Gould v. Western Dairy Products, Inc.
55 P.2d 274
Cal. Ct. App.
1936
Check Treatment
*189 WOOD, J.

This аction was commenced by the heirs of Albert T. Gould, who was killed May 14, 1934, in an automobile accident at the intersection of Lake and Alameda Streets in the city of Burbank, to recover damages resulting from his death. A jury trial was conducted before Judge William S. Baird and a verdict was returned in favor of defendants. A motion for a new trial was heard by Judge Emmet H. Wilson during the absence from the state of Judge Baird. Judge Wilson granted the motion “on the ground of errors in law occurring at the trial and excepted to by the plaintiffs”. Defendants have appealed from the order granting a new trial.

Boulevard stop signs of the type referred to in the California Vehicle Act had been erected at the intersection in question in 1927 under the direction of the board of police commissioners of Burbank and were in place at the time of the accident. Thе only eye-witness, defendant Borgquist, driver of the other ear involved, testified that decedent did not stop his car at the intersection. An ordinance of the city of Burbank was introduced in evidence providing in part аs follows: “The Board of Police Commissioners is hereby authorized and required to place and maintain, or cause to be placed and maintained upon such street or streets as in its opinion shall be dеemed advisable at or near the property line of the boulevard, appropriate signs upon such street or streets, or devices or marks in the roadway, such signs, devices or marks to bear the word ‘Stop’ or the words, ‘Boulevard Stop’ in such position and with letters of a size to be clearly legible from a distance of fifty feet (50) along the street or streets intersecting such boulevard. Such streets ■ or intersectiоns, when the signal, device or marks are placed and maintained by the Board of Police Commissioners, as in this section above provided, shall be considered as boulevard stop intersections or boulеvard stop streets, as the case may be. Every operator of a vehicle or street car traveling any boulevard stop intersection or boulevard stop street shall bring such vehicle or street сar to a full stop at the place where such street meets the prolongation of the near property line of such boulevard. ’ ’

The trial judge instructed the jury in part as follows: “ If ‍‌​​​‌‌‌​‌‌‌​​‌‌‌​‌​​‌‌‌​‌‌‌‌‌‌‌​‌‌​​‌​‌‌‌‌‌​‌​​‌‍you find from the evidence that Albert Gould violated the *190 provisions of this ordinance, as just read to you, then I instruct you that the said Albert Gould was guilty of negligence as a matter of law; and if such negligence, if any, proximately contributed in any degree, however slight, to the happening of the accident and the injuries resulting in his deajth, then the plaintiffs cannot recover and your verdict must be in favor of the defendant.” In upholding the order granting the new trial plaintiffs cоntend that the instruction was erroneous for the reason that the legislative body of the city of Burbank did not designate the intersection in question as a place for a boulevard stop but left to the policе commissioners the matter of determining which intersections should be so designated. i

If it was the legal duty of decedent to make the boulevard stop, the instruction was correct and the order granting the new trial was еrroneous. In Borum v. Graham, 4 Cal. App. (2d) 331 [40 Pac. (2d) 866], the defendant’s automobile injured plaintiff, a pedestrian, while she was crossing the street in a painted crosswalk. An ordinance of the'city of Pasadena was received in evidence, by which it was made unlawful for a vehicle to be driven onto any crosswalk marked as provided in section 5 thereof while a- pedestrian was walking on certain parts of the crosswalk. The court upheld the right of the lеgislative body of Pasadena to delegate to administrative officials the power to determine which intersections should be marked. We quote: “Section 5 provided that the phief of police, subject to the approval of the city manager, was authorized to mark crosswalks equal in width to the adjacent sidewalks, by appropriate devices, marks ‍‌​​​‌‌‌​‌‌‌​​‌‌‌​‌​​‌‌‌​‌‌‌‌‌‌‌​‌‌​​‌​‌‌‌‌‌​‌​​‌‍or white ljines on the surface of the roadway at all intersections where in his opinion there is particular danger to pedestrians crossing the roadway. Pursuant to this section the chief of police had marked pedestrian crosswalk white lines acrоss Colorado street at its intersection with South Broadway, but ¡greater in width than the adjacent sidewalk, which excess of width we deem immaterial herein. There was some question raised by appellant at to the fаilure of proof of the securing of approval thereof by the city manager. Such approval must be deemed proven, in the absence of evidence to the contrary, by the presumption оf law that official duty has be4n performed by the officer charged therewith. (Sec. 1963, subd. *191 15, Code Civ. Proc.) Appellant also claims that section 5 of the ordinance contained a delegation of legislative power to the chief of police. The function of the chief of police was administrative, not legislative. For the proper enforcement of its ordinance the city legislative body may delеgate a power to an officer to determine some facts or state of things upon which the ordinance makes or intends to make its own action depend. (In re McLain, 190 Cal. 376 [212 Pac. 620].) We conclude, therefore, that seсtion 5 of the ordinance was a valid enactment.”

The right of legislative bodies to delegate power to administrative officials to determine facts ‍‌​​​‌‌‌​‌‌‌​​‌‌‌​‌​​‌‌‌​‌‌‌‌‌‌‌​‌‌​​‌​‌‌‌‌‌​‌​​‌‍in carrying out provisions of legislative enactments hаs been upheld in many cases. In Carter v. Stevens, 211 Cal. 281 [295 Pac. 28], a forceful opinion by Mr. Justice Henshaw delivered in Gaylord v. City of Pasadena, 175 Cal. 433 [166 Pac. 348], is quoted with approval. “Even a casual observer of governmental growth and development must have observed the ever-increasing multiplicity and complexity of administrativе affairs—national, state, and municipal—and even the occasional reader of the law must have perceived that from necessity, if for no better grounded reason, it has become increasingly imрerative that many quasi-legislative and quasi-judicial functions, which in smaller communities and under more primitive conditions were performed directly by the legislative or judicial branches of the government, are intrusted tо departments, boards, commissions, and agents. No sound objection can longer be successfully advanced to this growing method of transacting public business. These things must be done in this way or they cannot be done at аll, and their doing, in a very real sense, makes for the safety of the republic, and is thus sanctioned by the highest law. For, as the Supreme Court of the United States declares: ‘Indeed, it is not too much to say that a denial to Congress of the right, under the Constitution, to delegate the power to determine some fact or the state of things upon which the enforcement of its enactment demands, would be “to stop the wheels of govеrnment” and bring about confusion, if not paralysis, in the conduct of the public business.’ (Union Bridge Co. v. United States, 204 U. S. 364 [27 Sup. Ct. 367, 51 L. Ed. 523].) ”

Following the ruling of Borum v. Graham (supra), we must conclude that the city of Burbank had the right to delegate *192 to the board of police commissioners the power to detеrmine which intersections should be designated as boulevaird stop intersections. The right to delegate the power to determine which crosswalks should be marked as safety crosswalks is substantially the same as the right to delegate the p'ower to determine the locations of boulevard stop signs. Plaintiffs argue that since the matter of marking crosswalks is not covered by the California Vehicle Act it is a matter upon which the city of Pasadena was free to legislate, whereas the matter of placing boulevard stop signs is covered to some extent by the California Vehicle Act. They also argpe that the,legislative bоdy of the city has been given the power by the California Vehicle Act to designate which intersections shall be considered as boulevard stop intersections and therefore this delegation of power could not be pabsed on to administrative officials. This argument is not sound. If the city had the power to delegate in the one case ¡by the same reasoning it had the power to delegate in th'e other сase. Moreover, the power to enact an ordinance on the subject was not received from the California Vehicle ^.ct but rather the power to legislate on the ‍‌​​​‌‌‌​‌‌‌​​‌‌‌​‌​​‌‌‌​‌‌‌‌‌‌‌​‌‌​​‌​‌‌‌‌‌​‌​​‌‍subject was ond of the рowers of the city of Burbank which it retained unless that power was taken away by the enactment of the CajLifornia Vehicle Act. Section 145 of the California Vehicle ' Act as in force at the time of the аccident, is in part as follows: “Nothing in this act contained shall be so construed as to prevent boards of supervisors in their respective cjounties and the- legislative bodies of incorporated citiеs from providing by ordinance for the regulation of traffic by¡ means of traffic or crossing officers or semaphores or other signalling devices on any portion of the public highways where the traffic is heavy аnd continuous, nor from designating certain public highways as boulevards nor from designating certain intersections of public highways and requiring' that all vehicles shall be stopped before entering or crossing such boulevards or at one or more entrances to any designated interseition of public highways. ’ ’ It, will be noted that the city of Burbank was not given the power in the California Vehicle -Act to enact the ordinance in questiоn but rather the power in the city to enact the ordinance was especially recognized and preserved by the California Vehicle Act. ,

*193 Our disposition of the main contention of defendants makes it unnecessary to pass upon their additional contentions that the intersection in question, having been maintained as a boulevard stop intersection for seven years under the circumstances shown, was a de facto boulevard stop intersection, that regardless of the validity of the ordinance it was the plain duty of decedent to bring his automobile to a stop; and that in any event if decedent did not stop his car he was clеarly guilty of negligence, from which it is argued that the plaintiffs suffered no prejudice by the giving of the instruction under discussion.

The jury was given other instructions which are criticized by the plaintiffs. The reasons given above for upholding ‍‌​​​‌‌‌​‌‌‌​​‌‌‌​‌​​‌‌‌​‌‌‌‌‌‌‌​‌‌​​‌​‌‌‌‌‌​‌​​‌‍the quoted instruction are applicable to the other instructions which are claimed to be erroneous.

The order granting a new trial is reversed.

Grail, P. J., and McComb, J., pro tem., concurred.