TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 

State of California
 

JOHN K. VAN DE KAMP
 

Attorney General

 ------------------------------

OPINION : No. 87-101

 : 

of : MAY 27, 1987

 : 

JOHN K. VAN DE KAMP : 

Attorney General : 

:

 RODNEY O. LILYQUIST :

 Deputy Attorney General :

 -----------------------------------------------------------------

THE CALIFORNIA TRANSPORTATION COMMISSION has requested an opinion 

on the following questions: 

1. Does the phrase "exclusive public mass transit guideways" as used in article XIX 

of the Constitution include exclusive bus-carpool transitways? 

2. Does the phrase "exclusive public mass transit guideways" as used by the 

Legislature in defining transit capital improvement projects eligible for funding from the 

transportation planning and development account of the state transportation fund include exclusive 

bus-carpool transitways? 

CONCLUSIONS 

1. The phrase "exclusive public mass transit guideways" as used in article XIX of 

the Constitution does not include exclusive bus-carpool transitways. 

2. The phrase "exclusive public mass transit guideways" as used by the Legislature 

in defining transit capital improvement projects eligible for funding from the transportation planning 

and development account of the state transportation fund does not include exclusive bus-carpool 

transitways. 
 

 

ANALYSIS
 

The two questions presented for resolution concern exclusive bus-carpool 

"transitways." These are roads upon which travel is restricted to buses and other motor vehicles 

carrying three or more persons (sometimes called high occupancy vehicles). The roads may at times 

be entirely separate from highways used by single occupancy vehicles. No track or other guidance 

system is part of the roadway; the bus or automobile driver must maneuver the vehicle at all times, 

even within a transitway separated by a grade from other highway lanes. We are asked whether 

these transitways are "exclusive public mass transit guideways" as that term is used in article XIX 

of the Constitution and in Public Utilities Code section 99317. We conclude that they are not. 

1. Article XIX of the Constitution 

Section 1 of Article XIX of the California Constitution states: 

"Revenues from taxes imposed by the state on motor fuels for use in motor 

vehicles upon public streets and highways, over and above the costs of collection and 

any refunds authorized by law, shall be used for the following purposes: 

"(a) The research, planning, construction, improvement, maintenance, and 

operation of public streets and highways (and their related public facilities for 

nonmotorized traffic), including the mitigation of their environmental effects, the 

payment for property taken or damaged for such purposes, and the administrative 

costs necessarily incurred in the foregoing purposes. 

"(b) The research, planning, construction, and improvement of exclusive 

public mass transit guideways (and their related fixed facilities), including the 

mitigation of their environmental effects, the payment for property taken or damaged 

for such purposes, the administrative costs necessarily incurred in the foregoing 

purposes, and the maintenance of the structures and the immediate right-of-way for 

the public mass transit guideways, but excluding the maintenance and operating costs 

for mass transit power systems and mass transit passenger facilities, vehicles, 

equipment, and services." (Emphases added.) 

Section 3 provides: 

"The Legislature shall provide for the allocation of the revenues to be used 

for the purposes specified in Section 1 of this article in a manner which ensures the 

continuance of existing statutory allocation formulas for cities, counties, and areas 

of the state, until it determines that another basis for an equitable, geographical, and 

jurisdictional distribution exists; provided that, until such determination is made, any 

use of such revenues for purposes specified in subdivision (b) of Section 1 of this 

article by or in a city, county, or area of the state shall be included within the existing 

statutory allocations to, or for expenditure in, that city, county, or area. Any future 

2. 87-101
 
statutory revisions shall provide for the allocation of these revenues, together with 

other similar revenues, in a manner which gives equal consideration to the 

transportation needs of all areas of the state and all segments of the population 

consistent with the orderly achievement of the adopted local, regional, and statewide 

goals for ground transportation in local general plans, regional transportation plans, 

and the California Transportation Plan." (Emphasis added.) 

Section 4 states: 

"Revenues allocated pursuant to Section 3 may not be expended for the 

purposes specified in subdivision (b) of Section 1, except for research and planning 

until such use is approved by a majority of the votes cast on the proposition 

authorizing such use of such revenues in an election held throughout the county or 

counties, or a specified area of a county or counties, within which the revenues are 

to be expended. The Legislature may authorize the revenues approved for allocation 

or expenditure under this section to be pledged or used for the payment of principal 

and interest on voter-approved bonds issued for the purposes specified in subdivision 

(b) of Section 1." (Emphasis added.) 

Accordingly, if a bus-carpool transitway is included in the term "public streets and 

highways" (§ 1, subdiv. (a)) or the term "exclusive public mass transit guideways" (§ 1, subd. (b)), 

motor fuel tax proceeds (commonly known as the "gas tax") may be used to fund the construction 

thereof. The significant distinction is that prior voter approval must first be obtained if the 

transitway is in the latter category of "exclusive public mass transit guideways." 

The Constitution does not define the terms in question. The language "public streets 

and highways" has, however, received considerable attention in our prior opinions. The basic 

principle is that those persons subject to the gas tax should be benefited by using the tax proceeds 

to construct and maintain the public roads upon which they operate their vehicles. Based upon our 

prior analyses, we have no hesitancy in including a bus-carpool transitway within the constitutional 

phrase "public streets and highways." (See 57 Ops.Cal.Atty.Gen. 142, 143-146 (1974); 56 

Ops.Cal.Atty.Gen. 243, 244-247 (1973); 47 Ops.Cal.Atty.Gen. 28, 30-31 (1966); 27 

Ops.Cal.Atty.Gen. 15, 20 (1956); 22 Ops.Cal.Atty.Gen. 49, 50-51 (1953).) 

Is such a transitway also an "exclusive public mass transit guideway"? No prior 

opinions of this office or reported court decisions provide an answer. By using dictionary 

definitions, it may be argued that the phrase is limited ("exclusive") to a publicly owned ("public") 

channel controlling the line of motion ("guideway") for conveyances ("transit") carrying large 

numbers of people ("mass"). (See Webster's New Internat. Dict. (3d ed. 1971), pp. 793, 1009, 1388, 

1836, 2428.) A road upon which private automobiles may travel if containing three occupants 

would appear not to meet this definition in several respects. 

Of particular significance is the definition of "guideway": "a channel, slot, or track 

in which something is fitted so that the line of motion is controlled." (Webster's, supra, p. 1009.) 

3. 87-101
 
It is not the operator of the vehicle who controls the line of motion but rather the channel, slot, or 

track. With respect to the proposed bus-carpool transitway, the vehicle operator would be able to 

maneuver the vehicle while on the transitway. Consequently the transitway would not be a 

guideway. 

The Constitution is to be given a "practical, common-sense construction . . . in 

accordance with the natural and ordinary meaning of its words." (Amador Valley Joint Union High 

School Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245; accord ITT World 

Communications, Inc. v. City and County of San Francisco (1985) 37 Cal.3d 859, 865.) Here the 

ordinary and common usage of the words contained in article XIX of the Constitution precludes a 

finding that a bus-carpool transitway is an exclusive public mass transit guideway. 

This determination is supported by the purposes for which the phrase "exclusive 

public mass transit guideways" was incorporated into the Constitution. In analyzing "the intent and 

objective of the drafters of the provision and the people by whose vote it was adopted" (Mosk v. 

Superior Court, supra, 25 Cal.3d 474, 495), we may look to "the ballot summary and arguments and 

analysis presented to the electorate in connection with a particular measure" (Amador Valley Joint 

Union High Sch. Dist. v. State Bd. of Equalization, supra, 22 Cal.3d 208, 245-246; see Legislature 

v. Deukmejian (1983) 34 Cal.3d 658, 673, fn. 14; White v. Davis (1975) 13 Cal.3d 757, 775). 

The provision for the funding of exclusive public mass transit guideways was added 

to the Constitution through an initiative measure approved by the electorate on June 4, 1974. Prior 

to that time, use of gas tax proceeds was restricted to "highway purposes" defined in the Constitution 

as: 

"The construction, improvement, repair and maintenance of public streets and 

highways, whether in incorporated or unincorporated territory, for the payment for 

property, including but not restricted to rights of way, taken or damaged for such 

purposes and for administrative costs necessarily incurred in connection with the 

foregoing." (Former art. XXVI, § 1, subd. (a).) 

The intent of the "exclusive public mass transit guideways" provision was to expand 

the use of the gas tax to cover new, different and additional methods of transportation not already 

included within the term "public streets and highways." By so construing the language, we give it 

meaning and substance. (See Pacific Legal Foundation v. Unemployment Ins. Appeals Bd. (1981) 

29 Cal.3d 101, 114; Stanton v. Panish (1980) 28 Cal.3d 107, 115; Serrano v. Priest (1971) 5 Cal.3d 

584, 596.) In accordance with this construction are the following statements contained in the voters' 

pamphlet: (1) "Extends present use of revenues from motor vehicle fuel taxes," (2) "This measure 

would broaden the uses for which such revenues may be expended," (3) "Unless we want to put 

much more of our State under an asphalt blanket, . . . we have to begin moving in a new direction," 

(4) "To permit the Legislature to use motorists' tax funds for other than motorists' needs," and (5) 

use of the gas tax for "alternate transportation systems" not involving "roads or highways." (Cal. 

Voters Pamp., Prim. Elec. (June 4, 1974), pp. 22-23.) As cogently stated by the opponents to the 

measure: 

4. 87-101
 
 

"If transit systems are constructed, they will be used in very few big cities for 

very few trips--less than 5%. The remaining trips will be made on roads, as they are 

now. Smog and congestion will not be noticeably reduced by transit. Rapid transit 

will cost billions of dollars, and takes many years to build. Our air quality and 

energy problems must be solved before then. Immediate alternatives such as 

carpools and buses require good roads." (Id. at p. 22.) 

An unmistakable distinction was thus drawn at the time of approving the 

constitutional amendment between "public streets and highways" used by carpools and buses and 

"exclusive public mass transit guideways" used by different and dissimilar methods of 

transportation. 

We find no basis upon which to conclude that bus-carpool transitways now require 

voter approval before gas tax proceeds may be used to fund their construction. They were 

previously included in the phrase "public streets and highways" and were not transformed by the 

constitutional amendment into "exclusive public mass transit guideways" necessitating a vote of the 

people for their construction.1 

It must be noted, however, that in the Federal Public Transportation Act of 1978 

(Pub.L. No. 95-599, 92 Stat. 2745), Congress employed the term "fixed guideway" for purposes of 

its program to fund state and local mass transportation systems. It defined the term as follows: 

"The term 'fixed guideway' means any public transportation facility which 

utilizes and occupies a separate right-of-way or rails for the exclusive use of public 

transportation service including, but not limited to, fixed rail, automated guideway 

transit, and exclusive facilities for buses and other high occupancy vehicles, and also 

means a public transportation facility which uses a fixed catenary system and utilizes 

a right-of-way usable by other forms of transportation." (49 U.S.C. § 1608(c); 

emphases added.) 

We reject the argument that the federal definition of "fixed guideway" should be 

followed in construing article XIX of the California Constitution. The state gas tax provision 

contained in the Constitution was not patterned after the federal grant program. Indeed, the 

"exclusive public mass transit guideways" language of article XIX predates the "fixed guideway" 

terminology of the federal statute. Moreover, the federal grant program has never made a distinction 

between bus, rail and other public conveyances (see Pub.L. No. 88-365, 78 Stat. § 302, former 49 

U.S.C. § 1608(c)), while the same cannot be said of article XIX. 

We thus conclude in answer to the first question that the term "exclusive public mass 

transit guideways" as used in article XIX of the Constitution does not include exclusive bus-carpool 

1

We are informed that 47 counties do not have voter approval as specified in the Constitution, 

article XIX, section 4. 

5. 87-101
 
 

 

transitways. The transitways are, however, included in the term "public streets and highways" 

contained in the article. 

2. Public Utilities Code Section 99317 

Public Utilities Code section 99317 2

 states: 

"Funds made available pursuant to subdivision (c) of Section 99315 shall be 

appropriated to the department for allocation, as directed by the commission, to fund 

the following types of transit capital improvement projects: 

"(a) Abandoned railroad rights-of-way acquisition. 

"(b) Bus rehabilitation. 

"(c) Exclusive public mass transit guideways and

 rolling stocks.
 

"(d) Grade separations. 

"(e) Interface facilities of various transportation

 modes." (Emphasis added.) 3
 

Funds made available pursuant to subdivision (c) of section 99315 come from the transportation 

planning and development account of the state transportation fund. (§§ 99310, 99310.5, 99312.) 

These moneys are not gas tax proceeds (see § 99312; Rev. & Tax. Code, § 7102) and hence are not 

restricted by the language of article XIX of the Constitution. Does the phrase "exclusive public 

mass transit guideways" as used in section 99317 have a different meaning from its use in the 

Constitution? 

The Legislature may use the funds in the account as it chooses, subject only to 

constitutional limitation. (See Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 180; City 

and County of San Francisco v. Workers' Comp. Appeals Bd. (1978) 22 Cal.3d 103, 113; Methodist 

Hosp. of Sacramento v. Saylor (1971) 5 Cal.3d 685, 691.) It has the authority to define "exclusive 

public mass transit guideways" as used in section 99317 to include a road or highway or a buscarpool transitway. (See In re Marriage of Stephens (1984) 156 Cal.App.3d 909, 913 ["The 

Legislature has power to prescribe legal definitions of its own language, and when an act passed by 

the Legislature embodies a definition, it is binding on the courts"].) 

2

All references hereafter to the Public Utilities Code are by section number only. 

3

"The department" is the Department of Transportation (§ 99205.5), and "the commission" is 

the California Transportation Commission (§ 99204.3). 

6. 87-101
 
Here, however, the Legislature has not so defined the language of section 99317. 

Section 99317.6 states: 

"Funds made available pursuant to subdivision (c) of Section 99317 shall be 

allocated to the department, public entities in counties which have approved a 

proposition pursuant to Section 4 of Article XIX of the California Constitution, and 

public entities in nonurbanized areas within the jurisdiction of a statutorily created 

transportation planning agency having jurisdiction over portions of two counties, for 

public mass transit guideways and rolling stock." 

The Legislature has referred to article XIX of the Constitution when designating the recipients of 

the funds made available under section 99317, subdivision (c). It has similarly referred to article 

XIX in other contexts when using the term "exclusive public mass transit guideway." (See, e.g., Sts. 

& Hy. Code, § 199.) 

Furthermore, in section 99317.2 the Legislature has distinguished a "busway" from 

an "exclusive public mass transit guideway": 

"Funds made available pursuant to subdivision (a) of Section 99317 shall be 

allocated for the acquisition of only those rights-of-way of abandoned railroad lines 

that can be developed for busway or exclusive public mass transit guideway 

projects." 

If the Legislature had intended for an exclusive public mass transit guideway to include a busway 

under the terms of section 99317, different language in section 99317.2 could have easily so 

provided. Instead, the wording of section 99317.1 suggests that the two terms signify different types 

of projects. 

We have found no indication in the legislative history of section 99317 that the 

statutory phrase "exclusive public mass transit guideways" is to have any meaning other than its 

constitutional meaning. 

"[T]he various parts of a statutory enactment must be harmonized by considering the 

particular clause or section in the context of the statutory framework as a whole." (People v. Black 

(32 Cal.3d 1, 5; accord People v. Craft (1986) 41 Cal.3d 554, 560.) "[E]very statute should be 

construed with reference to the whole system of law of which it is a part, so that all may be 

harmonized and have effect." (Moore v. Panish (1982) 32 Cal.3d 535, 541.) 

In answer to the second question, therefore, we conclude that the phrase "exclusive 

public mass transit guideways" as used by the Legislature in defining transit capital improvement 

projects eligible for funding from the transportation fund does not include exclusive bus-carpool 

transitways. 

7. 87-101