175 Ga. 566 | Ga. | 1932
Dissenting Opinion
dissenting. The trial judge did not err in requiring by mandamus the payment of the allotted pension to the petitioner, Smith. The case of Smith v. Board of Trustees, 173 Ga. 437 (supra), is not in point in this case. In that case it was sought to compel the Board of Trustees for the Relief and Pension Fund of the Members of the Atlanta Police Department to revise the list of pensioners upon the fund for retired policemen, and to remove the names of certain beneficiaries who, as the petitioner alleged, were being illegally paid. That case related solely to pensions which had been granted by the board. This court held in that case that the act of the board in granting these pensions was purely ministerial; that the duties of the board as to granting pensions were discretionary and not subject to review. The case at bar is one where a pension was refused by the board in the first instance. Unlike the provision in regard to the granting of a pension, the action of the board is not final; for the act expressly provides that in case the board refuses to grant retirement pension when asked, the petitioner has the right to select a physician and notify the board of his selection; whereupon the board selects a physician; and the two select a third physician, and the three report whether the applicant is or is not so totally disabled as to be unfit for police duty, and the decision of this committee of physicians becomes final. The duties of the board, in these circumstances, become altogether different from a case in which they grant a pension and place the pensioner upon the list. When the physicians state that the pensioner is in such physical condition that he is entitled to be retired upon half pay, no discretion remains. It is the duty of the board to pay the pensioner as required by the act. It is sought in this case to say that this pensioner is not entitled to his pension, because he was later tried and convicted of conduct unbecoming an officer and dismissed from the police force, and thereby all connection and relation between himself and the board was dissolved. In my opinion, the discharge of the policeman by a conviction of the charge of conduct unbecoming an officer does not in any way affect his right to
Lead Opinion
I. It is the opinion of the majority of this court that the instant case comes within the ruling of the majority of the court in Smith v. Board of Trustees, 173 Ga. 437 (160 S. E. 395).
2. In consequence of the ruling in the preceding headnote, the. court erred in the issuance of a mandamus absolute requiring the payment to the petitioner of the sum of $87 per month for certain months which had already elapsed and the further sum of $87 per month as long as the petitioner may live.
Judgment reversed.