                         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.

                                                   1.                                            94-906

                                                      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.


                                                            2.                                            94-906

                 "(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.




                                                                         3.                                         94-906

                "(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.)


                                                        4.                                                 94-906

                "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).)


                                                                        5.                                         94-906

                 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.

                                               *****




                                                   6.                                           94-906

