The opinion of the court was delivered by: HOLTZOFF
This group of actions have been consolidated for trial. Each of them is brought by a concern engaged in the manufacture or sale or both of rubber tires against members of the Federal Trade Commission to review the validity of an order made by the Commission under the Robinson-Patman Act limiting the quantity of rubber tires sold at any one time on which a discount may be made on the basis of quantity at 20,000 pounds ordered at one time for delivery at one time.
This Order is issued under United States Code Annotated, Title 15, Section 13, known as the Robinson-Patman Act. That section, in effect, prohibits discrimination in price between different purchasers of commodities of like grade and quality.
It further provides, however, 'That the statute shall not prevent differentials which make only due allowance for differences in the cost of manufacture, sale or delivery resulting from the differing methods or quantities in which such commodities for such purchasers are sold and delivered.' In other words, that provision permits differentials based on differences in quantities purchased by different purchasers.
This limitation, however, is qualified by the provision that follows and which is the pertinent provision involved in these actions, namely,
'That the Federal Trade Commission may, after due investigation and hearing to all interested parties, fix and establish quantity limits, and revise the same as it finds necessary, as to particular commodities or classes of commodities, where it finds that available purchasers in greater quantities are so few as to render differentials on account thereof unjustly discriminatory or promotive of monopoly in any line of commerce; and the foregoing shall then not be construed to permit the differentials based on differences in quantities greater than those so fixed and established.'
Acting under this provision, the Commission, as has just been stated, fixed quantity limits on sales of tires and tubes at 20,000 pounds ordered at one time for delivery at one time.
These cases came before this Court on motions by the defendants for summary judgment.
After opening of the argument, counsel for plaintiffs asked leave to file cross motions for summary judgment and, with the consent of counsel for the defendants this leave was granted. Consequently, the posture of this case now is that all parties have moved for summary judgment in their favor.
The plaintiffs raised three objections to the validity of the order of the Federal Trade Commission;
First, that the Commission failed to give a hearing at which evidence was introduced and at the conclusion of which findings were based entirely on the evidence introduced.
The second objection is that the findings do not support the order.
The third objection is that the order is capricious, arbitrary and unreasonable.
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 ...