The opinion
John A. Fogleman, Justice, dissenting. I concur in the opinion of the majority that, in view of the nature of the offense, the absence of any showing that the violations by appellee constituted a pattern of conduct and the apparent unblemished record of appellee, the punishment imposed by appellant seems unduly harsh and severe. It seems so much so, that I feel we are justified in saying that the penalty imposed shocks the conscience of the court, and, thus, constitutes arbitrary action on the part of the board. The Wisconsin court reached such a conclusion in reviewing the revocation of the licenses of real estate brokers by the Real Estate Board. Lewis Realty, Inc. v. Wisconsin Real Estate Brokers’ Board, 6 Wis. 2d 99 , 94 N. W. 2d 238 (1959). The action there was taken under the Administrative Procedure Act of Wisconsin, Chapter 227, Title XVIII, Wisconsin Statutes (1963). The provisions of that act on the scope of the circuit court review and appeal to the supreme court are strikingly similar to the act applicable here. §§ 227.20 and 227.21, Wisconsin Statutes (1963). In that case, the court reversed and remanded one license revocation to the trial court with directions to remand the case to the board for proceedings to determine the length of time for which the license was to be suspended and approved a previous remand of another by the trial court. I feel that we should remand this cause to the circuit court with directions to remand to the board for reconsideration of the penalty to be imposed.
I humbly submit that the action of the majority in fixing the penalty has extended the power and jurisdiction of this court beyond the limits prescribed for review of actions of administrative agencies. I further submit that the boundaries set are particularly appropriate when the agency in question is charged with the responsibility of regulating a particular business, occupation or profession. The scope of our review is governed by Act 103 of 1963. 1 Section 22 of that act provides that a party may appeal from the circuit court under rules applicable in other civil cases. This does not give us the power to hear the matter de novo■ upon the record, as is the case when appeals are taken from a circuit court review of the Arkansas Commerce Commission. See Fisher v. Branscum, 243 Ark. 516 , 420 S. W. 2d 882 . The statute governing those appeals, unlike Act 103, requires that we review all the evidence and make such findings of fact and law as we deem just, proper and equitable. Ark. Stat. Ann. § 73-134. In Arkansas State Board of Pharmacy v. Gibson Products Co., 239 Ark. 584 , 390 S. W. 2d 628 , the holding that we would review decisions of this board de novo was based upon a statute that required the circuit court to review the case de novo. Ark. Stat. Ann. § 72-1029 (B-epl. 1957). This part of that section was superseded by Act 103 of 1963, in which the scope of circuit court review is much more limited.
If we treat this matter as we would any other appeal in a civil case, it seems obvious to me that we would remand the case to the trial court, unless our decision only left one course of action to be taken, in which event we would render judgment here or direct a specific judgment. See Longer v. Carter, 102 Ark. 72 , 143 S. W. 575 (on rehearing); Combs v. Bunn W. Robertson, Inc., 205 Ark. 20 , 166 S. W. 2d 665 .
I think it far more desirable that the State Board of Pharmacy decide on the penalty to he imposed in this case in the light of the conrt’s action in reversing. That board is composed of five experienced pharmacists. Ark. Stat. Ann. § 72-1002 (Repl. 1957). It is more likely to know the effectiveness of penalties than any court. It is my feeling that a one year suspension prescribed by this court is virtually a slap on the wrist for one who has falsely certified the issuance and filling of a prescription. It would be no more difficult to do the same if the “prescription” were for narcotics or any other drug. The record clearly shows that appellee has left the state and is plying his trade in Louisiana. I have been unable to find any Louisiana statute that even authorizes, much less requires, suspension there on reciprocity. We cannot assume that his suspension here will have any effect in that state, so appellee might possibly sit out this suspension there and later return to Arkansas without any interruption in his practice of pharmacy at all.
I would either remand the case to the circuit court for further proceedings under Act 103 of 1963, or with directions to remand to the board for appropriate action, preferably the latter.
While this act was repealed by Act 434 of 1967, § 16 of that act provides that the repeal should not apply to pending proceedings.