dissenting:
I must respectfully dissent.
The majority determines the transportation enterprise engaged in by Dolese comes within the ambit of a private carrier on the basis of factors obtaining in times long past and not upon present facts. The Court has said that the factors inducing Dolese to undertake the business of rock hauling was in furtherance of a commercial enterprise other than that of transportation and thus Dolese is presently a private carrier. Private carrier status is here determined on the circumstances and motivations surrounding the original assumption of the business and not an application of the applicable statutes to those facts which presently obtain. Thus the private carrier status may remain, through change of time and circumstance, so that, as here, the commercial enterprise of transportation comes to be conducted by a private carrier. .. To my mind the present fact that the crushed stone hauling business is now profitable to the corporation necessitates a finding that the exclusion of the commercial enterprise of transportation from the definition of private carrier found in 47 O.S.1971 § 161(1) applies here, now.
The appellant bases its assertion that its conduct is not regulatable by the Corporation Commission under the provisions of 47 O.S.1971 § 161 substantially upon the distinction that Dolese hauls only aggregate *1085belonging to it, or that it hauls only its own product, asserting that fact places it under Paragraph (I) of the last mentioned statute which reads:
(I) The term “private carrier of property by motor vehicle” means any person engaged in transportation upon public highways, of persons or property, or both, but not as a common carrier by motor vehicle, or a contract carrier by motor vehicle, and includes any person who transports property by motor vehicle where such transportation is incidental to or in furtherance of any commercial enterprise of such person, other than transportation.
It is noted at the outset that this subdivision makes no reference whatsoever to transportation of one’s own product as a basis for classing that transporter as a private carrier. The clear import of (I) is that to qualify as a private carrier one must:
A. Transport persons or property:
1. Not as a common carrier.
2. Not as a contract carrier.
However, one may:
B. Transport property where that transportation is in furtherance of any commercial enterprise, as long as that commercial enterprise is not transportation.
The stipulations entered into in this proceeding, specifically p. 37 of the record, Stipulation # 7, states in part:
... The transportation charge is generally determined according to tariffs of the Oklahoma Corporation Commission governing charges allowed regulated carriers for movement of the product.
No question is presented refuting appel-lee’s contention that those tariff schedules are designed to allow the transporter a profit. The fact that “generally” a profit is made off of the transportation of the product involved places that activity “generally” in the category excepted from Section (I), negating the private carrier status sought by appellant and that is, “transportation incidental to or in furtherance of any commercial enterprise other than transportation.” The acceptance of a profit from the transportation is within the definition of the commercial enterprise of transportation, as the term “commercial enterprise” is defined in the statute, 47 O.S.1971 § 161(O):
(0) The term “commercial purposes” as used in this act is defined as describing all undertakings entered into for private gain or compensation, including all industrial pursuits, whether such undertakings involve the handling or dealing in commodities for sale or otherwise.
Under the clear language of the act, transportation for commercial purposes is excepted from the definition of private carrier. The last quoted statutory subdivision, 47 O.S.1971 § 161(O) provides that a commercial purpose is “all undertakings entered into for private gain,” and would appear to specifically cover appellant in its provision that the term includes “handling or dealing in commodities for sale.” The stipulated fact that the trucking operation nets a profit, and comprises approximately 15% of the gross revenue forestalls any conclusion that the transportation involved is incidental to the operation of the commercial enterprise of Dolese, as provided in the definition of private carrier in § 161(I) of Title 47 O.S.1971.
The Commission found in its order that Dolese was a common carrier under 47 O.S. 1971 § 161(G) which provides:
(G) The term “common carrier by motor vehicle” means any person which holds itself out to the general public to engage in the transportation by motor vehicle in intrastate or interstate commerce of passengers or property or any class or classes thereof for compensation, whether over regular or irregular routes.
Appellant repeatedly argues that the fact it transports aggregate owned by it and mined from its quarries removes that activity from the definition of common carrier because the fact it transports its own prop*1086erty negates the inclusion of that conduct within the requirement found in (G) that it “.. . holds itself out to the general public to engage in the transportation by motor vehicle ... of .. . property.” The statute is not thusly limited and makes no reference to the ownership of property. The requirement of the statutory provision under consideration is satisfied by the delivery to the public of its goods, and whether passage of title to those goods occurs before or after transport is not determinative. The requirement of holding oneself out to the general public AS ENGAGING IN transportation is satisfied where the goods are delivered to the public.
I am authorized to state that DOOLIN, J., concurs in this dissent.