(dissenting).
I respectfully dissent.
I. In this case we consider for the first time an entirely new chapter of the Code of Iowa, 1966; i. e., chapter 88A, The Iowa Employmment Safety Act, which was adopted in April, 1965, approved by the Governor April 12, 1965 and, being deemed of immediate importance was made effective on publication April 22, 1965. Section 88A.1 provides: “It is the policy of this state that every employer shall furnish and maintain a safe place of employment for *151employees and shall cause all places of employment to be in all respects constructed, equipped, arranged, operated and maintained so as to provide reasonable and adequate protection for the lives, health, and safety of all persons employed or working therein or frequenting the same, taking into consideration the nature of the employment and work.”
It is with this declared public policy in mind that the rest of the Act was promulgated and it is with this public policy in mind that we should construe this statute and decide this case.
II. The trial court and majority first consider the manner of judicial review. They conclude the judicial review is de novo and this is clear from section 88A.16. Both the trial court and the majority fail to consider that while the commission’s findings are being reviewed, these findings relate to the action of the Labor Commissioner. The Employment Safety Commission, in passing on the action of the Labor Commissioner, is limited to determination of whether his actions were “not reasonable” or “not authorized” by statute. The statutory scheme articulated in the chapter is overlooked.
Section 88A.14 and 88A.15 provides for enforcement and inspection by the Labor Commissioner, a pre-existing office in our state executive department. It is his duty to inspect and when he finds a violation he issues notices, followed by court action if necessary, to secure compliance.
Section 88A.16 provides for appeal to the Employment Safety Commission, a body created by the Act. Upon appropriate notice and hearing the commission’s and the court’s jurisdiction is determined by the following portion of section 88A.16: The commission shall affirm the action of the labor commissioner unless the commission shall find, by the affirmative vote of at least five members of the commission, that the action of the labor commissioner was not reasonable under the circumstances or was not authorized by the employment safety laws or rules. The commission shall immediately give written notice of its decision to all parties. The enforcement proceedings with respect to which the appeal is taken shall be suspended until the decision of the commission.
“The appellant or the labor commissioner may obtain judicial review of the commission’s decision by commencing an action in the district court in the county in which the alleged violation occurred, within thirty days after the commission’s decision. The rules of civil procedure shall be applicable, and the district court shall hear and decide the matter de novo.”
The trial court and this court have proceeded as though the review of the Commissioner’s action is de novo. This is not so by the clear terms of the statute. The issues to be voted on by the commission are whether or not the Commissioner’s action is unreasonable or unauthorized by statute. Five members (a majority of one of the eight-men commission) must find the Commissioner’s action unreasonable or unauthorized before the Commissioner’s action can be invalidated. This being so the commission was not free to substitute its judgment for that of the Commissioner; nor is the trial court. The issues before the court must, in the absence of statutory language to the contrary, be the same as the issues before the commission.
III. The phrase “was not reasonable under the circumstances” is first considered. No interpretation of exactly that phrase has been found; but the word “unreasonable” as it relates to the action of a Commissioner or commission has been considered. 43 Words and Phrases, 368 Cumulative Pocket Part.
In Wisconsin Telephone Co. v. Public Service Commission, 232 Wis. 274, 287 N.W. 122, 131, the court considered a statute containing somewhat similar wording and said: “Under these provisions of the statute it is the function of the circuit court to set aside the order of the Commis*152sion if it shall be found upon clear and satisfactory evidence to be (1) unlawful or (2) unreasonable. Without entering into any metaphysical discussion as to the meaning of the word ‘unlawful’ it is sufficient for our purpose to say that it means not according to law, and that ‘unreasonable’ means not based upon reason, arbitrary, capricious, absurd, immoderate or extortionate.” See also, Harris v. State Corporation Comm., 46 N.M. 352, 129 P.2d 323, 328; State ex rel. and to Use of Chicago Great Western R. Co. v. Public Service Comm, of Missouri, 330 Mo. 729, 51 S.W.2d 73, 76; State ex rel. Missouri, Kansas & Oklahoma Coach Lines v. Public Service Comm., 238 Mo.App. 317, 179 S.W.2d. 132, 135.
All of the foregoing cases deal with statutes that vary slightly from the words used by the Iowa legislature and none provide for initial determination by a Commissioner with appeal to a special commission. But all limit the appellate review where the phrases “unreasonable” and “not authorized” are used to a determination of whether the original decision has substantial support in the evidence.
Since the inquiry of the commission is limited by statute to whether the acts of the Commissioner are “not reasonable” and “not authorized”, the inquiry of the court is also so limited.
The trial court relied heavily on Needles v. Kelley, Iowa, 156 N.W.2d 276 in deciding the de novo statute required a complete new decision by the judiciary. It failed to note the difference in the language employed by the legislature in the two statutes. The Needles case involved interpretation of section 321.215, Iowa Code, 1966. There the court reviewed the action of the Department of Public Safety which acted originally in making the statutory defermi-nation. No appellate process at the administrative level was involved.
Davis, Administrative Law Text, Horn-book Series, section 29.07, page 531, says: “ ‘Scope of review in state courts varies not only from state to state but often from agency to agency within the same state. Although the scope of review of the multifarious state and local agencies remains exceedingly diverse, the federal system is providing an effective leadership which the states are increasingly following.’ ” 1
The rule here should be that the review of the commission is de novo but this review is limited to the issues before the commission, i. e., were the Commissioner’s acts “not reasonable” or “not authorized”. So limited the court must decide whether the Commissioner has substantial evidence in the record to support him. A fair interpretation of the record as made shows the commission was right in deciding the Labor Commissioner had substantial evidence to support his decision to cite plaintiff for eleven violations and the trial court was wrong in finding to the contrary in connection with 8 of those 11 violations.
IV. The majority opinion simply adopts the findings of the trial court. The spirit of this adoption is set by reference to the unreasonable attitude of both sides in the case; “excessive officiousness met by recalcitrance”. The court overlooks the fundamental importance of this new (in Iowa) legislation and the likelihood that it will engender bitter reaction on the part of some people who are not only told to improve the safety features of their operations but are forced to do so.
The statute contemplates, in fact mandates, inspections of industrial plants by state inspectors. Mr. Gayle Adams, a qualified state inspector, first examined plaintiff’s plant on June 7, 1966. On *153July 18, 1966, Mr. Adams returned with Mr. Barbe, an engineer, and made a second inspection. At this time 48 violations of safety regulations were noted in the report.
The reaction of the company to these inspections is best illustrated by the testimony of Mr. Russel Johnson, president of the company, who has been operating the company since 1923. Mr. Johnson testified: “The safety engineer for our insurance company gave some ideas of things to do, after our hassel in July. Some treadle guards and some guards that should go over belts. We carried out guards for a pulley or belt or treadle guard. This took some time for shop drawings and time to fabricate. The shop foremen were given different things to do. I can’t tell you how rapidly we progressed with them. They didn’t stop production to get it done, but they worked along to get all of it done. We were not particularly concerned about this list of 48 violations because the biggest part of them were ridiculous. It would be impossible for us to conform to them, and we wanted it in the district court to see what the law of Iowa was.” This testimony came on redirect examination and appears to be designed to show the company’s basic approach to the controversy.
Other evidence by Mr. Johnson points up the company’s attitude: “I do not have a safety committee in my plant. If there is a question as to a safety guard, I do not consult with any person outside the shop.
“I am a member of the Iowa Manufacturers Association but have no knowledge they have a safety manual. The woods are full of safety manuals but the only reference or book I use is from my own experience. I have not seen a face guard to protect a worker from the lathes. A face guard would protect the face in a very minor amount from metal thrown from these machines. These face guards are very small. I recall a ten by twelve inch guard which in front of one of these big machines is about the same as nothing.
“ * * * All of the lathes in our shop throw off metal chips, both to the side and the bottom. Some of these chips move into the air. There has been a time or two I didn’t have my glasses on and I would get a little water blister in my eye. And sometimes if you keep your shirt unbuttoned, you get a little water blister and it burns a little bit. They are hot and cause discomfort. After you have a run a lathe so long you learn to keep your shirt buttoned. * * *
“On the list of numbered violations 1 to 16, reported by the Safety Commission, we put a guard on a small bench lathe on the south side. It is a little bitty thing — a South Bend lathe. We put a guard on it after the insurance man was here. We were not particularly paying attention to that original list of 48 violations.”
When asked about specific industrial accidents in his plant, Mr. Johnson displayed complete ignorance as to their happening or their magnitude. In the face of such an attitude and under a statutory mandate to enforce the law, the Labor Commissioner prepared notice of 16 violations on December 30, 1966 which are the subject of this action. Plaintiff sought and received review by the Safety Commission. The commission toured the plant, took evidence and made detailed findings as to each of the 16 claimed violations.
The Safety Commission affirmed the Labor Commissioner on violations 1, 2, 4, 5, 6, 7, 8, 10, 11, 12 and 16. The trial court reversed the commission on all but three of these items. The Safety Commission’s decision on violations 1, 2, 4, 5 and 9 came on a unanimous vote of the commission composed of four representatives of labor and four representatives of management.
Incredibly both the trial court and this court reverse these unanimous findings in three of the five instances. This action by the courts seems incredible because by law the commission membership was made up as follows: “An employment safety com*154mission is hereby created. The commission shall consist of eight members. Four members shall represent employers, and four members shall represent employees. Each member of the commission shall have had substantial experience in employment safety before his appointment." (Emphasis supplied). (Section 88A.3, Code, 1966).
“ * * * When appointing members of the commission, the governor shall ascertain that each member has the qualifications stated in the chapter, that each employer member actually represents the interests of employers, and that each employee member actually represents the interests of employees.” (Section 88A.4, Code, 1966).
These people unanimously found the foregoing 5 violations to be substantiated by the evidence, yet the court with no expertise finds to the contrary on three violations on the basis of controverted evidence. Whatever argument there might be for the court’s action on the nonunanimous findings there would seem to be little room for doubt as to the unanimous actions.
V. The state prepared this case carefully. The Commissioner put on Gayle Adams, the inspector who formulated the violations. He had studied industrial arts at the University of North Dakota, worked in a machine shop for 6 years and as an inspector for the Labor Commissioner, attended three courses in industrial safety and had inspected, at that time, 400 factories. Adams’ testimony that the alleged deficiencies should be corrected was buttressed by photographs showing similar machines in comparable factories which had the safety features Johnson lacked, excerpts from safety manuals and recommendations of the U. S. Dept, of Safety and the National Safety Council.2
The Commissioner’s second witness was Ralph Roberts, for 28 years prior to retirement a supervising engineer for Continental Insurance Company of Des Moines. Roberts had made some 2000 or 3000 inspections of plants dealing with iron or steel work before he visited plaintiff’s plant. He testified that from his experience the suggested changes were practicable and in the best interests of both the employer and the employees.
Lee Sample, a state safety inspector, was the Commissioner’s third witness. He had worked with machines similar to those at the Johnson plant from 1947-1961 and had been a member of the shop safety committee. Sample had been with the Bureau of Labor since 1963, had attended several schools and had done independent study. He testified correction of the violations would be practical because it was done in similar factories and would lower the possibility of accidents.
Plaintiffs also employed an expert. In this sense the case developed, in part, into a “battle of experts”. It would serve no useful purpose to examine the violations and evidentiary matters in detail. Suffice to say, a fair reading of the record shows substantial support for each of the Labor Commissioner’s actions. Of course, the burden was on plaintiff to show the Commissioner’s actions were not reasonable or not within the Safety Act.
VI. The real nub of plaintiff’s argument is recognized by the trial court and this court. Plaintiffs argue that since their work is largely custom work, rather than production work, they use their equipment in so many different ways it is impractical to use safeguards on their machines. Therefore they are exempt from compliance with the statute since compliance is not practical.
But “custom” shops are not exempted from the operation of the statute. In fact the words of the statute require just the op*155posite interpretation. Section 88.7, Iowa Code, 1966, (which predates the Iowa Employment Safety Act) provides: “When any person shall remove any guard or safety appliance from any machine or other equipment, or shall so adjust or place the same as to destroy or impair its use in preventing bodily injury or safeguarding health, for the purpose of enabling the employee operating said machine to perform any special work that cannot otherwise be performed, it shall be the duty of said employee or employer to immediately replace it after such special work has been completed.”
When the court holds, as it does here, that each new claim of impracticability will be examined anew by the classic judicial process without regard either to the Labor Commissioner’s or the Employment Safety Commission’s prior expertise, it nullifies both the spirit and the letter of the statute.
This result is apparent throughout the opinion. Reference to the first violation illustrates the judicial failure to enforce the terms of all the statutes. This court’s treatment of violation No. 1 is found at pages 10 and 11 of the opinion and will not be repeated here. In light of section 88.7 of the Code, the contrast is startling. The commission followed the statute and required a guard whenever small work was to be performed. The trial court and this court ignored the statute and held no safeguards are required at all. This, in the face of the unanimous vote of eight citizens who were chosen for their non-pay commission service on the basis of their experience and expertise in the field!
Each reversal of the Labor Commissioner as affirmed by the Employment Safety Commission is attended by the same sort of logic. No thought is given to the declared public policy on the subject. No real consideration is given to the evidence of three well qualified state experts. Several violations were excused because the machines were guarded after the complaints were filed or were removed from the shop after the violations were reported and the hearing before the commission held.
VII. One must return to the first proposition. In this de novo trial the issues to be tried anew are not whether the judicial notion of safe industrial practices have been violated. The issue to be tried de no-vo is whether the Labor Commissioner’s action “was not reasonable under the circumstances or was not authorized by the employment safety laws or rules”.
Every act on which the trial court passed adversely was, in fact, supported by substantial evidence showing it to be reasonable and lawful.
The matters upon which the trial court failed to pass because the state failed to appeal is not of too much importance. The state will in future cases be able to cross-appeal. The difficulty is that the judicial approach in this case effectively nullifies the statute and makes future cross-appeals of little moment.
This case is not simply a fight between officious state agents and a recalcitrant employer. It is a test of the efficacy of important social legislation. The bitterness and human emotions engendered by the test are immaterial. The effectiveness of the new law is at stake. I would reexamine this case and affirm the Labor Commissioner’s actions wherever substantial support for his action appears in this record.
MASON, RAWLINGS and LeGRAND, JJ., join in this disssent.. See more extended discussion in Davis, Administrative Treatise, Vol. 4, chapter 29, which mentions both the Federal Administrative Procedure Act and the Model State Administrative Procedure Act. The need for legislation in this area is illustrated by these problems.
. It should be noted the statute at section 88A.11 specifically mentions the codes and standards of the “American Standards Association, United States Bureau of Stanclards, American Society of Mechanical Engineers, National Fire Prevention Association, American Insurance Association and other safety organizations.”