupon plaintiffs brought this suit to test the validity of the ordinance.

1. Has The Legislature Occupied The Field?

Ordinance No. 17 was enacted pursuant to section 713, Vehicle Code, as it stood prior to the 1957 amendment. The section provided:

'When Cities May Reduce Weight Limits. (a) Any incorporated city, or city and county may by ordinance prohibit the use of a street to be described in said ordinance by any commercial vehicle or by any vehicle exceeding a maximum gross weight limit to be specified in the ordinance, except with respect to any vehicle which is subject to the provisions of Section 50 1/4 of the Public Utilities Act. * * *

'(c) Except as permitted in this section, no city, or city and county shall have any authority to impose limitations upon the weight of vehicles and loads less than those set forth in this code.'

There is a provision in the section to the effect that if the street affected by such ordinance is a state highway the town must designate an alternate route or routes which may be used by trucks without limit as to weight. As none of the streets in question is a state highway that provision of the section is not applicable.

The question as to the validity of ordinance No. 17 is whether section 713, Vehicle Code, authorizes the municipality to set such limitations on the use of its streets as will effectively compel plaintiffs' customers to use smaller trucks, inasmuch as (1) no alternate route has been provided, and (2) there is no way by which, at the present time, rock can be removed from the quarry without using the town's streets. Another way of putting the question is, does section 713, Vehicle Code, authorize such a limitation?

While it is true that the state has occupied the legislative field in the regulation of weight, size, and capacity of trucks (see Veh.Code §§ 704-711), and consequently any municipal ordinance in conflict therewith ordinarily would be invalid, the Legislature by section 713, Vehicle Code, has seen fit to permit the municipalities to invade the field and make limitations which may be greater than those imposed in the Vehicle Code. However, the Legislature has no power to grant authority to a municipality to enact an ordinance that is unreasonable. In Whyte v. City of Sacramento, 1924, 65 Cal.App. 534, 546, 224 P. 1008, 1013, the court said 'the question of the reasonableness of an ordinance passed by a municipal corporation, whether, in enacting the ordinance, the governing board of the city proceed under authority conferred by * * * the Constitution or that conferred directly by its charter, is open to inquiry by the courts.' The same is true if the authority conferred be by legislative act. So the inquiry in our case must be directed not to whether the state has occupied the field (because the state in section 713, Vehicle Code, has expressly yielded the field to the municipality) (see McCammon v. City of Redwood City, 149 Cal.App.2d 421, 426, 308 P.2d 831, and Whyte v. City of Sacramento, supra, 65 Cal.App. 534, 552, 224 P. 1008, to the effect that the Legislature may properly delegate such power to a municipality), but to whether the ordinance is so unreasonable as to make it void. Whether there has been a reasonable exercise of the police power is a court question. State Board of Dry Cleaners v. Thrift-D-Lux Cleaners, 40 Cal.2d 436, 440, 254 P.2d 29. The ordinance here is unreasonable. In these days of the universal use of trucks for transportation of materials of all kinds, no city may close all its streets to trucks of capacities that are in daily use in commerce. In McCammon v City of Redwood City, supra, 149 Cal.App.2d 421, 424, 308 P.2d 831, where this court upheld an ordinance which limited trucks over a certain weight to the use of certain streets, we stated that section 713, Vehicle Code, authorizes incorporated cities to prohibit by ordinance the use of streets which are designated therein by vehicles exceeding a specified maximum gross weight limit, but that such ordinance must in fact designate an alternate route within the city for such vehicles, or otherwise the ordinance would be unreasonable. Particularly is this true in a situation like in the instant case, where the topography of the area contiguous to the city is such that no route is open to the plaintiffs' property other than one through the town.

Defendants argue that the town has, in effect, provided the plaintiffs with an alternate route in that plaintiffs can still remove material from their quarry but that in place of the large trucks they are required merely to use smaller trucks, and that though such alternative increases operating expenses, it increases them in no manner different from that by which the...