USAC TRANSPORT v. United States, 4538.

• Decision Date: 15 June 1953
• Docket Number: No. 4538.,4538.
• Citation: 203 F.2d 878
• Parties: U. S. A. C. TRANSPORT, Inc. v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

203 F.2d 878 (1953)

U. S. A. C. TRANSPORT, Inc. v. UNITED STATES.

No. 4538.

United States Court of Appeals Tenth Circuit.

April 21, 1953.

Writ of Certiorari Denied June 15, 1953.

J. Ninian Beall, Washington, D. C. (Eugene A. Bond, Leadville, Colo., on the brief), for appellant.

George W. Howard, Sp. Asst. to U. S. Atty., Washington, D. C. (Charles S. Vigil, U. S. Atty., Denver, Colo., on the brief), for appellee.

Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, United States Circuit Judges.

Writ of Certiorari Denied June 15, 1953. See 73 S.Ct. 1139.

HUXMAN, Circuit Judge.

U.S.A.C. Transport, Inc., was charged by information containing eleven counts with transporting as a common carrier by motor vehicle, for the United States Government certain equipment from Littleton, Colorado, to Benbrook, Texas, and from Littleton, Colorado, to Box Elder, South Dakota, without having in force a certificate of public convenience and necessity, in violation of 49 U.S.C.A. § 306(a). A jury found appellant guilty on all counts, and fines aggregating $550 were imposed on the several counts. It is from this judgment that this appeal is prosecuted.

U.S.A.C. Transport, Inc., is and was at the time involved in this case engaged in interstate commerce as a common carrier under a certificate of public convenience and necessity issued to U. S. Aeroplane Carriers, Inc., and assigned to it. The certificate did not, however, cover transportation between Littleton, Colorado, and Benbrook, Texas, and Littleton, Colorado, and Box Elder, South Dakota, the routes involved in this case.

Appellant's defenses were (1) that the information failed to state an offense because the transportation was for the Government and under its sovereign perogatives it is exempt from its own acts and is free to choose its agents and servants, and (2) that appellant did not transport the goods in question and had no connection therewith.

The defense that the required certificate is not necessary where a common carrier transports property for the United States Government is not well taken. Section 306 of the Act provides that it is a violation for a common carrier to engage in interstate commerce on the public highways without possessing a certificate of public convenience and necessity from the Commission. A common carrier transporting goods for the United States Government for hire from one state to another is still a common carrier, engaged in interstate transportation, to the same extent as when thus transporting goods for a private individual. Of course, if the Government itself transports its own goods, it need not have the required certificate because it is not subject to the provisions of its own laws. That is the principle laid down in Dollar Savings Bank v. United States, 19 Wall. 227, 86 U.S. 227, 22 L.Ed. 80 and United States v. Knight, 14 Pet. 301, 39 U.S. 301 Reprint 251, 10 L.Ed. 465, upon which appellant relies. But these decisions do not support the contention that a common carrier, carrying goods in interstate commerce, under contract with the Government, need not comply with the law with respect to the possession of the required certificate. The only case which seems to have passed upon the question is United States v. Schupper Motor Lines, D. C., 77 F.Supp. 737. It held squarely that a certificate of convenience and necessity was required by a common carrier carrying goods in interstate commerce for the Government. It is also worthy of note that Subsection (b) of Section 303, 49 U.S.C.A., which sets out specifically and in detail the vehicles exempted from the operation of the act, makes no reference to vehicles by common carriers while engaged in transporting goods for the Government.

We are also of the view that the evidence amply sustains the conclusion that the contract was between appellant and the Government. Thomas W. Murray was president of both U.S.A.C. Transport, Inc., and of U. S. Aeroplane Carriers, Inc., at the times involved in the transactions out of which this prosecution arose.¹ He was also engaged in the trucking business on his own account under the name of T. W. Murray Trucking Company. As such he held no certificate from the Interstate Commerce Commission. On April 12, 1949, Murray entered into a lease agreement with one W. H. Prince and Sons Trucking Company, under which Prince leased to Murray certain transportation equipment and agreed to furnish the drivers for the same. While this lease was limited to territorial transportation and did not include the Littleton, Colorado, transportations, there was a separate oral agreement that the equipment should also be used for the transportation involved in this prosecution. Prince testified that in the use of his equipment under this arrangement he was subject to Murray's orders. On August 1, 1949, Prince wrote Murray in care of U. S. Aeroplane Carriers, Inc., referring to the Littleton job and asked if he was licensed to operate in all the states under the Interstate Commerce Commission and also asking whether moving equipment for...