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January 23, 1967


Before Major, Senior Circuit Judge, and Juergens and Poos, Chief District Judges.

The opinion of the court was delivered by: Major, Senior Circuit Judge.

Plaintiff, Pre-Fab Transit Company, is a common carrier by motor vehicle engaged in the transportation over various routes of commodities in interstate commerce, pursuant to authority issued by the Interstate Commerce Commission in Docket No. MC-107295, and various subs thereto.

Pre-Fab and Whitehouse Trucking, Inc. (Whitehouse) in their individual tariffs proposed to establish rates on, among others, portable buildings, to become effective September 20, 1965. Mobile Housing Carriers Conference, Inc. (Mobile Homes) was permitted to intervene in opposition to such proposed rates. A hearing was had before a Commission Examiner, which culminated in an order by the Commission adverse to Pre-Fab and Whitehouse.*fn1 The present action was instituted by Pre-Fab to enjoin, annul and set aside such order. Defendants, United States of America and Interstate Commerce Commission, as well as Mobile Homes, deny that plaintiff is entitled to the relief thus sought.

The case has been heard by a three-judge Court empaneled pursuant to statute (Sec. 2284(1), Title 28 U.S.Code). It is conceded by all parties and we hold that the Court has jurisdiction of the subject matter, with the power and authority to decide the issues presented.

The report and order of the Commission, Rates and Practices Review Board, was entered March 2, 1965, in its investigation and suspension Docket No. M-19957, Mobile Homes Between Points in the United States. No report was made by the Trial Examiner for reasons with which we are not now concerned. The proposed rates were on single unit mobile homes, which the Commission's order requires to be cancelled on the ground that they were for transportation services in excess of Pre-Fab's operating authorities.

Pre-Fab is the owner of numerous certificates with various commodity descriptions, two of which are illustrative:

    "Prefabricated buildings, complete, knocked
  down, or in sections, and when transported in
  connection with the transportation of such
  buildings, component parts thereof and equipment
  and materials incidental to the erection and
  completion of such buildings," and
    "Buildings, complete, knocked down, or in

We think there clearly emerges from the complicated and confusing situation the single and seemingly simple issue as to whether Pre-Fab's certificates authorized it to transport "a single unit mobile home." In this connection it is pertinent to note that the term "prefabricated buildings" includes buildings of various kinds, such as mobile homes and house trailers, whether portable or not. Furthermore, the mode of transportation is not here material.

Defendants on brief, as is customary in cases of this character, cite and quote from many cases which place a severe limitation upon our scope of review. We see no point in citing or discussing such cases. We fully recognize the limitations thus imposed, but at the same time it is our duty to examine the record with a view of ascertaining if the order under attack is in accordance with law. The Commission, as well as other administrative agencies, must make findings that support its decision, and those findings must be supported by substantial evidence. Burlington Truck Lines, Inc. et al. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207; Alabama Great Southern Railroad Co. et al. v. United States, 340 U.S. 216, 227-228, 71 S.Ct. 264, 95 L.Ed. 225; State of Florida et al. v. United States, 282 U.S. 194, 215, 51 S.Ct. 119, 75 L.Ed. 291. Courts should not be expected to speculate as to the basis for the conclusion of an administrative agency. Austin v. Jackson, 4 Cir., 353 F.2d 910, 911; Northeast Airlines, Inc. v. Civil Aeronautics Board, 1 Cir., 331 F.2d 579, 586. More important perhaps as related to the instant situation, the Commission is without power to change or modify a motor carrier's certificate under the guise of interpretative action. Nelson, Inc. v. United States, 355 U.S. 554, 558, footnote 4, 78 S.Ct. 496, 2 L.Ed.2d 484; Mitchell Bros. Truck Lines v. United States, D.C., 225 F. Supp. 755, 758; Simpson v. United States, D.C., 200 F. Supp. 372, 378, affirmed 369 U.S. 526, 82 S.Ct. 954, 8 L.Ed.2d 83.

Plaintiff offered the testimony of Dr. Mario Pei, a linguistic consultant and professor of philology at Columbia University, and Dr. Samuel Monson, teacher of language and composition and editor of dictionaries. There is no question but that these men were highly qualified in their respective fields. Both testified that the commodity description, "Prefabricated buildings, complete, knocked down, or in sections," related to three types of buildings, (1) a building complete, (2) a building knocked down and (3) a building in sections. Plaintiff also offered the testimony of a Mr. Kemp, concededly experienced in the field of transportation; in fact, he had been in that business for 55 years, in connection with railroads and trucks, and for 29 years prior to retirement had served as a district supervisor for the Interstate Commerce Commission. Among his numerous duties was that of examining operating authorities to determine whether the carriers were operating within their scope. This witness agreed with the language experts and testified in no uncertain terms that in his opinion the commodity description in question referred to three types of buildings, (1) a complete building, (2) a knocked down building and (3) a building in sections.

Plaintiff offered the testimony of a Mr. Frajoie, an industrial designer, and Mobile Homes (protestant) that of a Mr. Foster, its assistant managing director. Their testimony in the main had to do with the development of the industry over the past several years and is not particularly relevant at this stage of the proceeding because the sole controversy at present revolves around the meaning to be given to the language of Pre-Fab's operating authorities. No testimony was heard which contradicted that offered by plaintiff relative to the meaning of the description, "Buildings, complete, knocked down, or in sections."

The Commission made no findings as such but relied entirely upon its report in support of its order. A careful study of the report clearly reveals, we think, that it contains no findings relevant to the material issue for decision, and a study of the record reveals that no findings could be made which would support the order. This critical appraisement of the report requires its consideration in some detail.

The report, following a recitation of the nature of the proceedings, the contentions advanced by the respective parties ...

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