(specially concurring in denying and disallowing the petition for rehearing herein).
By petition for rehearing counsel for the Retirement Board urge that on December 15, 1955, that Board acting under R.CM. 1947, section 68-1001 (a), determined the relator Ebel was no longer incapacitated as had been its original finding in his case, and accordingly canceled his “disability retirement ef*551fective as of December 1, 1955.” This action by the Retirement Board, it is said, is not subject to review by the courts. Hence the judgment of the district court brought before us on this appeal and our affirmance of that judgment, it is argued, is necessarily wrong. The point made here I think must be met and answered.
This proceeding was commenced in the lower court on December 2, 1955, thirteen days before the Retirement Board acted to deny Ebel any retirement benefits at all after December 1, 1955. Implicit in the express findings made by the district judge in this matter is his further finding that the Retirement Board acted here in Ebel’s case both capriciously and arbitrarily, i.e., to punish him for refusing to abide by its ruling that it could lawfully deduct the award made him under the Workmen’s Compensation Act from his disability retirement benefits payable by the Retirement Board.
There is substantial evidence to support this implied finding of the trial court. The weight of the evidence taken there is certainly not to the contrary. We are accordingly bound by it. In these circumstances then we may not set aside the district court’s judgment,'which rests in part at least thereon. Otherwise phrased, it is clear to me on this record that by its order of December 15, 1955, the Retirement Board could not defeat Ebel’s proceeding theretofore brought on December 2, 1955, for a writ of mandate to compel the payment of what was then due him as his case stood at that time; and I think the district judge was right in so holding when he entered the judgment below in Ebel’s favor. Moreover, because this arbitrary order was plainly entered in bad faith to effect an end which lay beyond the Retirement Board’s lawful sphere of action, I agree further with the trial judge that it must be disregarded. The judgment of the district court rightly does so.
But that judgment is explicit to the point that thereby the Retirement Board is ordered to pay Ebel retirement benefits amounting to $138.82 a month only as "long as relator’s qualifications for such benefits shall continue unchanged. ’ ’ Here is ex*552press recognition of the Retirement Board’s authority to act under R.C.M. 1947, section 68-1001(a), whenever Ebel’s case justifies action. Nothing contained in the judgment of the district court, which we affirm here, justifies the contention that either that judgment or our affirmance ousts the Retirement Board of the lawful jurisdiction which is plainly its own under section 68-1001 (a).
My concurrence in that affirmance and what I have written to the point that the judgment affirmed is right is not to be construed as an intimation otherwise. Particularly I disavow any suggestion that the Retirement Board may be coerced or its acts reviewed in the courts when that Board acts within the jurisdiction and in the exercise of the discretion given it by the statute. Because the judgment below does not presume to trench upon that jurisdiction, or to infringe upon that discretion, and because my concurrence in the- affirmance of that judgment, fairly read, is likewise not designed to do so, I concur in the denial of the appellant Board’s petition for rehearing.
MR. JUSTICE ANGSTMAN:I think there should be deleted from the opinion the reference to the board’s appointment of counsel which question was not before the court, or the petition for rehearing should be granted.