Cline, 092512 INAGO, AGO 2012-3

• Case Date: September 25, 2012
• Court: Indiana

Mr. Michael B. Cline AGO 2012-3 Official Opinion No. 2012-3 State of Indiana Office of the Attorney General September 25, 2012          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:          Did Indiana have any laws in effect in 1956 that would have prevented the State from permitting divisible loads on state highways, and thus “grandfathering” Indiana’s ability to issue permits for divisible loads under 23 U.S.C. § 127?          BRIEF ANSWER          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.          ANALYSIS          The grandfather clause          The Federal-Aid Highway Act of 19561 (23 U.S.C. § 127) provides that:

federal funds shall not be appropriated to any state allowing vehicles to travel on the interstate system with weights in excess of certain specified maximums contained in the federal statute or the corresponding weights existing in the various states on July 1, 1956, whichever is greater. Thus, if state law, as of July 1, 1956, authorized variations from the stated maximum weights . . . such variations are ‘grandfathered’ by the federal statute.

Bunch v. Cobb 257 S.E.2d 225, 226 (S.C. 1979). The grandfather clause “does not require that such vehicles be currently operated within the state as of July 1, 1956, but only that they could have been.” (emphasis added); South Dakota Trucking Association, Inc. v. South Dakota Dept. of Transportation 305 N.W.2d 682, 686 (S.D.1981). Accord...