Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1959 No. 91 - Dec 22 1959
Attorney General John J. O'Connell


Items of road construction equipment within the definition of vehicle under RCW 46.04.670 must be licensed where such vehicles are employed for construction purposes on public highways open to public travel.

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                                                               December 22, 1959

Honorable Roy A. Betlach
Chief, Washington State Patrol
General Administration Building
Olympia, Washington                                                                                             Cite as:  AGO 59-60 No. 91

Dear Sir:

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

            Which, if any, road construction vehicles are required to be licensed where such vehicles are employed for construction purposes on public highways open to public travel?

            The answer to this question is contained in the analysis.


            The facts giving rise to this question are as follows:

            On certain road improvement projects it is often impractical to construct a detour upon which travelers on a public highway may by-pass a construction area.  In such cases, in order to facilitate the movement of vehicles through the area, one or more lanes of the highway under construction may be kept open to public travel, while contiguous or adjacent lanes are closed.  Usually the lane open to public traffic is designated by cone shaped markers and directional traffic is controlled by two or more flagmen, one at each end of the construction zone.  On multiple lane highways having a dividing strip, it is not unusual to close the lanes on either side of the dividing strip so as to permit the movement of traffic in two directions on the opposite lanes.  Your question concerns  [[Orig. Op. Page 2]] construction equipment not operating on the closed portion of a public highway, but on such portion as is open to public travel.  With these assumed facts in mind, reference is made to the pertinent statutory requirements.

            RCW 46.16.010 reads as follows:

            "It shall be unlawful for a person to operate any vehicle over and along a public highway of this state without first having obtained and having in full force and effect a current and proper vehicle license and display vehicle license number plates therefor as by this chapter provided:  Provided, That these provisions shall not apply to farm tractors and farm implements temporarily operating or drawn upon the public highways, and trailers used exclusively to transport farm implements from one farm to another during the daylight hours or at night when such equipment has lights that comply with the law."

            It is noted, in defining the article required to be licensed, this section uses the term "vehicle" as distinguished from "motor vehicle".  That the former is a broader, more comprehensive term is readily apparent upon comparison of the definitive sections of the motor vehicle code.  See RCW 46.04.670 and 46.04.320, respectively.

            RCW 46.04.670 reads as follows:

            "'Vehicle' includes every device capable of being moved upon a public highway and in, upon, or by which any persons or property is or may be transported or drawn upon a public highway, excepting devices moved by human or animal power or used exclusively upon stationary rails or tracks."

            In your letter requesting this opinion you make specific reference to certain vehicles as follows:

            "The construction vehicles in question include rubber tired tractors, graders, turnapulls, carryalls, euclids, earth movers, earth packers, loaders, air compressors, brooms and all trucks regardless of size."

            The determination of whether any one of the devices just mentioned is a "vehicle" within the above quoted definition is, of necessity a question  [[Orig. Op. Page 3]] of fact.  Accordingly, we can only say (in the language of the statute) that if such device is "capable of being moved upon a public highway . . . in, upon or by which any person or property is or may be transported or drawn upon a public highway," it is a "vehicle" and must be licensed to travel "over and along a public highway."  RCW 46.16.010.

            "Public Highway" is defined in RCW 46.04.430 as follows:

            "'Public Highway' includes every way, land, 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."

            Parenthetically, we note that the only change this statute has undergone since its original enactment in 1937 (§ 1, chapter 188, Laws of 1937; § 1, chapter 153, Laws of 1943) is the changing of the word "lane" to "land" by the legislature at its most recent session.  This alteration of the section appears to have resulted from inadvertence in codification rather than legislative intention.  But we do not consider this change to be critical because either of the terms "way" or "road" appears sufficiently broad to include the lanes open to public travel with which we are here concerned.

            We thus conclude that if a particular item of construction equipment of the type mentioned is, in fact, a "vehicle" it must be licensed as a condition precedent to operation "over and along the public highways" of this state as defined above.  This result is consistent with the opinion of this office issued to the director of licenses November 29, 1956 (AGO 55-57 No. 349), in which it was concluded that a "fork lift truck" would be required to be licensed in order to transport commodities over and along such highways.

            It is to be noted that we have assumed that the particular lanes used to accommodate public traffic through a construction area are not considered "closed" but rather, open to the public.  There can be no question that public highways are subject to complete closure by the appropriate authorities for construction and maintenance purposes.  See chapter 47.48 RCW.  But if such highways are not closed, construction equipment which falls within the "vehicle" definition must be licensed in order to intermingle with public traffic on the highway.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Assistant Attorney General