dissenting.
The majority concludes that under ORS 756.598 the trial court had the power to modify the sanction imposed by the Commissioner for the violations found by him to have been committed by respondents. The commission of the violations is admitted.
ORS 767.470(1, 2, 4) provides:
"(1) In addition to all other penalties provided by law, every person who violates or who procures, aids or abets in the violation of ORS 767.005 to 767.315, 767.405 to 767.495 or 767.605 to 767.640 or any order, rule, regulation or decision of the commissioner shall incur a penalty of $100 for every such violation.
"(2) Each such violation shall be a separate offense and in case of a continuation violation every day’s continuance is a separate violation. Every act of commission or omission which procures, aids or abets in the violation *293is a violation under this section and subject to the penalty provided in this section.
"(4) The commissioner may mitigate any penalty provided for in this section on such terms as he considers proper if:
"(a) The defendant admits the violations alleged in the complaint and makes timely request for mitigation of the penalty; or
"(b) The defendant submits to the commissioner a written request for mitigation of the penalty within 15 days from the date the penalty order is served.”
Two questions are presented. First, does ORS 756.580(1) authorize the circuit court or this court to set aside a sanction imposed under ORS 767.470? Second, assuming that it does have the power to modify such a sanction, what, if any, limits are imposed upon it in the exercise of that power?
The court distinguishes Pacific N.W. Bell v. Sabin, 21 Or App 200, 534 P2d 984, Sup Ct review denied (1975), on the ground that the imposition of sanctions upon a carrier found to have violated the Motor Carrier Act does not primarily involve the exercise of technical expertise by the Commissioner. I am unable to agree with that conclusion. The determination of an appropriate sanction under ORS 767.470, it seems to me, must rest in a major degree upon technical expertise and knowledge of the methods, practices and problems common to the motor carrier industry.
In addition the legislative scheme of ORS 767.470 seems to me to support the view that the legislature intended to vest this authority in the Commissioner, since ORS 767.470(4) specifically authorizes the Commissioner to "mitigate any penalty provided for in this section” upon compliance with paragraphs (a) or (b) thereof. Otherwise the statute in subsections (1) and (2) thereof itself imposes the required sanction.
I would construe those subsections as vesting the *294power of mitigation in the Commissioner and would limit the power to modify the sanction, if it exists at all, to cases where the trial court finds by clear and convincing evidence that the Commissioner either in denying to mitigate or in the amount of diminution allowed has abused the discretion given him by the statute. Even assuming the court has power to modify a sanction, in areas where exercise of discretion by an administrative agency is involved it is presumed under ORS 41.360(15) that official duty has been regularly performed. Ring v. Patterson, 137 Or 234, 240, 1 P2d 1105 (1931); Acc. Prev. Div. v. Sunrise Seed, 26 Or App 361, 552 P2d 558 (1976). The burden of proof is upon the appellants under ORS 756.594 to establish "that the order is unreasonable or unlawful.” See also: ORS 41.120; Acc. Prev. Div. v. Sunrise Seed, supra.
As appears from the statement of facts the violations were deliberate and committed daily over a long period of time solely for the benefit of plaintiffs, both of whom were widely experienced in the motor carrier business.
ORS 756.598 requires "the court shall not substitute its judgement [sic] for that of the commissioner as to any finding of fact supported by substantial evidence. * * *” In my view the record shows there was substantial evidence as shown in the court’s statement of facts to support the sanction here imposed. The fact that the trial court or this court might disagree with the sanction imposed therefor affords no reason to reverse the Commissioner’s order where, as here, there is substantial evidence to support it, even though it may appear harsh. The appellate courts of this state have from the beginning refused, for example, in countless criminal cases, to set aside or modify the sanction imposed by the trial court upon a defendant, however harsh it may appear, so long as it was within the statutory and constitutional authority for the offense charged absent fraud or gross abuse of discretion. Not only can I not find anything in the statutory *295scheme here involved to indicate a contrary legislative intent, but rather I find within it a clear requirement that modification of sanctions by the court is subject to the substantial evidence rule. ORS 756.598. Accordingly, I would reverse the trial court and affirm the order of the Public Utility Commissioner, and thus respectfully dissent.