Eddy v. People ex rel. Welter , 1905 Ill. App. LEXIS 703 ( 1905 )

Mr. Justice Adams

delivered the opinion of the court.

The sole question is whether the petition is sufficient, on its face, to sustain the judgment. It is not claimed that there was any irregularity in the proceedings of the board of trustees, on the application of the petitioner for a pension, or that the same was not granted in strict conformity with the law.

It is averred in the first part of the petition that Dominick Welter, while a member of the police department, held the position of secretary, or inspector, and drill master of the department, and while engaged in the actual discharge of the duties of his position, June 25, 1884, he was stricken down and became physically ill, because of physical efforts necessarily exerted by him in the performance of his duties, and that, as a result of ailments and disability so caused, he died.

It is further averred that, after the death of Dominick Welter, petitioner applied to the trustees of the police and firemen’s relief fund for the payment to her of a pension of not exceeding $600 per annum, so long as she should remain unmarried, and that she submitted to said trustees proof that the death of said Dominick was the immediate effect of an injury received by him while in the discharge of his duty as a member of the police department; and that the trustees found the application to be true • and awarded petitioner an annual pension of $360, so long as she should remain unmarried.

It is further averred that, subsequently, under the acts of the legislature mentioned in the petition, petitioner’s pension ivas continued and increased, and AAas paid down to October, 1903.

These averments are material, are admitted by the demurrer, and must, therefore, be assumed to be true, and they shoxv clearly, as Ave think, that the petitioner is entitled to a pension. Is the effect of these averments avoided or nullified by the notice from the clerk of the board of trustees set out in the petition ? The notice is dated October 18, 1903, and is as follows :

“In accordance with a resolution by the pension board I am instructed to notify you that further payment will be withheld for lack of evidence that death was caused by injury received while in the performance of his duties as required by law. Please prepare your papers and evidence and present them a.t this office at once, thus avoiding any unnecessary delay.

C. F. "White, Clerk.”

This certainly appears to be rather a summary proceeding in the case of one solemnly adjudged, after a full hearing, to be entitled to a pension in 1885, or about twenty years ago, and Avhose pension Avas continued, without objection on the part of the trustees, for some eighteen years. The notice does not set forth any resolution of the board, or any copy of any record of the board; nor does it even state any investigation by the board, or wherein evidence furnished eighteen years before the date of the notice was found unsatisfactory. It does not appear that there is any record of any action of the board in the premises. For aught appearing the notice Avas the mere unauthorized act of the clerk. We do not think that in passing on the demurrer, the notice is entitled to any consideration.

It must be presumed that the trustees kept a record of their proceedings on the relator’s application for a pension, as by section 3 of the act of 1877 (Hurd’s Rev. Stat. 1903, p. 362) they Avere required to do, and that the record shows a finding and adjudication in her favor. The board, in passing on an application for 'a pension, acts in a quasi judicial capacity, and its decision is quasi judicial, and we cannot concur in the contention to which counsel fur appellants is apparently forced by the necessity of the case, that the decision of the board is of so little weight that it can, after a lapse of many years, and in the absence of the person pensioned, review the evidence heard by a former board, determine that such former board reached an erroneous conclusion from the evidence, set aside that board’s decision and strike the pensioner’s name from the pension list. The statute does not require that the evidence, on application for a pension, shall be preserved in any way, and it is doubtful, to say the least, whether the evidence on the petitioner’s application has been preserved. The petitioner was pensioned in 1885, and section 12 of the act of 1887 provides as follows:

“ All members of the police force, and any widow or child or children of such members of any such city, village or town, who, upon the taking effect of this act, shall be entitled to receive any benefit under an act entitled ‘ An Act to amend an act for the relief of disabled members of the police and fire departments in cities and villages,’ approved May 24, 1877, in force July 1, 1877, as amended by an act approved May 10, 1879, in force July 1, 1879, shall receive no payments or benefits under said "act. but shall, in lieu thereof, be entitled to the benefits provided for in this act. But if at any time there shall not be sufficient moneys belonging to such fund to pay the allowances of such board to its beneficiaries, then they shall be paid pro rata, from such fund, but no allowance or order of such board shall be held to create any liability against any such city, village or town, except upon the fund so set apart as aforesaid "for the payment thereof.” Hurd’s Rev. Stat. 1903, p. 368.

We are of opinion that the demurrer was properly overruled, and the judgment will be affirmed.

Affirmed.

Mr. Justice Brown took no part in the decision of" this case.