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PRE-FAB TRANSIT CO. v. UNITED STATES

September 3, 1969

PRE-FAB TRANSIT CO., PLAINTIFF,
v.
THE UNITED STATES OF AMERICA AND THE INTERSTATE COMMERCE COMMISSION, DEFENDANTS, AND MIAMI TRANSPORTATION COMPANY, INC., OF INDIANA, ET AL., INTERVENING DEFENDANTS.



Before Cummings, Circuit Judge, and Poos and Morgan, District Judges.

The opinion of the court was delivered by: Poos, District Judge.

MEMORANDUM DECISION AND ORDER

Nature of the Proceedings

Plaintiff Pre-Fab Transit Co., hereinafter referred to as Pre-Fab, brings Civil Action No. 4376 under Sections 1336, 1338, 2284 and 2321 through 2325 of Title 28, United States Code, to enjoin, annul and set aside the order of the Interstate Commerce Commission, hereinafter the I.C.C., served June 14, 1968 in Miami Transportation Co., Inc. of Indiana v. Pre-Fab Transit Co., Docket No. MC-C-5102, which was reported at 107 M.C.C. 383. The I.C.C., in construing Pre-Fab's certificate of authority No. MC-107295, found that Pre-Fab exceeded its authority in transporting certain ornamental iron columns in interstate commerce. Pre-Fab attacks the order, alleging (1) that the I.C.C.'s interpretation of Part B of its authority is clearly erroneous and (2) that the I.C.C. denied Pre-Fab a full and fair hearing as to Part A of its authority.

In Civil Action No. 2394, Pre-Fab has moved to enforce a 1958 judgment of this Court, which judgment Pre-Fab alleges is authority for what it did in Miami and for what it wants to continue to do.

Facts

The facts of the case are not unduly complex, nor does there appear to be any dispute as to any material fact. Briefly, the complaint, exhibits, verified statements and Report of the Commission show that in February, 1966, Miami Transportation Company, Inc. of Indiana, hereinafter called Miami, which is one of the intervening defendants herein, filed a complaint with the I.C.C. alleging that Pre-Fab transported 1234 cartons of Ornamental iron columns from Louisville, Kentucky, to Dunbar, West Virginia, all in excess of its certificated authority.

Pre-Fab's Certificate of Public Convenience and Necessity, No. MC-107295 reads as follows:

Part A, allowing the transportation of —

  (A) Prefabricated and precut buildings or
      houses, complete, knocked down, or in sections,
      and all component parts necessary to the
      construction, erection, or completion of such
      buildings or houses, when shipped with
      same * * * and

Part B, allowing the transportation of —

  (B) Buildings, complete, knocked down,
      or in sections, including all component
      parts, materials, supplies, and fixtures, and
      when shipped with such buildings,
      accessories used in the erection, construction,
      and completion thereof.

Pre-Fab's reply admitted the transportation of the iron columns but asserted that it was authorized by both Parts A and B of its certificate. Since only a matter of Commission analysis and interpretation of the Certificate remained, there being no factual dispute, an investigation was conducted pursuant to Modified Procedure, i. e., evidence was submitted without oral hearing by way of verified statements.

The I.C.C. examiner found a violation of Section 206(a) of the Interstate Commerce Act and recommended that a cease and desist order be issued. Pre-Fab excepted and the Commission, Division I, in its report and order of May 23, 1968, ...


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