McColgan v. Board of Police Commissioners

STURTEVANT, J.

The plaintiff applied to the trial court for a writ of

mandamus

to compel the defendant board to grant her a pension, to be paid out of the police relief and pension fund, as the surviving widow of James McColgan, deceased. The trial court granted the writ and from that judgment the defendant board has appealed and has brought up the judgment-roll only.

In her petition for a writ of

mandamus

the plaintiff alleged the official capacity of the defendants; that she is the widow of James McColgan, deceased; that the defendant board has the power to provide pensions to a surviving widow of a deceased police officer who was killed in the performance of his duty; that James McColgan became a police officer on July 5, 1927, and so continued until his death on September 2, 1928; that his salary was $2,400 per year; that on September 2, 1928, while on duty and in the performance of his duties James McColgan was killed; that the plaintiff filed a petition with the defendant board asking for a pension; and that there are sufficient funds on hand to pay such pension. Continuing she alleged, “That at the hearing of your petitioner’s said petition for a pension she submitted evidence that showed that she was entitled to a pension, and that all of the testimony taken at said hearing is attached to this petition and is made a part hereof and marked ‘Exhibit A’; that said testimony submitted to the Board of Police Commissioners of the City and County of San Francisco, acting as trustees of the Police Relief and Pension Fund, entitled the petitioner herein to a pension.” She then alleged that it was incumbent on the defendant board to grant the pension, but “that the said board has refused and still refuses to pay said pension; that your petitioner has no other plain, speedy or adequate remedy at law other than a writ of mandamusNo demurrer was interposed. The defendants filed an answer denying the material allegations of the petition, and alleged affirmatively that at the time of the injury and death of said James

[68]

McColgan, lie was not on duty as a police officer of the city and county of San Francisco. The ‘1 Exhibit A” above mentioned comprises what purports to be the testimony by question and answer of nineteen different witnesses—two hundred and twenty-five folios or thereabouts. The defendants contend that where evidence is conflicting but sufficient to sustain a determination of the board of police commissioners, the trial court has no right to reverse a decision of the board. It cites