On Rehearing.
LAND, J.Act 43, p. 52, of 1902, § 3, declares that the defendant board “shall hear *1083and decide all applications for relief or pensions under this act, and its decisions on such applications shall be final and conclusive, and not subject to review or reversal except by the board.” The act itself thus disposes of this mandamus proceeding, unless its provisions be held unconstitutional, and they have not been assailed on that ground. The relatrix claims a pension unci er the act, and her complaint is that her application, after discussion and consideration, was refused by the board in violation of the law. It is plain that the functions of the board are not ministerial, but quasi judicial. In executing the act it was necessary for the board to construe its provisions. In the case at bar the board decided that the relatrix was not entitled to the benefit of the act because her claim accrued before the pension fund had accumulated $20,000 to its credit.
The question is whether this court can in a mandamus proceeding inquire into the correctness of the rulings of the defendant board. The statute itself answers, “No.” Our former opinion practically nullifies that in-ovision of the act which declares that the decisions of' the board shall not be subject to review or reversal, except by the board itself. The act itself provides for the gratuitous distribution of a fund to be created out of the revenues of the state, and in oitr opinion it was competent for the Legislature to annex the condition that the decisions of the board on all applications shall be final and conclusive. The assessments paid by the husband of the plaintiff went into the mutual benefit and relief fund, which the act in question continued in full force and effect until the sum of $20,000 was obtained and placed to the credit of the pension fund proper. See section 23. In the interim the board was authorized to appropriate from the funds the sum of $500, to be paid to the beneficiary, whenever’ an active or retired fireman shall die or be killed. See section 31.
As section 23 specially provides “that no pensions shall be paid or money drawn from said pension fund for any purpose until the sum of $20,000 shall be to its credit,” it follows necessarily that the “funds” contemplated by section 21 belong to the mutual benefit and relief fund. It was stated at the bar, and not denied, that the relatrix has already received $500 as a beneficiary under section 21. Be this as it may, her only equity was against said relief fund, to which her husband had contributed, and she had no vested right or interest in the pension fund to be created out of revenues belonging to the state. Hence there was nothing to prevent the Legislature from annexing to the grant the condition that the decisions of the board should be final and conclusive. We think that the same conclusion can be drawn from the general principles of law governing the issue of the writ of mandamus against executive officers and boards when performing acts not merely ministerial, but involving the exercise of judgment. This question was fully considered by the Supreme Court of the United States in Decatur v. Paulding, 14 Pet. (U. S.) 497, 10 L. Ed. 559. That was a mandamus suit to compel the Secretary of the Navy to grant Mrs. Decatur a pension under an act of Congress. The relief prayed for was denied. We make the following extracts from the opinion handed down in that case by Chief Justice Taney, to wit:
“The duty required by the resolution was to be performed by him as the head of one of the executive departments of the government, in the ordinary discharge of his official duties.
“In general, such duties, whether imposed by act of Congress or by resolution, are not mere ministerial duties. The head of an executive department of the government, in the administration of the various and important concerns of his office, is continually required to exercise judgment and discretion. He must exercise- his judgment in expounding the laws and resolutions of Congress under which he is from time to time required to act. * * *
“The court could not entertain an appeal from the decision of one of the Secretaries, *1085■nor revise his judgment in any case where the law authorized him to exercise discretion -or judgment. Nor can it by mandamus act directly upon the officer, and guide and control his judgment or discretion in the matters committed to his care, in the ordinary discharge of his official duties.”
This doctrine is as applicable to an executive board as it is to an executive officer.
In United States v. Scott (C. C.) 25 Fed. 472, the judge, citing several authorities, ■said:
“But nothing is plainer than that thg Interior Department is a special tribunal, of judicial or quasi judicial powers, appointed by law to ascertain and determine all the facts, and to adjudicate and allow a pension to the party entitled, and that its action is final and ■conclusive.”
In State ex rel. Fouche v. Verner, 9 S. E. 113, decided by the Supreme Court of South Carolina in 1889, it was held that, as a pen-sion board in the examination of an application is required to exercise discretion, its judgment, approving or disapproving it, cannot be controlled by mandamus. The court cited Decatur v. Paulding, 14 Pet. (U. S.) 497, 10 L. Ed. 559, as the leading case, which had been affirmed in many subsequent cases, among them, Brashear v. Mason, 6 How. (U. S.) 92, 12 L. Ed. 357; U. S. v. Seaman, 17 How. (U. S.) 225, 15 L. Ed. 226; U. S. v. Guthrie, 17 How. (U. S.) 284, 15 L. Ed. 102; Gaines v. Thompson, 7 Wall. (U. S.) 347, 19 L. Ed. 62.
We have cited the three cases supra because they were pension cases, but the same rule is of general application, and has been formulated by Mr. High as follows, viz.:
“That rule is that in all matters requiring the exercise of official judgment, or resting in the sound discretion of the person to whom a duty is confided by law, mandamus will not lie, either to control the exercise of that discretion, or to determine upon the decision which shall be finally given. Extraordinary Legal Remedies, § 42.
In State ex rel. Moulin v. Mayor, 49 La. Ann. 1324, 22 South. 354, this court said:
“The writ of mandamus may .issue to compel a public officer to perform a ministerial duty, but it must clearly appear that the duty is one which from its character leaves no discretion in the officer to do or not to do.”
A pension board, which hears and determines applications for pension, certainly does not perform a merely ministerial duty. As was said by the Supreme Court of South Carolina in Fouche v. Verner, supra:
“To approve or disapprove the application necessarily implies the duty of examination, both of questions of law and fact, for the purpose of determining whether the application should be approved or disapproved; and this necessarily implies the exercise of judgment.”
In the very case at bar the rights of the relatrix are doubtful. The trial judge held that she was not entitled to the absolute pension claimed in her application, but only to a conditional pension. This circumstance demonstrates that the determination of her claim required the exercise of judgment by the defendant board.
Both the statute and general principles of jurisprudence forbid us to review or reverse the decision of the pension board. Our interference in this case would be a precedent for the exercise of appellate jurisdiction through writs of mandamus over all pension boards in the state.
It is therefore ordered that our former decree herein be vacated, and the judgment of the district court be annulled, avoided, and reversed; and it is now ordered, adjudged, and decreed that this suit be dismissed, at the cost of the relatrix in both courts.
See dissenting opinion of NIGHOLLS, J., 42 South. 511.