*1 773 com- affirming award of the the circuit court judgment Hostetter, J., P. therefore, affirmed. is, pensation commission Becker, J., concur. Lambert, Nolte, ex Louis John rel. Albert
State of Missouri Bond Edward R. Andrew T. Glassco, J. H. Handlin, Nangle, John Harry J. Powell, Board Trustees Aylward, City System Louis, Retirement Mis the Police St. Judge of the souri, Relators, O’Malley, v. Frank Circuit C. Respondent. Louis, Missouri, of St. Court 228. (2d)W. 8, Opinion Appeals. filed November 1938. St. Louis Court Rehearing Suggestions Support Thereof Motion for a Relator’s Filed 1928. November Rehearing 22, 1938. Motion for Overruled November Relator’s *2 respondent. Phillips Alroy 8.
Edgar Wayman H. and Martin Barrow relators. for which original prohibition
BENNICK, an C. This is City Court of the legal question of whether the Circuit presents jurisdiction adjudicate entertain an action Louis has the St. to brought by police against Board of the Police officer Trustees of System recovery Retirement of St. Louis for the alleged accidental retirement allowance be due provisions System under the of the Police Retirement Act Pension (secs. 8906-8918, 8906-8918, Mo., Ann., R. pp. Stat. secs. [Mo. 6258-6276]). any municipality
Prior to 1926 thereof neither the State nor possessed payment authority provision police make pensions public funds, year adopted from there but in that (Art. 48a) provides amendment to the constitution sec. Assembly power provide law, General shall have the or to ordinance, municipality provide by authorize in this State to pensioning any organized police and the of members of force thereof, widows minor children of deceased members and that nothing in the constitution shall prohibit, contained or be construed prohibit, exercise of such the General *4 Assembly. granted by
Pursuant to the such thus constitutional amendment, Assembly cited, the General in 1929 enacted the act above which, having in cities this population of State five hundred of more, thousand or pension systems creates and establishes retirement or purpose of providing policemen retirement allowances for in such cities.
Roughly speaking, policemen city automatically all in such are made system, general members of the the administration of is vested in a persons, board of trustees presi- of seven comprising the dent of the police commissioners, board of comptroller city, the the of appointed by mayor two members city, the of the and three members by system. elected the members of the retirement provided It is in the act that each trustee shall to be entitled one vote, with four votes necessary board, of the decision that and subject to act, the limitations of the shall, the board of trustees from time, time to regulations establish rules for and the of administration the for the transaction of created the act and several funds board’s business. shall provided that the board of trustees is
Elsewhere it it have full question, that shall funds in and of the trustees conditions, subject terms, funds, all such invest reinvest life insurance imposed by law limitations, and restrictions disposing their making in of companies State Missouri in the investments. provides the act or allowances
With to retirement benefits disability 8911) allowance, ordinary an (section a service retirement benefit, disability benefit. accidental retirement is in computation particular of the benefit or allowance The method of act, specifically fixed with the amount of same instance each dependent upon member’s accummnlated contributions made average compensation. his right al- retired with the service retirement member’s to be contingent disability, not so upon proof is in nowise but
lowance remaining provided which are' for. In either with the two benefits mandatory duty such it is made instances disability trustees to retire member retirement allowance whenever is certified the member is it medical board mentally duty; physically incapacitated performance for further incapacity likely permanent; that such is to be that such member disability should be retired. If natural has resulted from causes ordinary- meaning act, only and not from accident within the appear payable, benefit is but if it is made to totally permanently incapacitated member “has become duty occurring for proximate as the natural and result of an accident while in performance duty the actual at some time and definite ’’ place through negligence no part, on then the member is entitled hi§ to be retired substantially greater with the disability re- accidental tirement allowance. So far controversy leading concerned, as the up this appears Casey, one System a member of the Police Retirement City Louis, of St. totally became permanently incapacitated duty sight the result eyes, of the loss of the of both and that
the medical board so certified to trustees. It Casey’s contention that at date, at a stated while he was Twelfth Street and Clark picking up Avenue of St. Louis police and delivering department messages performance in the actual duty as a policeman, through an accident negligence occurred no *5 his part, on in a sand, dust, lime, storm arose and blew and other foreign eyes, substances in proximate his result as the natural and of which he sustained the loss of vision. Casey Thereafter application made of trustees be
retired with an disability accidental retirement allowance of $119.22 778 upon of aceummulated con- computed the basis his month for life
a average compensation. gather final "We issue tributions in disability accidental that of whether his ivas board was before the merely contrary, it whether, claimed, to the origin he or its as him to disease so to entitle as natural causes attributable to disability Evi- retirement allowance. ordinary only an with retired held, hearings were which by the board series taken at dence was 1, September retired as of him to be finally the board ordered disability $44.43 allowance of ordinary retirement 1930, with computed of his aceummulated contributions upon month basis paid been average compensation, which sum has since taking every each month from and after time of effect the retirement order. application to be retired with an Following the final denial Casey disability allowance, instituted an action accidental in against the board of the Circuit of St. trustees Court Louis, $5,534.46, in which action he seeks to recover the with sum interest, in representing gross monthly pay- total of the difference ordinary accidental ments between retirement allow- period seventy-four elapsing date ances for the months between the of his retirement the board and date of the institution of his action. petition
There after the upon members of board demurred ground that the same did not state sufficient facts to constitute action, upon being cause their demurrer overruled re- spondent, judge presiding assignment at the time in the division of court, they circuit prohibition instituted this in in this jurisdiction court test out the of the circuit court to entertain and adjudicate the pending words, position action before it. In other their petition, stands, fatally is not that the as now is defective or in- sufficient in which it capable some as to amendment, but rather petition in the case which belongs is filed ato class of cases as to no cause of action could be stated over which jurisdiction. the circuit court could have If the fell case within the category, question former merely would of course be one of error only by reviewable appeal or writ error, but inasmuch as the court’s jurisdiction over this brought-in character of case is issue de- murrer, an extraordinary proceeding prohibition in is available to relators. Sevier, 483, (2d) ex rel. v. 339 677; Mo. 98 S. W. State [State Harris, ex rel. v. (2d) 981; 334 Mo. 67 S. W. State ex rel. v. (Mo. Barrett App.), (2d) 33; 118 W. Southern, ex rel. State v. App. 749, Mo. (2d) S. W. 162.] depend result the case necessarily must question creating whether the act police pension systems in this State is having be construed invested the trustees .to sole rights exclusive to determine the of a member of the *6 - par- with a system application, makes .to the board to be who retired ticular benefit' allowance. - jurisdictions that acts the Reported cases from other disclose specifically frequently our own so drawn as to general character of are pension board shall be final particular the provide that the decision of jurisdiction of the courts conclusive, so, where this is the and and the of the board is respect matters committed to with to within superintending to be exercised the obviously limited to a control legal extraordinary How- permitted by recourse to remedies. limits provision making decision ever in our own act there is no the board’s implied language conclusive, unless it is to be from the and provides general 8910 which “the and section that administration system and responsibility proper operation for the the retirement hereby vested in making provisions for effective the of this article are “subject the limitations of this trustees,” and that to board time, article, shall, time establish rules the board of trustees from to by article regulations the administration of created this for funds for the its business.” transaction language We the general cannot believe that this with to fairly investing administration of the act can be read as the board one, courts, any with to bind all trustees and least of findings disposition it makes in connection with the of a fact application particular al- member’s for benefit or lowance. be sure the must finding make a of facts whenever such an
.To application satisfy filed with it in order itself what own as-to its words, official provides conduct should be. In itself other act right what the of the duty member and the correlative shall be contingencies, in certain when is claimed member it that a certain contingency arisen, body has then board as the charged with the upon administration of act is -called- to make an investigation purpose ascertaining of the for the what facts claim may be operate. which the shall law
But board’s may determination of what the ef- facts is not fectual purpose other than to enable it to chart its course of definitely conduct as prescribed and pro- limited the terms and visions of the act. If the case dispute is clear there is no about facts, it may order the member’s with the allowance which both recognize he and it unquestionably due under the hand, law. But on other if there is a the case is not clear and board, dispute facts, protection may about either for its own- application refuse the compel the member .to establish his claim court, or else himself, disavowing the member the correctness of findings upon board’s application, may sue in court to have facts- judicially determined.
Conceding expressly charges the act the board with the re- sponsibility for the empowers administration the same it transaction orderly regulations
establish rules cry saying from has a far it, is still intrusted business finding upon binding and conclusive power make a given been member shall allowance a they question of the relate to the the facts as *7 by to the member comes retirement. That allowance receive on board, what gratuity from the right act itself not as of the the not upon the actual facts of case depends be the allowance shall words, the act In other may the draw. upon conclusion that the granting with to the in the discretion has not vested enjoined upon has the benefit, contrary the but on of may be allowance he duty grant member whatever mandatory the act is to administer by law. the board’s function entitled to Thus established, which means to an allowance is right when the member’s disagreement in and the member as to what his that between it case of right be, judicial them de- may the issue between becomes one for Cook, 173 160 Pac. 126, termination. Cal. v. 411.] [French suggestion, have one further to this opposed As conclusion relators upon question appeal from the act which is that the silence of of implication it was findings necessarily the board’s warrants findings be final It is true that such and conclusive. intended should Supreme Georgia, of a divided that in a similar case the Court Trustees, etc., court, (Smith of 173 Ga. so hold v. Board did reaching though it result the court 395), appear E. that in its would is, thing prove, that about to presupposed very in it set effect appeal power final from which an the board to render a decision of part for it. we provided would lie if the statute had otherwise For our question appeal, think the silence the act instead of findings warranting implication that it was intended that conclusive, board should be would rather indicate final and that it never that the have the was intended board should finality decision, finality authority can of decision. Before there be rendition; authority such has must exist for its where no been conferred, ap- can there be no final decision to constitute basis of peal. brings
This us then aspect case, to a consideration of the which Casey, suing is that of whether the member what he claims be act, the full retirement has chosen the benefit due under court; proper remedy adjudication claim in of his the circuit doubt, Of this we think there our can be no if we are correct in as- sumption that the board trustees has been invested with no binding to render a conclusive decision on facts.
The question respondent at issue in the pending before Casey is totally incapacitated whether “has permanently become for duty proximate as the occurring natural and result of accident while performance in the duty actual place at some definite time and ’’ through negligence part. no so, claims, on his If as he he is entitled allowance, but retired with the accidental to be found, not, only he be retired with as the should board has if allowance. ordinary disability retirement dispute, proper or at
Obviously, with the in least the inferences facts not be facts, matter at issue could drawn from the determined to be certiorari, be limited in recourse to mandamus or would their legal questions arising in with pure to a review connection scope questions jurisdiction. disputed exercise of the board’s fact invoking only original juris- be the circuit court’s determined could Casey’s cases, proceeding, end, directed to that diction civil petition properly the demurrer to the overruled.. preliminary follows for the stated writ pro-^ It reasons Cqm- quashed, hibition heretofore ordered to and the should issue missioner so recommends. foregoing opinion
PER C., adopted CURIAM: The Bennick, opinion prohibition as the of the court: The preliminary writ of here- *8 is, accordingly, quashed. Hostetter, J., tofore ordered issue P. JJ.,
Pecker and McCullen, concur. Assignee Tri-City H. E. Vaughn, Corporation, Discount v. Gilbert R. Graham A. Corporation, Appellant, and Bertha Respondents. (2d) 222. Graham, 121 S. W. Appeals. Opinion St. Louis Court of filed November 1938.