joined by Chief Justice Hickman and Justices Brewster and Griffin, dissenting.
On original submission of this cause I filed a memorandum dissent. Further consideration on rehearing leaves me in disagreement in a number of particulars on which I have concluded to express my views at greater length. Accordingly, this opinion will be substituted for my original dissent.
In the first place, I disagree with the majority holding that the case was erroneously tried and decided in the courts below under the substantial evidence rule.
Whatever may be the merits of the substantial evidence rule, it is now deeply implanted in the body of our law governing judicial review of administrative orders and decisions. It has been applied in so many cases and to the decisions of so many administrative agencies that it would be pointless to review all of them. Most recently it was applied in the review of an order of the Board of Water Engineers (Board of Water Engineers v. Colorado River Municipal Water Dist., 152 Texas 77, 254 S.W. 2d 369, 372), and that in spite of a provision in the statute involved that trial should be “de novo” and a legislative injunction that on the trial the court should “determine independently all issues of fact and of law with respect to the validity and reasonableness” of the acts of the Board complained of.
As is pointed out in the majority opinion, prior to amendment of Art. 5221b-12(j), V.A.C.S., by the Fiftieth Legislature there was no provision in the Unemployment Compensation law relating to the recovery of contributions required of and paid by an employer, and so it was held in the James case that the procedure for recovery thereof was governed by the general tax statute, Art. 7057b, V.A.C.S. In the light of the James decision and presumptively with knowledge thereof the Legislature amended Art. 5221B-12 (j) by incorporating therein the provision shown in the footnote to the majority opinion. Under the amendment the procedure required was quite different from procedure under the general tax statute. As is pointed out in the majority opinion, protest was made unnecessary to the right of recovery and the time for filing of suit was extended. The most significant change, however, was that as a prerequisite to the *615right to sue the employer was required to seek and obtain an administrative ruling on an application for refund. It was provided that only after this was done could the employer “commence an action.”
In order to implement the statutory requirement for an administrative decision which would not be summary and therefore abritrary, the Employment Commission has made provision for full hearing on such applications, and the record in this case reflects that a hearing and a re-hearing were accorded the plaintiffs, with an administrative decision of the fact question basic to the plaintiffs’ right of recovery — whether the business of the old corporation was acquired by the two new corporations before or after June 30, 1949. It is in just such procedural situations that this court has held time and again that the substantial evidence rule is applicable. I can find no distinguishing feature in this statute, nor does the majority opinion point to any.
The opinion seems to place some emphasis on the provision that if the Commission denied the application the employer may “commence an action.” But this is no distinguishing feature. Art. 6049c, sec. 8, V.A.C.S., provides that any interested person dissatisfied with a ruling or order of the Railroad Commission relating to oil and gas matters shall have the right to “file a suit.” That article does not mention the taking of an appeal, but this court has held that trial of such a suit is governed by the substantial. evidence rule. Gulf Land Co. v. Atlantic Refining Co., 134 Texas 59, 131 S.W. 2d 73; Trapp v. Shell Oil Co., 145 Texas 323, 198 S.W. 2d 424. The same wording is found in the statute involved in Board of Water Engineers v. Colorado River, Municipal Water List., supra, and the same holding was made. There is no distinction between “commencing an action” and “filing a suit.” The phrases mean the same thing.
Moreover, if the question whether this proceeding was in the nature of an appeal or the institution of a completely independent suit is doubtful, the caption of the Act should dispel that doubt. The caption specifically sets out that the Act provides “Providing for refund of contributions and penalties erroneously paid, and for an appeal to the courts after payment of contributions alleged to be due.” This Act amending the unemployment law was passed by the Legislature with full knowledge of judicial use of the substantial evidence rule in reviewing administrative decisions, and if it had intended that the sub*616stantial evidence rule should not be applied in suits arising thereunder it could have so provided.
I also disagree with the majority holding that approval by Federal government of the transfer of the New Mexico leases after June 30, 1949 entitles the new oil Company, as a matter of law, to a full recovery.
This case was tried before the Commission and the trial court and was presented in the Court of Civil Appeals and in this court on one and only one theory; that the entire reorganization of the old company into the two new companies and all consequent transfers of properties were contingent on final approval of the transfer of the New Mexico leases as a matter of law and there was therefore no acquisition by the new companies of any of the property or business of the old company until December, 1949. This was the fact issue decided adversely to the plaintiffs by the Commission, the trial court and the Court of Civil Appeals. It has been rejected also by this court, as is evidenced by the holding that the evidence on the issue is conflicting, creating a fact question to be determined by the trial court on a retrial of the drilling company’s suit under rules applicable to the trial of ordinary civil suits. The majority has held, however, that since a “part” (the New Mexico leases) of the part of the old company’s business (all of the producing part of the business) was acquired after June 30, 1949, the new oil company is entitled as a matter of law to a full recovery.
The statute (Art. 5221b-5 (c) (7), as amended by Acts of the 51st Legislature in 1949), provides: “If, subsequent to the thirtieth day of June, 1949, an employing unit * * * acquires a part of the organization, trade or business of an employer, such acquiring successor employing unit and such predecessor may jointly make written application to the Commission for that compensation experience of such predecessor employer which is attributable to the organization, trade or business or the part thereof acquired * * which application shall be approved by the Commission if it finds that “* * * (IV) in the event of the acquisition of only a part of a predecessor employer’s organization, trade or business, such acquisition was a part to which a definitely identifiable and segregable part of the predecessor’s compensation experience was and is attributable***.”
Actually, under the statute, it is not the contribution rate of the old company to which the new compány succeeds; rather; *617it is the “compensation experience.” “Compensation experience” is defined in the statute and is composed of two factors which automatically determine the rate, to wit: (1) the employer’s total taxable pay roll for the three preceding years “on which contributions have been paid to the Commission,” and (2) wages paid for the same three year period to former employees who have been paid benefits for one full week of unemployment.
Whatever right of succession the oil company has in this case it has only by virtue of the terms of the foregoing statute. Properly interpreted the statute does not mean that if a new company acquires a part of the organization, trade or business of a predecessor employer before June 30, 1949, and another part subsequent to June 30, 1949, the new company will succeed to the compensation experience of the old company attributable to both such parts, as the majority has held. It means simply what it says — that as to any part acquired subsequent to June 30, 1949, the new company shall succeed to such compensation experience of the old company as the Commisison may find is definitely identifiable and segregable and attributable to the part subsequently acquired. The only basis, conceivable to me, on which may rest the majority holding that the new oil company is entitled to a recovery as a matter of law, is that the evidence shows conclusively that the final acquisition by the new oil company of the property and business transferred to it prior to June 30, 1949, was contingent on approval of the transfer of the New Mexico leases. But the evidence in this respect is no stronger (actually it is the same) than the evidence that final acquisition by the new drilling company of the property and business transferred to it prior to June 30, 1949, was also contingent on final approval of the transfer of the New Mexico leases, and the majority has said that the evidence on that phase of the case is conflicting.
We cannot say that the New Mexico leases constitute a segregable “part” of the old company’s business so as to divorce that “part” of the business from the part transferred to the drilling company — as the majority has done — without saying at the same time that it constitutes a segregable “part” of the part transferred to the oil company. And if this part (the New Mexico leases) is the only part of the new oil company’s business that we can say as a matter of law was acquired after June 30,' 1949, we are then confronted with the statutory provision that as to that part the new oil company is entitled to succeed to the old company’s compensation experience which is attributable *618to that part and is definitely identifiable therewith, rather than to the compensation experience that is attributable to and definitely identifiable with all of the part of the old company’s business (all of the oil production business) acquired by the new oil company as the majority has held. Since there is in this record no evidence that “a definitely identifiable and segregable part” of the old company’s “compensation experience” (total taxable pay roll for the three year period on which contributions were paid and “benefit wages” for the same period) is attributable to the New Mexico leases, it seems to me that the plaintiff has completely failed to make proof that is essential to any recovery whatever and that it is therefore clearly error to render judgment for the new oil company.
It seems to me that this case should be decided on the same theory on which it has been tried and presented, that is, that the reorganization and transfer of the business and properties of the old company was final before June 30, 1949, or that such reorganization and transfer was wholly contingent on approval of the New Mexico leases and therefore not final until after June 30, 1949. By deciding it on the theory on which it has been tried and presented we will avoid the complications which have been noted above.
I think the case should be decided under the subtsantial evidence rule, and if the majority is of the opinion that the administrative decision is not supported by substantial evidence the judgments of the courts below should be reversed and judgment here rendered for all plaintiffs. Personally, I feel that the administrative decision is supported by substantial evidence and that the judgment of the Court of Civil Appeals should be affirmed. Evidence which I deem to be substantial and which supports the judgments below may be summarized briefly as follows: (1) The plan of reorganization as stated in a report made to the Commission provided for a transfer of all assets and liabilities of the old company to the two new companies effective at 7 o’clock a.m., October 1, 1948. (2) All transfers and conveyances to the new companies are absolute on their face and are dated October 1, 1948. (3) The permit of the old company to do business in Texas was surrendered on October 1, 1948. (4) Letters from the Secretary-Treasurer of the old company and of the new drilling company to the Texas Employment Commission, dated September 28, 1948, stated that the reorganization was effective October 1, 1948, and inquired what the new rate of contribution would be for each of the new companies. *619(5) In an application for review and redetermination of contribution rate filed by the drilling company with the New Mexico Commission in January 1949 it was stated that “reorganization was accomplished on October 1, 1948.” If the reorganization was not complete at the time of this application, there was no basis for the application. (6) After October 1, 1948, old company transacted no business in Texas, all business being transacted by two new companies. (7) All income for last three months of 1948 and for 1949 was reported as income of new companies, no income being reported by old company for that period. It is not to be denied that there is also strong evidence that the reorganization and all transfers and conveyances made pursuant thereto were contingent on final approval of transfer of the Federal leases which did not occur until December, 1949, but it is not the duty of the courts to determine which evidence preponderates; it is their duty only to see if the administrative decision is reasonably supported by substantial evidence. Hawkins v. Texas Co., 146 Texas 511, 209 S.W. 2d 338, 340.
Even if the majority is correct in refusing to decide this case under the substantial evidence rule, the judgments of the courts below should be reversed in their entirety so that the trial court may try the critical issue — whether the reorganization and ensuing transfers and conveyances of parts of the business of the old company to the two new companies was contingent on final approval of transfer of the New Mexico leases. If the trier of the facts finds that they were contingent the plaintiffs would be entitled to succeed to the old company’s compensation experience and to a refund of the taxes paid in excess of the legal rate based thereon. If the trier of the facts found that these matters were not so contingent then the plaintiffs would no be entitled to a recovery.
Opinion delivered December 2, 1953.