In this action plaintiff Home Transfer & Storage Co., a corporation, asks this statutory 3-Judge Court, 28 U.S.C.A. 2325, to enjoin, set aside, cancel and annual an order of the Interstate Commerce Commission requiring plaintiff to cease and desist from the transportation of frozen fruits and frozen vegetables between points in Washington and California.
The complained of order was issued by the Interstate Commerce Commission in its Cause No. MC-C-1562 entitled Home Transfer & Storage Co., Inc., -- Investigation of Operation, wherein the Commission investigated plaintiff's operations pursuant to the Commission's authority under Sections 204(c) and 212(a) of the Interstate Commerce Act. 49 U.S.C.A. § 304(c), 312(a). That investigation matter was assigned for hearing before a Joint Board composed of representatives of the States of Washington and Oregon.
Both the Joint Board which heard the matter and Division Five of the Commission which reviewed it found that the plaintiff's operations in the transportation of frozen fruits and frozen vegetables between points in Washington and California violated the Motor Carriers Act, 49 U.S.C.A. 301 et seq., because between those points plaintiff without authority transported for hire frozen fruits and frozen vegetables. Plaintiff, however, before the Commission contended and now contends that, as to Commission regulation of certificate and rates, those products are exempt as agricultural commodities as provided by 49 U.S.C.A. § 303(b)(6), which in pertinent part provides as follows:
'Nothing in this chapter * * * shall be construed to include * * *.
'(6) motor vehicles used in carrying property consisting of ordinary livestock, fish (including shell or agricultural (including horticultural) commodities (not including manufactured products thereof), * * *.' (Italics supplied.)
The defendants United States of America and the Commission contend that frozen fruits and frozen vegetables are not agricultural commodities, but are non-exempt manufactured products thereof within the meaning of said Section 303(b) (6). The intervenors support such defendants' contention.
At the hearing before Joint Board No. 5 the following fresh fruits and vegetables were listed among those subject to the quick freeze processing here in question: Fruits: Raspberries, strawberries, and peaches. Vegetables: Garden peas, cauliflower, asparagus, spinach, broccoli, corn, green beans, brussels sprouts, butter beans, rhubarb and carrots.
Generally speaking, the quick freeze processing here contended by defendants to create non-exempt 'manufactured products' is as follows: To all fruits are added sugars and sirups, and to only peaches ascorbic acid also ins added. Vegetables are washed, then blanched by heating them to temperatures high enough to kill the enzymes and then reduced to near zero temperature and uniformly kept that way. Stalky vegetables are sometimes split and less frequently a core is removed to facilitate blanching. Rhubarb is the only vegetable not so blanched, but to it sugar is added. The requirement of uniform maintenance of near zero temperature after the quick freeze processing applies to all fruits and vegetables.
The sole remaining question for decision in this case, therefore, is: Are frozen fruits and frozen vegetables agricultural commodities or manufactured products thereof?
We here mention some previous cases which although not involving ordinary farm fruits and vegetables are helpful in our determining whether the processing in this case converted agricultural commodities into 'manufactured products thereof'.
In Rieck-McJunkin Dairy Co. v. Pittsburgh School District, 1949, 362 Pa. 13, 66 A.2d 295, and in City of Louisville v. Ewing Von-Allmen Dairy Co., 1937, 268 Ky. 652, 105 S.W.2d 801, it was held that the pasteurization of milk by subjecting it to a high, bacteria killing temperature and subsequently to chilling temperature did not change the nature of milk and that it remained milk despite pasteurization which was not manufacturing.
In Union Truck Terminal, Inc., v. Perlstein, La.App., 52 So.2d 315, it was held that the peeling and grating of, and adding sugar and acid to, bananas, and quick freezing them and storing them in cans in order to prevent them from perishing did not constitute 'manufacturing', since the grated product of bananas was still bananas.
Counsel have furnished us with advance copies of, and with their approval we have since oral argument awaited, the decision of the case of East Texas Motor Freight Lines, Inc., v. Frozen Foods Express, 76 S. Ct. 574, 576, which was the latest Supreme Court decision involving exemptions of agricultural commodities (not manufactured products thereof) under the provisions of 49 U.S.C.A. § 303(b) (6) (Sec. 203 of Part II, I.C. Act, Motor Carriers). There by a 5-4 decision April 23, 1956, that ...