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TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 

State of California
 

DANIEL E. LUNGREN
 

Attorney General
 

OPINION : 

: No. 94-906 

of : 

: March 16, 1995 

DANIEL E. LUNGREN : 

Attorney General : 

: 

ANTHONY S. Da VIGO : 

Deputy Attorney General : 

: 

THE HONORABLE DENNIS L. MYERS, COUNTY COUNSEL, COUNTY OF 

MERCED, has requested an opinion on the following question: 

May a county temporarily close to through traffic a highway under its jurisdiction 

where (1) after a public hearing the county determines, based on the joint recommendation of the 

sheriff's department and the Department of the California Highway Patrol, that there is serious and 

continual criminal activity in the portion of the highway to be closed, (2) the highway has not been 

designated as a through highway or arterial street, (3) vehicular or pedestrian traffic on the highway 

contributes to the criminal activity, and (4) the closure would not substantially affect adversely the 

operation of emergency vehicles, the performance of municipal or public utility services, or the delivery 

of freight by commercial vehicles in the area to be closed? 

CONCLUSION 

A county may temporarily close to through traffic a highway under its jurisdiction 

where (1) after a public hearing the county determines, based on the joint recommendation of the 

sheriff's department and the Department of the California Highway Patrol, that there is serious and 

continual criminal activity in the portion of the highway to be closed, (2) the highway has not been 

designated as a through highway or arterial street, (3) vehicular or pedestrian traffic on the highway 

contributes to the criminal activity, and (4) the closure would not substantially affect adversely the 

operation of emergency vehicles, the performance of municipal or public utility services, or the delivery 

of freight by commercial vehicles in the area to be closed. 

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ANALYSIS
 

We are asked whether a county may temporarily close to through traffic a highway 

under its jurisdiction in order to alleviate ongoing criminal vandalism to private property adjoining the 

portion of the highway to be closed. The county would install locked gates upon the road and provide 

keys to property owners, emergency vehicle owners, and others as designated by the county director of 

public works. We conclude that the county may do so under prescribed statutory conditions. 

Section 21 of the Vehicle Code1 provides: 

"Except as otherwise expressly provided, the provisions of this code are 

applicable and uniform throughout the state and in all counties and municipalities 

therein, and no local authority shall enact or enforce any ordinance on the matters 

covered by this code unless expressly authorized therein." 

In section 21 the Legislature has expressed its plenary power and preemption over the regulation and 

control of traffic on all highways and streets in the state, including those under the jurisdiction of local 

authorities. (Rumford v. City of Berkeley (1982) 31 Cal.3d 545, 551; Pipoly v. Benson (1942) 20 

Cal.2d 366, 371; City of Lafayette v. County of Contra Costa (1979) 91 Cal.App.3d 749, 755, 756; 75 

Ops.Cal.Atty.Gen. 80, 81 (1992); 73 Ops.Cal.Atty.Gen. 273, 275 (1990); 73 Ops.Cal.Atty.Gen. 13, 

14-15 (1990); 68 Ops.Cal.Atty.Gen. 101, 102 (1985).) In Citizens Against Gated Enclaves v. Whitley 

Heights Civic Assn. (1994) 23 Cal.App. 4th 812, 820, the court recently summarized the governing 

principles as follows: 

"As noted by the Attorney General: `Regulating the use of the public roads 

and highways by whatever means is outside the "municipal affairs" constitutional grant 

of authority to chartered cities.' (68 Ops.Cal.Atty.Gen. 101, 102, fn. 2 (1985).) 

Moreover, citing section 21, Rumford, and Lafayette, among others, the Attorney 

General stated: `Since the state has preempted the entire field of traffic control, any 

right of a local authority to interfere with the free flow of traffic, as by closing a street, 

must be derived from an express delegation of authority from the Legislature.' (Italics 

added.) (75 Ops.Cal.Atty.Gen. 80, 81 (1992).) We agree." 

In analyzing whether a county has "express delegation of authority from the 

Legislature" to temporarily close to through traffic a highway under its jurisdiction as above described, 

we find that section 942.5 of the Streets and Highways Code is the earliest relevant enactment (Stats. 

1957, ch. 1876, ' 1) requiring our examination. It provides as follows: 

"The board of supervisors may restrict the use of, or close, any county highway 

whenever the board considers such closing or restriction of use necessary: 

1

All references herein to the Vehicle Code are by section number only. 

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"(a) For the protection of the public. 

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

"No liability shall attach to the county, or to the board of supervisors, for the 

restriction of use, or closing, of any county highway for the above public purposes. 

"This section does not constitute a change in, but is declaratory of, the 

preexisting law." 

Under the terms of Streets and Highways Code section 942.5, it has been held that while the members 

of the public have an inalienable right to use public highways in a reasonable manner without 

obstruction and interruption, their right is subject to the power of a county to impose reasonable 

regulations restricting the use of a county highway for the protection of the public. (Acosta v. County 

of Los Angeles (1961) 56 Cal.2d 208, 210; People v. Sweetser (1977) 72 Cal.App.3d 278, 284.) 

Assuming the applicability of Streets and Highway Code section 942.5 to the 

circumstances presented for consideration, the issue arises whether its general provisions have been 

superseded by later and more comprehensive provisions of law. Specifically, section 21101.4 (Stats. 

1992, ch. 80, ' 1) provides: 

"(a) A local authority may, by ordinance or resolution, adopt rules and 

regulations for temporarily closing to through traffic a highway under its jurisdiction 

when all of the following conditions are, after a public hearing, found to exist: 

"(1) The local authority finds and determines that there is serious and 

continual criminal activity in the portion of the highway recommended for temporary 

closure. This finding and determination shall be based upon the recommendation of 

the police department or, in the case of a highway in an unincorporated area, on the 

joint recommendation of the sheriff's department and the Department of California 

Highway Patrol. 

"(2) The highway has not been designated as a through highway or arterial 

street. 

"(3) Vehicular or pedestrian traffic on the highway contributes to the criminal 

activity. 

"(4) The closure will not substantially adversely affect the operation of 

emergency vehicles, the performance of municipal or public utility services, or the 

delivery of freight by commercial vehicles in the area of the highway proposed to be 

temporarily closed. 

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"(b) A highway may be temporarily closed pursuant to subdivision (a) for not 

more than 18 months, except that period may, pursuant to subdivision (a), be extended 

for one additional period of not more than 18 months." 

We believe that a county may not act under the authority conferred by Streets and Highways Code 

section 942.5 except in accordance with the terms and conditions set forth in section 21101.4. 

Section 900 of the Streets and Highways Code states as follows: 

"The authority conferred upon boards of supervisors by this division [Sts. & 

Hy. Code, '' 900-1756] shall be exercised subject to such limitations and restrictions 

as are prescribed by this division or by other provisions of law, shall be in addition to 

any authority elsewhere conferred, and, except as otherwise expressly provided, shall 

be exercised only in relation to highways within their respective counties." 

A county may thus act under the authority granted in Streets and Highways Code sections 900-1756 

even though no comparable power to act is granted elsewhere (as one would obviously expect); 

however, such actions may be undertaken only in accordance with "limitations and restrictions . . . 

prescribed by . . . other provisions of law," including for example section 21101.4. (Cf. 23 

Ops.Cal.Atty.Gen. 11, 13 (1954).) Nothing in section 21101.4 suggests that a county may act other 

than in accordance with the conditions prescribed in that section. It is noted in this regard that in the 

Legislature's grant of a particular power, "there is an implied negative; an implication that no other than 

the expressly granted power passes by the grant; that it is to be exercised only in the prescribed mode. . 

. ." (Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 196; 76 Ops.Cal.Atty.Gen. 86, 89 (1993).) 

This interpretation is consistent with the unequivocal terms of section 21, as revised 

and recodified in 1959: ". . . the provisions of [the Vehicle Code] are applicable and uniform 

throughout the State . . . and no local authority shall enact or enforce any ordinance on the matters 

covered by [the Vehicle Code] unless expressly authorized herein."2 

A final issue remains concerning whether section 21101.4 itself is subject to limitations 

set forth in other provisions of law. In particular, section 21101.6 states as follows: 

"Notwithstanding Section 21101, local authorities may not place gates or other 

selective devices on any street which deny or restrict the access of certain members of 

the public to the street, while permitting others unrestricted access to the street. 

"This section is not intended to make a change in the existing law, but is 

intended to codify the decision of the Court of Appeal in City of Lafayette v. County of 

Contra Costa (91 Cal.App.3d 749). 

2

The term "local authority" as used in sections 21 and 21101.4 includes the legislative body of every county or 

municipality having authority to adopt local police regulations. (' 385.) 

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"This section shall become operative January 1, 1990." 

Section 21101 provides in part: 

"Local authorities, for those highways under their jurisdiction, may adopt rules 

and regulations by ordinance or resolution on the following matters: 

"(a) Closing any highway to vehicular traffic when, in the opinion of the 

legislative body having jurisdiction, the highway is no longer needed for vehicular 

traffic. 

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

"(f) Prohibiting entry to, or exit from, or both, from any street by means of 

islands, curbs, traffic barriers, or other roadway design features to implement the 

circulation element of a general plan. . . ." 

As previously noted, the county in question proposes to install gates and provide keys 

to property owners and other designated parties, thus restricting the access of certain members of the 

public, while permitting others unrestricted access. Nevertheless, section 21101.4 is not, in our view, 

subject to the limitations of section 21101.6. First, by its express terms, section 21101.6 constitutes a 

limitation upon section 21101, while making no reference to section 21101.4. Typically, a provision 

intended to supersede all enactments to the contrary begins with the phrase "Notwithstanding any other 

provision of law. . . ." (Cf. 73 Ops.Cal.Atty.Gen. 296, 299 (1990); 64 Ops.Cal.Atty.Gen. 660, 662 

(1981).) 

Second, the application of section 21101.6 would render section 21101.4 null and void 

in its entirety since the closure of a highway to through traffic by its very nature restricts the use of the 

highway to those members of the public who would otherwise travel to a point of destination beyond 

the portion of the highway designated for closure, while permitting the use of the highway to those 

whose destination lies within the portion. It is well settled that statutes relating to the same subject 

must be harmonized, both internally and with each other, to the extent possible. (Dyna-Med, Inc. v. 

Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387; 77 Ops.Cal.Atty.Gen. 185, 189 

(1994); 75 Ops.Cal.Atty.Gen. 251, 252-253 (1992).) A construction making some words surplusage is 

to be avoided. (Moyer v. Workmen's Comp. Appeals Board (1993) 10 Cal.3d 220, 230; 73 

Ops.Cal.Atty.Gen. 1, 4 (1990).) 

Finally, section 21101.4 was enacted after section 21101.6, and deals specifically with 

the temporary closure of a road due to criminal activity. In such circumstances we may apply the rule 

that where the same subject matter is covered by inconsistent provisions, one of which is special and 

the other general, the special is an exception to the general and controls unless an intent to the contrary 

clearly appears; further, where the special statute is later, it will be regarded as an exception to the prior 

general law. (American Friends Service Com. v. Procunier (1973) 33 Cal.App.3d 252, 263; 71 

Ops.Cal.Atty.Gen. 154, 161 (1988).) 

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It is concluded that a county may temporarily close to through traffic a highway under 

its jurisdiction where (1) after a public hearing the county determines, based on the joint 

recommendation of the sheriff's department and the Department of the California Highway Patrol, that 

there is serious and continual criminal activity in the portion of the highway to be closed, (2) the 

highway has not been designated as a through highway or arterial street, (3) vehicular or pedestrian 

traffic on the highway contributes to the criminal activity, and (4) the closure would not substantially 

adversely affect the operation of emergency vehicles, the performance of municipal or public utility 

services, or the delivery of freight by commercial vehicles in the area to be closed. 

* * * * * 

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