Opinion
Opinion filed May 5, 1942. Motion for rehearing denied May 19, 1942.
1. — Municipal Corporations. In action by member to quash record of Board of Trustees of Police Retirement System, held that affidavit of appeal signed by the attorney of record in the case reciting that he was attorney and agent for the Members of the Board of Trustees and authorized to perfect appeal was sufficient even though statute requires that four votes of the Board of Trustees shall be necessary for a decision of any meeting of said Board.
2. — Municipal Corporations. Under the Statutes relating to the Police Retirement System of the City of St. Louis, the power to initiate proceedings for the allowance of accidental disability benefits, by making application to the Board of Trustees, is vested in any member of the Board of Police Commissioners, held this does mean that such member has power to determine the facts upon which the allowance of benefits depends but such power is vested exclusively in the Board of Trustees.
3. — Municipal Corporations. In action by member to obtain benefits from Police Retirement System claiming to be incapacitated for duty as a natural and proximate result of an accident while in the actual performance of a duty at a definite time and place through no negligence on his part, held where the record of the Board of Trustees fails to show that member was entitled to benefits as provided by the rules and regulations of the Police Retirement System the Circuit Court should not quash the record of the Trustees.
Appeal from Circuit Court of City of St. Louis. — Hon. Joseph J. Ward, Judge.
MOTION TO DISMISS APPEAL OVERRULED. JUDGMENT REVERSED.
Joseph F. Holland and Charles F. Hamilton for appellants.
(1) Appellants, as members of the Board of Trustees of the Police Retirement System of the City of St. Louis, have exclusive original jurisdiction in all matters relating to or affecting the funds under their supervision, including all claims for benefits. Secs. 9468 (6), 9469 (5), R.S. of Mo. 1939. (a) The Board of Police Commissioners made application to the Board of Trustees of the Police Retirement System pursuant to law. Sec. 9469 (5), R.S. of Mo. 1939. (2) Four votes are sufficient to constitute a decision by the Board of Trustees of the Police Retirement System of the City of St. Louis. Sec. 9468 (5), R.S. of Mo. 1939; (3) State ex rel. St. Louis Union Trust Co. v. Neaf (Mo.), 139 S.W.2d 958, l.c. 962; State ex rel. Ruppel v. Weithaupt (Mo.), 162 S.W. 163, 166; State ex rel. St. Louis County v. Evans (Mo.), 139 S.W.2d 967, 968. (a) The writ issued by the lower court was the common law writ of certiorari. Sec. 9468 (6), R.S. of Mo. 1939; (b) If it appears from the record that appellants had jurisdiction of the proceeding here in controversy, and that they neither abused nor exceeded their jurisdiction, and if the face of the record discloses no other error, then the writ must be quashed. (See authorities under point (3) above.) (4) Certiorari brings up only the records of the inferior tribunal for review and the sole questions presented are questions of law. It cannot be made to serve the purpose of an appeal or writ of error. State ex rel. St. Louis Union Trust Co. v. Neaf (Mo.), 139 S.W.2d 958, 961, 962; State ex rel. Lindsay v. Kansas City, 20 S.W.2d 7, 9; State ex rel. St. Louis County v. Evans, supra, 968; State ex rel. Kennedy v. Remmers et al. (Mo.), 101 S.W.2d 70, 71. (5) In a certiorari proceeding no evidence or issues of fact can be considered by the reviewing court, and every lawful intendment will be made in favor of the determination and the regularity of the proceedings below. State ex rel. St. Louis Trust Co. v. Neaf (Mo.), 139 S.W.2d 958, 962; State ex rel. Lindsay v. Kansas City, 20 S.W.2d 7, 9; State ex rel. Long v. Ellison (Mo.), 199 S.W. 984, 987; State ex rel. Shartel v. Skinker (Mo.), 25 S.W.2d 472, 477, 478. (a) Evidence and exhibits sent up in response to the writ, even though incorporated in the return and referred to in the records, may not be considered, and will be disregarded, where same are not properly a part of the record of the tribunal to which the writ was directed. State ex rel. St. Louis Union Trust Co. v. Neaf (Mo.), supra, 962; State ex rel. City of St. Louis v. Caulfield (Mo.), 62 S.W.2d 818, 819. (6) All that can be done under the writ of certiorari is either to quash or to refuse to quash the proceedings of which complaint is made. 14 C.J. Secundum, 319, sec. 175; State ex rel. Manion v. Dawson, 284 Mo. 490, 504; State ex rel. Hoyt v. Shain (Mo.), 93 S.W.2d 992, 999; State ex rel. Long v. Ellison (Mo.), 199 S.W. 984, 987; Schmohl v. Travelers' Ins. Co. (Mo.), 197 S.W. 60, 63; State ex rel. St. Louis County v. Evans (Mo.), supra, 968; State ex rel. Kennedy v. Remmers et al. (Mo.), 101 S.W.2d 70 75. (a) The reviewing court cannot enter judgment or direct what action the inferior tribunal shall take. State ex rel. Hoyt v. Shain (Mo.), supra, 999; State ex rel. Long v. Ellison (Mo.), supra, 987; Schmohl v. Travelers' Ins. Co. (Mo.), supra. 63; State ex rel. Kennedy v. Remmers et al. (Mo.), supra, 75, (7) In this proceeding, the action and decision of appellants is final and conclusive on every question except jurisdiction and power. State ex rel. Miller v. O'Malley (Mo.), 117 S.W.2d 319, 321; Callier v. Chester P. Ste. G. Ry. Co., 158 Mo. App. 249, 255; State ex rel. Walbridge, 62 Mo. App. 162, 166.
Dubinsky Duggan for respondent.
(1) Members of the Board of Police Commissioners have exclusive jurisdiction to determine when any member of the Police Force has become totally and permanently incapacitated for police duty as the natural and proximate result of an accident occurring while in the actual performance of duty, and through no negligence on such member's part. Sec. 9469, R.S. Mo. 1939; State ex rel. Lambert v. O'Malley, 121 S.W.2d 228. (2) Upon application by the Board of Police Commissioners to the Board of Trustees of the Police Retirement System that a member of the Police Force has become totally and permanently incapacitated for police duty as the natural and proximate result of an accident occurring while in the actual performance of duty at some definite time and place, through no negligence on such member's part, and the medical board certifying that such member is physically incapacitated for further performance of police duty, and that such incapacity is likely to be permanent, and that such member shall be retired, it is the clear, unequivocal and mandatory duty of the Trustees of the Police Retirement System to retire such police member with accidental disability benefits. Secs. 9468, 9469, R.S. Mo. 1939; State ex rel. Lambert v. O'Malley, 121 S.W.2d 228. The various cases cited by the appellant deal with fundamentals of the law of certiorari. Those fundamentals in their particular field are as well settled as points of law can be, but the authorities cited have no direct application to the question here involved.
This is an action by certiorari brought by Francis G. Cook against John H. Glassco and others as members of the Board of Trustees of the Police Retirement System of St. Louis, seeking to quash the record of the board, disallowing relator's claim for accidental disability benefits as a member of the retirement system. From the judgment of the circuit court, quashing the record of the board of trustees and directing the board to grant relator accidental disability benefits, defendants appeal.
Relator has filed a motion here to dismiss the appeal. He puts the motion on the ground that the affidavit for appeal fails to recite that appellants complied with subsection 5 of section 9468, R.S. 1939, which provides as follows: "Each trustee shall be entitled to one vote in the board. Four votes shall be necessary for a decision by the trustees at any meeting by said board." Relator says that the affidavit fails to comply with this subsection in that the affidavit does not recite that the board of trustees, at a meeting duly held, reached a decision to take an appeal from the judgment and to appoint an agent to perfect the appeal, and that four or more members voted therefor, and contends that the affidavit is fatally defective for such failure. We can see no substantial merit in this contention. The affidavit was made by Charles F. Hamilton, an attorney of record in the case, and the affidavit recites that he is attorney and agent for the members of the board of trustees. It will be presumed that he was duly authorized to perfect the appeal.
The provisions of the statute, relating to the police retirement system of St. Louis, particularly applicable here, on the merits, are found in sections 9468 and 9469, R.S. 1939.
Section 9468, subsection 6, provides as follows:
"The board of trustees shall have exclusive original jurisdiction in all matters relating to or affecting the funds herein provided for, including, in addition to all other matters, all claims for annuities, benefits, refunds or pensions under this law, and its action, decision or determination in any matter shall be reviewable by the common law writ of certiorari only, and any party to such certiorari proceedings shall have a right of appeal from the decision of the reviewing court."
Section 9469, subsection 5, is as follows:
"Accidental disability benefit: Upon application of a member of the board of police commissioners any member (of the police retirement system) who has become totally and permanently incapacitated for duty as the natural and proximate result of an accident occurring while in the actual performance of duty at some definite time and place through no negligence on his part, shall be retired by the board of trustees provided that the medical board shall certify that such member is mentally or physically incapacitated for further performance of duty, that such incapacity is likely to be permanent and that such member should be retired."
Subsection 6 prescribes the benefits a member shall receive upon accidental disability retirement.
In this case, the board of police commissioners on December 14, 1939, pursuant to a request in writting made by relator to each member of said board, made application to the board of trustees of the police retirement system, requesting that relator's claim for accidental disability benefits, previously filed with the board of trustees, be heard in order that the board of trustees might determine whether relator had become totally and permanently incapacitated for duty as the natural and proximate result of an accident while in the actual performance of duty. On May 27, 1941, after a hearing before the board of trustees, the claim was disallowed. Thereupon, this action was brought.
Relator contends here that the board of trustees was without authority to determine whether or not relator had become totally and permanently incapacitated for duty as a natural and proximate result of an accident occuring while in the actual performance of duty through no negligence on his part, but that such authority was vested solely in the board of police commissioners, and that the board of trustees was authorized only to determine the amount of the benefits to be allowed.
This construction of the statute runs counter to its express terms. The statute clearly and unequivocally vests in the board of trustees "exclusive original jurisdiction in all matters relating to or affecting the funds herein provided for, including, in addition to all other matters, all claims for annuities, benefits, refunds or pensions under this law." It is true the power to initiate proceedings for the allowance of accidental disability benefits, by making application to the board of trustees, is vested in any member of the board of police commissioners, but this does not mean that such member has power to determine the facts upon which the allowance of benefits depends. That power is vested exclusively in the board of trustees. [State ex rel. Lambert v. Flyn (Mo.), 154 S.W.2d 52, l.c. 54.]
Relator further urges that the record of the board of trustees shows that he was totally incapacitated for duty as a natural and proximate result of an accident while in the actual performance of duty at a definite time and place and through no negligence on his part. We do not find that the record so shows. It is true that a statement to this effect is made by relator in his application to the board of trustees and also in his request to the members of the board of police commissioners, but the board of trustees was not concluded by this mere ipse dixit of the relator.
The Commissioner recommends that the motion to dismiss the appeal be overruled and that the judgment of the circuit court be reversed.
The foregoing opinion of SUTTON, C., is adopted as the opinion of the court. The motion to dismiss the appeal is accordingly overruled and the judgment of the circuit court reversed. Hughes, P.J., and McCullen and Anderson, JJ., concur.