(dissenting).
This action was filed in the District Court of Santa Fe County, New Mexico, on appeal from an order of defendants-appellants State Corporation Commission of New Mexico rejecting and permanently suspending a tariff filed by plaintiff-appellee. The proceedings of the Commission were reviewed by the district court, the Honorable Robert W. Reidy, District Judge sitting by designation of this court, and a judgment was entered reversing the decision of the Commission. Defendants and intervenors-appellants, not being satisfied with the trial court’s decision, appeal.
Plaintiff filed with the Commission, on January 20, 1967, a Motor Freight Tariff Schedule No, 1, MC-NMCC No. 1, setting forth new rates on “explosives and other dangerous articles” which listed rates for a number of specified flammable liquids and flammable compressed gases. The tariff was filed pursuant to plaintiff’s Certificate of Public Convenience and Necessity No. 118.1, which granted authority to transport “explosives and other dangerous articles.”
Intervenors protested the tariff, which was suspended by the Commission by its Orders Nos. 2805 and 2808, pending an investigation. Subsequently, a hearing was held before the Commission and Order No. 2812 was issued, finding that plaintiff did not have authority to transport commodities covered in the proposed tariff, and rejected and permanently suspended plaintiff’s Certificate No. 118.1, supra. The appeal of the Commission’s order ensued.
A hearing was held on March 1, 1968, and the parties submitted findings of fact and conclusions of law. On May 13, 1968, the trial court filed its findings and conclusions to the effect that Rule 40, Rules and Regulations of the Commission, adopted the Rules and Regulations of the Interstate Commerce Commission governing the transportation of “explosives and other dangerous articles.” Rule 40, supra, of the Commission, adopts the Interstate Commerce Commission’s Rules and Regulations pertaining to the preparation and transportation of “explosives and other dangerous articles” by highway common carriers and for carriers holding proper authority, but does not authorize the transportation of commodities not listed in their authority.
The Commission and the intervenors contend that Rule 40, supra, only applies to the preparation for shipment of “explosives and other dangerous articles,” and not to transportation as such.
I cannot agree with this contention as, by the adoption of Rule 40, supra, the Commission adopted the definition of such commodities, whether or not it intended to do so.
The trial court also found that the Commission’s adoption of Rule 40, supra, of the Interstate Commerce Commission’s Rules and Regulations pertaining to transportation of “explosives and other dangerous articles” in the definitional section thereof, constituted a binding definition of that term as it appeared in plaintiff’s Certificate No. 118.1, supra. See, Houff Transfer Inc. v. United States, 105 F.Supp. 857 (D.C.W.D.Va.1952); and Coastal Tank Lines, Inc. v. Charlton Bros. Transportation Co., 48 M.C.C. 289 (1948).
It is true, as defendants and intervenors contend, that plaintiff had not theretofore filed a tariff or hauled “explosives or other dangerous articles” (petroleum and petroleum products in bulk), as defined in 49 C.F.R. § 172.5 (1968). Plaintiff was, however, authorized to transport such commodities under its Certificate No. 118.1, supra. Mere non-user of a certificate is not grounds for revocation of the certificate.
In Bennett v. State Corporation Commission, 73 N.M. 126, 385 P.2d 978 (1963), the Commission had cancelled a portion of a carrier’s certificate on the grounds of dormancy of service, in that the carrier had not transported commodities covered by that portion of the certificate. In Bennett it is said this violated the rule in Musslewhite v. State Corporation Commission, 61 N.M. 97, 295 P.2d 216 (1956), and that:
“* * * [T]he 1959 amendment to § 64 — 27-12, supra, did not change the test of Musslewhite and that the test of abandonment of a certificate by a nonscheduled carrier operating over irregular routes applies with equal force to whether such permit has been allowed to become dormant. We paraphrase the test in Musslewhite as it applies to dormancy. Mere non-user or only occasional user by the holder of a certificate authorizing non-scheduled service over irregular routes does not constitute dormancy of service by a certificate holder who is shown at all times fully equipped, ready, able and willing to operate. Non-user, plus inability to operate, or refusal to accept business, or non-compliance with a proper order of the corporation commission might amount to dormancy, abandonment or discontinuance of service, which would authorize an amendment to or revocation of a permit.”
The trial court correctly concluded that the Commission had ignored its own binding definition of the term “explosives and other dangerous articles” (petroleum and petroleum products in bulk), and had arbitrarily and capriciously reached a different result as to plaintiff. The trial court had full authority to make these findings and conclusions. Rule 40, supra; 49 C.F.R. § 172.5, supra; Bennett v. State Corporation Commission, supra. The adopted Rules and Regulations expressly define the term “explosives and other dangerous articles” by listing each of the commodities comprising the same. The Commission, in the instant case, applied an erroneous legal principle. The Commission’s order should not stand, irrespective of the substantial evidence question. Groendyke Transport,. Inc. v. New Mexico State Corporation Commission, 79 N.M. 60, 439 P.2d 709 (1968). Compare, Pre-Fab Transit Co. v. United States, 262 F.Supp. 1009 (D.C.Ill. 1967); E. B. Law and Son, Inc. v. United States, 247 F.Supp. 846 (D.C.N.M.1965).
The trial court also correctly found that the Commission had previously adopted the American Trucking Association Tariff No. 8 (now No. 12) for “dangerous articles” and which also included all of the flammable gases and liquids listed in plaintiff’s tariff.
The trial court did not substitute its judgment for that of the Commission, but rather explained clearly in its findings and. conclusions that Rule 40, supra, as a matter of law, interpreted and defined the term “explosives and other dangerous articles.” The decision of the trial court should be affirmed. The majority holding otherwise, I respectfully dissent.
COMPTON, J., concurs.