Indiana Bd. of Pharmacy v. Horner, 29779

• Decision Date: 06 February 1961
• Docket Number: No. 29779,29779
• Parties: INDIANA BOARD OF PHARMACY, Appellant, v. John F. HORNER, Appellee.
• Court: Indiana Supreme Court

Page 62

172 N.E.2d 62

241 Ind. 326

INDIANA BOARD OF PHARMACY, Appellant, v. John F. HORNER, Appellee.

No. 29779.

Supreme Court of Indiana.

Feb. 6, 1961.

Edwin K. Steers, Atty. Gen., Frank E. Spencer, Deputy Atty. Gen., for appellant.

Steers, Klee, Jay & Sullivan, Arthur J. Sullivan, Lee M. LeMay, David Millen, Indianapolis, for appellee.

JACKSON, Judge.

This is an appeal from the judgment of the Marion Superior Court, Room No. 4, in a proceeding for judicial review of the action and decision of the Indiana Board of Pharmacy, by which judgment the trial court set aside and vacated the finding and determination of appellant that appellee was guilty of gross immorality in connection with his duties as a licensed pharmacist on account of the large amount of narcotic drugs he dispensed to one Louise Davis (whose full and correct name is Claire Louise Davis).

Appellee presented to the trial court, by verified petition, the issue of whether or not the order of the Indiana Board of Pharmacy was arbitrary, capricious and an abuse of discretion, because, as he asserted, there was no evidence whatsoever to substantiate it, that there was no charge or evidence of violation of Acts 1911, ch. 117, § 3, p. 443, being § 63-1120, Burns' 1951 Replacement, known as the State Pharmacy Board Act under which he is licensed, that the charges and evidence do not constitute 'gross immorality.' He also presented as issues the contentions that his constitutional rights, privileges and immunity were violated in the hearing and proceedings before appellant in that he was accused and judged by the same board and members; that the finding and order of the board exceeded its statutory jurisdiction in that he had no duty to make an effort, diligent or otherwise, to determine whether or not the physicians issuing said prescriptions acted in good faith; that the charges against him do not constitute a violation of the Act under which he was licensed; that he was denied due process of law in that he was prosecuted by the same person or persons who made the investigation against him and who sat in judgment upon him; that the finding of the Board is unsupported by substantive evidence for the reason that absolutely no evidence was introduced that he had at any time acted in bad faith, that he had no knowledge that Louise Divis was an addict, nor that he had filled any particular one or all of said prescriptions.

We think it pertinent in this appeal that a part of the record, embodying a portion of appellee's appeal from the Board be here incorporated for the purpose of pin pointing some of the attendant circumstances leading to this entire proceedings.

'17. * * * All of the witnesses who testified in behalf of the defendant Indiana State Board of Pharmacy testified that said Louise Davis to who this Petitioner was charged with selling durge [drugs] was not a narcotic addict and that said Louise Davis for a period of many years has suffered from excruciating pain; that out of the four doctors with whom she maintained a physician and patient relationship, all of the doctors in good faith issued to Louise Davis prescriptions for narcotics to alleviate her pain and mental suffering and for no other reason whatsoever. Nowhere in the transcript is it alleged that any Physician or surgeon or any other person either singly or jointly ever issued her a prescription for narcotics except in good faith and the only act which this petitioner is charged with doing is the filling of prescriptions issued by physicians and surgeons who were duly licensed physicians under the laws of the State of Indiana and who were all reputable and honorable men in their profession. No evidence was introudced [introduced] or tendered at the hearing that the petitioner knew or had any reason to believe that Louise Davis was a drug addict but on the contrary the evidence conclusively showed that said Louise Davis had had seventeen major operations in a short period of time including but not limited to a breast biopsy, lobotomy, three gallstone operations, three operations for ileitis, five kidney stone operations, a double phrenicotomy, a crush of the phrenic nerve operation and three hysterectomy operations.

'18. The evidence further showed that prescriptions were filled by various pharmacists at the drug store owned by said John F. Horner and nowhere is it shown that any one of said prescriptions was filled in bad faith or that John F. Horner had any knowledge that Louise Davis was an addict and it was not shown by the defendant Indiana State Board of Pharmacy that said petitioner filled any particular one or all of said prescriptions.

'19. The evidence further showed that Louise Davis had varicose veins and her legs looked as if they were bleeding, that she had hemorrhages from the eyes, nose and ears, that she would go the drug store of Petitioner on numerous occasions with towels to her ears and nose that were full of blood. That Louise David [Davis] was able to go to the drug store under her own power and that her principal physician had been Dr. Waymire, that he had notified the U. S. Narcotic Agent at Indianapolis of Louise Davis and of her condition; that said U. S. Narcotic Agent had visited Louise Davis at Dr. Waymires office which was at 1827 College, across the street from Petitioner's Drug Store and after said visit advised Dr. Waymire to continue prescribing narcotics to ease and grant relief from the pain suffered by said Louise Davis. That Dr. Waymire stated to Petitioner that it was his opinion that Louise Davis had a malignant tumor of the brain.'

At the conclusion of the trial the Marion Superior Court, Room No. 4, found for the appellee and the following conclusions and judgment were entered.

'Conclusion of Fact. Based upon the findings of fact in paragraphs one through twelve of said Finding of Fact, it is the conclusion of the Court that the Petitioner, John F. Horner filled said prescriptions in good faith and that there is no substantial evidence to support the finding of the Indiana State Board of Pharmacy that said John F. Horner acted in other than good faith.

'Conclusions of Law. In accordance with the findings of fact and the conclusions of fact as hereinabove set out, it is the finding of this Court that:

'1. The decision of the Indiana State Board of Pharmacy was arbitrary, capricious, and an abuse of discretion.

'2. That is [it] was unsupported by substantial evidence.

'Wherefore, the Decision and Determination of the Indiana State Board of Pharmacy is set aside and judgment is hereby entered for the Petitioner.'

The appellant's assignment of error contains seven specifications. The errors assigned, omitting the formal parts, are as follows:

'1. The decision of the Court is not sustained by sufficient evidence.

'2. The decision of the Court is contrary to law.

'3. The Court erred in weighing the evidence in this cause, and thereby substituting its findings, conclusions of law, determination and decision for that of the appellant Board, when and in spite of the fact that there was substantial and competent evidence of probative value before the said Board to sustain its finding, determination and order.

'4. The Court erred in its Conclusion of Law numbered '1'.

'5. The Court erred in its Conclusion of Law numbered '2'.

'6. The Court erred in considering only that evidence favorable to Appellee and in refusing to consider the evidence favorable to and supporting the finding, determination and order of the Appellant.

'7. The Court erred in its Conclusion of Fact that there was no substantial evidence to support the finding of the Appellant that the Appellee acted in other than good faith.'

When a circuit or superior court reviews the action of an administrative board pursuant to the Administrative Judicial Review Act, such review is not a trial de novo, but is based solely upon the record of the board's proceedings. Acts 1947, ch. 365, § 18, p. 1451, being § 63-3018, Burns' 1951 Replacement; City of Plymouth v. Stream Pollution Cont. Bd., 1958, 238, Ind. 439, 151 N.E.2d 626. The statute allows that the findings, decisions or determination of such agency may be set aside if: (1) It is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; or (2) it is contrary to constitutional rights; or (3) it is in excess of the jurisdiction granted by the statute; or (4) it is contrary to proper statutory procedure; or (5) it is unsupported by substantial evidence. Acts 1947, ch. 365, § 18, p. 1451, being § 63-3018, Burns' 1951 Replacement, supra. The trial court based its decision on reasons one and five above.

Before going into the facts and the evidence upon which they may be found, several principles relevant to administrative fact adjudication should be discussed. In the first place the board, not the court, determines issues of fact. Warren v. Indiana Telephone Co., 1940, 217 Ind. 93, 118, 119, 26 N.E.2d 399; Blue Ribbon Pie Kitchens v. Long, 1952, 230 Ind. 257, 103 N.E.2d 205; See: 28 Ind.L.J. 293, 325. Furthermore the reviewing court cannot weigh conflicting evidence which appears in the record of the Board's hearing for the purpose of determining for whom it preponderates. Blue Ribbon Pie Kitchens v. Long, supra; Pollock v. Studebaker Corporation, 1952, 230 Ind. 622, 625, 105 N.E.2d 513, 514. ¹ In the last cited case concerning the court's jurisdiction to reverse an Industrial Board case because of a lack of substantial evidence the court laid down the following principles:

'* * * We may reverse the award only if this negative situation appears from the evidence. We have heretofore held that this situation would be shown only: (1) If it should appear that the evidence upon which the Industrial Board acted was devoid of probative value; (2) That the quantum of legitimate evidence was so proportionately meagre as to show that the finding does not rest upon a rational basis or; (3) That...