Dart Transit Co. v. U.S., 77-1173
| Decision Date | 21 December 1977 |
| Docket Number | No. 77-1173,77-1173 |
| Citation | 567 F.2d 818 |
| Parties | DART TRANSIT COMPANY, Petitioner, v. UNITED STATES of America and Interstate Commerce Commission, Respondents. |
| Court | U.S. Court of Appeals — Eighth Circuit |
James C. Hardman (argued), Chicago, Ill., for petitioner; Brainerd W. LaTourette, St. Louis, Mo., on brief.
Kenneth P. Kolson (argued), I. C. C., Washington, D. C., for respondent; Mark L. Evans, Gen. Counsel, Charles H. White, Jr., Associate Gen. Counsel, I. C. C., Washington, D. C., John H. Shenefield, Acting Asst. Atty. Gen., Robert B. Nicholson, Susan J. Atkinson, Dept. of Justice, Washington, D. C., on brief.
Before GIBSON, Chief Judge, LAY and STEPHENSON, Circuit Judges.
The petitioner, Dart Transit Company, is operating under a carrier's permit issued by the Interstate Commerce Commission that in certain respects was limited and interpreted under a Cease and Desist Order issued on May 26, 1952. That order held that Dart was transporting tin plate without appropriate authority. Dart filed a petition with the ICC to modify the Cease and Desist Order on September 25, 1974, alleging that conditions had changed since 1952 and that its contract carrier authority to handle "packinghouse supplies" and "canning factory supplies" embraced the hauling of tin plate to canneries and other users.
By equating tin plate with "packinghouse or canning factory supplies," Dart sought modification of the Cease and Desist Order to allow it to carry tin plate, apparently to concerns that would process tin plate for sale to packinghouses or canneries. Dart's position was that since tin plate was manufactured into cans which in turn might be sold to packinghouses and canneries for use in packaging packinghouse products and canned goods, such tin plate could be hauled as packinghouse or canning factory supplies. Dart's construction and interpretation of its present authority was urged upon the ICC as a basis for modification of the Cease and Desist Order of 1952, recognizing that the 1952 order precluded the hauling of such tin plate.
In 1952 the ICC noted that the record shows that tin plate was never purchased by a packinghouse or cannery and held that tin plate was not a canning or packinghouse material. Dart, in presenting the present review petition, filed verified statements by some witnesses indicating that there were companies that received and utilized tin plate in manufacturing cans for their own use. Dart, however, never specifically presented the issue that it desired authority to carry tin plate only to such companies. Division I of the ICC, acting as an appellate division, held there was an inadequate factual basis upon which to make a proper legal interpretation of the issues at hand; that Dart failed to carry its burden to fully supply the ICC with all relevant facts, including present shippers sought to be served and the means of manufacturing...
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