dissenting.
I am unable to concur in the foregoing opinion. The order of the trial court, directing that the writ of mandamus issue as prayed by the petitioner, contains among its findings of fact one to the. effect that the Board of Trustees of the Firemen’s Pension Fund had denied the petitioner’s right or claim to a pension, without giving him an opportunity of presenting his claim or in any manner investigating his right to a pension and without hearing any evidence of the petitioner or any one in his behalf.
The law under which the petitioner seeks a pension at the hands of the Board of.Trustees of the Firemen’s Pension Fund provides that the said board “shall hear and decide all applications for relief 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.” Section 3, Firemen’s Pension Act, Hurd’s Rev. St. 1908, 398 (J. & A. ¶ 1890).
Under this provision it becomes the duty of the board of trustees to “hear and decide” a petition for a pension, whenever one may be presented, but under the law the board is left to its discretion as to how it shall decide any application for a pension. Under the finding of fact made by the trial court as quoted above, it would have been proper to enter an order directing that a writ of mandamus issue commanding the board of trustees to “hear and decide” the case in question, but it was error, in my judgment, to direct that a writ of mandamus issue commanding said board to decide the case as specified in the court’s order. In People v. State Board of Dental Examiners, 110 Ill. 180, our Supreme Court said: “A subordinate body can be directed to act, but not how to act, in a matter as to which it has the right to exercise its judgment. * * * Where a subordinate body is vested with power to determine a question of fact, the duty is judicial, and though it can be compelled by mandamus to determine the fact, it cannot be directed to decide it in a particular way, however clearly it be made to appear what the decision ought to be.” The following decisions are to the same effect. McCann v. Harris, 114 Ill. App. 308; County of St. Clair v. People, 85 Ill. 396, 401; People v. City of Chicago, 234 Ill. 416, 421; People v. Henry, 236 Ill. 124, 127; People v. Webb, 256 Ill. 364, 373.
Additional reason is furnished for following and applying this rule in a case, such as the one at bar, in which the statutes creating and prescribing the duties and functions of the board of trustees provide that their decisions on applications for a pension ‘ ‘ shall be final and conclusive, and not subject to review or reversal except by the board.” Eddy v. People, 218 Ill. 611, 615, 616; Calder v. City of Chicago, 176 Ill. App. 313, 316, 317; Benner v. City of Chicago, 176 Ill. App. 317, 318; Wilke v. Wilson, 176 Ill. App. 319, 321. O’Connor v. Board of Trustees of Firemen’s Pension Fund of City of Chicago, 247 Ill. 54, contains nothing to the contrary.
The fact as recited by the trial court in its order, that the Corporation Counsel of the City of Chicago may have submitted an opinion to the board of trustees to the effect that the petitioner was entitled to the pension for which he had applied, does not alter the situation. People v. Board of Trustees of Firemen’s Pension Fund, 95 Ill. App. 300, 302.
For this reason, I am of the opinion that the order appealed from should be reversed.