Grade Crossing Protection Fund

DON STENBERG Attorney General STEVE GRASZ LAURIE SMITH CAMP Deputy Attorneys General JEFFERY T. SCHROEDER Assistant Attorney General Chief, Roads Section OFFICE OF THE ATTORNEY GENERAL STATE OF NEBRASKA STATE HIGHWAY BUILDING 1500 HIGHWAY 2 PO BOX 94759 LINCOLN NE 68509-4 759 Telephone (402) 4 79-4611 FAX (402) 4 79-4375 DEPT. OF ,!USTICE DATE: June 11, 2001 SUBJECT: Grade Crossing Protection Fund REQUESTED BY: John L. Craig, Director Nebraska Department of Roads WRITTEN BY: Don Stenberg, Attorney General Matthew F. Gaffey, Assistant Attorney General ASSISTANT ATIORNEYS GENERAL Robert G. Avey John E. Brown Kenneth W. Payne Matthew F. Gaffey Mark D. Raffety Barry K. Waid Tom E. Stine You have requested an Attomey General's Opinion which addresses two questions: ( 1) does the Nebraska Highway-Rail Grade Crossing Safety and Consolidations Act authorize the expenditure of funds from the State Grade Crossing Protection Fund for crossing safety improvement projects at private crossings; and (2) if public funds are used for safety improvements at private crossings, will there be a violation of the prohibition on using public funds for private purposes? We are of the opinion that the Nebraska Highway-Rail Grade Crossing Safety and Consolidations Act does not authorize the expenditure of funds from the State Grade Crossing Protection Fund for safety improvement projects at private crossings. We do not believe it is necessary to answer your second question because we believe our conclusion to your first question renders your second question moot at this time. Background In 1979, theN ebraska Legislature authorized the Nebraska Department ofRoads to develop a process for improving the safetyofrailroad crossings in Nebraska (hereafterreferred to as the "Raih·oad Safety" provisions). Neb. Rev. Stat.§ 74-13 10 et seq. (1996 Reissue.) To enable this process, the Legislature created the Grade Crossing Protection Fund (hereafter referred to as the "Fund") and John L. Craig June 1, 2001 Page 2 authorized the Department ofRoads to utilize federal funds, 1ocalmatching funds and the Fund to finance safety improvement projects at railroad crossings. Neb. Rev. Stat. § 74-1315, 1317, 1318. Historically, the Department ofRoads has administered the Fund to provide financing solely for safety improvement projects at the intersection of all classes of public highways and railroad lines ("public crossings"). The Department of Roads has never utilized the Fund for safety improvements at the intersection of private roads or drives and railroad lines ("private crossings"). In 1997, the Legislature passed the Nebraska Highway-Rail Grade Crossing Safety and Consolidations Act (hereafter referred to as "Crossing Act"). As part of the Crossing Act, the Legislature transfet.Ted cettain regulatmy authority of theN ebraska Public Service Commission regarding "public and private" crossings to the Nebraska Deprutment ofRoads. Neb. Rev. Stat. §§ 74-1331 through 1340. In addition, the Crossing Act also authorized the Department ofRoads to promulgate rules and regulations establishing a comprehensive public safety program to deal with problems associated with public and private highway-rail grade crossings. Neb. Rev. Stat.§§ 74-1341 through 1343. We understand that it is these two references to "private" crossings in the Crossing Act that prompted your request for our opllllon. Discussion Does the Nebraska Highway-Rail Grade Crossing Safety and Consolidations Act authorize the expenditure of funds fi:om the State Grade Crossing Protection Fund for railroad crossing safety improvement projects at private crossings? The statute that created the Fund was not amended by the Crossing Act. The Fund was created in Neb. Rev. Stat.§ 74-1317 and theDeprutment's power to administer the Fund is set out in§ 74-1318. Neb. Rev. Stat. § 74-1317 provides: In order to promote public safety at the intersection of railroad lines and all classes ofhighways there is created a special fund known as the Grade Crossing Protection Fund which shall be established in the state treasury to be used in furnishing financial assistance in the improvement of the safety of railroad grade crossings in this State . .. . (Emphasis supplied). This raises the question o fwhether a private road is included in the phrase "all classes o fhighways." When construing a statute, one must give effect to the purpose and intent of the Legislature as ascertained from the language of the statute considered in its plain, ordinary, and popular sense. State ex rei. Stenberg v. Moore, 258 Neb. 199, 208, 602 N.W.2d465, 472 (1999). The application of§ 74-13 17 \ . I I' I John L. Craig June 1, 2001 Page 3 is limited to "the intersection of railroad lines and all classes o fhighways." "Highway" is defined in both Neb. Rev. Stat.§ 39-101 (3)(1998 Reissue) andin60-624 (1998 Reissue) as follows: "[h]ighwayshall mean ... any street, road, avenue, boulevard, or way which is publicly maintained when any part thereof is open to the use of the public for pw-poses of vehicular travel." Black's Law Dictionruy and Webster's Dictiomuy also define a Highway to be a ''public" road. The private road or driveway at a private crossing is therefore not a Highway. The Fund can therefore not be used to fund improvements at private crossings, according to the plain language of§ 7 4 -131 7. The language ofNeb. Rev. Stat.§ 74-1318 also supports the conclusion that the proceeds of the Fund can not be used for improvements at private crossings. Neb. Rev. Stat. § 74-1318, which controls the administration of the Fund, contains detailed guidance on the use of funds fi·om the Fund, but contains no references to expenditures from the Fund for projects at private crossings. · This interpretation is also consistent with the maxim of expressio unius est exclusio alter ius which provides that a statute which enumerates the things on which it is to operate excludes all those not expressly mentioned. A & D Tech. Supply Co. vNebraska Dept. of Revenue, 259 Neb. 24, 31, 607N.W.2d 857, 863 (2000). Since the statutes governing the Fund expressly enumerate that it concems the "intersection of railroad lines and all classes ofhighways" the above maxim would exclude the use of money from the Fund at private crossings. In light of the above, we are of the opinion that the Fund is intended to be used exclusively for safety improvement projects at public crossings in Nebraska. As mentioned in your request, the Crossing Act appears to grant certain regulatory authority to the Nebraska Department ofRoads over private crossings in the State o fN ebraska. At least two provisions ofthe Crossing Act refer to ptivate crossings. However, we believe that this new regulatory authmity does not conflict with and supersede the limitations on the use of the Fund discussed above. As will be discussed below, the regulatmy authority does not conflict with the statutes governing the use of the Fund and does not provide authorization for use of the Fund for improvement projects at private crossings. A review of the specific provisions of the Crossing Act and the previously enacted Railroad Safety provisions reveals that these statutes can be harmonized in a manner that gives effect to each and every provision contained therein. Neb. Rev. Stat.§ 74-1332 of the Crossing Act provides: The Department of roads shall have jurisdiction over all crossings outside of incorporated villages, towns, and cities, both public and private, across, over, or under all railroads in the State, except as provided in Sections 74-1338 to74-1340, and shall adopt and promulgate such rules and regulations for the constmction, repair and I· John L. Craig June 1, 2001 Page4 maintenance of the crossings as the Department deems adequate and sufficient for the protection and necessity of the public. (Emphasis supplied.) Neb. Rev. Stat.§ 74-1342(1) of the Crossing Act provides: The Department o fRo ads shall adopt and promulgate rules and regulations establishing a comprehensive public safety program to deal with problems associated with public and private highway-rail grade crossings. In designing such a program, the department shall establish a process for assessing the risk to the public from particular grade crossings and for reducing or eliminating such risk in a cost-effective and timely manner. The department shallactive1ysolicit input from the public and from representatives of county and municipal governments, the Federal Highway Administration, the Federal Railroad Administration, and any other individuals or entities with an interest in grade crossing safety. (Emphasis supplied.) The Railroad Safety provisions discussed earlier and the Crossing Act provisions cited above cover the same basic subject matter. "Statutes pe1taining to the same subject matter should be construed together. Such statutes, being in pari materia, must be construed as if they were one law and effect given to every provision." Bass v. County of Saline, 171 Neb. 538, 540, 106 N.W.2d 860 (1960). To construe statutes in pari materia we must, as far as practicable, give effect to the language of the statute and to reconcile the different provisions of it so that they are consistent, harmonious, and sensible. H oiengs v. County of Adams, 254 Neb. 64, 71, 574N.W.2d498, 503 (1998). Where it is possible to harmonize apparently conflicting statutes, such is to be done. Hoiengs, 254 Neb. at 71, 574 N.W.2d at 503. Fwther, in enacting a statute the Legislatw·e must be presumed to have knowledge of all previous legislation upon the subject. Wahlers v. Frye, 205 Neb. 399,401,288 N.W.2d29, 30 (1980). "The intent ofthe Legislature is expressed by omission as well as by inclusion." Bass~ 71 Neb. at 541, 106 N.W.2dat 863. We believe that the provisions of the Crossing Act, the RailroadS afety provisions, and the Fund provisions can be harmonized and are consistent. The Department has been empowered to regulate certain aspects of private railroad crossings. There is no specific statutory language in any of the provisions, however, that authorizes the Department of Roads to use monies from the Fund to complete safety improvement projects at private crossings. We therefore believe that the limitations on the use of the Fund for projects at private crossings has not been affected by the provisions ofthe Crossing Act. For all o fthe foregoing reasons weareoftheopinion that the language of§§ 74-1317, 1318, 1332 and 1342 does not John L. Craig June 1, 2001 Page 5 authorize the expenditure of funds from the State Grade Crossing Protection Fund for safety improvements projects at private crossings. As stated at the beginning of this opinion, it is not necessary to answer your second question because we believe our conclusion to your first question renders your second question moot at this time. Approved: At~orney General 7 Sincerely, DON STENBERG Attorney General Matthew F. Gaffey Assistant Attorney Genera