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.
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,"
"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
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
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