(concurring in the result) :
I concur in most of what is said in the principal . opinion. Particularly do I agree with my brothers when they say, “We first call attention to the fact that the board of review did not hold the evidence insufficient to support the charge alleged. What it held was that the evidence would not support what the board of review concluded would be a valid charge.” (Emphasis supplied). If this is true, what then is the point of inquiring at length into whether the board reached its conclusion in this regard “as a matter of law” or “as a matter of fact”?
In order that an appellate tribunal may act and speak as such — that is, ex cathedra' — it must act and speak with respect to a case which is before it. My brothers believe — and so do I — that when the board spoke of evidential insufficiency, it was speaking in terms of purest hypothesis. Its comment had to do not with a case which was before it, but rather with one which was not— for it had earlier held that no valid one was alleged in the specification found on the charge sheet. It was, therefore, not expressing a holding. Instead it was merely making an observation on a professional subject.
However, conceding arguendo that the board was dealing in.this instance with a case before it, I am sure that what it said and did is reviewable by us. As I understánd relevant portions of the Uniform Code, we may review rulings of a board on questions of mixed law and fact as well as on those of law. The only rulings removed from our consideration are those having to do with pure fact. Here a legal standard was clearly involved in the board’s determination that “The evidence . . . does not disclose that the accused was given an order before the words set forth in the specification were uttered by him.” The question is, therefore, one embracing a distinct legal element and thus reviewable in this Court.