The opinion
John A. Fogleman, Justice, concurring. As I view this case, the only question involved in appellant’s second point is whether the commission delegated its authority by a provision as to a polygraph test in connection with possible reinstatement of appellee. As I see it, that matter is not really before us. The record does not reveal whether Sayler has applied for reinstatement — with or without a polygraph test.
The commission did not suspend Sayler on the basis of what a polygraph test would or might reveal. Nor did it suspend him conditionally. It clearly found, on the evidence before it, that Jockey Vernon Sayler had a shocking device in his possession with intention to use it in the race. Its statement that proof could not be by a mathematical certainty was followed by its conclusion that the evidence before it indicated that appellee did have the shocking device. There is nothing equivocal about this. The statement is similar to both written and oral findings by judges which are to be found in records filed in this court. No one would think that a judge’s findings were qualified or conditional if he used this language. The commission is not limited to findings beyond a reasonable doubt, if indeed its language can be taken to express any doubt. It simply finds, and did find, where the preponderance of evidence lay.
The commission tempered its indefinite suspension with a specific provision that Sayler could apply for reinstatement at the beginning of the 1971 season. This right is not qualified in any way and is in no way based upon his taking a polygraph test. Knowing, however, that its suspension would affect Sayler’s pursuit of his occupation, the commission also offered him the possibility of an earlier reinstatement, conditioned upon his producing results of a polygraph test favorable to him. This added provision is the only part of the commission’s order that is any way qualified or conditional.
The commission has a difficult task and a heavy responsibility to the patrons of racing establishments. It should not be hampered by hypercritical judicial scrutiny of the language of its orders. Its order in fixing the time for application for reinstatement, and even affording the opportunity for earlier reinstatement, did nothing to delegate any of its own authority to suspend. If it arbitrarily refuses application for reinstatement by Sayler, he then has recourse to the courts. It is premature for us to pronounce that its terms for hearing or reinstatement were wrong.
When the commission chose to believe Santage, in the light of all the circumstances, it resolved a question of credibility. We are in no position to say that it was wrong. The evidence was substantial. While I agree that the circuit court judgment should be reversed, I would direct that the commission’s order of suspension be affirmed.
Perhaps consideration of the effect of this court’s action today on Sayler’s ability to regain the right to pursue his chosen occupation is extraneous, but I cannot help wondering if the ultímate result may not prevent him from riding for a new period of suspension after the commission acts again on remand.