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District Court of Appeal, Third District, California.

William FISCHER, Plaintiff and Respondent, v. COUNTY OF SHASTA, a political subdivision of the State of California, O. M. Turner, Lee S. Foster, Alfred Meeker, Andrew T. Jessen, J. G. Chatham, as the individual members of the Board of Supervisors of the County of Shasta, William F. Weber, as the Auditor of the County of Shasta, and Pacific Gas & Electric Co., a corporation, Defendants and Appellants.

Civ. 8608.

Decided: October 27, 1955

Laurence J. Kennedy, Dist. Atty., Shasta County, Redding, for appellant Shasta County. Robert H. Gerdes and William S. Love, San Francisco, Orr M. Chenoweth, Redding, for appellant Pacific Gas & Electric Co. Carlton & Shadwell and Daniel S. Carlton, Radding, for respondent.

This appeal involves the question of the power of a special road maintenance district to expend public funds to light state highways.

The Board of Supervisors of Shasta County, by ordinance dated January 26, 1953, created Shasta County Special Road Maintenance District No. 1, embracing an unincorporated area of Shasta County. The board acted pursuant to the provisions of Section 1550.1 of the Streets and Highways Code, the relevant portions of which are as follows:

‘The board of supervisors may form special road maintenance districts in subdivided areas of the county wholly outside of incorporated cities. Formation of said districts may be ordered by the board of supervisors when in their opinion additional road funds are necessary to properly maintain roads in specific areas of the county.’

Some years before this ordinance was passed there existed in Shasta County three unincorporated local communities known as Central Valley, Project City and Pine Grove. These communities are traversed by state highways 99 and 209 and these communities and their adjacent areas were included in the boundaries of the road maintenance district. Several years before the maintenance district was formed, these unincorporated areas had formed voluntary unincorporated associations for the purpose of lighting the highways and streets in these communities. The Pacific Gas & Electric Company had installed a lighting system for the use and convenience of these areas, a major portion of the installations being located in the state highway areas after permission first acquired from the Department of Public Works. This system had been used for lighting, but the method of paying the Pacific Gas & Electric Company for its services, through collections made by and among the members of the unincorporated associations, proved unsatisfactory. That was the situation when the board of supervisors created the special road maintenance district. Having so created it, the board on behalf of the county entered into a contract with the Pacific Gas & Electric Company calling for the operation of the lighting system at district expense. The system continued to be owned by the Pacific Gas & Electric Company and the county agreed to pay a certain charge for current consumed and service afforded in lighting the area.

Plaintiff, respondent herein, brought this action against the county, the members of the board of supervisors, the auditor of the county and the Pacific Gas & Electric Company, contending that the contract was unlawful, that the expenditure of any public funds pursuant to the terms thereof would be an illegal expenditure. He sought a permanent injunction prohibiting the expenditure. The cause was tried and the trial court found that the principal portion of the system lay within the rights of way of state highways 99 and 209; that the primary purpose and function of the system was to light the sections of said highways which lay within the boundaries of the maintenance district. The trial court also found that the maintenance district had been created for the sole purpose of providing street lighting within its boundaries, which street lighting was to be financed by county funds. We may note here that there is nothing in the ordinance creating the district which bears out the court's findings as to its sole purpose. Legally, the district is a road maintenance district and has all of the powers, and may serve all of the purposes, of road maintenance within its boundaries as that term is defined in the statutes, which statutes include street lighting as part of road maintenance. The trial court further found that the contract between the county and the Pacific Gas & Electric Company providing for the financing of street lighting of portions of state highways out of county funds was for that reason null and void and that the plaintiff was entitled to an injunction forbidding the carrying out of said contract as involving in major part the unlawful disbursement of public funds. Judgment to that effect having been entered, the defendants appeal.

The parties all agree that the appeal raised the single question as to whether a board of supervisors, as the legislative body of a county, may provide street lighting for portions of state highways lying in an unincorporated area of its county through the medium of a special road maintenance district created pursuant to the provisions of section 1550.1 of the Streets and Highways Code.

In order to resolve the question thus presented we think it is necessary to consider the comprehensive legislative plan appearing in the Streets and Highways Code for the construction, maintenance, operation and control of public roads and ways. The Streets and Highways Code was first enacted in 1935. Stats.1935, ch. 29. It was declared to be an act to establish a streets and highways code, thereby consolidating and revising the law relating to public ways and all the appurtenances thereto. The first twenty-nine sections contain general provisions, definitions and other topics. Pertinent to this case are sections 24 and 25. Section 24 defines the term ‘State highway’ as meaning any highway which is acquired, laid out, constructed, improved or maintained as a state highway pursuant to constitutional or legislative authorization. Section 25 defines the term ‘county highway’ as meaning any highway which is laid out or constructed as such by the county, laid out or constructed by others and dedicated or abandoned to or acquired by the county, or made a county highway in any action for the partition of real property or otherwise pursuant to law. Pertinent also is section 27, which defines ‘maintenance’ as follows:

‘* * * ‘[M]aintenance’ includes:

‘(a) The preservation and keeping of rights of way, and each type of roadway, structure, and facility, in the safe and usable condition to which it has been improved or constructed, but does not include reconstruction or other improvement.

‘(b) The necessary provision for special safety conveniences and devices.

‘(c) The general utility services such as roadside planting and weed control.

‘(d) The special or emergency maintenance or repair necessitated by accidents or by storms or other weather conditions, slides, settlements or other unusual or unexpected damage to a roadway, structure or facility.

‘(e) Such illumination of streets, roads, highways and bridges which in the judgment of the body authorized to expend such funds is required for the safety of persons using the said streets, roads, highways and bridges.’

The section concludes as follows:

‘The degree and type of maintenance for each highway, or portion thereof, shall be determined in the discretion of the authorities charged with the maintenance thereof, taking into consideration traffic requirements and moneys available therefor.’

Leaving the general provisions, the code next contains Division 1—devoted to state highways; Division 2—devoted to county highways; and, Division 2.5—devoted to city streets. In division 1 it is declared by section 90:

‘The department [Department of Public Works] shall have full possession and control of all state highways and all property and rights in property acquired for state highway purposes. The department is authorized and directed to lay out and construct all state highways between the termini designated by law and on the most direct and practicable locations as determinated by the commission.’

Section 91 provides:

‘The department shall improve and maintain the state highways, including all traversable highways which have been adopted or designated as state highways by the commission, as provided in this code.’

Chapter 2 of the division describes ‘The State Highway System’ and declares that: ‘The highways described in this chapter are state highways.’ Streets and Highways Code, § 230. Article 3 of that chapter contains a complete legislative designation of the state highway routes, and sections included in the article describe the various routes by giving the course and termini thereof. Without going further, it can be said that the first division of the Streets and Highways Code contains legislative recognition of and provision for a comprehensive system of state highways as distinguished from county highways and city streets, all of which state highways are declared to be under the full control and in the possession of the Department of Public Works.

Division 2 of the code concerns itself with county highways. Generally speaking, it vests the control and possession of county highways in the boards of supervisors of the several counties. Section 940 says: ‘Boards of supervisors shall have general supervision, management, and control of the county highways.’ Section 941 declares that: ‘Boards of supervisors shall by proper order cause those highways which are necessary to public convenience to be established, recorded, constructed, and maintained in the manner provided in this division.’

We think it apparent from a consideration of the various provisions in the Streets and Highways Code that the legislature has set up a comprehensive legislative plan governing construction, maintenance, control and possession of public ways; that it has classified these ways and has given to the several public agencies jurisdiction over the classifications. It has set up a system of state highways, the full possession, control, and duty to maintain which it has given to the Department of Public Works. It has provided for a system of county highways within each of the counties and has given to the various county boards of supervisors the right and the duty to control, possess, maintain and construct them. Finally, we think it is apparent that, as a part of the legislative plan, none of the several agencies may encroach upon the domain of another except where the legislature has specifically provided that it may. We think, therefore, that a board of supervisors, having created a special road maintenance district, has thereby gained no control and no right to possess, or to in any sense maintain, any section of a state highway. We think that there is nothing in the legislative plan that permits a board, having created such a district, to maintain any portion of a state highway by lighting the same any more than it can maintain such portion by doing any of the other things included within the statutory definition of the word ‘maintenance’. As a corollary, we think that a board of supervisors, having no power to maintain any portion of a state highway, cannot expend public funds for that purpose.

We find further authority for what we have said in cretain decisions of the Supreme Court. In Gillespie v. City of Los Angeles, 36 Cal.2d 553, 559, 225 P.2d 522, 526, in a wrongful death action against the City of Los Angeles, arising out of an automobile accident on a portion of a state highway within the city limits, the Supreme Court, in holding that no relief could be had against the city, said:

‘* * * The state department of public works has ‘full possession and control’ of all state highways, Streets and Highways Code, § 100, including ‘State highways within cities'. Streets and Highways Code, § 204. Such highways are therefore ‘under its jurisdiction’ within the meaning of section 465 of the Vehicle Code. The duty to place and maintain the traffic signs and signals required by that section is expressly placed on the state department of public works. Moreover, it is that department only that determines the degree and type of maintenance including ‘safety conveniences and devices' for each state highway. Streets and Highways Code, §§ 27, 100. It follows that state highways are not within the jurisdiction of local authorities to control or maintain, and are therefore not ‘in their respective jurisdictions' under section 465 of the Vehicle Code.’

See also Whalen v. Ruiz, 40 Cal.2d 294, 253 P.2d 457, wherein the Supreme Court held that a railroad company had no such authority as to warrant its making structural changes in the highway deck of a bridge which was part of a state highway. The court held that the jurisdiction of the Department of Public Works over state highways is exclusive. The Supreme Court said further in Gillespie v. City of Los Angeles, supra, 36 Cal.2d at page 559, 225 P.2d at page 526, discussing the effects that would flow from a division of control, including responsibility over state highways and the maintenance thereof:

‘To hold that a state highway, which the state department of public works has ‘full possession and control of,’ and for which that department determines the degree and type of maintenance, including safety conveniences and devices, is ‘in (the) respective jurisdictions' of local authorities would not only create a direct conflict between the two Codes, but would lead to amomalous and unreasonable results. Both subdivisions (a) and (b) of section 465 provide that the respective agencies ‘shall place and maintain’ the required traffic control devices. If two or more agencies had the same mandatory duty, confusion would result when they sought to discharge their duties over the same highway, and the uniformity sought to be achieved by the state highway system would be defeated. See, Atlas Mixed Mortar Co. v. City of Burbank, bank, 202 Cal. 660, 663, 262 P. 334. Moreover, the placement and maintenance of traffic signs and signals is only a part of the general duty to maintain streets and highways in a safe and usable condition. Whether or not there is need for warning signs or signals will frequently depend on what other steps may be taken to render the highway safe and usable. In the present case, for instance, posting a warning sign would be only one of several means that might be adopted to apprise motorists of the curve ahead. Proper maintenance might eliminate the danger altogether, so that no warning would be necessary. It would be unreasonable to conclude that the Legislature intended that the limited part of maintenance involving the placement and maintenance of traffic signs and signals should be treated differently from the problem as a whole.'

It is suggested that the Highway Lighting District Act, Div. 14, Part 4, Sections 19000–19312, Sts. & H.Code, which does authorize a lighting district to be formed with power to construct and maintain a lighting system to illuminate public highways, including state highways, within the district, is a legislative recognition that the possession and control of state highways is not, as to lighting, exclusive in the department. Such districts are formed by petition, election, and order. The board of supervisors, after the district is formed, is granted authority to adopt and carry out a plan for a “street lighting system' * * * by means of street lights which are set upon poles or suspended in the air.' It is declared, section 19002, that the act provides an alternative system for making the improvements authorized by Part 14, which part of the code authorizes the formation of lighting districts of various kinds. We think nothing in this legislation was intended to war against the comprehensive plan for control, possession and maintenance of highways which appears in the code. On the contrary, this legislation, and other enactments such as that governing encroachment permits, section 117, Sts. & H.Code, contracts for proportionate sharing of construction expense, section 130 et seq., and the like, emphasize that, except where so expressly authorized, there shall be no overlapping of jurisdiction.

There are contentions by way of argument advanced by the appellants which we have not herein specifically treated. We think, however, that what we have said is sufficient to dispose of the single question posed by this appeal.

For the reasons we have given, the judgment appealed from is affirmed.

VAN DYKE, Presiding Justice.

SCHOTTKY and PEEK, JJ., concur.