TRAYNOR, J., Dissenting. The procedure governing judicial review of the adjudicatory decisions of statewide administrative agencies is prescribed by section 1094.5 of the Code of Civil Procedure, which follows “the procedural pattern laid down by recent court decisions.’’1 (Tenth Biennial Report of the Judicial Council of California, 26.) This section provides:
“(b) The inquiry in such a case shall extend to the question whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and [316]whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.
“(c) Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence; and in all other cases abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.”
Thus, the purpose of review under this section is the correction of abuse of discretion. “Where the fact finding power is involved, the review by mandate will correct an ‘abuse of discretion on the facts.’ ” (Tenth Biennial Report of the Judicial Council of California, 141.) When the action of a local administrative agency is challenged, an abuse of discretion on the facts is established if the findings are not supported by substantial evidence. In the ease of a statewide agency, with statutory powers only, the court may exercise an independent judgment on the facts, and an abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence. Thus, the controlling issue in a mandamus proceeding to review the action of a statewide agency exercising statutory powers only, when it is claimed that the findings are not supported by the evidence, is whether the findings are supported by the weight of the evidence. In some instances not yet clearly defined (Dare v. Board of Medical Examiners, supra, 21 Cal.2d 790, 799; Russell v. Miller, 21 Cal.2d 817 [136 P.2d 318]; Wyatt v. Cerf, 64 Cal.App.2d 732 [149 P.2d 309]; Madruga v. Borden Co., 63 Cal.App.2d 116 [146 P.2d 273]; West Coast Etc. Co. v. Contractors Etc. Board, 68 Cal.App.2d 1 [155 P.2d 863]; McDonough v. Garrison, 68 Cal.App.2d 318 [156 P.2d 983]; West Coast Etc. Co. v. Contractors Etc. Board, 72 Cal.App.2d 287 [164 P.2d 811]) the court may accept evidence in addition to that presented before the agency. If it does, however, the basic issue in the case is still whether the iveight of the evidence supports the agency’s findings. Under section 1094.5 of the Code of Civil Procedure the superior court must find [317]that the weight of the evidence does or does not support the agency’s findings. The question before the superior court is, not what findings it would have made had it been the administrative agency and the hearing had been held before it, but whether the agency abused its discretion by making findings that are not supported by the weight of the evidence. When an appellate court reviews the decision of the superior court it must determine whether the superior court correctly decided the issue before it, namely, whether the agency’s findings are supported by the weight of the evidence. It cannot properly make that determination without reviewing the entire record to see where the weight of the evidence lies. If it considered the evidence only in part, it would not be determining where the weight of the evidence lies but only whether there is or is not some evidence on either side.
The majority opinion, however, is based on the assumption that the superior court is not acting as a reviewing court but as a trial court deciding issues of fact in the first instance as if there had never been an administrative hearing and as if the record made before the agency had been made before the court. Even though an appellate court reviewing the identical record of the administrative hearing that was before the superior court for review, concludes that the weight of the evidence clearly supports or does not support the agency’s findings, as the case may be, it is bound by the superior court’s decision as if the ease were originally tried there, if there is conflicting evidence in the record. What special insight or qualifications does that court have to make its review of the identical record binding on the appellate court? Thus, the weight of the evidence test governs the superior court in reviewing the administrative record but not the appellate court in reviewing the decision of the superior court. The appellate court must blind itself to the fact that the proceeding before the superior court was a review of the administrative record and treat that proceeding as a trial de novo. Although the superior court must find that the agency’s findings were or were not supported by the weight of the evidence, the appellate court is concerned, not with whether the superior court correctly decided that issue, but whether there is evidence to support the findings of the superior court, disregarding completely any question as to the weight of the evidence. The basic issue in the case, whether the agency’s findings are supported by the weight of the evidence, is transformed into a [318]new issue essentially analogous to the issue in the case of a nonsuit or directed verdict. The appellate court must consider only the evidence in favor of the agency’s findings, when the superior court finds that they are supported by the weight of the evidence, or only the "evidence against such .findings, when the superior court finds that they are not supported by the weight of the evidence.
The majority opinion by treating the proceeding before the superior court, not as a review, but as a trial de novo, reverts, so far as appellate review is concerned, to the doctrine of Laisne v. State Board of Optometry, 19 Cal.2d 831 [123 P.2d 457], from which this court withdrew in Dare v. Board of Medical Examiners, 21 Cal.2d 790 [136 P.2d 304] and Sipper v. Urban, 22 Cal.2d 138 [137 P.2d 425], and virtually makes the superior court the final reviewing court of the decisions of statewide administrative agencies exercising only statutory powers, when an abuse of discretion on the facts is claimed.
In Sipper v. Urban, supra, 22 Cal.2d 138, 144, Mr. Justice Schauer, who east the controlling vote, declared:
“The complete trial de novo doctrine of the Laisne case has been abandoned. By the decision in the Dare case (Dare v. Board of Medical Examiners, supra) the majority of the court has receded from the extreme position taken in the Laisne case with respect to the right of a party to a complete trial de novo on mandamus review, and has thereby substantially rectified perhaps the most serious of the practical difficulties suggested in the dissenting opinion in the Laisne case as bound to be encountered in practice under the majority rule as then stated. The procedure as now declared gives the reviewing court the power and duty of exercising an independent judgment as to both facts and law, but contemplates that the record of the administrative board shall come before the court endowed with a strong presumption in favor of its regularity and propriety in every respect and that the burden shall rest upon the petitioner to support his challenge affirmatively, competently and convincingly. In other words, rarely, if ever, will a board determination be disturbed unless the petitioner is able to show a jurisdictional excess, a serious error of law, or an abuse of discretion on the facts. This is in full accord with the presumption declared in subdivision 15 of section 1963 of the Code of Civil Procedure, ‘That official duty has been regularly performed. ’ It is, of course, also inherent in [319]the mandamus remedy that the right of the petitioner to the initial issuance of the writ is not absolute. His right to make the application is absolute but the application implicitly calls for the exercise of judicial discretion, and within the limits of that discretion (for definition of judicial discretion, see Gossman v. Gossman, 52 Cal.App.2d 184, 194-195 [126 P.2d 178]) the writ may be granted or withheld, as the facts averred in and circumstances appertaining to each particular case may require, in the interests of sound justice.”
It is now apparent that the rules that the “record of the administrative board shall come before the court endowed with a strong presumption in favor of its regularity and propriety in every respect” and that “the burden shall rest upon the petitioner to support his challenge affirmatively, competently and convincingly” have only such force as the superior court wishes to give them. Appellate courts abandon all responsibility for their enforcement.
The condition in this state of judicial review of the adjudicatory decisions of statewide administrative agencies exercising only statutory powers may be briefly described. Appellate courts disclaim virtually all responsibility when it is claimed that the agency’s findings are not supported by the evidence. The superior court determines whether or not the writ shall issue, whether or not additional evidence shall be taken or a complete trial de novo given, and whether or not the agency decision shall be upheld or set aside. Whatever the superior court does must be upheld by the appellate courts if, viewing the proceeding not as a judicial review but as a proceeding like a nonsuit or directed verdict, there is some evidence or inferences therefrom in favor of the superior court’s decision. Thus, on the one hand the superior court by refusing to issue the writ or by upholding the agency’s findings, even though they are not supported by the weight of the evidence, may refuse to exercise the check on administrative agencies that the statute contemplates they should exercise. On the other hand, it has virtually unlimited freedom to destroy the effectiveness of such an agency. When it erroneously finds that the weight of the evidence does not support the agency’s findings it substitutes its judgment for that of the agency and controls the discretion vested by the Legislature in the agency. (See, Inglin v. Hoppin, 156 Cal. 483 [105 P. 582]; Doble Steam Motors Corp. v. Daugherty, 195 Cal. 158 [232 P. 140]; Bila v. Young, 20 Cal.2d 865 [129 [320]P.2d 364]; Mosesian v. Parker, 44 Cal.App.2d 544 [112 P.2d 705].) Judicial review becomes more than a check on administrative action, it completely supplants that action and destroys “the values—expertness, specialization and the like—which, as we have seen, were sought in the establishment of administrative agencies.” (Report U. S. Attorney General’s Committee on Administrative Procedure, 77.)
It is my opinion that the superior court in this ease has erroneously found that the weight of the evidence does not support the board’s findings.
Section 2391 of the Business and Professions Code provides:
“Unless otherwise provided by this section, the prescribing, selling, furnishing, giving away or administering or offering to prescribe, sell, furnish, give away or administer any of the drugs or compounds mentioned in section 2390 to a habitue or addict constitutes unprofessional conduct within the meaning of this chapter.
“If the drugs or compounds are administered or applied by a licensed physician and surgeon of this State or by a registered nurse acting under his instructions and supervision, this section shall not apply to any of the following cases:
“ (a) Emergency treatment of a patient whose addiction is complicated by the presence of incurable disease, serious accident or injury, or the infirmities attendant upon age.
“(b) Treatment of habitues or addicts in institutions approved by the board where the patient is kept under restraint and control, or in city or county, jails or State prisons.”
In an interview with Joseph W. Williams, a special agent of the board, on April 16,1946, petitioner stated: “Katherine S . . . came to me about the middle of October, 1945 and she wanted narcotics. She said she had a trifacial neuritis. I prescribed morphine in ½ grain tablets, 20 tablets at a time. She claimed she had been treated for the trifacial condition in Ohio. I wrote her doctor in Ohio a letter. She claimed to have considerable pain in the face and needed a half grain every four hours.
“I prescribed for her for about a week before I wrote her doctor for a history of her case. I knew she was a narcotic addict and tried to talk her into going and taking the cure. I examined the cranial nerves, but did not make any x-rays.
“I gave her two injections of alcohol for her trifacial condition. One was given about a week after I began prescribing narcotics for her. The second was given some time in Novem[321]her. Those were the only treatments I ever gave her. The only other medicine I ever gave her was morphine.
“I prescribed a tube of ½ grain morphine tablets for her every three or four days. I have no case history of her in the office. I think I made one, but 1 think my attorney has it. She was going to sue me and I sent her file to my attorney. I don’t recall whether I took a case history on her or not, but the only examination 1 made was the one of the cranial nerves of the face.
“I finally talked her into going to take a cure for narcotic addiction and contacted Doctor Thompson of Las Encinas Sanitarium at Pasadena and made arrangements for her to go there and take the cure for addiction, but she never went. Late in December, 1945, she went to Alexander’s Sanitarium, Belmont.
“I prescribed narcotics for her from about the 19th of October up to about the time she went to Alexander’s Sanitarium. I knew she was an addict but she claimed to have pain in her face and I more or less took her word for her pain, as I did not make very much of an examination.
“She gave the name of this Doctor in Ohio who was supposed to have treated her. I wrote to him but don’t recall receiving any reply.
“I also prescribed narcotics for Allan G . . . from about the middle of October to the end of December, 1945. I have no chart for G ... as I did not make a chart for him. He had asthma and I prescribed a tube of 14 grain morphine at a time for him. His prescriptions were every three or four days apart also. When he first came to me he told me how ' much morphine he was using, and I thought it was a sufficient quantity to make him an addict. He stated he had been using this for a long time.
“At that time he was a cook on a ranch in Carmel Valley. I knew he was an addict and tried to get him to take the cure but he wouldn’t do anything to help himself. He didn’t want to take it. Although he had an asthmatic condition he did not need that much morphine for his asthma. The only reason he had to have morphine was because he was an addict.
“I gave him some Vm C for asthma, in addition to the straight morphine I prescribed for him. I did not make a chart or keep a history on his case.
“H. . . . was a cook at Pebble Beach School. I prescribed narcotics for him also for several months. He was supposed [322]to have duodenal ulcers, but I did not make any x-rays of him. I did a gastric analysis and decided he was a narcotic addict.
“I prescribed a tube of pantopon, % grain, at a time for him. I don’t know how many prescriptions I wrote for him. I did not keep a record or history of his case, either. I was sure he was an addict when he first came to me, but I wrote prescriptions for him for narcotics.
“I also wrote prescriptions for Mrs. E. G. P. . . . She claimed to have spinal arthritis. The next time she came in with gall stones. I prescribed 20 dilaudid, 1/16 grain. I never made any x-rays or kept any case history on her. She is supposed to be an addict. ’ ’
The foregoing testimony was corroborated by another agent who was present at the interview.
The complete cross-examination of Mr. Williams follows:
“Q. Mr. Williams, the Doctor made a full and complete disclosure to you when you questioned him, did he not? A. I believe he did.
“Q. And he did not try to hold anything back? A. He did not appear to.
“Q. And when you speak of Mrs. Moran, that is the Doctor’s mother, seated here in the room? A. Yes, the lady in black (indicating).
‘ ‘ Q. And at the time you made your notes, did you immediately reduce the conversation to writing or was there some lapse there? A. I wrote the original notes while sitting there at his desk.
"Q. Did you receive on this ease a report from the Bureau of Narcotic Enforcement ? A. Did I receive ?
‘ ‘ Q. Yes. A. No, I did not.
“Mr. Anderson : That is all.
“Mr. Hutchinson : That is all. Thank you. Any question by any Board Member ? (No response.)
(Witness excused.) ”
The record reveals the following chronology of petitioner’s treatment and prescriptions for these addicts:
Katherine’s Case
October 13, 1945—Petitioner’s first meeting with addict. Examination and injection of novocaine and alcohol.
October 15, 1945—Prescription, morphine sulphate, 20 doses.
October 22, 1945—Prescription, morphine sulphate, 20 doses. [323]Katherine requested that the drug be taken by “hypo” because the taste of morphine was objectionable to her.
October 25, 1945—Prescription, morphine sulphate, 20 doses.
October 26, 1945—Petitioner received a letter dated October 24, 1945, reading as follows: “I have just received a letter from a patient of yours, Mrs. K. . . S. . ., formerly of Cincinnati, for whom I did a left infra obital injection for tic in 1928, which she says was successful for six years. She now asks that I give you this information in the hope you will make another injection for her. She was then and is still, as far as I know, an addict.”
October 28, 1945—Prescription, morphine sulphate, 20 doses.
October 29, 1945—Prescription, morphine sulphate, 20 doses. Petitioner telephoned Las Encinas Sanitarium to have Katherine admitted as a narcotic patient.
October 31, 1945—Prescription, morphine sulphate, 20 doses.
November 2, 1945 — Prescription, morphine sulphate, 20 doses. Petitioner telephoned Las Encinas Sanitarium in a second attempt to have Katherine admitted as a narcotic patient.
November 10, 1945 — Petitioner sought to have Katherine enter the Livermore Sanitarium for treatment as a narcotic addict.
November 12, 1945 — Prescription, morphine sulphate, 20 doses. Petitioner telephoned Las Encinas Sanitarium in another further attempt to have Katherine admitted as a narcotic patient. Katherine refused to enter County Hospital.
November 13, 1945—First and only report to Narcotic Division on furnishing drugs to addict.
November 14, 1945 — Prescription, morphine sulphate, 20 doses.
November 16, 1945 — Prescription, morphine sulphate, 20 doses.
November 19, 1945 •—• Prescription, morphine sulphate, 20 doses.
November 21, 1945—Two prescriptions, morphine sulphate, 40 doses. •
November 23, 1945 — Prescription, morphine sulphate, 20 doses.
November 24, 1945—Petitioner’s last personal meeting with Katherine.
November 26, 1945 — Prescription, morphine sulphate, 20 doses.
[324]November 30, 1945 — Prescription, morphine sulphate, 60 doses.
December 5, 1945 — Prescription, morphine sulphate, 60 doses.
December 11, 1945 — Prescription, morphine sulphate, 20 doses.
Allan’s Case
October 22, 1945—-Prescription, morphine sulphate, 20 doses-.
October 31, 1945—Prescription, morphine sulphate, 20 doses.
November 4, 1945—-Prescription, morphine sulphate, 20 doses.
November 10, 1945 — Prescription, morphine sulphate, 20 doses.
November 12, 1945 —■ Prescription, morphine sulphate, 20 doses.
November 14, 1945 — Prescription, morphine sulphate, 20 doses.
November 16, 1945 — Prescription, morphine sulphate, 20 doses. -
November 19, 1945 — Prescription, morphine sulphate, 20 doses.
November 23, 1945 — Prescription, morphine, 20 doses.
B. L.’s Case
September 28, 1945—-Prescription, pantapon, 20 doses.
November 10, 1945—Prescription, pantapon, 20 doses.
The burden was upon petitioner to prove that the treatments were emergency treatments of patients whose addiction was complicated by the presence of incurable disease. (Code Civ. Proc., § 1981; People v. Moronati, 70 Cal.App. 17, 21 [232 P. 991]; People v. Agnew, 16 Cal.2d 655, 663 [107 P.2d 601]; People v. Osaki, 209 Cal. 169, 191 [286 P. 1025]; Bebbington v. California Western States Life Ins. Co., 30 Cal.2d 157, 159 [180 P.2d 673]; see 21 Cal.Jur. 383, 384.)
During the hearing petitioner presented no expert testimony or opinion that his furnishing the narcotics was necessary or proper under the circumstances or in the light of the history and examination of any of the addicts. Clearly the deposition of Dr. Fraser and the letter from Dr. Thompson cannot serve to show emergency treatment of addicts whose addiction is complicated by the presence of incurable disease. Dr. Fraser, “Medical Examiner of the Courts of San Francisco,” testified with respect to Allan’s commitment proceeding for addiction. [325]On cross-examination he was asked by petitioner’s counsel “Doctor, morphine sulphate is recognized by some physicians as a proper prescription for a chronic asthmatic condition, isn’t that so? A. Oh, yes, it is used.” He did not testify, however, that it was necessary or proper in Allan’s case. When asked on direct examination “Are yon able to state, Doctor, whether it would have been necessary in his treatment to have given him 20 one-half grains tablets for use during a week, for any condition that he then had?” he replied, “Well, that might be a moot question—that is almost an expert question to answer that. I think in the case of the treatment of asthma we don’t like to use morphine in a chronic condition of that nature. However, I can see certain conditions where morphine had been used where it would be objectionable.” He was then asked the question, “Morphine would not have any curative effect?—merely to alleviate the pain?” to which he replied, 11 No, merely to alleviate his distress. ’ ’
Dr. Thompson, the medical director of Las Encinas Sanitarium was not available for cross-examination and his letter was introduced by his counsel “in mitigation of punishment, if any” and it was received by the hearing officer “as hearsay, as any other unsworn statement. ’ ’ The letter reads as follows:
"To Whom it may concern:
“This is to evidence and certify that Doctor James A. Moran of Carmel, California, called by telephone during the latter part of October, 1945, regarding one Mrs. S. . . ., stating that Mrs. S. . . was addicted to narcotics, and that he would like very much to have her admitted to Las Encinas for treatment.
“At that time we had no vacancies and could not confirm a reservation for this patient. Doctor Moran asked if I thought he would be allowed to give narcotics to this patient until such time as she could be admitted to Las Encinas for treatment, and I replied that I thought this might he done as a humanitarian measure pending the time when the- patient could he admitted for treatment.
“Early in November, Doctor Moran phoned again, during my absence, and this time the conversation took place between Doctor Stephen Smith, Medical Director and Doctor Moran. Doctor Moran again stated the importance of treatment to Doctor Smith and again he was told that no vacancies existed and that we could do nothing about the matter for the present. Doctor Smith also recognized the importance of Doctor Mor[326]an’s call and the urgency of supplying treatment to the patient, Mrs. S. . ., but on account of lack of space, We were unable to admit Mrs. S. . . . for treatment.
“Respectfully, C. W. Thompson, M.D., Medical Director.” (Italics added.)
There is nothing in this letter to indicate that Dr. Thompson or Dr. Smith believed that the heavy doses of morphine prescribed for Katherine were required as emergency treatment of an addict whose addiction was complicated by an incurable disease. The italicized statements in the letter, on which petitioner particularly relies, express the belief that pending Katherine’s admission to the sanitarium for treatment for addiction petitioner might prescribe narcotics as a humanitarian measure. There was no approval, however, of the amounts prescribed, and petitioner cannot reasonably contend that he was treating her for addiction. The Health and Safety Code provides: “A physician treating an addict for addiction shall not prescribe for or furnish an addict more than any one of the following amounts of narcotics during each of the first fifteen days of such treatment: (a) Eight grains of opium, (b) Four grains of morphine.” (§11392.) “After fifteen days of treatment the physician shall not prescribe for or furnish to the addict more than any one of the following amounts of narcotics during each day of such treatment: (a) Four grains of opium, (b) Two grains of morphine.” (§ 11393.) “At the end of thirty days from the first treatment, the prescribing or furnishing of narcotics shall be discontinued.” (§ 11394.) These restricted amounts are in sharp contrast with the heavy doses petitioner prescribed for Katherine. “The physician treating an addict for addiction shall within five days after the first treatment report by registered mail, over his signature, to the State division, stating the name and address of the patient, and the name and quantities of narcotics prescribed. The report shall state the progress of the patient under the treatment. The physician shall in the same manner further report on the fifteenth day of the treatment and on the thirtieth day of the treatment, and thereafter shall make such further reports as are requested in writing by the State division.” (§ 11395.) There was no compliance with this provision.
There remains petitioner’s testimony that in each case his treatment was for the purpose of relieving acute pain and suffering and that he believed he was treating the addicts [327]“for a pathology rather than an addiction.’’ The record shows that the narcotics were furnished by prescription, apparently for use by each addict in his own way at his own time. They were furnished over periods as long as 58 days. None of the addicts was confined to bed. Each called regularly at petitioner’s office for his own form of narcotics. There is no evidence of any physical examination of any of them after their first appearance at petitioner’s office. It is not clear from the record to what extent, if any, petitioner saw them thereafter before furnishing them with prescriptions. The chronology set forth above shows that four prescriptions for 160 doses of morphine were furnished Katherine after petitioner last saw her on November 24, 1945. It is difficult to believe that it is emergency treatment to prescribe narcotics for an addict in such generous doses on so many occasions without even seeing her. (See, People v. Kinsley, 118 Cal.App. 593, 595, 601 [5 P.2d 938].)
The record shows that Katherine did not suffer from anything but narcotic addiction. Doctor Moultain saw Katherine at her sister’s home on December 16, 1945, five days after petitioner’s last prescription. He found no objective symptom of gall bladder ailment, of tic douloureux, or of other incurable disease, and concluded that her complaints “were purely for the purpose of getting morphine.” She confessed to him that she was an addict and that “what she wanted was a dose of morphine.” He caused her to be moved to the Alexander Sanitarium. Doctor Alden, the consulting psychiatrist at the Alexander Sanitarium, after examining the findings and history made by other members of the medical staff and the nurses’ notes, and after conversing with Katherine, concluded that she was suffering from withdrawal of narcotics. He testified that there was no indication of any necessity for treatment for any other infirmity or disease. On January 12, 1946, Katherine was released from the Alexander Sanitarium as no longer requiring treatment.
In answering the contention that the board’s findings should be set aside because of petitioner’s testimony that his prescriptions were given to alleviate the pain of his patients suffering from incurable diseases, the District Court of Appeal, Second District, Division Two, which reversed the judgment of the superior court in this case, in an opinion by Presiding Justice Moore succinctly stated:
[328]“But there was other proof upon that issue, to wit, the circumstantial evidence from which incriminating inferences may be drawn: (1) The excessively large number of doses given to S and G knowing that they were addicts. Although he knew that Mrs. S should be hospitalized for her addiction and attempted to gain her admittance into Las Encinas, he continued to prescribe the generous dosage to her for six weeks after that institution had rejected her and notwithstanding her refusal to enter the county hospital. Such prescriptions were clear violations of section 11391, supra [Health & Saf. Code] from which an inference of guilt might be fairly deduced and an adverse finding made under section 2391, Business and Professions Code. (2) He prescribed 180 doses for Mr. G for his asthma knowing that G was an addict and that morphine had no curative qualities. (See § 11393, supra.) He told a special agent that the only reason G had to have morphine was his addiction; that he 1 did not know how many prescriptions’ he wrote for him. Nor did he keep a record or history of his ease. ‘I was sure he was an addict when he first came to me, but I wrote prescriptions for him for narcotics.’ After having already prescribed 100 doses for G, on November 13 he reported him as an addict to the division of narcotic enforcement giving his name, age, address, and dose; one and a half grains of morphine sulphate daily. (3) A similar report was made on November 15 with reference to Mrs. S after having already prescribed 180 doses for her subsequent to October 13. His failure to keep records and to make reports on both of these parties constituted violations of section 11395 and sufficed to justify the inferences of violations of that statute. (4) He prescribed twice for H, suspicious that he was an addict, before dismissing him. (5) He delayed reporting his prescriptions to the division of narcotic enforcement ‘for quite some time.’ (6) As further light upon his intent, petitioner prescribed for a Mrs. P, not mentioned in either count of the accusation, after being apprised by the division of her addiction. She claimed to suffer from arthritis, gall stones and spinal arthritis. He gave her ‘20 dilaudid, one half grains.’ (7) In order to have a supply for his office he wrote prescriptions for morphine for his mother who served as his nurse.
“The board was not only entitled, but was required, to consider such circumstances in determining whether petitioner acted in good faith and honestly believed that each of the [329]addicts in question was suffering from incurable disease as well as from addiction. While the testimony of petitioner was direct and although he was the only person who could testify as to the thoughts he entertained, yet the circumstances particularized by him as well as those given by Doctors Moulton and Alden and by the special agents of the board, and his persistency in prescribing morphine for addicts when it could serve no purpose save that of gratifying appetites for the narcotic—these circumstances justify the inference of unprofessional conduct on the part of petitioner. And if in the minds of the members of the board such inferences outweighed the direct testimony of petitioner, the board was acting within its lawful discretion in suspending his license. ’ ’
It is hardly necessary at this time to argue the importance of the functions of the Board of Medical Examiners or the necessity of curbing the traffic in narcotics. The board, a body of 10 experienced physicians, interpreted the facts in the light of their professional training and experience, and determined that the condition of the addicts did not justify petitioner’s supplying them with narcotics. The Legislature vested the board with power to make such determinations by virtue of its specialized experience, and this court has recognized that the “findings of the board come before the court with a strong presumption of their correctness.” (Drummey v. State Board of Funeral Directors, 13 Cal.2d 75, 85 [87 P.2d 848]; Dare v. Board of Medical Examiners, 21 Cal.2d 790, 798 [136 P.2d 304]; Sipper v. Urban, 22 Cal.2d 138, 144 [137 P.2d 425].)
Edmonds, J., and Spence, J., concurred.
Defendants and appellants’ petition for a rehearing was denied August 26, 1948. Edmonds, J., Traynor, J., and Spence, J., voted for a rehearing.
Dare v. Board of Medical Examiners, 21 Cal.2d 790 [136 P.2d 304]; Russell v. Miller, 21 Cal.2d 817 [136 P.2d 318]; Sipper v. Urban, 22 Cal.2d 138 [137 P.2d 425].