CLOSURE OF STATE HIGHWAYS AND MOVEMENT OF LOADS IN EXCESS OF LIMITATIONS PROVIDED BY LAW

CLOSURE OF STATE HIGHWAYS AND MOVEMENT OF LOADS IN EXCESS OF LIMITATIONS PROVIDED BY LAW

The Washington State Highway Commission does not have authority to close a section of a state highway for a temporary period, to permit the moving of a load upon the highway in excess of the limitations permitted by law.

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                                                                  August 6, 1953

Honorable W. A. Bugge
Director of Highways
Transportation Building
Olympia, Washington                                                                                                              Cite as: AGO 53-55 No. 109

Dear Sir:

            By letter of July 24, 1953, you request an opinion on the following question:

            "Has the Washington State Highway Commission authority to close a section of a state highway for a temporary period, to permit the moving of a load upon the highway in excess of the limitations permitted by law?"

            Our conclusion is that the Washington State Highway Commission does not have such authority, and the closure and movement would be illegal.

                                                                     ANALYSIS

            We have been unable to find any statutory authority for closure of a state highway for the purpose indicated.  We have reviewed and will briefly discuss certain statutes that relate to the subject matter.

            RCW 47.48.010 authorizes closure of state highways for repairs when continued use is dangerous to traffic, and RCW 47.48.020 provides for the giving of notice to the public.  RCW 47.48.030 authorizes emergency closure, but we do not believe that either the state or the county could create the emergency to effect the closure, and a review of chapter 53, Laws of 1937, section 66, clearly shows the emergency closure relates to the condition of the highway.

             [[Orig. Op. Page 2]]

            RCW 46.44.080 authorizes restrictions upon highways upon the basis of weight,when climatic or other conditions indicate that the operation of certain vehicles thereon will damage or destroy the highway.  This is further evidence that it was the intention of the legislature to protect the highways by these statutes restricting use.

            RCW 46.44.090 provides for the issuance of special permits for oversize or overweight movements upon primary or secondary highways, and RCW 46.44.091 pertains to special permits and provides for the gross weight limit on axles.

            RCW 46.44.092 pertains to width of loads under special permits and provides the maximum.  This statute also provides certain exceptions for which the proposed movement does not qualify.

            Under the legal maxim of "Expressio unius est exclusio alterius" (The expression of one thing is the exclusion of another), it is quite evident that the legislature intended to limit closure and movements upon the highways under special permits to those provided by statute, so that any discretion that might have been vested in the Highway Commission from an administrative standpoint has been limited expressly by statute.

            In the absence of statutory authority and because of existing statutes relating to the subject matter, we conclude that the proposed closure and movement would be illegal.

Very truly yours,

DON EASTVOLD
Attorney General

RALPH M. DAVIS
Assistant Attorney General