September 25, 2012

OFFICIAL OPINION 2012-3

Mr. Michael B. Cline

Commissioner

Indiana Department of Transportation

100 N. Senate Ave., Room N758

Indianapolis, IN 46204

RE: Indiana Highway Laws of 1956 concerning weight limits

Dear Commissioner Cline:

On August 22, 2012, your chief of staff requested a legal opinion on the following issue:

The Indiana laws in 1956 made no reference to divisible or nondivisible loads. But a divisible load is, by definition, an overweight load. Because Indiana authorized permitting overweight loads on state highways in 1956, it should be allowed to continue to do so under the "grandfathering" provisions of 23 U.S.C. § 127.

The grandfather clause

The Federal-Aid Highway Act of 1956¹ (23 U.S.C. § 127) provides that:

Indiana law in 1956

In 1956 Indiana law addressed the concern of overweight cargos being transported across the state in two ways. The State Highway Commission (now the Indiana Department of Transportation) could designate "heavy duty highways" and determine a weight restriction for wheels and axels above the norm for other state highways but still below a maximum set by statute. The total gross vehicle weight on regular and heavy duty highways in 1956 was 72,000 pounds. Burns Ind. Statutes Ann. of 1965 § 47-536 (a), (b) (see compilers note showing no amendments after 1953). The total gross vehicle weight allowed by the 1956 Federal Aid Highway Act was 73,280 pounds. Pub. L. 85-767, Sec.127.

In addition to establishing heavy duty highways, however, the Commission had the authority "upon good cause shown to grant permits for transporting heavy vehicles and loads, or other objects, not conforming to the provisions of section two [§ 47-530] [dimensions of vehicles] and eight [§ 47-536] [weight of vehicles] of this act, whenever in the discretion of any such officer or body other traffic will not be seriously affected and the highway or bridge thereon will not be seriously damaged thereby." Burns Ind. Statutes Ann. of 1965 § 47 -538 (see compiler's note showing no relevant changes after 1953).

The phrase "divisible load" does not appear in the 1956 statute or the law as it exists today, but in general terms it is a cargo that is overweight in the aggregate that could be divided into units of legal weight without affecting the physical integrity of the load. As you point out in your correspondence, a cargo of steel coils or grain is a divisible load. Although the 1956 law was silent about divisible loads it clearly allowed loads in excess of the statutory legal limit to be carried across the state if the hauler obtained a special permit. For that reason, under the authority of the grandfathering clause in 23 U.S.C. § 127, the state may permit divisible loads to travel on Indiana highways and interstates today.

The Indiana law in 1956 made no reference to divisible loads, but because the State authorized permitting overweight loads on state highways at that time, it should be allowed to continue to do so on Indiana highways and interstates under the "grandfathering" provisions of 23 U.S.C. § 127.

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¹ The Act created what is now called the Dwight D. Eisenhower National System of Interstate and Defense Highways, or the Interstate System.