City of Hammond, Lake County v. Indiana Harbor Belt R. Co.

Citation175 Ind.App. 644,373 N.E.2d 893
Decision Date15 March 1978
Docket NumberNo. 2-875A215,2-875A215
PartiesCITY OF HAMMOND, LAKE COUNTY, Indiana, a Municipal Corporation, Appellant (Respondent below), v. The INDIANA HARBOR BELT RAILROAD COMPANY, Appellee (Petitioner below).
CourtIndiana Appellate Court

Saul I. Ruman, Hammond, for appellant.

Harold Abrahamson, Robert G. Berger, Hammond, Theo. L. Sendak, Atty. Gen., Susan J. Davis, Deputy Atty. Gen., Indianapolis, for appellee.

CASE SUMMARY

BUCHANAN, Judge.

The City of Hammond, Indiana (City) appeals an order of the Public Service Commission of Indiana (Commission), authorizing the closing and separation of streets located within the City, alleging that the statute 1 authorizing the Commission to order such a closing is unconstitutional, that the evidence was insufficient to authorize the closing, that the Commission erred in denying the City's Petition for Rehearing and Petition to Stay the Order, and that the Commission erred in allowing an unlicensed engineer to testify as an expert witness.

We affirm.

FACTS

The facts and evidence most favorable to the Order of the Commission are:

On January 9, 1975, the Indiana Harbor Belt Railroad Company (Railroad) filed with the Commission a verified Petition for Permission and Authority to Close and abolish two grade crossings 2 located on the right-of-way of the railroad in Hammond (City).

The petition alleged that these crossings, located at Howard and Maywood Avenues, were little used, were not required by public convenience, constituted an undue burden upon public safety, and that the closing would be in the public interest.

Following various motions, 3 a hearing was held by the Commission on May 15, 1975, at which time it was determined that Maywood and Howard Avenues, the subject of the proposed closings, were "extra hazardous" and should be closed.

Evidence favorable to the Order indicated that Howard and Maywood Avenues, both two lane north-south city roads lie approximately eight hundred (800) feet apart, and are between major north-south arterial separated grade highways. Approximately eight hundred (800) feet west of Howard Avenue is Calumet Avenue, an arterial highway. Maywood Avenue is east of Howard Avenue and eight hundred (800) feet east of Maywood is Columbia Avenue, the other major separated grade arterial highway (a separated grade crossing is one which channels vehicular traffic over or under the railroad tracks).

Howard Avenue, tests revealed was closed due to train traffic two hundred seventeen (217) times, for a total of twenty-nine (29) hours and one (1) minute, between 10:30 A.M., February 18, 1975, and March 3, 1975, and ninety-eight (98) times, for a total of seven (7) hours and fifty-six (56) minutes, between 8:00 A.M., and 8:00 P.M., March 5, 1975. Peak motor vehicular traffic on Howard Avenue generally occurred between 10:00 to 11:00 A.M., and 1:00 to 2:00 P.M. Peak train traffic on Howard Avenue usually occurred between 9:00 o'clock A.M. and 12:00 o'clock A.M., and 3:00 o'clock to 6:00 o'clock P.M. The average volume of traffic on Howard Avenue during a twenty-four (24) hour period was 99.5 trains and 485.5 motor vehicles. Tests revealed that few, if any, emergency vehicles used Howard Avenue during these periods of time.

The other affected grade crossing, Maywood Avenue, averaged between ninety-four (94) and ninety-seven (97) train crossings during a twenty-four (24) hour period. Peak vehicular traffic on Maywood usually occurred between 7:00 o'clock to 9:00 o'clock A.M. and 2:00 o'clock to 4:00 o'clock P.M. Peak train traffic was between 11:00 o'clock A.M. to 2:00 o'clock P.M. The volume of traffic on, or over, this road averaged 83.5 trains and 1,195.5 motor vehicles during a twenty-four (24) hour period. Like Howard Avenue, few, if any, emergency vehicles used Maywood Avenue during time times that tests were conducted.

There was also evidence that these crossings had been the scene of numerous automobile-train collisions and other types of accidents. Though sparse and contradictory, the record indicates that approximately ten (10) vehicular railroad collisions occurred between 1970 and 1975.

Mr. John Dring, director of the Railroad Department of the Commission, testified that a "hazard index" of four thousand was used by the Commission to justify the installation of automatic train-warning devices. 4 The "hazard index" for Howard and Maywood Avenues was 49,858 and 126,498, respectively. This index for the two crossings, Mr. Dring explained, rendered these crossings "extremely hazardous" and justified, indeed compelled, their closing or separation.

Following the hearing, the Commission issued an order which may be summarized as finding that the streets to be closed were public roadways protected by flasher signals and short-arm gates, and that they were heavily traveled by motor vehicular and train traffic. 5 The Order also found that there were alternate highway routing patterns sufficient to serve the community should these streets be closed, and that they should be closed as the present situation rendered them inaccessible to the public for inordinate lengths of time, and that the enhancement of public safety would result by closing these streets.

The Commission then ordered the closing and abolishment of these grade crossings, and ordered the Railroad to bear the expense of such closing and maintenance of metal barricades barring public travel.

Following the denial of the City's Petition for Rehearing, and Order to Stay Pending Appeal, the City seeks review of the Commission's order.

ISSUES

The City presents four (4) issues for our resolution:

(1) Is the authority given the Commission by Ind. Code 8-6-7.7-3 (Sec. 3) to close and abolish public roadways an illegal infringement upon the power of the City to establish and control such public roadways (pursuant to Ind. Code 18-1-1.5-8 (Sec. 8).

(2) Was the Commission's finding that the public safety outweighed the public convenience in ordering the closings, contrary to the evidence and the law?

(3) Did the Commission err in overruling the City's Petition for Rehearing and the City's Petition to Stay the Order?

(4) Did the Commission err in allowing an unlicensed engineer to testify as an expert witness?

ISSUE ONE

CONCLUSION Ind. Code 8-6-7.7-3 (Sec. 3), giving the Commission the power to order a public way closed and abolished, is not an illegal usurpation of the power of a municipality to establish and control public ways.

PARTIES' CONTENTIONS The City contends that the authority of the Commission to close grade crossings is merely an incidental authority to the primary purpose of the Commission, which is to oversee the service offered by regulated industries, and the furtherance of intrastate commerce. Thus, as an incidental power, this authority is secondary to the authority and power of a municipal corporation to construct and maintain public roadways, an inherent police power specifically granted by "home rule".

The Railroad responds by arguing that the legislative act 6 (Sec. 3 herein) authorizing the Commission to order crossings closed was a constitutional exercise of legislative authority.

Legislative enactments are presumed to be valid, Smith v. Indianapolis St. R. Co. (1901), 158 Ind. 425, 63 N.E. 849, and to be constitutional. Sidle v. Majors (1976), Ind., 341 N.E.2d 763; First Savings & Loan Assoc. of Central Indiana v. Furnish (1977), Ind.App., 367 N.E.2d 596. If two or more statutes relate to the same general subject matter, they are to be construed together and are in pari materia. State v. Gerhardt (1896), 145 Ind. 439, 44 N.E.2d 469; Indiana Alcoholic Beverage Commission v. Baker (1972), 153 Ind.App. 118, 286 N.E.2d 174. If possible they must be construed in harmony to give effect to each. New York Central Railroad Co. v. Public Service Commission of Indiana (1958), 237 Ind. 544, 147 N.E.2d 547; Porter Memorial Hospital v. Harvey (1972), Ind.App., 279 N.E.2d 583.

The statute on which the Commission relied in entering its order closing these grade crossings in Ind. Code 8-6-7.7-3, which provides:

The public service commission of Indiana may order legally closed and abolished as public way, within the limits of a railroad right-of-way, any grade crossing then in existence at the time the commission assumes jurisdiction of the matter, upon a finding that the enhancement of public safety resulting from such closing will outweigh any inconvenience caused by increased circuity of highway routes. Such an order by the commission may be issued either in connection with, or independent of, an order relating to automatic train-activated warning signals. The authority of the commission to legally close and abolish grade crossings shall be in addition to any authority by law granted to other state agencies of local units of government to close and abolish grade crossings. Upon the issuance of such an order by the commission, the railroad or railroads involved shall physically remove the crossing from the tracks, and the governmental unit maintaining the highway shall remove or barricade the approaches thereto. (Emphasis supplied)

(Herein referred to as Sec. 3.) Observe the broad sweep of the words, "The authority of the commission to . . . abolish grade crossings shall be in addition to any authority . . . granted to . . . local units of government."

The City nourishes its position that the City's police power is paramount by pointing to Ind. Code 18-1-1.5-8, which provides in part:

A City shall have power to establish, construct, maintain and control public ways which shall include, but not be limited to streets, thoroughfares, walkways, roads, bridges, tunnels, sidewalks and alleys(.)

(Herein referred to as Sec. 8.) It does give the City the power to "establish, construct, maintain and control public ways . . ." and in times gone by 7 has been construed to give municipal authorities almost unlimited control...

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