New York Cent. R. Co. v. Public Service Commission of Ind.

• Decision Date: 27 January 1958
• Docket Number: No. 29493,29493
• Citation: 237 Ind. 544,147 N.E.2d 547
• Parties: The NEW YORK CENTRAL RAILROAD COMPANY, Appellant, v. The PUBLIC SERVICE COMMISSION OF INDIANA, and Warren Buchanan, M. Elliott Belshaw and Wendell Tennis, as Members of and constituting the Public Service Commission of Indiana, George N. Craig, Governor of Indiana, and Edwin K. Steers, Attorney General of the State of Indiana, Appellees.
• Court: Indiana Supreme Court

Page 547

147 N.E.2d 547

237 Ind. 544

The NEW YORK CENTRAL RAILROAD COMPANY, Appellant, v. The PUBLIC SERVICE COMMISSION OF INDIANA, and Warren Buchanan, M. Elliott Belshaw and Wendell Tennis, as Members of and constituting the Public Service Commission of Indiana, George N. Craig, Governor of Indiana, and Edwin K Steers, Attorney General of the State of Indiana, Appellees.

No. 29493.

Supreme Court of Indiana.

Jan. 27, 1958.

Marvin A. Jersild, Dale McAllister, Chicago, Jerdie D. Lewis, Terre Haute, for appellant.

Edwin K. Steers, Atty Gen. of Indiana, Frank E. Spencer, Arthur H. Gemmer, Deputies Atty. Gen., for appellee.

LANDIS, Judge.

This appeal was taken from a judgment of the Hendricks Circuit Court denying relief to appellant-railroad which had brought an action in such court to vacate and set aside an order of appellee-Public Service Commission requiring appellant to provide a flagman (or, at appellant's election, flasher lights) at a railroad crossing in the town of Brownsburg, Hendricks County, Indiana.

Appellant first contends on this appeal that the decision of the lower court was contrary to law in finding appellee-commission had jurisdiction of the subject-matter, as the regulation of crossings in towns is under the exclusive jurisdiction of town boards rather than the Public Service Commission. Appellee asserts jurisdiction under Burns' § 55-2016 to § 55-2019, 1951 Replacement, Acts of 1915, ch. 49, §§ 1-4, § 55-2016 thereof providing:

'The public service commission of Indiana is hereby authorized and empowered to require that all persons, firms or corporations owning or operating any railroad * * * within this state shall, at all public crossings where the view of approaching trains is obstructed, if said persons, firms or corporations are unable to remove said obstructions 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.'

Appellant, however, contends that pursuant to Burns' § 48-301, Acts of 1909, ch. 152, § 6, the town board of Brownsburg, Indiana, previously passed an ordinance requiring appellant railroad to install an alarm or signal at said crossing in question (which was admittedly not complied with by appellant railroad) and that exclusive jurisdiction over crossings within incorporated towns is vested in the town board by virtue of said statute, viz.:

'The board of town trustees shall have the following powers:

* * *

* * *

'Fourteenth. To require persons or corporations owning or operating railroads to construct proper warning signs at street railroad crossings, or any of them; to require any railroad company to use, maintain and operate at any street crossing of its tracks considered to be dangerous, and held so to be by the board of trustees in such town electric gongs or alarm signals that will announce the approach of trains from any direction required; and to require such corporations or persons operating or owning railroads to construct and maintain gates, with men in charge, or keep flagmen at any railroad street crossing or crossings within such town limits when such crossing or crossings are deemed dangerous and held so to be by the board of trustees. * * *' (Burns' § 48-301, 1950 Replacement, Acts of 1909, ch. 152, § 6.)

We are unable to agree with appellant's contention that under the above statutes a town board has exclusive jurisdiction over the matter of requiring watchmen or signal devices at crossings within such town. In the first place, appellant's statute passed in 1909, is an earlier statute than the one relied on by appellee, which was enacted in 1915. Furthermore, there is nothing in the Act of 1909 indicating it was intended to be exclusive, whereas the later Act of 1915 purports to apply 'at all public crossings where the view of approaching trains is obstructed.' Under the Act of 1909 the town board initiates the action, whereas under the 1915 Act 'any five or more citizens of this state may petition said commission * * *,' and it should also be observed that under the two statutes the grounds for requiring watchmen or signals are somewhat different. We should not indulge in the presumption that the statutes are inconsistent when validity can be accorded to each as is true in the case at bar. ¹

It should be noted that appellant has not contended that the order of appellee-commission requiring appellant 'to provide [a] flagman [or] at [appellant's] election * * * flasher lights' was invalid solely as to flasher lights, because under the provisions of Burns' § 55-2016 the commission is limited to requiring 'a flagman or an automatic gong or bell.' No opinion is accordingly expressed as to that portion of the commission's order pertaining to flasher lights under the above statute.

Appellant next contends that Burns' § 55-2016 to § 55-2019 relied upon by appellee has been superseded by Burns' § 55-2012 and § 55-2013, 1950 Replacement. ² However, an examination of the latter sections reveals that they have solely to do with 'extra-hazardous grade crossings' which are expressly limited to crossings of state highways and steam or interurban railroads at grade. The 'extra-hazardous' statute makes no particular reference to obstructed crossings nor does it apply to any crossings unless state highways are involved. We certainly cannot reasonably conclude that the legislature, in making provision for warning signals at generally unsafe crossings of state highways and railroads, thereby intended to repeal by implication statutes providing for warning signals at obstructed crossings of all highways with railroads. If possible, all statutes should be construed together so as to harmonize and give effect to each, ³ and we find no overriding conflict between the 'obstructed crossing statute' relied on by appellee (Burns' § 55-2016 to § 55-2019) and the 'extra-hazardous grade crossing statute' cited by appellant (Burns' §§ 55-2012, 55-2013). There is accordingly no repeal by implication as contended by appellant.

Appellant next contends that if the town board and the Public Service Commission had concurrent jurisdiction over crossings in incorporated towns, that the town board having first acted by passing an ordinance requiring warning signals, the appellee Public Service Commission does not now have jurisdiction to proceed, citing State ex rel. Ferger v. Circuit Ct., 1949, 227 Ind. 212, 84 N.E.2d 585; and State ex rel. Poindexter v. Reeves, 1952, 230 Ind. 645, 104 N.E.2d 735.

These cases cited by appellant involved, however, a conflict between courts of concurrent jurisdiction and recognized the well settled rule that where one of two courts of concurrent jurisdiction acquires jurisdiction of the subject-matter and the person in a particular case, the jurisdiction becomes exclusive. As stated in State ex rel. v. Madison Circuit Court, 1923, 193 Ind. 20, 27, 138 N.E. 762, 765, 'Proper and orderly administration of the laws compel these courts to thus observe the rights of each other, in order to prevent unseemly, expensive, and dangerous conflicts of jurisdiction and of process.' (Emphasis supplied.)

Neither the Town Board of Brownsburg, Indiana, nor the Public Service Commission of Indiana is a court, and the foregoing concepts of jurisdiction do not apply to the duplicity or overlapping of agencies or departments of the government, as is presented in this case. Appellant's contention is accordingly untenable in this respect.

Appellant next contends the obstructive view statute violates respectively ...