with whom McQUADE, Justice, concurs, dissenting:
First, I must state that this court is laboring under a tremendous handicap in resolving the issues raised by the parties because of the meager information contained in the stipulation of facts upon which this cause was submitted to the trial court and, of course, the same insufficient facts are now before this court. Because these facts as stipulated are so skimpy' — for instance the record does not contain respondent’s written request for disability retirement nor the order of the Board granting such retirement, presumably on July 18, 1960 — it appears to me we must resort to the acts of the parties or their failure to act in order to properly construe the statutes involved and to determine whether or not respondent is in fact entitled to the permanent regular retirement at the increased rate of pay as he contends.
The stipulated facts do indicate that respondent became an active policeman for the City of Coeur d’Alene on July 18, 1941 and that he actively served on the force until July 15, 1960, when he was granted a disability retirement — a total disability retirement for the full amount provided under the 1947 act, and being one-half of the salary he had received during the preceding year as chief of police. It is interesting to note that the stipulated facts disclose this retirement order of July 15, 1960, was granted by the Board “because of illness attributable in great part to his services as a policeman.” The record is silent as to the nature of the illness which rendered respondent totally disabled from rendering any service to the police department. The record is also silent on whether respondent has ever requested or so much as indicated his desire to be reinstated to active service in the department in any capacity. The facts merely state “plaintiff has continued to receive said retirement pay to this date.” From this statement we must presume respondent has not taken any steps toward returning to active duty with the police department.
It is also worthy of note that on March 13, 1961, I.C. § 50-2116 was drastically amended and supplemented by providing, among other things that :
“(a) Any paid policeman incapacitated by injury * * * or by illness as a result of the performance of his official duties as a paid member of a police department shall be retired so long as such disability shall continue in a degree which prevents efficient service, and during such disability * shall be paid from the said fund * * * disability benefit as follows :
“(1) For disability attributable wholly to service as a paid policeman, a monthly sum equal to one-twenty-fourth of the amount of the annual salary attached to *697the rank which he held in the said police department of the city, or town, for a period of one year next preceding the date of such retirement;
"(2) For disability attributable only in part to service as a paid policeman, a monthly disability benefit in an amount to be fixed by the board of police retirement fund commissioners, but commensurate with the extent or proportion such service-connected disability relates to such person’s pre-existing injury or infirmity. The said board may increase or decrease such monthly benefits whenever the impairment in the person’s earning capacity warrants an increase or decrease, but in no event shall a monthly benefit paid to such person exceed the benefit provided under sub-paragraph (1) above.
“(3) Provided, however, that if any such paid policeman is entitled to receive compensation under the Workmen’s Compensation Law of the state of Idaho as it now exists, or shall hereafter be amended, the amount payable under this act shall be reduced by the amount to which said paid policeman is entitled under the Workmen’s Compensation Law.
“(4) The board of police retirement fund commissioners shall require medical examinations of all applicants for retirement by reason of disability, and shall, at the discretion of said board, require periodic medical examinations of persons receiving a disability retirement allowance. The said board shall prescribe general rules for medical examinations required hereunder, and may provide for the discontinuance of any disability retirement allowance and forfeiture of all rights under this act for any person who refuses to submit to such an examination.
“(5) The decision of the said board as to eligibility allowances or benefits shall be final.
“(6) When a disability beneficiary is determined by the said board to be not incapacitated in a degree which prevents efficient service, his disability retirement allowance shall be cancelled forthwith. If thereafter such person be reinstated in the service of his department, he shall be credited with the number of years of continuous service with which he was credited at the time of his retirement for disability.
“(7) Such a person, who for any reason is not reinstated in the service of his department, shall receive separation benefits according to his entitlement, as provided under Section 50-2115, Idaho Code.” (1961 Session Laws, pp. 599-600)
The record contains no reference of any action by the Board to require a medical examination of respondent at any time during the period he has been drawing full disability retirement in spite of the fact that the original order granted respondent’s retirement because of an illness attributable in great part to his services as a policeman. Therefore we must assume that the Board in fact did not require any such medical examination to determine how much of respondent’s disability was attributable to service as a paid policeman as provided in the 1961 amendment hereinbefore quoted.
From these acts or failure to act on the part of the respondent and the Board, I can reach no other conclusion except that the July 15, 1960 retirement was, in fact, intended by all the parties involved to be a permanent total disability retirement of respondent. This conclusion is supported by the fact that respondent has not rendered any active service to the department since the date of his retirement, i. e., July 15, I960; and by his petitioning the Board for a permanent regular retirement and by bringing this action to require the Board to allow such retirement, respondent has conclusively evidenced his intention never to return to active service with the police department.
Taking into consideration these assumed facts and the conclusions to be drawn therefrom as set forth herein, the reasoning of the California Court of Appeals in Brooks v. City of Los Angeles, 243 Cal.App.2d 436, 52 Cal.Rptr. 392 (1967), is most persuasive, *698and, in my opinion, should be followed by this court. The majority opinion recognizes that Brooks is contrary to the result reached by the majority and attempts to distinguish the two factual situations noting some difference in terminology used in our statutes and in the Los Angeles city charter. With this attempted distinction I do not agree.
In Brooks the plaintiffs had all received disability pensions and they had not been restored to active duty. This is precisely the factual situation with which we are faced in the cause at hand. One section of the city charter provided for “service” pensions rather than the “disability” pensions, which the retired officers had been receiving, after the expiration of twenty years or more from their employment dates. The particular part of the section relied upon by the officers provided in part:
“In computing the aggregate period of service of a member * * * for the purposes of this section, there shall be included the period or periods of time, if any, while such member was on disability retirement * * *.”
The court paraphrased this in the following manner:
“Stated in another way, plaintiffs’ claim is that since 20 years or more have elapsed from the times they were appointed as employees, they are entitled to service pensions even though they have been retired on disability pensions for many years and are still disabled and have not been restored to active duty.”
This is exactly the contention of respondent herein.
The court further pointed out that under certain sections of the charter there was provided that a disabled member shall be retired from further service and shall thereafter receive a pension, during his lifetime, provided that the pension shall cease if the disability ceases and if the member shall have been restored to active duty. Another section provided that pensions so granted should remain in full force and effect for the period granted. In construing these provisions the California court concluded :
“If plaintiffs, who already have been retired from further service under sections 182 and 182j4 (on account of disability), and have not be restored to active duty, were now permitted to be retired also under section 181 (for 20 years or more of service), it would appear that they would be entitled to continue receiving their present disability pensions. * * * ”
The court ruled that it was not reasonable to conclude that the retirement or pension sections of the charter were intended to create such a result.
It must here be pointed out that there is nothing in the various statutes relied upon by respondent herein prohibiting him, if his contentions be upheld, from petitioning for and being granted both the permanent disability retirement, which he is now receiving and has been receiving for eight years, and the permanent regular retirement which he seeks in this action. The mere fact that respondent voluntarily agreed in his amended complaint to relinquish all his rights for retirement under I.C. § 50-2116 (i) does not in any manner affect his legal right to the same, and the reasoning of the court in Brooks is equally applicable to the cause at hand.
For additional reasons not pertinent here, the California court concluded that the only reasonable interpretation of the retirement provisions involved was that the time of disability retirement may be included in computing the years of service required for regular retirement only if the disability has terminated and the person has been restored to active duty.
With this I agree.
In my opinion, this cause should be resolved in one of two manners, either (1) that it be remanded to the trial court to permit the parties to provide the court with all the facts essential to determining these issues, or (2) reverse the judgment of the trial court, deny respondent permanent retirement under I.C. § 50-2114 (a) and order his rights to full disability retirement *699(which he has been receiving) so long as his illness continues in the degree which prevents efficient service as provided in I.C. § 50-2116 as amended by the 1961 Session Laws, pp. 599-600 (now codified as I.C. § 50-1516 in the new volume 9).