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