Gen. No. 11,156 | Ill. App. Ct. | Jun 3, 1904
delivered the opinion of the court.
The judgment complained of requires the Board of Police Pension Fund Commissioners to retire appellee from active service and pay him a yearly pension from the date of filing his first application, April 10, 1898. It is urged in behalf of appellants that as the petition shows appellee had been dropped or discharged from the police force March 14, 1898, and that he was not therefore a member of the force at the date of his application, the board was without power to retire from active service and pension one whose connection with the force had already terminated; that appellee was therefore without legal right to retirement and pension under the terms of the statute.
The statute in question (R. S. chap. 24, sec. 391, et seq.) provides first for the creation, of the pension fund, specifying sources from which its income may be derived. One of these is a provision for the deduction of one per centum per month from the salary of each member of the police force, provided no member shall be compelled to pay more than two dollars a month from his salary. The two sections more directly applicable in the present case ar.e as follows :
“ 4. Whenever any person, while serving as a policeman in any such city, village or town, shall become physically disabled while in, and in consequence of, the performance of his duty as such policeman, said board shall, upon his written request, or without such request, if it deem it for the good of said police force, retire such person from active service and order and .direct that he be paid from said fund a yearly pension, not exceeding one-half the amount of the salary attached to the rank which he may have held on said police force for one year next preceding such retirement; ¡Provided, that whenever such disability shall cease such pension shall cease.
“ 5. Eo person shall be retired as provided in the next preceding section, or receive any benefit from said fund, unless there shall be filed with said board certificates of his disability, which certificates shall be subscribed and sworn to by said person and by the police surgeon (if there be one), and two practicing physicians of such city, village or town, and such board may require other evidence of disability before ordering such retirement and payments as aforesaid.”
In the seventh section of the act is found a provision requiring all members of the police force retired as above to report to the chief of police once every month, and it is provided that in case of emergency they may be assigned to such duty as the chief of police may direct. While, therefore, the statute apparently contemplates that a policeman physically disabled while in, and in consequence of the performance of his duty shall be retired from active service, it regards him as still a member of the force notwithstanding such retirement, subject to be assigned to duty in case of emergency. It is true that statute does not in terms require that he shall be a member when he makes his request for retirement and pension, but only that he shall have received his disability while in, and in consequence of, the performance of his duty as such member. Yet no power is conferred upon the Board of Police Pension Fund Commissionérs to reinstate a policeman who has been discharged. Appellee was not, apparently, under the protection of the Civil Service Act, and whatever may have been the reason assigned for his discharge, it does not appear and is not claimed that the discharge was not at the time lawful, even if unjust. He can only be reinstated by rightful authority, and until reinstated, it is not, we think, in the power of the board to retire and pension him.
Section 5 of the act which is above quoted, gives the board discretionary power to hear and determine upon evidence whether an applicant is entitled to be retired for disability and pensioned. The petition in this case shows that the board “ refused and still refuses to grant petitioner’s request to retire as aforesaid, and to pay or cause to be paid to petitioner the yearly pension to which petitioner is justly entitled.” But for aught that appears such refusal may have been based upon an insufficiency, in the opinion of the members of the board, of the affidavits presented, and upon the want of other evidence of disabilit\r sufficient in their judgment to warrant action. Mandamus is an extraordinary remedy, and the writ will not be awarded unless the party applying therefor has a clear right to have the thing done which he seeks to have done, and by the body sought to be coerced. Swift, Mayor, v. Klein, 163 Ill. 269" date_filed="1896-11-09" court="Ill." case_name="Swift v. Klein">163 Ill. 269, 276. While mandamus may lie to compel action to determine a question of fact the writ will not issue requiring the question to be determined in any particular way, where, as in the case at bar, the members of the board whom it is sought to compel have the right to exercise their own judgment. People, ex rel. Sheppard v. Illinois State Board of Dental Examiners, 110 Ill. 180" date_filed="1884-05-19" court="Ill." case_name="People ex rel. Sheppard v. Illinois State Board of Dental Examiners">110 Ill. 180, 185; Ill. State Board of Dental Examiners v. The People, ex rel. Cooper, 123 Ill. 227" date_filed="1887-09-26" court="Ill." case_name="Illinois State Board of Dental Examiners v. People ex rel. Cooper">123 Ill. 227, 245; Kelly v. City of Chicago, 62 Ill. 279" date_filed="1871-09-15" court="Ill." case_name="Kelly v. City of Chicago">62 Ill. 279, 281.
It was error to overrule appellants’ demurrer to the petition, and the judgment must therefore be reversed and the cause remanded.
Reversed and remanded.