Dissenting Opinion
Achor, C. J.Notwithstanding the facts in evidence, as stated in the majority opinion, I am of strong conviction, that under the record in this case the judgment of the trial court which set aside the order of the Board of Medical Registration and Examination of Indiana should be affirmed.
This conviction is based upon two primary considerations. 1) The decision in this case cannot be based merely upon an appraisal of the evidence most favorable to the determination of the Board. Rather, because the Board is required by law to state its findings of fact, we must look exclusively to the finding of fact as stated by the Board and determine whether that finding is sustained by the evidence. 2) In my opinion, the finding by the Board as stated and therefore controlling of its decision, is not sustained by the evidence.
First: The Board is required by statute1 to state the facts upon which its order is predicated. We have *445held that when made by a court such findings of fact should be so stated in order that, “We should be able from an examination of the findings alone to ascertain whether the order is sustained by the findings . . .” American Transp. Co. v. Pub. Serv. Comm. of Ind. (1959), 239 Ind. 453, 460, 154 N. E. 2d 512, 158 N. E. 2d 653. See: Ind. Sup. Ct. R. 1-7C. (1958 ed.) Likewise, if such findings of fact are made by an administrative board the findings should be stated in such a manner as to enable the trial court and this court, on review of the proceedings of the Board, to determine whether the facts considered by the Board, and upon which its decision is made to rest, are sustained by the evidence.
Consistent with such rule this court is not permitted to speculate as to whether the evidence may have been sufficient to sustain other findings of fact not found by the Board, upon which to support its decision. It occurs to me that this is the failure of the majority opinion. We are permitted only to examine the findings of fact as stated by the Board to determine whether or not the specific finding is sustained by the evidence.
The necessity of such a rule is demonstrated, in part, by the fact that in this case there is an obvious variance between the charge made against the appellee and the finding of fact made by the Board upon which it revoked the license of the appellee to practice medicine. This variance exists both as to the nature of the offense committed and the date thereof. The charge alleged that the appellee *446was guilty of [a] “narcotic violation,” [b] “self addiction to an extent to render him unfit for the practice of medicine,” and [c] that such conditions existed “within the past twelve (12) months” prior to the filing of the charge. However, the Board made no finding as to the “alleged narcotic violation.” It did not find that the appellee was guilty of “self addiction,” as alleged. Neither did it find that either of said alleged offenses occurred “within the past twelve (12) months” prior to the date of the charge which was filed on February 24, 1960. Instead, the Board after a hearing on March 30, 1960, stated its finding in the present tense, as follows: “ [¶] e is guilty of ‘gross immorality, in that, he is addicted to the use of narcotic drugs to an extent to render him unfit for the practice of medicine, for a period covering the immediate past twelve (12) months.’ ”
Second: Being thus limited in our consideration to such finding the following primary issue remains. Is the finding as stated by the Board sustained by the evidence ?
As noted above, the finding pursuant to the hearing on March 30, 1960, is stated in the present tense. For what reason the Board elected to rest its case upon a present addiction of the appellee we do not know. However, having done so, our consideration is limited to this finding of fact stated and relied upon by the Board. When we do so we find that there is no evidence in the record that the appellee was, on March 30, 1960, guilty of a narcotic drug addiction in the present tense, which is the clear declaration of the finding as stated by the Board. In fact, there is no evidence in the record of any use of narcotic drugs by the appellee or of his addiction thereto after December 22, 1959. (On that date he admitted *447having “a narcotic problem,” and voluntarily undertook treatment therefor.) On the contrary, all the evidence with respect to the use of such drugs or of his addiction after such treatment and prior to March 30, 1960, is in the negative. Whether or not appellee had been addicted to a narcotic drug at a prior time is not material under the finding of fact stated in this case. The evidence stands uncontradicted that appellee was not addicted to a narcotic drug on March 30, 1960, and had not been for the period covering “the immediate past twelve (12) months.”
In this case the Board based its order upon a finding of fact which is not sustained by the evidence. Therefore, in my opinion the order of the Board was properly reversed by the trial court, whose judgment should be affirmed.
Note. — Reported in 178 N. E. 2d 741.
. “All issues of fact shall be considered and determined^ upon the record required to be made in conformity with this act [§§63-3001 — 63-3030], . . . Such agency shall make informal finding of facts which shall encompass the relevant facts shown by the *445evidence. Said finding of facts may be made by direct statement or by reference to the particular charges made in the complaint before such agency. . . Acts 1957, ch. 355, §3, p. 1033 [Burns’ 1960 Supp. §63-3010]. American Transp. Co. v. Pub. Serv. Comm. of Ind. (1959), 239 Ind. 453, 154 N. E. 2d 512, 158 N. E. 2d 653.