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PRE-FAB TRANSIT COMPANY v. UNITED STATES

January 22, 1971

PRE-FAB TRANSIT COMPANY, AN ILLINOIS CORPORATION, PLAINTIFF,
v.
UNITED STATES OF AMERICA AND THE INTERSTATE COMMERCE COMMISSION, DEFENDANTS.



Before Kerner, Circuit Judge, Poos, Chief District Judge, and Morgan, District Judge.

The opinion of the court was delivered by: Robert D. Morgan, District Judge.

DECISION AND ORDER

This cause is before the court upon a complaint to review an order of the Interstate Commerce Commission cancelling plaintiff's proposed tariff schedules for the transportation of single-unit mobile homes.

Plaintiff, Pre-Fab Transit Company, is a common carrier by motor vehicle engaged in the transportation of commodities in interstate commerce pursuant to authority granted to it by the Commission. Under that grant of authority, plaintiff is the owner of several certificates of convenience and necessity, the commodity descriptions of which are encompassed within the descriptions of two of such certificates as follows:

  "Prefabricated buildings, complete, knocked down, or
  in sections, and where 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 sections."

  Plaintiff filed tariffs with the Commission, to become effective September 20, 1965, which included rates for the transportation of single-unit mobile homes. Several carriers engaged in the business of mobile home transportation were permitted to intervene in opposition to that tariff insofar as it established rates for the transporting of mobile homes.*fn1 The Commission ruled that the proposed transportation of single-unit mobile homes exceeded plaintiff's authority. It, accordingly, entered an order cancelling plaintiff's tariff to the extent that it fixed rates for such transportation.

A previous three-judge court set aside that order. Pre-Fab Transit Co. v. United States, et al., S.D.Ill., 262 F. Supp. 1009 (1967).

Subsequent to that decision, further extensive hearings were held before a Commission examiner. Those hearings culminated in a recommendation that a new order enter cancelling plaintiff's tariff schedules insofar as they fixed rates for the transportation of single-unit mobile homes. On April 28, 1970, the Commission approved the report of its examiner and ordered cancellation of such tariff schedules, effective June 15, 1970. Mobile Homes Between Points in the United States, Inv. & Susp. Docket No. M-19957.

Plaintiff filed the instant complaint of June 10, 1970. Enforcement of the order was stayed pending disposition of the suit by this three-judge court. Jurisdiction is founded upon the provisions of 28 U.S.C. § 2321ff and 2284.

The suggestion implicit in plaintiff's argument that the order contravenes the prior three-judge court's decision is considered without merit. That court held that the uncontradicted evidence in the record then before it required the finding that a single-unit mobile home*fn2 is a "complete building," a commodity embraced within the commodity descriptions of plaintiff's operating authority. The court further found that the order before it was based upon the Commission's interpretation and application of its own prior orders, to the exclusion of the record in the case before it. Pre-Fab Transit Co. v. United States, et al., 262 F. Supp. at 1011-1012, 1013. It was in that context that the previous Commission order was set aside, "leaving to the Commission any further action which it may deem appropriate." 262 F. Supp. at 1016.

Subsequent action of the Commission was further extensive hearings, productive of a voluminous additional transcript of testimony and documentary exhibits. That procedure was proper. A new record is now presented to the court for review. Our decision must rest upon a determination whether that record, as now constituted, substantially supports the findings and the new order which the Commission has now made and entered. Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962); Pre-Fab Transit Co. v. United States, supra 262 F. Supp. at 1011.

The single issue before this court is whether substantial evidence supports the Commission's findings and, in turn, whether those findings support the order entered.

Although it may be said that the Commission did find, upon conflicting evidence, that a single-unit mobile home is not a building, this seems purely an exercise in semantics, and the Commission framed the issue before it as follows:

  "* * * The issue here is not whether a mobile home is
  a building but rather, whether under the
  Commission's long-standing regulatory scheme the
  commodity descriptions `buildings' or `prefabricated
  buildings' ...

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