The opinion
ATWELL, Chief Judge
(dissenting).
The plaintiff is a motor carrier of petroleum products from Texas to New Mexico. One of its competitors is a railroad, and the railroad rate on the same sort of freight was lower than the plaintiff’s rate. It exercised its right to initiate its own rate, and in order to meet the rate that had been recently established by the railroad it reduced its own rate to the same figure that was charged by the railroad.
This right to adjust its rate to meet competition is within the zone of reasonableness, and resulted in no undue prej *594 udice, or, preference, or, discrimination. This exact point was determined in New York Central R. Co., v. United States, D.C., 99 F.Supp. 394 , which was affirmed in I. C. C. v. New York Central R. Co., 342 U.S. 890 , 72 S.Ct. 201 , 96 L.Ed. 667 . It is also adequately supported by other authority. United States v. Chicago, M. St. P. & Pacific R. Co., 294 U.S. 499 , 55 S.Ct. 462 , 79 L.Ed. 1023 ; Texas & Pacific R. Co. v. United States, 289 U.S. 627 , 53 S.Ct. 768 , 77 L.Ed. 1410 ; Skinner & Eddy Corp. v. United States, 249 U.S. 557 , 39 S.Ct. 375, 378 , 63 L.Ed. 772 . In this latter case it was said that, “Neither the Act to Regulate Commerce, nor any amendment thereof, has taken from the carriers the power which they originally possessed, to initiate rates; that is, the power, in the first instance, to fix rates, or to increase or reduce them.” These provisions apply to rail rates, motor rates, water rates, or forwarder rates.
Such a rate is unlawful if it is unjust, or, unreasonable, that is, too high; or, gives any undue or unreasonable preference or advantage to any particular person, port, etc.; or subjects any particular person, port, or, description of traffic to any unjust discrimination, or, any undue, or, unreasonable prejudice, or, disadvantage.
So, also under the National Transportation policy a motor carrier rate can be unlawful if it constitutes an unfair, or, destructive competitive practice. Rates avoiding these pitfalls are lawful and are not subject to lawful change, or, challenge by the Interstate Commerce Commission. The Commission has no more power than is given to it by the statute, and can only act in accordance with the statute creating it and setting forth its powers. See Southern Pacific Co. v. Interstate Commerce Commission, 219 U.S. 433 , 31 S.Ct. 288 , 55 L.Ed. 283 .
In the case at bar, the Commission suspended the rate filed by plaintiff, and giving as a reason for such suspension that, “It further appearing that the rates and interests of the public would be injuriously affected thereby.”
The only authority that the Commission has to make such an order is found in Section 216(g) of the Interstate Commerce Commission Act. That statute requires the Commission to make “a statement in writing of its reasons for such suspension.” The requirement of the statute is definite and certain and, therefore, it must be assumed that the Commission must be equally explicit in stating its reasons for suspending a rate. It can only take final action in accordance with the terms of the statute.
In the instant ease, the plaintiff’s tariff was suspended by the Commission, and the reason given was, and is, “that the rights and interests of the public would be injuriously affected thereby.” It is very difficult to see how the shipping public would be injuriously affected by the reduction of its own rate. The shipping public would benefit thereby. And again we suggest that the purported reason is no reason at all, either in fact, equity, or, law. We know that the Commission only has such authority as the statute gives it. The “reason” must be unreasonable, or, unjust, causing undue, or, unreasonable preference, unjust discrimination, undue, or, unreasonable prejudice, or, constitutes a destructive, competitive practice.
It is also generally understood that the general meaning of “ ‘arbitrary and capricious,’ ” is, “ ‘without any reasonable cause, without any cause based upon the law; without reason given; in disregard of evidence. It is comparable to, without justification or excuse; with no substantial evidence to support it; a conclusion contrary to substantial, competent evidence.’ ” See In re Rogers, D.C., 47 F.Supp. 265, 266 .
Judge Hutcheson, in Braswell v. United States, D.C., 49 F.Supp. 940 , announced that whenever the court is presented with an instance where the Commission has acted arbitrarily it has not hesitated to set aside the order of the *595 Commission. See also United States v. Baltimore & Ohio R. Co., 293 U.S. 454 , 55 S.Ct. 268 , 79 L.Ed. 587 ; Wichita R. & Light Co. v. Public Utilities Commission, 260 U.S. 48, 58 , 43 S.Ct. 51 , 67 L.Ed. 124 .
Again, I wish to emphasize the fact that the Commission can suspend a rate only by making a statement in writing of its reasons for such suspension. Having failed in this indispensable requisite, its subsequent action was, and is, void.
“Rights and interests of the public” is a mere generalization. It is conclusion. In Atlanta & St. Andrews Bay Ry. Co., v. United States, D.C., 104 F.Supp. 193 , it was stated and supported by Alabama Great Southern R. Co., v. United States, 340 U.S. 216, 227 , 71 S.Ct. 264 , 95 L.Ed. 225 , that the Commission has the duty to make basic or quasi jurisdictional findings essential to the statutory validity of the order. See Eastern-Central Motor Carriers Ass’n v. United States, 321 U.S. 194 , 64 S.Ct. 499 , 88 L.Ed. 668 ; Baltimore & O. R. Co. v. United States, D.C., 22 F.Supp. 533 ; Saginaw Broadcasting Co. v. Federal Communications Commission, 68 App.D.C. 282 , 96 F.2d 554 .
The Century dictionary’s definition of the word, “reason,” is, “a ground or motive for a belief, course of action, or the like.”
These thoughts drive us once more to the statutory requirement that the Commission shall state in writing its reasons, or, reason, for suspension. Since there is not a sufficient compliance with the statute, restraint must follow.
Just what may appropriately hereafter occur, has no place in this opinion. Whenever the Commission shall act lawfully, that is, within the terms of the statute, its voice must be obeyed, but until it does so, its voice is without any legal compulsion, and the citizen need not attend or perform in accordance with its direction.