On August 23, 1973, the California Highway Commission ("CHC") approved construction of a state highway project (the "Pelendale Project") in Stanislaus County. On October 18, 1974, the Department of Transportation, acting pursuant to the CHC authorization, awarded a contract in an amount exceeding $11 million for construction of the Pelendale Project in accordance with freeway standards. The plaintiff, the Board of Supervisors of Merced County, asserted that the CHC should have given a higher priority to a project in their county (the "Delhi Project"). Accordingly, the plaintiff sought a writ of mandate directing the CHC (1) to rescind its decision advancing construction of the Pelendale Project to the fiscal year 1974-1975; (2) to cease work being performed, or to be performed, on the Pelendale Project; and (3) to rescind its allocation of funds to the Pelendale Project and reallocate those funds to the Delhi Project in Merced County.
The petition for writ of mandate was filed on December 10, 1974. It was heard on January 30, 1975, and on February 28, 1975, the court issued its order sustaining the CHC's demurrer without leave to amend. Plaintiff appeals.
During the years 1971 through 1974, the CHC, in pursuance of its lawful duties, adopted and approved a sequential order of priority of freeway and interchange construction in the geographical area known as
During the years 1971 through 1973, there were three proposed highway improvement projects on Highway 99 in the area in question. These were the Pelendale Project, the Delhi Project and the Keyes Project, also located in Stanislaus County. During this period, the CHC, upon recommendation of the Division of Highways, established the relative priority of construction among these three state-approved projects as follows: (1) Delhi; (2) Keyes; and (3) Pelendale. The priority ratings were apparently based (in part) on the total number of accidents and fatalities occurring in each particular area.
In the year 1973, the scheduled dates for construction of these planned highway projects were as follows:
1. Delhi 1974-1975 fiscal year. 2. Keyes 1975-1976 fiscal year. 3. Pelendale 1977-1978 fiscal year.
During a public hearing on November 17, 1971, the CHC received a request by representatives of the City of Modesto (and other interested parties) to advance the construction of the Pelendale Project from fiscal year 1977-1978 to fiscal year 1974-1975. One of the persons who appeared before the CHC represented Ernest W. Hahn, Inc. (hereinafter "Hahn"), the developer of a regional shopping center in the Modesto area. At this public meeting Hahn offered up to $1 million of its own funds for the construction of the Pelendale Project, on the stipulation that the freeway could be completed in 1975.
At subsequent public hearings the CHC heard additional testimony and took additional evidence on the proposal by Hahn. It was clear to all parties concerned that the source of the $1 million offer was a private developer who apparently would benefit from the advancement of the Pelendale Project.
On August 13, 1973, the City of Modesto and Hahn entered into an agreement whereby the corporation agreed to give the City of Modesto $1 million for transfer to the state, provided that the CHC advanced the construction date of the Beckwith Interchange of the Pelendale Project
Shortly thereafter, the City of Modesto and the state (acting by and through the Division of Highways) entered into an agreement whereby the division would use its best efforts to award a contract for the construction of the Pelendale Project at the earliest possible date (but in no event later than June 1, 1974), subject to allocation of funds by the CHC and to a $1 million corporate fund contribution from the City of Modesto.
On August 23, 1973, the CHC held a further public hearing upon the request to advance the Pelendale Project. On that date it made a final decision to include this project in the 1974-1975 fiscal year state highway budget.
On September 18, 1974, the Division of Highways, pursuant to CHC authorization, prepared specifications and put out the Pelendale Project for bid. On October 18, 1974, bids were received on the project and a contract therefor was awarded for an amount in excess of $10 million.
In sustaining the CHC's demurrer to the petition for a writ of mandamus pursuant to section 1094.5 of the Code of Civil Procedure, the court ruled that such a petition may not be employed to review the CHC's quasi-legislative acts and, therefore, the petition did not state facts sufficient to constitute a cause of action.
The CHC consists of seven members appointed by the Governor with the advice and consent of the Senate. (Sts. & Hy. Code, § 70.) The Legislature has adopted a policy of freeway construction in the public interest. In furtherance of this policy, the Legislature has delegated a portion of its power to the CHC. (Holloway v. Purcell (1950) 35 Cal.2d 220, 231-232 [217 P.2d 665]; Sinclair v. State of California (1961) 194 Cal.App.2d 397, 402-403 [15 Cal.Rptr. 493]; see also Sherman v. Buick (1867) 32 Cal. 241, 252-253; Sts. & Hy. Code, § 79.) In particular, the
"(b) Allocate, from the funds available therefor, moneys for the construction, improvement or maintenance of the various highways or portions thereof under the jurisdiction of the department. The commission may determine in each case the maximum sum of money that shall be made available therefor.
"(c) Authorize preliminary surveys to determine the advisability of including in or excluding from the State highway system any highway or portion thereof." (Sts. & Hy. Code, § 75; see Holloway v. Purcell, supra, 35 Cal.2d at pp. 231-232 [delegation of legislative power to commission valid].)
With this general background in mind, we turn to the contentions of the plaintiff:
Before proceeding further, we examine in greater detail the applicable principles of law.
In this respect, it should also be noted that the CHC shares its powers concurrently with the Legislature as evidenced by section 79 of the Streets and Highways Code, which provides: "This delegation of power to the commission shall not be deemed exclusive, but any of the powers herein enumerated may continue to be exercised by the Legislature itself while in session." (See also Sts. & Hy. Code, §§ 253 et seq. and 300 et seq.)
In Holloway, our Supreme Court made the following pertinent remarks: "The Legislature has adopted a policy of freeway construction in the public interest. It has properly delegated to the highway commission the authority to determine when and where freeways will be constructed, and it has properly required that the authority be exercised in accord with the needs of the public interest. Such a delegation of legislative power is valid." (35 Cal.2d at pp. 231-232.)
Under this rule as declared in Holloway, the CHC has full authority to determine how and when a freeway will be constructed along a
"This statement of the law is particularly pertinent to the instant case because section 79 of the Streets and Highways Code provides that the statutory `delegation of power to the commission shall not be deemed exclusive, but any of the powers herein enumerated may continue to be exercised by the Legislature itself while in session.' If the Legislature had made the decision which is attacked by the instant legal proceedings, the obvious falsity of the charge of arbitrary and capricious conduct constituting an abuse of discretion, based on a refusal to accept the criteria advanced by the plaintiffs as a guide in making that decision, would be readily apparent. Under the stated rule, this charge is no less inapplicable because the decision was made by the commission." (194 Cal. App.2d at pp. 406-407.)
In summary, neither traditional mandamus nor administrative review mandamus is available for the purpose of reviewing the CHC's action on the merits. There was no abuse of authority on the part of the CHC.
The judgment of dismissal is affirmed.
Friedman, Acting P.J., and Paras, J., concurred.
FootNotes
"In making their protest against the advancement of the Modesto Route 99 project, the speakers were particularly critical of the Commission's policy of giving consideration to the possible advancement of a given project in response to a conditional offer of a supplementary contribution, to assist in funding the project, by the local community."
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