disposition that it is going to make of the second objection, the other two need not be considered at this stage of the litigation.
The Court is of the opinion that there are no statutory findings as required by the Act of Congress to support the order of the Commission. The order contains two ultimate findings.
The first ultimate finding is to the effect that:
'Available purchasers in greater quantities than annual dollar volumes of $ 600,000 and more are so few as to render differentials on account thereof unjustly discriminatory against purchasers in smaller quantities and promotive of monopoly'.
Manifestly, this finding does not support the order made by the Commission because the order of the Commission does not relate sales amounting to $ 600,000 or more a year but to single individual sales in quantities of 20,000 pounds.
The second ultimate finding does not follow the phraseology of the statute. If a statute requires a specific finding to be made by a regulatory body as a basis for an order, such a finding must be made in order to justify the order. To be sure, a slight deviation in phraseology will not vitiate the finding or the order.
In this case, however, there is more than a verbal deviation from the statute. The meaning of the second finding is entirely different from the meaning of such a finding as the statute requires. The statute requires a finding that available purchasers in quantities greater than that specified are so few as to render differentials on account thereof unjustly discriminatory or promotive of monopoly.
There is no finding here that available purchasers in quantities greater than 20,000 pounds at any one time are so few as to render differentials on account thereof unjustly discriminatory or promotive of monopoly.
Finding No. 2 is to the effect that the carload quantity of 20,000 pounds ordered at one time for delivery at one time is a quantity upon which the maximum differentials on account of quantity should be granted, that quantity being the reasonable maximum as to which there will be a sufficient number of available purchasers so as not to render such a maximum differential unjustly discriminatory against purchasers in smaller quantities and promotive of monopoly. In other words, the finding is the converse of what the statute requires or, to put it in a somewhat different way, it is the negative of what the statute requires.
In view of the importance of the order here involved and its effect upon a vital industry and on a large number of manufacturers and dealers, the order should not stand unless the statutory prerequisites are complied with.
The Court is of the opinion that the statutory finding expressly required by the Act of Congress as a basis for the order has not been made and that, therefore, the order should not stand.
This being the opinion of the Court, it seems unnecessary to pass upon the validity of the other two objections to the order. It may be noted that the third objection raises issues of fact, and that hence the defendants would not be entitled to summary judgment at this time in any event.
The defendants' motions for summary judgment will be denied and the plaintiffs' motion for summary judgment granted.
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