dissenting:
I regret that I cannot agree that the judgment of the trial court should be affirmed. The application for pension benefits in this case was not made by a policeman or by an officer appointed for temporary duty. The provisions of sections 1, 3 and 19 of the Pension Act (Pars. 892, 894 and 904f, Ch. 24, Ill. Rev. Stat., 1951) are not pertinent on this application. Here the widow of a member of the Kankakee police force made application for benefits under section 6 of the Act (Par. 897, Ch. 24, Ill. Rev. Stat., 1951). At its regular meeting the board correctly found: that applicant’s husband, Bowden, had served over ten years in the service of the Kankakee police force as a member thereof; and that he was a member of the force and still in the service of the city as a member of the force at the time of his death. These are all of the requirements prescribed for a widow’s pension under section 6. The board found that there was satisfactory proof of the foregoing facts and ordered and directed payment of the pension to Bowden’s widow effective December 1,1952, upon her payment to the fund of contributions equivalent to the amount he would have paid during his service after March 3, 1945.
In People ex rel. Langan v. Hansen, 252 Ill. App. 212, the hoard revoked a pension under a statute which expressly gave the hoard power to suspend any pension granted as the result of misrepresentation, fraud or error, provided the beneficiary be first notified of the proposed action. The Pension Act nnder consideration here gave the board no such power, and as the court said in the Langan case, a pension board has no powers beyond those given to it in the Act creating it. In the instant case, at its special meeting, the board took additional evidence, and reconsidered and reversed the action taken at its regular meeting, without any notice to the widow and wholly without statutory authority so to do. It seems to me that where a board proceeds without notice to or the presence of the person most vitally interested in the proposed action, its good faith is questionable and its action is far from judicial; that under such circumstances, the action taken by the board at its special meeting was wholly unauthorized and in violation of law; and that the original order should stand. Except for the time interval between the two actions, I think that the facts here are analogous to the facts in Eddy v. People ex rel. Welter, 218 Ill. 611, and that the decision in that case should be followed here.
The writ should issue in this case in order to promote substantial justice. Bowden made contributions to the pension fund for all of the prescribed ten year period, except about two months. He served as a member of the police force for about eleven years and five months. His duties throughout such service were the same as those performed by regular patrolmen. For the last nineteen months of his service Bowden was carried on the payroll as an “extra patrolman,” not as a special police officer, nor as an officer appointed for temporary duty, nor as a temporary appointee or on probation. The board’s reversal depends upon the chief’s conclusion that Bowden was a “temporary” patrolman. This conclusion is not supported by the facts as shown by the payroll and the stipulation that Bowden’s duties were the same as those of a regular patrolman. He made repeated applications for reinstatement, but no physical examination was ever provided. He must have been physically fit and entitled to reinstatement, or the chief would not have reappointed him nineteen times and he could not have performed the same duties as regular patrolmen throughout this period. The funds necessary to pay this pension are available. When Mrs. Bowden’s payment of contributions required by the original order has been made, the fund will have received from the Bowdens considerably more than ten years contributions. To award the widow a pension will cost the fund no more than a pension for a widow of any other policeman who contributed to the fund for eleven years and five months. To affirm the judgment denying relief in this case, enriches the fund to the extent of Bowden’s contributions, and avoids the purposes of the Pension Act. The judgment should be reversed and the circuit court should be directed to issue the writ.