(specially concurring).
Under R.C.M. 1947, section 68-901, subd. (h), it is the Industrial Accident Board which determines when a member of the Montana Retirement System, who appears before that Board to claim compensation as provided in our Workmen’s Compensation Act, is totally and permanently disabled. With that determination the Public Employees’ Retirement System of the state and its Board (hereafter the Retirement Board) has nothing to do. Nor may the Retirement Board make that determination in any case where the Industrial Accident Board has not done so. The statutes themselves are conclusive here.
In Ebel’s case before us the Industrial Accident Board did not pay him any compensation for total and permanent disability. The record shows precisely this. It did not certify to the Retirement Board any finding or determination by it to the effect that Ebel was totally and permanently disabled, or that any compensation paid him by it was for total and permanent disability. It could not; for the findings it made were to the contrary.
It follows that neither the Retirement Board nor the courts can deduct from the benefits paid him as a retired public employee any of the compensation awarded him by the Industrial Accident Board when it concluded with him the compromise lump sum settlement of his claim before that Board which appears in this record. The statute, section 68-901, subd. (h), gives it no such authority. More specifically on the facts of this record the Retirement Board was without jurisdiction to make any such deduction as it did in Ebel’s ease. Its plain duty was *550to pay Ebel the retirement benefits which it had found due him without deduction at all for anything paid him by the Industrial Accident Board, for a “57%, permanent partial disability of the body as a whole”.
Therefore I would affirm the judgment of the district court which is brought before us on this appeal; and in order .to do so I think nothing more need be written. Particularly I do not think it our province to comment upon the right of the Retirement Board to employ private counsel as it may think best in the exercise of a sound administrative discretion. I do not believe under the statutes of the state that Board necessarily must rely solely upon the services and opinions of the attorney-general.
I think the allowance of attorney’s fees in the sum of $250 to the relator Ebel as damages sustained on account of this appeal from the judgment of the district court, which correctly granted him a writ of mandate, is reasonable and justified by the record.
But other than as I have indicated above I do not concur in what is written in the majority opinion.