The opinion
DAVIDSON, District Judge
(concurring).
The plaintiff brought this action to set aside the Commission’s order, invoking those sections of the law wherein a specially constituted three-judge court may set aside “any order” of the Commission where it is found that such “order” is illegal or void.
After careful study and full consideration of all the questions raised and the *592 arguments and authorities presented, we reach the conclusion that the motion to dismiss is well taken and that the court is without jurisdiction.
It appears that this court does not have jurisdiction of the cause in that neither the action of the Commission of July 26, 1954 in suspending such rates nor the action by the Commission of September 17, 1954 in refusing to vacate the order previously made constituted such “order” within the meaning of those sections of the statute under which the appeal is sought. The order involved a matter of procedure only, interlocutory in character, and is wanting in finality.
We, the same court now sitting, the same three judges, a little more than a year ago sat in the case of Houston Fire & Casualty Co. v. United States and Interstate Commerce Commission. Our opinion is filed in the office of the District Court in Fort Worth as of date February 11, 1953. In that case a very similar question was presented and in passing upon it the court reasoned to such an end, citing authorities as follows :
In United States v. Griffin, 303 U.S. 226, 232 , 58 S.Ct. 601, 604 , 82 L.Ed. 764 , the court dismissed an action to set aside a determination of the Commission, relating to railway mail pay, for want of jurisdiction, and, in so doing, traced the history of the act and made the following observations with respect to the limited jurisdiction conferred:
“The Urgent Deficiencies Act provides a method of judicial review of orders of the Interstate Commerce Commission possessing the following extraordinary features: “(1) The original hearing in the district court is not before a single judge, but before three, of whom one must be a circuit judge; (2) From the decree of the district court as so constituted a direct appeal to the Supreme Court is granted as of right, instead of a review by a circuit court of appeals; (3) Upon both the trial court and the Supreme Court rests the obligation to give the case precedence over others. These features were first introduced by the Expediting Act of 1903, 32 Stat. 823 , 15 U.S.C.A. §§ 28 , 29 and notes for suits by the United States to enforce the antitrust and commerce laws. They were extended by the Hepburn Act of 1906, § 5, 34 Stat. 584 , 590, 592, 49 U.S.C.A. § 16 and note, to suits to enforce or to set aside orders of the Interstate Commerce Commission. When that jurisdiction was vested in the Commerce Court provisions with like effect were provided for cases coming before it. 36 Stat. 539 . To its jurisdiction the district court succeeded, with these features, under the Urgent Deficiencies Act.
“In the opinion of the Congress jurisdiction with the extraordinary features of the Urgent Deficiencies Act was justified by the character of the cases to which it applied— cases of public importance because of the widespread effect of the decisions thereof. In such cases Congress sought to guard against ill-considered action by a single judge and to avert the delays ordinarily incident to litigation. In construing the Act, this Court concluded that despite the broad language used in the Commerce Court Act, Congress could not have intended to include in this special jurisdiction suits to set aside every kind of order issued by the Commission. For substantially every decision, and every other kind of action by the Commission is expressed in, or if followed by, an order; and many of the orders are obviously not of such public importance and widespread effect as to justify, in cases affecting them, the extra-ordinary features of the Urgent Deficiencies Act.”
Similarly, in the recent case of United States v. I. C. C., 337 U.S. 426 , 69 S.Ct. 1410 , 93 L.Ed. 1451 , the Court again had occasion to review the history of the statutes and pointed to the policy of *593 narrowly construing them. Mr. Justice Black stated, 337 U.S. at page 433 , 69 S.Ct. at page 1420 :
“We have frequently pointed out the importance of limiting the three-judge court procedure within its expressly stated confines. We are confident that in holding that one judge rather than three should entertain cases challenging Commission reparation orders we interpret the congressional expediting procedure and the Interstate Commerce Act in accordance with their basic purpose.”
Under this prevailing doctrine, the courts have consistently held that jurisdiction to review orders of the Commission do not authorize review of preliminary or interlocutory action of the type involved in the case at bar. The reason for this is the requirement that the administrative remedies should be exhausted and administrative determination arrived at on the merits before resort to the court. This is especially true of investigative steps, such as the one in this case, preliminary to a determination of the matter investigated. See Davis, Administrative Law, Sec. 196; United States v. Illinois Central Railroad Co., 244 U.S. 82 , 37 S.Ct. 584 , 61 L.Ed. 1007 ; and Federal Power Commission v. Metropolitan Edison Co., 304 U.S. 375 , at page 385, 58 S.Ct. 963 , at page 967, 82 L.Ed. 1408 , in which the court said:
“The provision for review thus relates to orders of a definitive character dealing with the merits of a proceeding before the commission and resulting from a hearing upon evidence and supported by findings appropriate to the ease.”
Cf. Title 5, Section 1001, paragraph (d).
In the instant ease there is no issue of the Commission having made determination with respect to the lawfulness or reasonableness of the rates involved. The Commission has simply determined that in order for it to properly consider the rights and interests of the public, the involved rates should be suspended pending the investigation concerning the lawfulness of said rates. It cannot be anticipated as to whether the Commission will find such rates lawful or unlawful after the investigation.
It must be emphasized that Section 216(g) of the Interstate Commerce Act authorizes the Commission, within its discretion, upon the filing of schedules of rates “to enter upon a hearing concerning the lawfulness of such rate”; the lawfulness or unlawfulness of such rate is not prejudiced and no order in connection therewith is proper until after hearing. Though the provision of Section 216(g) of the Interstate Commerce Act has been lightly treated by the Commission, and the action of the Commission in failing to specify the grounds upon which its conclusions are predicated is contrary to the intent of Congress, nevertheless, this does not create an additional ground of jurisdiction.
The complaint is dismissed for want of jurisdiction in this court to hear it and without prejudice to plaintiff’s right to proceed elsewhere as it may be advised.
My conclusion as stated above is that the case must be dismissed and I therefore concur in the decision of Chief Judge of the Circuit Court, Honorable Joseph C. HUTCHESON.