State ex rel. Johnson v. Board of Trustees

Eschweiler, J. The only question involved is whether or not the disease or disability for which the relator was retired from service as a fireman must under the law be of such a nature that it can be said there was a causal connection between his service or duty as such fireman and the disability. In other words, that it occurred because he was a fireman rather than merely while he was a fireman. By sec. 959 — 46m, Stats., provision is made for an allowance from the same pension fund to any member of such fire department who shall, “while in the .performance of his duty, be killed, or die as the result of any injury received in the line of his duty, or any disease contracted by reason of his occupation,” and also a further provision that in case he shall die from any cause whatever after ten years of service and leaving certain specified dependents, then relief shall be granted them. By sec. 959 — 46n, Stats., provision is made for a pension upon retirement by any member of the fire department after twenty-two years of service. Were the question here involved to be disposed of upon the grammatical texture of sec. 959 — 46i, quoted above, there would be considerable force to the relator’s contention that the expressions, “while contributing to any such fund,” and “while engaged in the performance of his duty as such fireman,” in the second and third lines of such section, merely define two concurrent periods of time within which, when disabling injury occurred, the fireman becomes entitled to a pension, namely, that it must occur during a period of time within which he both contributed to the pension fund and acted as fireman, thereby giving the word “while” the same meaning in each of the above quoted phrases. A consideration, however, of the pension fund law as an [157] entirety and therefore the provision here involved in connection with the other provisions of the statute, disclosing that the legislature provided for a pension to the member upon retirement from any cause whatsoever after twenty-two years of service; for relief to his dependents after his 'death from any cause whatever after ten years’ service; for relief to such dependents after death of such member at any time during such service in the performance of his duty as the result of any injury received in the line of his duty, or disease contracted by reason of his occupation, constrains us to hold that the legislative intention was to exclude from the right to a pension any one who must be permanently retired prior to twenty-two years of service by reason of a disability or disease which is not so contracted that it can properly be said to have some causal connection with his line of duty as such fireman. This is the construction which has been given to similar laws in other jurisdictions. Hutchens v. Covert, 39 Ind. App. 382, 78 N. E. 1061; Scott v. Jersey City, 68 N. J. Law, 687, 54 Atl. 441. There appearing to be no causal connection between his prior duty and service as a fireman and the unfortunate condition in which the relator has been placed, he cannot be held to be within the provision of the statute upon which he relied. By the Court. — Order affirmed.