State ex rel. Weber v. Board of Trustees of the Policemen's Pension Fund

Cassoday, O. J. The correctness of the decision of the trial court depends upon the construction to be given to the statute which declares that: “If any member of the police department shall while engaged in the performance of his duty as such policeman be injured and found upon an examination by a medical officer ordered by said board to be physically or mentally permanently disabled by reason of service in such department so as to render necessary his retirement from service in such department, such board shall retire such disabled member from service: provided, no such retirement on account of disability shall occur unless the member has contracted such disability while in the active service of such department. Upon sireli retirement the board shall order payment to such retired member, monthly, from such pension fund a sum properly payable according to his grade, to wit: . . . patrolmen thirty-five dollars.” Sec. 8, ch. 265, Laws of 1899. A prior section of the act gave to the board “exclusive control and management of the fund mentioned,” and required the board to “hear and decide all applications for relief or pensions under” the act, and declared that “the decision of such board on such applications shall be final and conclusive and not subject to review or reversal, except by the board.” See. 4, Id. The last clause quoted was stricken out by sec. 2, ch. 116, Laws of 1901, which went into effect a month prior to the time when the relator was injured. Those words being stricken out, it is urged that the action of the board in denying the relator’s application was not “final and conclusive,” but was “subject to review or reversal” by the courts. Conceding that to be true, still it is to be remembered that [440] the board only bad snob powers as were expressly granted by the statute or necessarily implied therefrom. Gilman v. Milwaukee, 61 Wis. 592, 21 N. W. 640, and cases there cited. While the act authorizes the “board of its own motion” to retire “any member of the police department” who has become fifty years of age and “served twenty-two years or more in such department” (sec. 10, Id.), yet, as indicated by the language quoted, it expressly limits the powers of the board in granting such retirement for mere disability. In such cases the board is only authorized to “retire such disabled member from service” in case he was injured “while in the performance of his duty as such policeman,” and after being “found upon an examination by a medical officer ordered by said board to be physically or mentally permanently disabled by reason of service in such department so as to render necessary his retirement from service in such department.” Mere permanent disability while in such service is not enough to authorize such retirement, but, in addition, such medical officer must first find that such disability was “by reason of service in such department.” There is no claim that the board ever ordered such examination by a medical officer, nor that such medical officer ever found as a fact, or otherwise, that the relator’s disability was “by reason of service in such department.” Such an examination and finding are made, by the express language of the act,„ conditions precedent to the retirement of such disabled member from service by any action of the board. The same section expressly prohibits such retirement “unless the member has contracted such disability while in the active service of such department.” Such provisions of the statutes were express, limitations upon the powers of the board, and hence could not be waived by the board. True, the permanent disability of the relator is conceded, but that did not give the board power to proceed in disregard of the mandates of the statutes. We must hold that the facts stated [441] in the petition and. the writ are insufficient to entitle the relator to a peremptory writ of mandamus. By the Court. — The order of the superior court of Milwaukee county is reversed, and the cause is remanded with direction to grant the motion of the defendant and quash the ■alternative writ of mandamus.