*1 wit- job. The employed on that men five were prove that ness would he September, time, during same that at about ness testified then 1425 Belle Grace at for Mr. kind work the same of had a contract for job, on that employees used the number Avenue, and when asked appellant’s objection, and respondent’s again sustained referee that show the evidence would proof an offer then made counsel testified job. Witness further on that employed three men were at Grace do work Mr. with 4th had a contract he about October men em- the number of state asked to Chamberlain, and when .5627 objection to respondent’s again sustained' there, referee ployed testimony would made proof was question, and an offer of job. on that employed men show that he two had reason, For that improperly excluded. foregoing The was evidence admitted, which was evidence the further reason and for the trial fully developed at issue, not bearing principal was upon the Commission to the remanded referee, cause should be before the hearing. new directions remanded with and the cause is reversed and remand the Commission the trial to reverse the award of court J., McGullen, J., and Hughes, P. it for further action. cause concur'. Respond Missouri, Cook, of Francis G.
State of Relation J. Handlan, James ent, Glassco, H. Edward R. v. John Harry Members J. Powell, as John J. Moran, Nangle, System Retirement of the Board of of the Police Trustees of St. Louis : and Edwin E. Huffman Nolte, and Louis as Ex Officio the Police of the Board of Trustees of Members Appellants. System (2d) W. 161 S. Retirement of St. 438. Appeals. Opinion May 5,
St. Louis Court 1942. rehearing May 19,
Motion for denied 1942. *2 for appellants. Hamilton Joseph Holland and F. F. Charles *3 Dubinsky Duggan & respondent. for brought by Francis action certiorari
SUTTON, C. -This is an Board of the as members against G. John H. Glassco others Cook seeking System of St. of the Police Retirement of Trustees disallowing claim for board, relator’s quash the record of the to system. retirement disability a member of the benefits as accidental record court, quashing the judgment of circuit From grant directing to relator accidental the board board trustees disability appeal. benefits, defendants puts the appeal. a He here to dismiss
Relator motion has to recite that ground appeal motion for fails on the affidavit 9468, R. S. appellants complied with 5 of section subsection provides which trustee shall be entitled one as follows: “Each necessary a in be decision vote the board. Four votes shall says any meeting by at said board.” Relator trustees in affidavit affidavit this comply with subsection fails duly held, meeting a does not trustees, recite that the board and to reached decision to take an from the appoint agent perfect four more members appeal, an and that or fatally therefor, voted defective contends the affidavit for such failure. We can no merit in contention. see substantial *4 attorney by The Hamilton, affidavit was made an of Charles F. case, attorney record in the affidavit and recites that he is and the agent for the members presumed of the board of It will be trustees. duly he perfect appeal. was authorized to the provisions statute,
The of relating the to the police retirement system of particularly applicable here, merits, St. on the are 9468 9469, found in sections R. S. 1939. .and 9468, 6, provides Section subsection as follows: “The board of shall original jurisdiction trustees have exclusive relating affecting in all matters to or the provided funds herein for, in addition all including, matters, to other all annuities, claims for benefits, pensions or refunds under law, action, and its decision any in or determination matter by shall be the reviewable common only, any law writ of certiorari and party to certiorari pro- such ceedings a right shall have of from the the decision of review- ing court.” 9469, 5, as follows:
Section subsection is of member of a disability Upon application benefit: “Accidental retire- (of police any member police .the board of commissioners incapaci- totally permanently system) has and ment who become accident duty result of an proximate for natural and tated as the duty some definite occurring performance in of while the actual retired through negligence part, be place on shall time no his certify shall by of board provided the board trustees that the medical incapacitated for further mentally physically member or such is likely permanent be incapacity of to duty, such performance and that such retired.” member should be upon prescribes a receive
Subsection member shall benefits disability accidental retirement. case, 14, police
In this December the board of commissioners on 1939, pursuant request writting to a in relator each made to board, application member of said of trustees of made to the board claim for police system, requesting retirement relator’s of disability previously accidental with the board benefits, trustees, might be in heard order that board determine of trustees totally incapacitated whether relator permanently had become duty for in as the natural and an while proximate of accident result performance duty. hearing the actual May 27, of after a On before the Thereupon, board of trustees, the claim was disallowed. brought. this action was
Eelator contends here that the board of was without trustees authority to totally determine not whether or relator had become permanently incapacitated duty proximate as natural and of an oecuring result accident while in the actual performance of duty through negligence authority no part, on his but that such was ’ solely vested in" police commissioners, board of and that board trustees was authorized only to determine the amount to be benefits allowed. This construction of the express statute runs counter its terms. clearly and unequivocally statute vests in board of trustees original jurisdiction “exclusive in relating all affecting matters to or provided for, the funds herein including, in addition all other all matters, annuities, benefits, claims for refunds or pensions under this law.” It is power true the proceedings initiate for the al lowance of disability accidental benefits, making application to the trustees, any board is vested in member of police the board of commissioners, but this does not mean that power such member has upon to determine which the facts allowance of benefits depends. *5 power exclusively That is vested in the board of trustees. ex [State Flyn rel. Lambert v. (Mo.), (2d) 52, S. W. l. c. 54.] further urges Eelator that the record of the board of trustees shows totally incapacitated duty that he was proximate as natural and duty at a performance in the actual result of an while accident We negligence part. on through no his place and definite time true that a statement record It is do not find so shows. to the board of application in his effect is made relator this request of the board also to the members trustees and in his was not concluded police commissioners, but the board of trustees vpse dixit of relator. mere the motion to recommends that dismiss The Commissioner judgment circuit appeal be overruled and of the court be reversed. t foregoing opinion adopted
PER C., CURIAM:—The is Sutton, opinion as the of the court. motion to dismiss accordingly and the of the overruled circuit court reversed. J., Hughes, Anderson, JJ., P. McCullen concur. Respond William F. Niehaus and Carrie Niehaus, (Plaintiffs) Pipe Joseph Greenspon’s Corporation. ents, (De v. Son Appellant. 164 W. fendant) S. (2d) 180. Opinion Appeals. July Louis St. Court of 1942.