(commenting).
The brief held by Mr. Chief Justice CROCKETT, in his special concurrence, to the effect that this court previously has done more than merely affirm or set aside the decision of the Commission, i. e., has ordered a modification of its order, to me suggests 1) an unwarranted result, 2) a judicial non sequitur, 3) that we indulge in judicial legislation, and 4) represents in part a misquotation of authority, viz. Earley v. Industrial Commission, 1 Utah 2d 208, 265 P.2d 390, authored by this writer.
As to 1): The statute is clear. We can a) affirm or b) set aside. There is nothing in between. To say otherwise is to say .the legislature didn’t know what it was talking about. There is a good, substantial, sensible, practical reason why the words of the Act were used deliberately and advisedly, which readily presents itself in this very case. The applicant, Barton, may not want a modified authority. The inclusion of explosives may be the difference between a profitable or an unprofitable haul. Yet, if a modified authority were, or on any conceivable theory were, ordered by this court, Barton might be forced into a compulsory, unprofitable haul of commodities which the public could demand it be forced to continue. Obvious it is why the legislature authorized us only to set aside or affirm, in contradistinction to the authority it gave us to a) affirm, b) modify or c) vacate judgments of district courts.
As to 2) : To suggest that because this court indulged in error on other occasions justifies the compounding of such error, obviously is a non sequitur and an un-judicial one. Better we correct what may have been done inadvertently than judically to fabricate a rule of law unsupported in any way by the language of the Act in question. It is significant to note that in every case cited Mr. Chief Justice CROCKETT not once indulges language justifying the split-conclusions reached. Obviously the authority we possess in appeal cases from courts as distinguished from reviews of administrative orders, which represent by far and away the greater number of matters before us, mistakenly *131has been indulged in that very small fraction of matters we examine where our authority is limited only to affirming or setting aside. The only case cited by Mr. Chief Justice CROCKETT that may be said to have been subscribed by this writer is the Lake Shore case, and it must be noted that in that case it can be argued that we set aside only and did not modify anything, since by stipulation the area of authority was constricted, resulting in a mass exodus of protestants not interested in the shrunken stipulated area.
As to 3): There is no question that to advocate that “affirm or set aside” the Commission’s orders means “affirm, modify or set aside,” is to blind oneself to simple, understandable language, and would be to usurp a governmental function reserved to the legislative branch.
As to 4): A careful reading of Earley v. Industrial Commission, reflects two separate claims, — that of the widow, and that of the children. They are mutually exclusive. One is based on a conclusive presumption, the other is not. Our court merely interpreted a statute. To cite this case to favor the judicial abortion suggested by Mr. Chief Justice CROCKETT is more abortive than the suggestion.
This court should.be the first to admit its errors, correct them and evade any doctrine that implies validity to a continued espousal of an incorrect precept based on historic indulgence.
Mr. Chief Justice CROCKETT seems to dedicate his theory on a blind adherence to his own error in Lake Shore. I think we should admit and correct our errors.