DART TRANSIT COMPANY v. United States, 3-73-Civ-280.

• Decision Date: 17 January 1975
• Docket Number: No. 3-73-Civ-280.,3-73-Civ-280.
• Citation: 386 F. Supp. 1387
• Parties: DART TRANSIT COMPANY, Plaintiff, v. UNITED STATES of America, Defendant, and Interstate Commerce Commission et al., Intervening Defendants.
• Court: U.S. District Court — District of Minnesota

386 F. Supp. 1387

DART TRANSIT COMPANY, Plaintiff, v. UNITED STATES of America, Defendant and Interstate Commerce Commission et al., Intervening Defendants.

No. 3-73-Civ-280.

United States District Court, D. Minnesota, Third Division.

January 17, 1975.

James C. Hardman, Hardman, Burke, Kerwin & Towle, Chicago, Ill., and William S. Rosen, Rosen, Kaplan & Ballenthin, Saint Paul, Minn., for plaintiff.

Thomas E. Kauper, Asst. Atty. Gen., John H. D. Wigger, Atty., Dept. of Justice, Washington, D. C., and Robert G. Renner, U. S. Atty., Minneapolis, Minn., for defendant.

Fritz R. Kahn, Gen. Counsel, and H. G. Homme, Jr., Atty., Interstate Commerce Commission, Washington, D. C., for intervening defendant Interstate Commerce Commission.

Joel H. Steiner, Axelrod, Goodman, Steiner & Bazelon, Chicago, Ill., and James L. Nelson, Saint Paul, Minn., for intervening defendant Western Trans. Co.

Michael E. Murphy, Lindquist & Vennum, Minneapolis, Minn., for intervening defendant Raymond Motor Trans., Inc.

Before HEANEY, Circuit Judge, DEVITT, Chief District Judge, and LORD, District Judge.

MEMORANDUM & ORDER

DEVITT, Chief District Judge.

This is an action to set aside and annul an Order of the Interstate Commerce Commission denying plaintiff's application for a certificate of public convenience and necessity under which it sought authorization to conduct motor common carrier operations from points in Illinois to points in seven North Central states. Jurisdiction exists under 28 U.S.C. §§ 1336, 2284, and 2321-2325.

On June 5, 1972, plaintiff filed an application with the Commission pursuant to § 207(a) of the Interstate Commerce Act, 49 U.S.C. § 307(a), in which it sought a certificate of public convenience and necessity authorizing operations as a common carrier by motor vehicle, over irregular routes, of containers, container ends and lids, and plastic articles from Carol Springs, Itasca, and Addison, Illinois, to points in Minnesota, Iowa, Missouri, Kansas, Nebraska, North Dakota, and South Dakota. The application was processed under the Commission's modified procedure, an administrative process by which evidence is adduced through verified written statements as opposed to oral hearing. 49 C.F.R. §§ 1100.45-54. Two shippers of the commodities (Container Corporation of America and Packaging Systems, Inc.) filed verified statements in support of the application. Ten common carriers (All-American Transport, Inc., C W Transport, Inc., Container Transit, Inc., Crouch Bros., Inc., H&W Motor Express Company, Orscheln Bros. Truck Lines, Inc., Raymond Motor Transportation, Inc., Schneider Transport, Inc., Western Transportation Company, and Henry Zellmer doing business as Zellmer Truck Lines) filed verified statements in opposition to the application. On February 1, 1973, the Commission (Review Board Number 2) denied the application. On June 25, 1973, the Commission (Division 1, acting as an Appellate Division) denied plaintiff's petition for reconsideration. On September 26, 1973, plaintiff filed the complaint in this action in which it sought review of the Commission's Order. On February 15, 1974, the Commission (Division 1, acting as an Appellate Division), on its own motion, reopened the proceeding for reconsideration on the existing record and on the same date again denied plaintiff's application.

"The scope of review of orders of the Interstate Commerce Commission is well defined and narrowly limited." Twin City Freight, Inc. v. United States, 360 F.Supp. 709, 712 (D.Minn.1972). "Our review is limited to ascertaining whether the Commission's decision was rational and based on substantial evidence." Nationwide Carriers, Inc. v. United States, 380 F.Supp. 1132, 1134 (D.Minn.1974). "An applicant has the burden of showing that the proposed service `* * * is or will be required by the present or future public convenience and necessity'". Quickie Transport Co. v. United States, 169 F.Supp. 826, 828 (D.Minn.), aff'd per curiam, 361 U.S. 36, 80 S.Ct. 140, 4 L.Ed.2d 111 (1959), quoting in part 49 U.S.C. § 307(a).

In Pan American Bus Lines Operations, 1 M.C.C. 190, 203 (1936), the Commission set forth standards for determining whether an application for a certificate of public convenience and necessity should be granted:

In determining whether new operating authority should be granted pursuant to Section 207 of the Act, we must decide whether the new operation or service will serve a useful public purpose, responsive to a public demand or need; whether this purpose can or will be served as well by existing carriers; and whether it can be served by applicant with the new operation or service proposed without endangering or impairing the operations of existing carriers contrary to the public interest.

In John Novak Contract Carrier Application, 103 M.C.C. 555, 557 (1967), "the Commission held that shippers supporting an application must show the commodities shipped or received, the points within which that traffic moved, the volume of freight to be tendered to the applicant, the present transportation services used, and the deficiencies in existing service. As explained in Ashworth Transfer Inc. Extension—Explosives, 111 M.C.C. 652, 661 (1970), the purpose of the Novak evidentiary guidelines is to provide the Commission with enough information to determine what, if any, the transportation needs of the shippers really are." Twin City Freight, Inc. v. United States, supra, 360 F.Supp. at 712.

In its Order dated February 15, 1974, the Commission found that "the evidence of record failed to establish even a prima facie case of public need for applicant's proposed service within the guidelines expressed" in Novak, supra, 103 M.C.C. at 557:

It further appearing, That applicant has failed to demonstrate that the needs of its supporting

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