Davidson Transfer & Storage Co. v. United StatesDavidson Transfer & Storage Co. v. United States
The plaintiffs, The Davidson Transfer & Storage Co. and W. T. Cowan, .Inc., are common carriers by motor vehicle of commodities including fresh meats, packing house products and fresh frozen foods between Washington, D. C., and New York City, and between intermediate cities such as Baltimore, Wilmington, Philadelphia and Trenton over regular routes, and comprise two of more than twenty carriers operating between the cities referred to arid carrying the commodities enumerated.
The defendant, Schultz Refrigerated Service, Inc., filed an application with the Interstate Commerce Commission pursuant to the provisions of Sections 206, 207 and 208 of the Motor Carrier Act of 1935,
The plaintiffs chose not to introduce into evidence in this court the Testimony upon which the Commission’s order was based. Under these circumstances we are bound to conclude that the findings of the Commission are based upon adequate evidenсe. Mississippi Valley Barge Line Co. v. United States,
The Commission handed down two reports and made two orders. The second order set aside the first order and granted the certificate. The Commission in its first report (No. MC — 21576, Sub. No. 2), decided August 22, 1940, refused the certificate, and granted it in its second report (at the same number as that above), decided January 17, 1941.
In its first report the Commission sets forth the testimony of numerous witnesses. One witness, described as engaged in the meat brokerage business in Philadelphia, dealing in fresh meats in Philadelphia and its suburbs, testified that his business decreased from 60,000 and 100,000 pоunds per week to about 20,000 pounds per week because of the unsatisfactory service which he received from carriers now operating between Baltimore and Philadelphia. He testified also that shipments were sometimes refused because of the condition of the meats and that some of the larger carriers serving his territory had refused to transport his commodities, giving no reason, however, for such refusal. Another witness, engaged in the packing of frozen fruits and vegetables, testified that two of the larger carriers have refused to transport his shipments, the Commission’s report however not stating to what places these cаrriers refused transport. This same witness testified that a shipment of frozen pumpkin to Washington was spoiled when it was delivered because of delay.
The report goes on to say: “A number of the shippers testified that the motor carriers now operating between points in part of the territory under consideration had refusеd to transport their less-truck load shipments.” The Commission then states: “The principal controversy between shippers and carriers concerns the question as to which party should furnish the dry ice on less-truck load shipments * * *. The record shows that protestant carriers’ equipment is not being utilized to its full capacity and the evidеnce is convincing that the real basis for the shippers’ contention that additional service is required between the points served by protestants, is the controversy between presently authorized carriers and shippers as to who should furnish the ice on less-than-truckload shipments.”
In its second report of January 17, 1941, the Commissiоn changes its conclusions on reconsideration of the case and finds that public convenience and necessity require the operations described and authorized in its final order. In its first report it had found that the cause of the controversy was the question as to who should furnish icing. In its second report it substituted for the *218 ultimate finding thаt no additional service was needed an ultimate finding that irrespective of any controversy with respect to furnishing ice, additional service was needed. -The Commission stated in this connection:
“A further review of the evidence, however, establishes that shippers have been unable to obtain proper and sufficient service, particularly on less-than-truckload shipments, on commodities requiring refrigeration, between Philadelphia, Wilmington, Baltimore, and Washington. Although protestant motor carriers contend that' an agreement between the shippers and existing motor carriers as to the furnishing of ice will eliminate present difficulties as to service, the record does not support this view. It is noted, for example, that these carriers provide ice on truckload shipments of fresh frozen fruits and vegetables, but not on lesser quantities, and on any-quantity lots of packing-house products. They also give expenditious service on truck-load shipments, but have, on оccasions, either rejected small shipments on the ground that such a service is not profitable to them or have delayed providing equipment on small lots. In other instances foods requiring protection from outside temperatures have been transported in non-refrigerated units with a resultant spoilage and loss to the shippers. That additional service, rather than an agreement as to charges, is necessary is further indicated by the fact that at least two of the shippers who have been unable to obtain service on less-than-truckload shipments testified to their willingness either to furnish ice themselves or to pay additional chargеs to carriers for providing such protection.
“Protestant motor carriers serve a substantial number of large shippers of foods requiring temperature control between Washington and New York City and the limited number of refrigeration units operated by them are in active service. As a matter of fact, four additional units are being built by them to take care of their existing accounts. Other shippers desiring service on small lots between Philadelphia and Washington have been accommodated only when these carriers lack full loads from shippers regularly served by them. Such occasional service has not been sufficient to satisfy the neеds of shippers at Philadelphia. The grant of operating authority herein will not deprive existing carriers of an appreciable amount of traffic since applicant will supply a service not presently available.”
The Commission arrived at a different conclusion upon a reconsideration of the еvidence, but in so doing, it did neither more nor less than many a court and many a judge has done upon the rehearing of a case.
The plaintiffs’ contention that the Commission did not make the necessary basic findings of fact to support its ultimate conclusion of fact is stated by them as follows : “The validity of the Commission’s order is here аssailed on its face, in the light of the findings not made and the purported findings which were made.” The question which we must decide is whether the ultimate conclusion of fact reached by the Commission is supported by the basic findings set forth in the Commission’s second report. The Commission has found and stated basic findings of fact which should and do lead tо its ultimate conclusion of fact. This is sufficient 'under the authorities.
3
See United States v. Baltimore
*219
& O. R. Co.,
The report of the Commission -might be regarded as subject to some criticism in that it fails to state clearly the complete reasons for the conclusion and thus fails to present a “complete statement of the grounds of the Commission’s determination”, but it cannot be set aside as lacking in a statement of the basic findings which underlie its ultimate determination.
We can see no merit in the contention that if additional service is required the Commission must impose the duty of supplying such additional service upon existing carriers pursuant to the provisions of Sections 204, 206, 207 and 208 of the Motor Carrier Act of 1935 (see
The complaint will be dismissed.
Notes
Permission was also sought to operate as a common carrier of frozen foods and empty containers between Bridge-ton, N. J., and points witbin 40 miles thereof on the one hаnd, and points within 150 miles thereof in all directions on the other; and between Dover, Delaware on the one hand and points within 200 miles thereof on' the other. .
No question is raised, however, in the present proceedings as to operations between these points.
The material portions of the order are as follows:
“It is ordered, that the said carrier be, and it is hereby, granted this Certificate of Public Convenience and Necessity as evidence of the authority of the holder to engage in transportation in interstate or *217 foreign commerce as a common carrier by motor vehicle; subject, however, to such terms, conditions, and limitations as are now, or may hereafter be, attaсhed to the exercise of the privileges herein granted to the said carrier.
“It is further ordered, that the transportation service to be performed by the said carrier in interstate or foreign commerce shall be as specified below;
“Fresh frozen fruits and vegetables, fresh and frozen fish, ice cream and mar teriаls used in the manufacture of ice cream, fruit peel, and empty containers for the above commodities, over irregular routés.
“Between Philadelphia, Pa., Trenton, N. J., and New York, on the one hand, and, on the other, the District of Columbia and points and places in New Jersey, Pennsylvania, Delaware, Maryland, and New York, within 250 miles of Philadelphia, Trenton, and New York, respectively.
“Packing-house products and empty containers therefor, over irregular routes,
“Between Wilmington, Del., Philadelphia, Pa., and points and places in Pennsylvania and New Jersey within ten miles of Philadelphia, on the one hand, and, on the other, Baltimore, Md., and the District of Columbia.”
As to the processes to be employed by tbe Commission in arriving at its basic findings and its ultimate finding Judge Stephens, in bis illuminating opinion in Saginaw Broadcasting Co. v. Federal Communications Commission,
“In discussing tbe necessary content of findings of fact, it will be helpful to spell out the process which a commission properly follows in reaching a decision. The process necessarily includes at least four parts: (1) evidence must be taken and weighed, both as to its accuracy and credibility; (2) from attentive consideration of this evidence a determination of facts of a basic or underlying nature must be reached; (3) from these basic facts the ultimate facts, usually in tbe language of tbe statute, are to be inferred, or not, as tbe case may be; (4) from tbis finding tbe decision will follow by the application of tbe statutory criterion. For example, before tbe Communications Commission may grant a construction permit it must, under tbe statute, be convinced that the public interest, convenience, or necessity will be served. An affirmative or negative finding on this topic would be a finding of ultimate fact. This ultimate fact, however, will be reached by inference from basic facts, such as, for example, tbe prоbable existence or non-existence of electrical interference, in view of the number of other stations operating in tbe area, their power, wave length, and the *219 like. These basic facts will themselves appear or fail to appear, as the case may be, from the evidence introduced when attentively considered.
“We now rule that findings of fact, to be sufficient to support an order, must include what have been above described as the basic facts, from which the ultimate facts in the terms of the statutory criterion are inferred. It is not necessary for the Commission to recite the evidence, and it is not necessary that it set out its findings in the formal style and manner customary in trial courts. It is enough if the findings be unambiguously stated, whether in narrative or numbered form, so that it appears definitely upon what basic facts the Commission reached the ultimate facts and came to its decision.”
These state inter alia, “Any certificate issued under