Monon Railroad v. Public Service Commission of Indiana, 19156

• Decision Date: 09 October 1959
• Docket Number: No. 19156,19156
• Citation: 161 N.E.2d 626
• Parties: MONON RAILROAD, Appellant, v. PUBLIC SERVICE COMMISSION OF INDIANA, John W. Van Ness, Ira Haymaker, and G. G. Skelton, as Members of the Public Service Commission of Indiana; Edwin K. Steers, Attorney General of Indiana, George Diven, Public Counsellor, Mrs. A. Smith, Edward L. Scott, Burdette W. Smith, George N. Phillips, Mrs. Mabel Harmon, Charles H. Hook, William McKinney, Warren J. Hull, Ethel A. Vinnedge, Al Suit, Helen C. Prage, Ed Stuppy, Henry Schirtz, John T. Koslowski, E. E. Wmith, Lawrence O. Nespital, Roy Karlson, Josph L. Fleener, Andrew Cutles, Schuyler Stilson, Earl Taylor, M. V. Parry, Walter Schwartz, Mrs. Eula Marine, Floy Vinnedge, Appellees. *
• Court: Indiana Appellate Court

Page 626

161 N.E.2d 626

MONON RAILROAD, Appellant, v. PUBLIC SERVICE COMMISSION OF INDIANA, John W. Van Ness, Ira Haymaker, and G. G. Skelton, as Members of the Public Service Commission of Indiana; Edwin K. Steers, Attorney General of Indiana, George Diven, Public Counsellor, Mrs. A Smith, Edward L. Scott, Burdette W. Smith, George N Phillips, Mrs. Mabel Harmon, Charles H. Hook, William McKinney, Warren J. Hull, Ethel A. Vinnedge, Al Suit, Helen C. Prage, Ed Stuppy, Henry Schirtz, John T. Koslowski, E. E Wmith, Lawrence O. Nespital, Roy Karlson, Josph L. Fleener Andrew Cutles, Schuyler Stilson, Earl Taylor, M. V. Parry, Walter Schwartz, Mrs. Eula Marine, Floy Vinnedge, Appellees.^*

No. 19156.

Appellate Court of Indiana, In Banc.

Oct. 9, 1959.

Harker, Irwin, Campbell & Harker, Frankfort, John B. Goodrich, Chicago, Ill., for appellant.

Edwin K. Steers, Atty. Gen., George L. Diven, Public Counsellor, Frank L. Harlor, Asst. Public Counsellor, Indianapolis, for appellees.

PER CURIAM.

This action was in the nature of a petition filed before the Public Service Commission of Indiana to require the appellant to furnish crossing protection at two railroad crossings in or near the town of Creston, Lake County, Indiana.

On April 10, 1956, the petitioners, all claiming to be users of said crossings, joined in a petition to the Public Service Commission of Indiana for an order requiring the appellant, Monon Railroad, to 'install blinker lights at said crossings.' The petition alleges in substance that near the southern part of the town of Creston in Lake County, Indiana the tracks of the appellant, Monon Railroad, cross two public highways, identified in the record as the 'north crossing' and the 'south crossing.' That the view of the approaching trains to both of these crossings is obstructed within the contemplation of § 55-2016, Burns' 1951 Repl., which reads as follows:

'The public service commission of Indiana is hereby authorized and empowered to require that all persons, firms or corporations owning or operating any railroad or interurban railroad within this state shall, at all public crossings where the view of the approaching trains is obstructed, if said persons, firms or corporations are unable to remove said obstruction as herein provided, equip such public crossings with a flagman or an automatic gong or bell so as to warn the traveling public of an approaching car or train.' (Our emphasis.)

This petition was heard by a duly qualified examiner of the Public Service Commission, said hearing being held in the town of Creston, Indiana on July 19, 1956. On December 24, 1957 the Commission entered its final order as follows:

'It is therefore ordered by the Public Service Commission of Indiana that the Respondent Railroad be, and the same is hereby ordered and directed to provide a flagman at said 'south' crossing;

'It is further ordered that, at the election of said Respondent, the installation of standard automatic 'flasher' lights at said 'south' crossing will be deemed compliance with this order and a satisfactory substitution for the provision of the flagman above ordered.

'It is further ordered that the Respondent Railroad Company shall notify this Commission in writing within thirty (30) days of the election as to the installation of standard 'flasher' lights at said 'south' crossing; that if no such election is made, this order shall become effective at the end of thirty (30) days and that a flagman shall be immediately provided; that if election to install said lights at the 'south' crossing is made, such 'flasher' lights shall be installed on or before June 24, 1958, pending which installation no flagman shall be required there.

'It is further ordered that Respondent Railroad Company shall pay at this time into the Treasury of the State of Indiana, through the Secretary of this Commission, the sum of $6.93 for legal advertising notices, such amount to be paid within ten (10) days after receipt thereof.'

The above order is based upon ten alleged findings of fact which are preceded in the written order of the Commission by a statement of the record in which we find the following recital:

'At the conclusion of this hearing, 30 days was allowed for possible solution by a satisfactory agreement between the parties--in lieu of which, briefs were to be filed within 60 days thereafter. Neither solution nor briefs have been filed to date, although this Commission has carefully considered the evidence adduced at the hearing and caused special investigations to be made of the crossings involved, within the past 30 days.' (Our emphasis).

The appellant, Monon Railroad, has challenged the above order by an assignment of errors which sets out nine separate charges of error as grounds for reversal, the second of which reads as follows:

'That the decision, ruling and/or order of the Public Service Commission of Indiana is contrary to law.'

In the light of the provisions of § 54-443, Burns' 1951 Repl. (1957 Supp.), it appears that appellant's Assignment of Error No. 2 submits all questions in the record which concern the legality of the decision, ruling or order of the Commission. We quote this section of the statute as follows:

'* * * An assignment of errors that the decision, ruling or order of the commission is contrary to law shall be sufficient to present both the sufficiency of the facts found to sustain the decision, ruling or order, and the sufficiency of the evidence to sutain the finding of facts upon which it was rendered.'

The appellant challenges the decision and order of the Commission on several grounds, one of them being based on the recital set forth in the Commission's own record of these proceedings, namely: that after the conclusion of the hearing on the appellee's petition herein, the Commission, on its own motion, 'caused special investigations to be made of the crossings involved.' The appellant urges that it was a denial of due process for the Commission to render a finding based in any degree upon any evidence resulting from any independent information or special investigations made by the Commission after the conclusion of the hearing.

It is the generally accepted rule that an order of the Commission will be reversed only for prejudicial error, and any alleged error in the proceedings which does not in fact injure the complaining party will not justify disturbing the Commission's order. I.L.E. Administrative Law and Procedure § 80; 18 A.L.R.2d Annotation § 10, p. 579. In the case of United States et al. v. Pierce Auto Freight Lines, Inc., et al., 1946, 327 U.S. 515, 66 S.Ct. 687, 695, 90 L.Ed. 821 the court has this to say:

'* * * the mere fact that the determining body has looked beyond the record proper does not invalidate its action unless substantial prejudice is shown to result.' (Our emphasis.)

The appellant draws the inference that by the use of the words 'and caused special investigations to be made' the Public Service Commission did in fact base its order on information and evidence outside the hearing, and that the rights of the appellant were substantially prejudiced thereby. This inference is drawn by the appellant despite the evident fact there is no showing that such was the case. This Court could just as well infer that if anything was done outside the hearing that the Commission merely inspected the crossing to determine whether or not a flasher had been installed in the interim. Whenever two or more inferences can be drawn from language used by the Commission in any order issued by the Commission, it is the duty of this Court to draw the inference which would sustain the validity of the order.

It is also generally accepted that there is a strong presumption in favor of the validity of an order made by the Commission, and on appeal it is the duty of the appellant to show the court the error occurring in the proceedings before the Commission. See New York Central Railroad Co. v. Pub. Service Com., 1937, 212 Ind. 329, 7 N.E.2d 957; I.L.E. Administrative Law & Procedure § 77.

To support the contention that the order of the Commission indicates a denial of due process, the appellant relies heavily upon the cases of Public Service Commission of Indiana et al. v. Indiana Bell Tel. Co., 1955, 235 Ind. 1, 27, 130 N.E.2d 467, and Armes v. Pierce Governor Co., 1951, 121 Ind.App. 566, 101 N.E.2d 199, 204. The facts in the case at bar are not consonant with facts in these cases. In both of said cited cases, findings in the orders were based on evidence not adduced at any hearing. In both of said cases it affirmatively appears that the aggrieved party was denied due process for the reason that, on the face of the respective orders therein, it was shown that the aggrieved party was denied notice of a hearing and was constructively denied the right to cross-examine a witness whose testimony was in fact used as a basis for the order. As the court stated in the Armes case, 'a case of constructive fraud and irregularity affecting the substantial rights of the appellant which constituted a denial of due process is shown by the record in this case.' However, in the instant case there is no showing that the Commission did in fact obtain information or evidence outside of the hearing upon which it relied in making its finding. Consequently, we fail to perceive that the appellant has suffered a denial of due process, as it asserts.

A holding we consider decisively adverse to appellant's contention is found in the case of DeArmond et al. v. Carter, 1956, 127 Ind.App. 34, 134 N.E.2d 239, 244. In that case the court very pertinently declared:

'Finally the...