ultimate finding that no additional service was needed an ultimate finding that irrespective of any controversy with respect to furnishing ice, additional serice 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-qnantity lots of packing-house products. they also give expenditious service on truck-load shipments, but have, on occasions, 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-truck-load shipments testified to their willingness either to furnish ice themselves or to pay additional charges 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 needs 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 evidence, 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 assailed 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 to its ultimate conclusion of fact. This is sufficient under the authorities.
See United States v. Baltimore & O.R. Co., 293 U.S. 454, 464, 465, 55 S. Ct. 268, 79 L. Ed. 587, and compare Florida v. United States, 282 U.S. 194, 215, 51 S. Ct. 119, 75 L. Ed. 291. The facts stated by the Commission in its second report, and regarded by its as sufficient to invalidate its former view that the controversy over furnishing ice underlay the complaint as to inadequate service, constitute together with other facts stated in the second report the basic findings which call forth the ultimate conclusion of the Commission. In the Baltimore & O. Railway case [ 293 U.S. 454, 55 S. Ct. 273, 79 L. Ed. 587], Mr. Justice Brandeis used the following language which is illuminating in this connection: "In the Florida Case [ Florida v. United States, supra] the legal distinction was pointed out between what may be termed quasi jurisdictional findings, there held to be indispensable, and the 'complete statement of the grounds of the Commission's determination' which was declared in Beaumont, S.L. & W. Ry. Co. v. United States, 282 U.S. 74, 86, 51 S. Ct. 1, 75 L. Ed. 221, to be desirable for a proper consideration of the case in the courts. The lack of such a complete statement, while always regrettable, because unnecessarily increasing the labor of the reviewing court (compare Virginian Ry. Co. v. United States, 272 U.S. 658, 675, 47 S. Ct. 222, 71 L. Ed. 463), is not fatal to the validity of the order."
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 49 U.S.C.A. §§ 304, 306, 307 and 308). The plaintiffs point to the provisions of § 308(a)
and take the position that the words of the statute compel the Commission to create additional service only by increasing the operations of existing carriers. We confess that the theory that the Commission could, by executive fiat, compel an existing carrier to double or treble its service under penalty of the revocation of an existing certificate of convenience and necessity, seems to us to be inconsonant with the principles of the Fifth Amendment. We think that the Commission does not possess such power, but that it may compel a carrier to give to the public the service contemplated by the certificate of convenience and necessity issued to such carrier. In the case at bar the Commission has found that the services of an additional carrier are required over the routes designated in order that the public may have adequate service. It made no finding that any of the protestant carriers were derelict in their duties, but even if the Commission had made such a finding, we would not conclude that the Commission was thereby prohibited from authorizing an additional, and, if need be, a competing carrier to operate in the field. We think that one of the weapons in the Commission's arsenal is the right to authorize competition where it is necessary in order to compel adequate service and there is nothing in any of the sections cited or in their legislative history that would require a contrary conclusion. The conception that the public must wait while the Commission exercises its statutory powers fortified by orders of court, to compel existing carriers to do what they should do, is one which does not commend itself to common sense and the public interest.
The complaint will be dismissed.