AGO 1967 No. 12 - Mar 27 1967
CITIES AND TOWNS - THIRD CLASS - HIGHWAYS - CONSTRUCTION OF SPEED CONTROL BUMPS.
Since state law prohibits the erection or maintenance, without approval of the state highway commission, of any traffic control device on a city street which has been designated as a part of the state highway system, a city of the third class, operating under the commission form of government, may not construct "speed control bumps" (consisting of raised portions of asphaltic paving) on any of its streets which have been so designated without prior approval from the highway commission; in the case of city streets which are not a part of the state highway system, a third class city operating under the commission form of government may install such "speed control bumps" if, under all circumstances, they constitute a reasonable means of controlling the speed of traffic and do not pose an unreasonable danger or hazard to such traffic.
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March 27, 1967
Honorable Ernest H. Campbell
Acting Director, Bureau of Governmental
Research and Services
3935 University Way, N.E.
Seattle, Washington 98105
Cite as: AGO 1967 No. 12
By letter previously acknowledged you have requested an opinion of this office in regard to the following question:
May a city of the third class, operating under a commission form of government, construct "speed control bumps" consisting of raised portions of asphaltic paving on city streets and alleys so as to reduce the speed of motor vehicles as they travel thereon?
We answer your question in the manner set forth in our analysis.
In answering your question, consideration must first be given to the authority of a city with regard to those city streets which are also state highways. The term "state highway" is defined by RCW 47.04.010 (38), as follows:
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"'State highway.' Every public highway as herein defined, or part thereof, which has been designated as a primary state highway or secondary state highway by legislative enactment;"
The authority to designate which streets of an incorporated city or town shall ". . . form a part of the route of state highways . . ." is vested in the state highway commission by RCW 47.24.010. The matter of jurisdiction and control of those city streets which have been designated as a part of the state highway system is covered by RCW 47.24.020, which contains the following express provision with regard to traffic regulations and traffic control devices:
"(11) Cities and towns shall regulate and enforce all traffic and parking restrictions on such streets, but all regulations adopted by a city or town relating to speed, parking,and traffic control devices on such streets not identical to state law relating thereto shall be subject to the approval of the state highway commission before becoming effective. All regulations pertaining to speed, parking, and traffic control devices relating to such streets heretofore adopted by a city or town not identical with state laws shall become null and void unless approved by the state highway commission heretofore or within one year after March 21, 1963;" (Emphasis supplied)1/
In addition, see RCW 46.61.085, codifying § 14, chapter 155, Laws of 1965, Ex. Sess., which provides as follows:
"No traffic control signal or device shall be erected or maintained upon any city street designated as forming a part of the route of a primary state highway or secondary state highway unless first approved by the state highway commission."
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Thus, to the extent that the particular city streets under consideration are state highways, having been so designated in the manner hereinbefore indicated, it seems clear that the city in question may not construct "speed control bumps" or any other type of traffic control device unless the approval of the state highway commission is first received.2/
We turn next to consideration of the authority of a third class (commission) city with regard to those city streets which are not a part of the state highway system.
As you are aware, all cities organized under the commission form of government, regardless of class, are vested with ". . . all the powers of cities of the second class . . ." RCW 35.17.030. Of course, such a city, as in the case of any city or town (or, as well, county) is vested with the broad and general police power granted by Article XI, § 11 of our state constitution, which provides:
"Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws."
This constitutional grant is a direct delegation of the police power that is possessed by the state provided that the subject matter is local and the regulation is reasonable and consistent with the general laws of the state. Detamore v. Hindley, 83 Wash. 322, 145 Pac. 462 (1915).
However, in addition, there is a specific statutory provision relating to second class cities which vests in their governing bodies3/ certain authority which is pertinent to the question which you have posed. The statute is RCW 35.23.440, which provides, in material part, as follows:
"The city council of each second class city shall have power and authority:
". . .
"(20) Fast driving: To regulate or prohibit fast driving or riding in any portion of the city."
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Of course, any action taken by the governing body of such a city to ". . . regulate or prohibit fast driving . . ." would, necessarily, have to meet the constitutional tests of (1) reasonableness and (2) consistency with general state laws. This is because any action taken by such a governing body would be an action in exercise of its constitutional grant of police power, as well as in the exercise of the specific statutory authority granted by RCW 35.23.440 (20),supra.
In the case of city streets which are also a part of the state highway system, we found an inconsistency between a city's installation of traffic control devices and general state law to the extent of requiring highway commission approval of any traffic control devices proposed to be installed by a city. However, there is no such conflict in the case of those city streets which are not a part of the state highway system. In other words, while there are specific statutory requirements of highway commission approval of any city-installed traffic control devices on those city streets which are a part of the state highway system, there is no such express requirement in the case of city streets which are not a part of the state highway system.
The only remaining question to be considered, then, is whether such devices could be said to meet the test of reasonableness.4/ Obviously, the answer to this question would depend upon factual circumstances such as the location and size of the "speed bumps," advance warning of such devices, the type of traffic ordinarily using the street or alley in question, and the practical utility of the particular devices. There can be no doubt that while "speed control bumps" may be effective in terms of discouraging persons from driving their automobiles at excessive speeds, the existence of such obstructions in public streets might well also constitute a hazard. See,Mayor, Etc. of Vicksburg v. Harralson, 136 Miss. 872, 101 So. 713, 39 A.L.R. 777, 7 A.L.R. 2d 249 (1924).
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However, these various factors, going to the reasonableness of the approach, are essentially factors to be considered by the city officials in the exercise of their best judgment. The most we can say, in terms of legal conclusion, is that in the case of those city streets of a third class (commission) city which are not a part of the state highway system, speed control bumps may be installed if, under all of these circumstances, they constitute a reasonable means of controlling the speed of traffic on the street or alley in question and do not pose an unreasonable danger or hazard to such traffic.
We trust that the foregoing will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
THOMAS E. KELLY
Assistant Attorney General
*** FOOTNOTES ***
1/Though at first glance it might appear that subsection (11) of RCW 47.24.020, supra, would restrict a city's authority to install traffic control devices on all streets within the city's limits, that is not a correct characterization of the statutory provisions. Our supreme court inCity of Airway Heights v. Schroeder, 53 Wn.2d 625, 335 P.2d 578 (1959), held that RCW 47.24.020, supra, is a special statute applying only to those city streets which have been designated as state highways.
2/With regard to the subsidiary question of which agency is to bear the cost of operation and maintenance of traffic control devices on city streets which are also state highways, see RCW 47.24.020(13), as recently amended by chapter ___, Laws of 1967 (Senate Bill No. 252).
3/And thus, as well, the governing bodies of third class cities operating under the commission form of government. See RCW 35.17.030,supra.
4/Notably, RCW 47.36.060 (codifying § 52, chapter 53, Laws of 1937 (as last amended by § 4, chapter 179, Laws of 1955)), which requires "Local authorities in their respective jurisdictions . . ." to ". . . place and maintain such traffic devices . . . as are necessary to carry out the provisions of the law or local traffic ordinances or to regulate, warn, or guide traffic. . . ." (Emphasis supplied) establishes an additional test of necessity as to required devices. It is not entirely clear whether this provision applies to all cities and towns, or only to those of over 15,000 in population. However, in any event we are not here concerned with the duty of a city; our concern is only with its authority.