dissenting.
I respectfully dissent and would affirm the trial court. The majority states that the Commissioner of Public Safety did not exceed his statutory authority by promulgating Minn.R. 7503.1300, subpt. 2, and that Minn.Stat. § 169.121, subd. 4 (1986) does not prescribe the Commissioner’s authority to cancel or deny driving privileges. I disagree and find that § 169.121 does limit the Commissioner’s authority.
The majority claims that Minn.Stat. § 169.121, subd. 4, is applicable only when a person is “convicted” of “offenses.” They state that this section imposes no constraints on the Commissioner’s authority to “cancel” or “deny” a person’s license under Minn.Stat. §§ 171.04(8) and 171.14. These latter statutes, upon which the majority rely, use only the general phrase “inimical to public safety.” That phrase, standing alone, gives no real direction to the Commissioner.
Regardless of whether a person has committed “offenses” under the DWI statute, or “incidents” under the implied consent statute, Minnesota cases have recognized that the carefully delineated administrative penalties under § 169.121, subd. 4, are guidelines that the Commissioner is to follow in determining when a driver is “inimical to public safety.” See State v. Hanson, 356 N.W.2d 689 (Minn.1984) (holding three related incidents in five years grounds for finding a driver inimical to public safety); Hintz v. Commissioner of Public Safety, 364 N.W.2d 486 (Minn.Ct.App.1985), pet. for rev. denied (Minn. May 20, 1985) (holding six DWI offenses on driver’s record grounds for cancellation of license as inimical to public safety).
The majority here upholds the Commissioner’s position that he can, in his sole discretion, deviate from the penalties of administrative cancellation as provided for in § 169.121, subd. 4. What the Commissioner does is change the legislative penalties provided in § 169.121, subd. 4(c) and (d), by adding a rule, Minn.R. 7503.1300, subpt. 2 (1987), which authorizes cancellation and denial for three alcohol-related driving incidents plus a special review whether those three incidents are within five years or within a lifetime. As the majority acknowledges, the Commissioner, on his own, requires a special review after two alcohol-related incidents within five years, or three any time. Thus, whenever a driver has a second alcohol related incident within five years, the Commissioner mandates a special review; when that driver gets a third alcohol related incident anytime in his lifetime, he now has three incidents plus a special review. Pursuant to the rule in question, the Commissioner claims the right to cancel and deny the driver’s license even though the legislature indicated cancellation and denial only after four alcohol-related incidents in a lifetime, unless the first three are within a five-year period.
The question is not whether two, three, or four alcohol-related incidents, with or without a special review, in any particular time frame is reasonable. The legislature has the power to deem “inimical to public safety,” as for instance, two speeding tickets plus two alcohol-related incidents within ten years or within a lifetime. The ques*209tion is, “Who has the power to pass laws and who has the power to implement them?” I agree with the trial court that the Commissioner is restricted to rulemak-ing to implement laws in existence, not create new ones.
The legislature may delegate rulemaking power to the Commissioner, but when it does the Commissioner must implement the statutory mandate of the legislature, not rewrite statutory authority to suit his own whim or caprice. See Askildson v. Commissioner of Public Safety, 403 N.W.2d 674, 677 (Minn.Ct.App.1987) (citing Anderson v. Commissioner of Highways, 267 Minn. 308, 311, 126 N.W.2d 778, 780 (1964). Section 169.121, subdivision 4(c) and (d) states, only three offenses in five years or four or more in a lifetime warrant revocation together with denial under § 171.04(8). The trial court found the Commissioner may not cancel a license, as here, where a driver had three incidents, but not within five years (the parties agree the time frame in question is six and one-half years).
The trial court held that Minn.Stat. § 169.128 is the controlling statutory authority which allows the Commissioner to promulgate rules to carry out the provisions of Minn.Stat. §§ 169.121 and 169.123. As the majority correctly notes, the reviser of statutes lists Minn.Stat. § 169.128 as the statutory authority for Minn.R. 7503.1300. Although I agree with the majority that the reviser of statutes comment is not conclusive, I find it is of value in tracing the origins of the Commissioner’s authority.
The trial court held that § 169.121, subd. 4, controls as to when a person can be found to be “mimical to public safety” based solely on multiple alcohol-related incidents. The Commissioner’s position is that he is not so bound, and could, in fact, theoretically go all the way down to one alcohol-related incident to trigger cancellation and denial if, in his discretion, he chose to do so. I do not find that argument persuasive.
Whether the Commissioner’s rule is in excess of his statutory authority is a question of law wherein this court must discern the intent of the legislature in enacting M,inn.Stat. § 169.121, subd. 4. See 1 C. Koch, Jr., Administrative Law and Practice § 918 at 49 (Supp.1987). The Supreme Court, too, has stated: “If a court, employing traditional tools of statutory construction, ascertains that [the legislature] had an intention on the precise question at issue, that intention is the law and must be given effect.” Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 848 n. 9,104 S.Ct. 2778, 2781 n. 9 (1984). I would affirm the trial court1 and *210hold that the Commissioner exceeded his defined statutory authority in Minn.Stat. § 169.121, subd. 4, by promulgating Minn. R. 7503.1300, subpt. 2.
. Pertinent portions of the trial court’s findings of fact, conclusions of law, and memorandum are reprinted from Appellant’s Brief and Appendix:
Findings of Fact:
1. The petitioner has three alcohol-related incidents on his record; (1) December 31, 1980, (2) September 7, 1984, and (3) August 14, 1987.
2. The three incidents occurred over a period of approximately six and one-half (6 ½) years. The Petitioner had a “special review’’ after the second incident.
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4. As a result of the three alcohol incidents on record and the fact that a "special review” was conducted after the second incident the Commissioner also cancelled Petitioner’s license and denied him all driving privileges as “inimical to the public safety” pursuant to Minn.Stat. § 171.14,171.04(8) and Minn. Rule § 7503.1300, subp. 1 and is requiring rehabilitation pursuant to Minn. Rule § 7503.1700 before reinstatement of Petitioner’s license will be granted.
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8. The Commissioner exceeded his authority when he promulgated Minn. Rule § 7503.1300, subp. 2 by expanding the Rule to apply it to a person who has “incurred three such incidents and a special review has been conducted prior to the third incident.”
Conclusions of Law
1. As a result of the Commissioner’s exceeding his authority, that portion of Minn. Rule § 7503.1300, subp. 2 making the Rule applicable to a person who has “incurred three such incidents and a special review has been conducted prior to the third incident” has no force or effect.
2. The Petitioner is entitled to an order rescinding the cancellation and denial of his driving privileges.
Memorandum
Minnesota Rule part 7503.1300, subp. 2, requires the Commissioner to cancel and deny the driving privileges of any licensee who has incurred three alcohol-related incidents within a five year period, has had a third alcohol-related incident after having been through a special review or who has had four or more such inci*210dents on record. The Rule was enacted under the authority of Minnesota Statute Section 169.-128 which grants the Commissioner the power to promulgate permanent rules to carry out the provisions of Section 169.121 and 169.123.
This rule closely parallels the administrative penalties provided for in Minnesota Statute Section 169.121, subd. 4. That section states:
The commissioner of public safety shall revoke the driver's license of a person convicted of violating this section or an ordinance in conformity with it as follows:
(a) First offense: not less than 30 days;
(b) Second offense in less than five years: not less than 90 days and until the court has certified that treatment or rehabilitation has been successfully completed where prescribed in accordance with section 169.126;
(c) Third offense in less than five years: not less than one year, together with denial under section 171.04, clause (8), until rehabilitation is established in accordance with standards established by the commissioner;
(d) Fourth of subsequent offense on the record: not less than two years, together with denial under section 171.04, clause (8), until rehabilitation is established in accordance with standards established by the commissioner.
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The Court finds that the Commissioner exceeded his authority when he promulgated Minnesota Rule part 7503.1300, subp. 2. In order to be valid, a rule must be consistent with the statutory authority under which it was promulgated. Guerrero v. Wagner, 246 N.W.2d 838, 841 (Minn.1976), Rules that are inconsistent with the statute are ineffective and do not carry the force and effect of law. Sellner Manufacturing Co., Inc. v. Commissioner of Taxation, 202 N.W.2d 886, 888 (Minn.1972). The Rule cites Section 169.128 for its statutory authority. That section allows the Commissioner to promulgate rules which will help carry out the provisions of Sections 169.121 and 169.123. Neither Section 169.121 nor Section 169.123 provide for revocation coupled with cancellation and denial of a person’s license after three alcohol-related incidents with a special review prior to the third incident (unless the incidents occurred within a five year time frame).
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In addition to being inconsistent, the Rule is also unreasonable. In order for a rule to be valid, it must be reasonable. Juster Bros. v. Christgau, 214 Minn. 108, 7 N.W.2d 501, 507 (1943). As the Petitioner points out, a person convicted of two alcohol-related incidents within one year would be required to undergo a special review. If that person were to have another alcohol-related incident thirty years later, the Rule would require cancellation and denial. Such an unsatisfactory result was clearly mot intended and that is why the legislature mandated cancellation and denial for three alcohol-related incidents only where the incidents occurred within a five year time period.
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In the case at bar, the mere fact that the Petitioner underwent a special review prior to the third incident does not support the finding that he is inimical to the public safety. This is especially so in light of the requirement of a special review after a second offense within five years. Without some other evidence to support the Commissioner’s finding, it must be considered unreasonable as a matter of law.