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AGO 1963 No. 25 - May 23, 1963
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John J. O'Connell | 1957-1968 | Attorney General of Washington


HIGHWAYS ‑- MOTOR VEHICLE LAWS ‑- PUBLIC HIGHWAY ‑- DEFINITION.

The term "public highway" as used in the state motor vehicle code (Title 46 RCW) means any place, way, street, etc., where people are accustomed to congregate in automobiles in numbers sufficient to constitute a use by the public.

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                                                                   May 23, 1963

Honorable Jack Rogers
State Representative, 23rd District
Star Route 1, Box 78
Bremerton, Washington

                                                                                                                Cite as:  AGO 63-64 No. 25

Dear Sir:

            By letter previously acknowledged you requested the opinion of this office on a question which we paraphrase as follows:

            In view of the definition of "public highway" contained in RCW 46.04.430, what is the geographical application of chapters 46.20, 46.48, 46.52, 46.56 and 46.60 RCW?

            We answer your question in the manner set forth in our analysis.

                                                                     ANALYSIS

            At the outset we note that your question has been answered in so far as it relates to chapter 46.52 RCW by AGO 61-62 No. 63 [[to Prosecuting Attorney, Pend Oreille County on September 19, 1961]].  (A copy of which is enclosed herewith.) We there concluded that chapter 46.52 RCW has application to accidents which occur off the public highways on private roads or other private property in addition to those occurring upon the public highways.

            The Washington motor vehicle code, chapter 12, Laws of 1961, Title 46 RCW, is a comprehensive enactment prescribing among other things rights, obligations and duties of motor vehicle operators.  Bennett v. Seattle, 22 Wn. (2d) 455, 156 P. (2d) 685 (1945).  The motor vehicle laws are regulatory measures resulting from the exercise by the legislature of its police power for the protection of the welfare and safety of the motoring public.  State ex rel. Ralston v. Dept. of Licenses, 160 Wash. Dec. 539 (1962) [[60 Wn.2d 535]];Gnecchi v. State, 58 Wn. (2d) 467, 364 P. (2d) 225 (1961).

            The problem raised concerning the geographical application of the  [[Orig. Op. Page 2]] motor vehicle laws becomes significant in light of the circumstances stated as being the basis of your specific question.

            "There are differences of opinion as to the geographical application of Washington's Motor Vehicle Laws‑-that is, whether they operate in public parking areas, pay parking areas, retail store parking lots, etc. . . ."

            The easy way to provide an answer would be to quote the statute about which you inquire, cite an appropriate rule of statutory construction, attach to it a handy, predetermined conclusion and render our opinion.1/   In order, however, to properly evaluate the problem it is necessary to compare and contrast all pertinent definitions in light of the purpose effectuated by the legislature as evidenced by the motor vehicle laws in general.  State ex rel. Ralston v. Dept. of Licenses, supra.

             [[Orig. Op. Page 3]]

            For the purposes of the act, a public highway is defined in RCW 46.04.430 as:

            "'Public highway' includes every way, lane, road, street, boulevard, and every way or place in the state open as a matter of right to public vehicular travel both inside and outside the limits of cities and towns."

            And private road is defined as follows in RCW 46.04.420:

            "'Private road or driveway' includes every way or place in private ownership and used for travel of vehicles by the owner or those having express or implied permission from the owner, but not by other persons."

            We first note what we deem to be the main contrasting feature, evidencing legislative purpose, in the above sections.  The definition of public highway is written in terms of use, i.e., whether any "way or place is open as a matter of right to public vehicular travel" is a factual inquiry answered by the extent of the public use without regard to the characteristic of property ownership.2/

             [[Orig. Op. Page 4]]

            The definition supplied for private road or driveway is first limited by the fact of private ownership and secondly by a restricted manner of use.  In order to be considered private the "way or place" must be limited in its use to the owner himself and to only those persons having express or implied permission from the owner, and none other.

            If the legislature had intended that a public highway exist only on publicly-owned land it would have so stated.  Compare RCW 46.24.010, footnote 2, supra.  Instead, we are provided with a guiding principle, i.e., "every way or place in the state open as a matter of right to public vehicular travel" is a public highway for the purposes of the motor vehicle code.  It therefore becomes necessary to determine whether certain designated property is open as a matter of right to public vehicular travel in order to determine the extent of the geographical application of those sections of the code wherein the term public highway is employed.

            It has been held in at least three jurisdictions that the extent of use by the public is the factor which determines whether a way or place is to be characterized as public or private.  InEbert v. Incorporated Village of Garden City, 196 N.Y.S. (2d) 878 (1960), the court held that a municipal parking lot was included within the meaning of New York's definition of highway.  That court cited and approvedKoutsky v. Grabowski, 150 Neb. 508, 34 N.W. (2d) 893 (1948), wherein it was held that a road was a public highway, notwithstanding the fact that it was privately owned and maintained, so long as the road was open to the public generally.3/   And inBennett v. Seattle, supra, our court held that a road remained a public highway although it had been closed to public travel and limited in its use to a private company.

             [[Orig. Op. Page 5]]

            Under ordinary circumstances the owner of property can control who may enter upon it.  A formal dedication to public use, however, is not necessary to greatly limit that control.  For many purposes a property owner, especially when his property is used for commercial purposes, loses control over who may enter upon his premises.4/

             [[Orig. Op. Page 6]]

            In AGO 45-46, p. 280 [[1945-46 OAG 280 to Department of Transportation on July 28, 1945]], this office quoted with approval the following language found inCity of Clayton v. Nemours, 353 Mo. 61, 182 S.W.2d 57 (1944):

            "'In the instant case, sufficient for the purpose of this review, Glen Ridge avenue was devoted, although not dedicated, to the public use by acts of the owners.  It was not taken over by the municipality.  In so devoting the use of their property, the owners constituted Glen Ridge avenue ade facto although not a de jure public street within the meaning of statutory and ordinance provisions, the word public, when applied to highways, not being restricted to connote ownership alone but in proper instances being employed to describe the use.  In determining whether a way is a public or private highway, the use to which the way is put; i.e., whether public or private, is of greater importance than its ownership, its mode of creation or its designation as public or private; because it would tend to create confusion and danger to the traveling public if privately owned highways open to and used by the general public enforced their own rules of the road, free from legitimate public regulation, upon travelers leaving the publicly owned highways and entering upon the privately owned ways; for instance, a requirement of operation on the left hand side of the way et cetera.  Consequently: "The law of the road extends to all public highways, however created, and may also be applicable to roads not public highways, if used for travel."  40 C.J.S., Highways, p. 256, § 236, subsec. b.  To the extent of the public interest thus created by the owners, they subjected Glen Ridge avenue to reasonable police regulations in the furtherance of the public safety, health, and welfare.  * * *'"

 

            In view of the more restrictive definition of highway found in RCW 46.24.010, and of private road found in RCW 46.04.420, it can only be concluded that the legislature had the more broad concept of public place in mind when enacting the definition of public highway found in RCW 46.04.430.  "Every way or place open as a matter of right to public vehicular travel" has reference to a way or place open to all the public without distinction, Mullen v. Fayette, 85 N.Y.S. (2d) 64, 67 (1948), rather than reference to an absolute right in the nature of  [[Orig. Op. Page 7]] ownership.  RCW 46.04.430 would have been couched in similar terms to RCW 46.04.420 had the legislature intended to include the concept of public ownership as a condition in its definition of public highway.

            In view of the regulatory purpose of the motor vehicle code, State ex rel. Ralston v. Dept. of Licenses, supra, and the more restrictive definitions found elsewhere in Washington law, RCW 46.04.420; RCW 46.24.010, chapter 309, Laws of 1927, we conclude that any section of the motor vehicle laws wherein the term "public highway" is employed should have application wherever people are accustomed to congregate in automobiles in numbers sufficient to constitute a use by the public.

            We trust the foregoing is of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

DEAN A. FLOYD
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/State ex rel. Ralston v. Dept. of Licenses, 160 Wash. Dec. 539, 544 (1962), supra:

            "Thus, we have here a situation necessitating a judicial evaluation of statutory language, and implementation thereof, in terms of purposeful legislative activity‑-a task which any reasonably prudent jurist would readily agree is usually most difficult.  The easy way would be to rely on an appropriate maxim of statutory construction, attach it to a handy, predetermined conclusion, and pronounce judgment.  It is at best a tenuous, difficult undertaking to attempt to articulate the real basis of a decision; i.e., what the conglomerate mass activity of legislators did or did not accomplish and effectuate, in terms of legal sanctions, by enacting or formalizing given language into statutory law.

            "The automobile is a useful machine in our society, but it can also be a deadly weapon.  The annual statistical report of the Washington State Patrol, Accident Records Division (1961), contains this information:

            "'There were 79,126 reported motor vehicle traffic accidents in the State of Washington for the year 1961, in which 32,907 persons were injured and 579 were killed.  This compares to 75,129 accidents occurring in Washington during the year 1960, in which 30,080 persons were injured and 561 were killed.  This is an increase of 5.3 per cent in total accidents, 9.4 per cent in number injured and 3.2 per cent in the number of traffic fatalities over 1960.'

            "The need for reasonably effective regulatory procedures with respect to those who operate motor vehicles is indeed great.  Furthermore, the magnitude of the problems involved increases with each year. Effective licensing can be, and is, a means of restraining unfit or irresponsible operators from endangering the lives of those who operate motor vehicles in a safe and responsible manner."

2/When the legislature intended the fact of public ownership to be taken into consideration, it was clearly so stated.  An example is the more restrictive definition of highway found in RCW 46.24.010:

            "'Street or highway' means the entire width between boundary lines of every way or place, publicly maintained, when any part thereof is open to the use of the public for purposes of vehicular travel."

            The present language of RCW 46.04.430 first appears in Washington law in § 1 (X), chapter 188, Laws of 1937.  The prior statute § 2 (g), chapter 309, Laws of 1927, expressly excluded property owned by private persons.  That statute was as follows:

            "(g) 'Public Highway.'  Every way or place of whatever nature open as a matter of right to the use of the public for the purposes of vehicular travel.  The term 'highway' shall not be deemed to include a roadway or driveway upon grounds owned by private persons."

3/The Nebraska court reached its conclusion notwithstanding the following restrictive definition of highway set forth at page 897 of the court's opinion:

            "Section 39-741, R.S. 1943, provides in part as follows: '(5) The term "highway" includes every way or place of whatever nature open to the use of the public, as a matter of right, for the purposes of vehicular travel, but shall not be deemed to include a roadway or driveway upon grounds owned by private persons, colleges, universities or other institutions.'"

            Also, cf.Nygaard v. Stull, 146 Neb. 736, 21 N.W. (2d) 595 (1946).

4/A property owner may not exclude a person from his premises on account of race or creed, if the premises are used as a place of public accommodation.  RCW 9.91.010;Anderson v. Pantages Theatre Co., 114 Wash. 24, 194 Pac. 813 (1921).  An owner of a shopping center may not exclude union picketing though the streets and ways in the center are privately owned.  Cf.Freeman v. Retail Clerks Union, 58 Wn. (2d) 426, 532, 363 P. (2d) 803 (1961).  Religious groups may not be excluded from using the streets of a company town for purposes of propagandizing their beliefs.  Marsh v. Alabama, 326 U.S. 501, 66 S. Ct. 276, 90 L.Ed. 265 (1946).

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