To constitute a majority, I join with Judge Davidson in setting aside the order •of the Commission. In doing so, however, I adopt, as did he, the detailed and able opinion of Judge Hughes in the outline of the case, the geographical facts, and the statement of the issues and the controlling statutes and regulations. I differ as to each opinion. Judge Davidson, in effect, looks upon it in terms of the power of the ICC to override a valid municipal ordinance of the City of Orange, Texas. Judge Hughes considers that since it is a statute the ICC is expounding, it has the right (if not the duty) to do so regardless of its own outstanding and clearly applicable administrative regulations.
Since the term “commercial zone” ties into “municipality,” the latter term is subject to interpretation. Charged as it is with the duty of administering the Transportation Act, the ICC had two principal ways to go about this. First, it could adjudicate each and every case and by a series of ad hoe decisions hammer out a sensible, workable standard. Or second, it could by following the requirements of the Administrative Procedure Act covering rule-making, establish administrative regulations defining in greater detail the meaning of “municipality” as used in the basic statute.
For very obviously practical reasons, the Commission essentially chose the second course. In very precise terms, so far as applicable to our case, it prescribed specifically what a “municipality” is:
“* * * any city, * * * which has been created by special legislative act or which has been, otherwise, individually incorporated or chartered pursuant to general State laws, or which is recognized as such, under the Constitution or by the laws of the State in which located, and which has a local government. It does not include a town of the township or New England type.” 49 C.F.R. 170.15
Although this boundary strip annexation by the City of Orange is an obvious piece of land-grabbing gerrymandering of a kind typical of the post-war response by municipalities to the population explosion’s threat of being hemmed in by satellite communities, it is categorically conceded on this record to be a valid legislative act under the laws of Texas. More precisely, it is conceded that under Texas law, this incorporation is valid for all purposes. This brings it within § 170.15 as a “* * * city * * * which is recognized as such, under the * * * laws of the State in which located * *
Of course Judge Hughes is correct in stating that the Commission cannot by an invalid regulation partially repeal an Act of Congress. The ICC certainly has the right — indeed the duty- — -to rescind its regulation either in a rule-making proceeding or an adjudicative proceeding when and as it concludes that the regulation is invalid. But the ICC has not done that here, nor has the Government in its behalf in arguments and brief before us even remotely suggested that the regulation as now promulgated is invalid. What the ICC has done, and what the Attorney General in its behalf asserts can be done, is to ignore the regulation because applying it produces an absurd result.
That brings us to the very vitals of this case. This transcends the very limited importance of the case to the parties in terms of this precise and unusual geographical situation. It demonstrates,, indeed, one of the vices which led to the *470long but successful struggle for the enactment of the Administrative Procedure Act. The citizen dealing with a governmental agency is entitled to know. He is entitled to know what the standards are where the agency presumes to promulgate administrative regulations. He is entitled to know in advance of their promulgation so that he or his interest may be heard. Nor are these regulations to be changed willy-nilly without some notice of a proposal to do so.
I share Judge Hughes’ views that the promulgation of a regulation does not absolve the ICC of its duty to interpret both the statute and the regulation enacted by it as an implementation. In many cases there will be seen in this specific situation the need for interpretation. This would include such subordinate elements in § 170.15 as “recognized as such” city, etc. It might also drive the Commission to a decision that the regulation so framed is so contrary to the obvious intention of Congress in the organic statute, that the regulation can no longer be applied. But in that event, it does absolute violence to the whole theory of the APA if, finding the regulation invalid, the Commission may then ad hoc in an adjudicatory proceeding hold that a carrier is engaged in violation of the law because of conduct permissible under the regulation as promulgated.
It is one thing to interpret the regulation. It is quite another to ignore it. The Commission can hardly have it both ways — (1) a statute which makes the act illegal, and (2) a regulation which recognizes its legality.
I am not concerned with this merely from the standpoint of labels — i. e., adjudicatory or rule-making. My anxiety is more basic. As long as the definition of “municipality” under § 170.15 stands, the complaining Carriers have the right to serve the additional territory brought about by the expansion of the corporate limits of Orange, Texas. Having the right to do so, they also have the duty to do so. For each is a regulated, certificated common carrier having awesome statutory obligations to serve all those tendering freight for transportation at. tariff charges from its respective termini. That includes, of course, the “terminals”' as legislatively defined and as expanded by regulation.
Perhaps even more important, it does, not stop at the relationship between each carrier and the shipping public. By virtue of this outstanding regulation and its implied inclusion of the added territory of Orange, the Carriers have an obligation to promulgate and file tariffs.. These must, of course, include through and joint rates for the necessary exchange of traffic. Following the practice in the shipping industry, these tariffs are promulgated by various tariff agents who, along with the subscribing carriers, have a limited antitrust immunity from both civil and criminal prosecution at the hands of the United States Government. But this immunity is coextensive with the valid scope of service. The carrier is therefore put in an awful dilemma. He must accept all freight tendered for movement to and from the terminals as. thus expanded or subject himself to penalties at the hands of the ICC. To accept, freight as tendered, the carrier must, of course, promulgate tariffs. To promulgate tariffs, he must join with others, and if, while joining with others in the promulgation of tariffs, it does so as to-points beyond the scope of its operating authority, it has in the baldest form undertaken to fix prices. Fixing prices in interstate commerce between competitors constitutes — it is an understatement to say — antitrust violations per se.
The Commission’s counsel on argument characterized these fears as artificial since, with the judgment and discretion invested in both the Commission and. the Attorney General, it is not likely that either of these two agencies would institute civil or criminal prosecution growing out of such confusion. I readily accept. the proposition that each of these agencies would carefully consider what ought to be done as each, in its own lights, saw the “public interest.” But this confidence is hardly enough to carry the day. It *471leaves the citizen- — -the object of congressional protection in the APA — in the uncertain position of not knowing just when or how or what governmental agency would strike. And for that, he would have a good deal of historical precedent. For all must recognize now that probably in no other area has there been such open, deep-seated conflict in approach as between the Department of Justice and various administrative agencies of the Federal Government as has been true in cases arising under the Interstate Commerce Act. And certainly this is true in those areas where — as is so often the case and as would be true here — the •specter of antitrust comes into view. It is a common occurrence in three-judge cases reviewing ICC decisions for the -General Counsel of the Commission to be in the awkward position of attempting to sustain an order which is vigorously attacked by the Attorney General. On other occasions it becomes a multi-party Donnybrook when, for example, the Department of Agriculture in the interest ■of farmers takes a position, say, in between these other two formidable adversaries.
The citizen ought not to be exposed to this sort of judicial peril. The citizen is -entitled to rely upon the regulation until it is set aside or declared by court or administrative agency to be invalid. This regulation has not yet been declared invalid. It has been ignored. It covers precisely the situation presented, and so long as it stands, these Carriers are entitled to the benefit of it. If the result does not make sense, then it is because the regulation does not make sense.
I therefore join in an order which sets aside the order of the Commission. I do not undertake to prescribe just how or in what manner the Commission should further proceed since the case will be remanded to it for further and not inconsistent proceedings.