Public Service Commission v. Fort Wayne Union Ry. Co., No. 28947

Docket NºNo. 28947
Citation232 Ind. 82, 111 N.E.2d 719
Case DateApril 21, 1953
CourtSupreme Court of Indiana

Page 719

111 N.E.2d 719
232 Ind. 82
PUBLIC SERVICE COMMISSION et al.
v.
FORT WAYNE UNION RY. CO.
No. 28947.
Supreme Court of Indiana.
April 21, 1953.

[232 Ind. 85]

Page 720

Edwin K. Steers, Atty. Gen., J. Emmett McManamon, former Atty. Gen., Clyde H. Jones, Fred R. Bechdolt and Richard G. Stewart, former Deputies Atty. Gen., Clyde H. Jones, J. D. Wright and Connor Ross, Deputies Atty. Gen., for appellant.

Page 721

McHale, Patrick, Cook & Welch, Indianapolis, Clay Marsteller, Cleveland, Ohio, for appellee.

DRAPER, Judge.

The appellee, Fort Wayne Union Railway Company, was organized for the purpose of affording interchange facilities between the lines of four other railroads and the various industries served by them in and near Fort Wayne, Indiana. In 1925 it constructed two miles of main line at a grade elevation which it deemed most suitable and best adapted to its contemplated operations and said line has been and is now being operated for such purposes at said grade and elevation. A part of its right of way runs in a north and south direction. It is 110 feet wide for a distance of about 1400 feet south of a point designated as the 'point of crossing', and 100 feet wide north of said point for a distance of about 150 feet, beyond which it increases in width to accommodate a curve to the northwest. The right of way just described was procured in 1924 by condemnation, and consists of an easement for railway purposes upon and over the land comprising the same.

In the furtherance of a program to consolidate and relocate U. S. Highways Nos. 24 and 30, which now run in an easterly and westerly direction through the city of Fort Wayne, and thus by-pass said city, the State Highway Commission did on August 21, 1950, file its petition with the appellant, Public Service Commission[232 Ind. 86] of Indiana, whereby it sought the approval of the establishment of a crossing 'at grade' of said consolidated highways over the right of way and tracks of said company at said 'point of crossing,' which coincides with the point where the width of said right of way is reduced from 110 feet to 100 feet, as above mentioned.

The petition was filed pursuant to the provisions of that portion of Burns' Stat. § 55-1807 which reads as follows:

'Whenever it shall be desired to establish or extend a highway at grade over any railroad, street railroad, interurban street railroad or suburban street railroad in this state, it shall be necessary, before so establishing or extending the same, that the petitioners therefor shall, by procedure to be prescribed by the railroad commission (public service commission) of Indiana, obtain the authority of said commission therefor.'

The exhibits attached to the petition and the evidence adduced at the hearing show that the grade of the proposed highway at the 'point of crossing' would be approximately seven feet higher than the present elevation of the rails of the appellee company at such point. If the proposed highway is established at the grade as laid out, it will prevent the railroad company from using its tracks unless it raises its grade to the level of the highway. This it could do by constructing an embankment extending about 700 feet north and 300 feet south of the proposed point of crossing. The embankment would be 43 feet wide at the bottom and 22 feet wide at the top, ascending from either end to a height of seven feet at the 'point of intersection.' The cost of this project would exceed $20,000. It would also be necessary for the company to enlarge and extend a culvert located about 150 feet north of the proposed crossing.

[232 Ind. 87] The appellee filed objections to the granting by the Public Service Commission of Indiana of its approval of the establishment of such highway across the tracks at such higher elevation. Evidence was heard, that of the appellee being designed to show that the approval of a grade seven feet higher than that of the present roadbed would be unreasonable, and therefore unlawful, and the appellee further contended that the proposed elevation of the highway seven feet higher than the established grade of the railway did not constitute a crossing 'at grade' as contemplated by § 55-1807, supra, pursuant to which section the petition was filed.

Following the hearing, and on February 1, 1951, the Public Service Commission entered an order as follows:

'It is therefore ordered by the Public Service Commission of Indiana that the establishment of a highway crossing at grade over the right-of-way and tracks of said Fort Wayne Union

Page 722

Railroad near Fort Wayne, Indiana, be approved as planned by said Indiana State Highway Commission.'

Thereafter, its petition for rehearing having been denied by the Public Service Commission of Indiana, the railway company filed this action against the Public Service Commission and the State of Indiana, through the State Highway Commission, in the Allen Superior Court, Room Two, to set aside and vacate the order of the Public Service Commission above set out for the reason that such order is insufficient, unreasonable, and unlawful.

The Superior Court found for the company and entered a judgment vacating and setting aside the order of the Public Service Commission. This appeal is from that judgment.

The appellant asserts that the procedure for court review of the Public Service Commission's order is [232 Ind. 88] governed by § 6 of the Railroad Commission Act, being Acts 1905, c. 53, § 6, as amended in 1907 and 1913, Burns' Stat. § 55-122, and since the appellee did not take certain of the steps there outlined, within the time limits therein fixed, the trial court was without jurisdiction to entertain appellee's action to vacate and set aside the order of the Commission.

The Railroad Commission Act just referred to created a Railroad Commission and defined its powers and duties. By Acts 1913, c. 76, § 4, Burns' Stat. § 54-107, the Railroad Commission was abolished and its powers and duties were transferred to the Public Service Commission of Indiana, created by that act. By Acts 1933 c. 93, the Public Service Commission of Indiana created by Acts 1913 was abolished and the Public Service Commission created. By Acts 1941, c. 101, the Public Service Commission created by the 1933 Acts was abolished and the Public Service Commission of Indiana created. The powers and duties originally conferred or imposed upon the Railroad Commission now reside with the Public Service Commission of Indiana. Acts 1941, c. 101, § 12, Burns' State. § 54-119.

By Acts of 1929, c. 169, Burns' Stat. 1933, §§ 54-429 to 54-438, the procedure for review of the decisions, orders, determinations, requirements or directions of the Public Service Commission is prescribed, and all laws or parts of laws in conflict therewith are repealed. The word 'order' as therein used is made to include any final order, decision, ruling, determination, requirement or direction made by the Public Service Commission upon any matter within its jurisdiction. Since the railroad commission had been abolished and all of its powers and duties had been transferred to the Public Service Commission in 1913, and since the Act [232 Ind. 89] of 1929 is expressly made to reach any decision, ruling, order, determination, requirement and direction of the Commission which adversely affects any person, firm, association, corporation, city, town or public utility, without regard to the law the Commission is administering, it seems to us that the procedural requirements outlined in § 6 of the Railroad Commission Act no longer control, and that the provisions of the 1929 Act apply.

It would appear that the appellant believed that c. 169 of the 1929 Act prescribed the procedure to be followed in this action, for it followed the requirement of § 5 thereof, Burns' Stat. § 54-433, and filed in the trial court a transcript of all the proceedings had and all the testimony heard, together with the original of all pleadings, exhibits and other necessary papers relating thereto, and such was thereafter received in evidence at the trial before the court pursuant to the provisions of such section. The court heard additional evidence, which did not differ substantially or materially from the evidence presented before the Public Service Commission.

On oral argument the appellant for the first time took the position that these proceedings should be governed by the provisions of the Administrative Adjudication Act, being Acts 1947, c. 365, Burns' Stat., 1951 Repl., § 63-3001 et seq., which position is inconsistent with its earlier assertion that the case is controlled by § 6 of the Railroad Commission Act. Appellant now insists the case could not be governed by Act 1929, c. 169, supra, because of the repeal of so much of the latter as is in conflict with the provisions of the Administrative Adjudication

Page 723

Act. But the Public Service Commission of Indiana is expressly excluded from the operation of the Administrative[232 Ind. 90] Adjudication Act, so that the procedure there provided for administrative adjudication and review does not govern its operations.

The appellant says it was not necessary for the Public...

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30 practice notes
  • Block v. Fruehauf Trailer Division Fruehauf Corp., No. 269A24
    • United States
    • December 4, 1969
    ...decision. Kosciusko County, etc. v. Public Service Comm. supra.' Also see Public Service Commission v. Fort Wayne Union Ry. Co. (1953), 232 Ind. 82, 111 N.E.2d 719; Indianapolis and Southern Motor Express, Inc. v. Public Service Commission (1953), 232 Ind. 377, 112 N.E.2d 864. Although thes......
  • City of Evansville v. Southern Indiana Gas & Elec. Co., AFL-CIO
    • United States
    • Indiana Court of Appeals of Indiana
    • December 30, 1975
    ...must be founded upon facts found by the Commission based upon substantial evidence.' Public Serv. Comm. v. Ft. Wayne U. Ry. Co. (1953), 232 Ind. 82, 111 N.E.2d 719, 726; Kosciusko County, etc. v. Public Service Comm. (1948), 225 Ind. 666, 672, 77 N.E.2d 572, and cases there 'Finding number ......
  • Sizemore v. Public Service Commission, No. 19239
    • United States
    • November 2, 1961
    ...and nothing can be treated as evidence which has not been introduced as such. Public Service Comm. v. Ft. Wayne U. Ry. Co., supra, 1953, 232 Ind. 82, 96, 111 N.E.2d 719; Atchison, T. & S. F. Ry. Co. v. Commerce Commission, 1929, 335 Ill. 624, 167 N.E. 831, 837; Ohio Bell Tel. Co. v. Public ......
  • Public Service Commission v. City of Indianapolis, No. 29266
    • United States
    • Indiana Supreme Court of Indiana
    • January 11, 1956
    ...Commission v. Indiana Bell Telephone Co., Ind.Sup.1955, 130 N.E.2d 467; Public Service Commission v. Fort Wayne Union Ry. Co., 1953, 232 Ind. 82, 111 N.E.2d 719; Public Service Commission v. City of La Porte, 1935, 207 Ind. 462, 193 N.E. 668; New York, C. & St. L. R. Co. v. Singleton, supra......
  • Request a trial to view additional results
30 cases
  • Block v. Fruehauf Trailer Division Fruehauf Corp., No. 269A24
    • United States
    • December 4, 1969
    ...decision. Kosciusko County, etc. v. Public Service Comm. supra.' Also see Public Service Commission v. Fort Wayne Union Ry. Co. (1953), 232 Ind. 82, 111 N.E.2d 719; Indianapolis and Southern Motor Express, Inc. v. Public Service Commission (1953), 232 Ind. 377, 112 N.E.2d 864. Although thes......
  • City of Evansville v. Southern Indiana Gas & Elec. Co., AFL-CIO
    • United States
    • Indiana Court of Appeals of Indiana
    • December 30, 1975
    ...must be founded upon facts found by the Commission based upon substantial evidence.' Public Serv. Comm. v. Ft. Wayne U. Ry. Co. (1953), 232 Ind. 82, 111 N.E.2d 719, 726; Kosciusko County, etc. v. Public Service Comm. (1948), 225 Ind. 666, 672, 77 N.E.2d 572, and cases there 'Finding number ......
  • Sizemore v. Public Service Commission, No. 19239
    • United States
    • November 2, 1961
    ...and nothing can be treated as evidence which has not been introduced as such. Public Service Comm. v. Ft. Wayne U. Ry. Co., supra, 1953, 232 Ind. 82, 96, 111 N.E.2d 719; Atchison, T. & S. F. Ry. Co. v. Commerce Commission, 1929, 335 Ill. 624, 167 N.E. 831, 837; Ohio Bell Tel. Co. v. Public ......
  • Public Service Commission v. City of Indianapolis, No. 29266
    • United States
    • Indiana Supreme Court of Indiana
    • January 11, 1956
    ...Commission v. Indiana Bell Telephone Co., Ind.Sup.1955, 130 N.E.2d 467; Public Service Commission v. Fort Wayne Union Ry. Co., 1953, 232 Ind. 82, 111 N.E.2d 719; Public Service Commission v. City of La Porte, 1935, 207 Ind. 462, 193 N.E. 668; New York, C. & St. L. R. Co. v. Singleton, supra......
  • Request a trial to view additional results

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