State ex rel. Tilkens v. Bd. of Trs. of Firemen's Pension Fund of Green Bay
| Decision Date | 12 October 1948 |
| Citation | 34 N.W.2d 248,253 Wis. 371 |
| Parties | STATE ex rel. TILKENS v. BOARD OF TRUSTEES OF FIREMEN'S PENSION FUND OF CITY OF GREEN BAY. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from an order of the Circuit Court for Brown County; E. M. Duquaine, Judge.
Affirmed.Proceedings begun in January 1948 by Gerald Tilkens to compel the Board of Trustees of the Firemen's Pension Fund of the City of Green Bay to retire him and pay him a pension. An alternative writ of mandamus was issued on January 27, 1948. An order of April 5, 1948 quashed the alternative writ of mandamus. Petitioner appeals.
Petitioner, Gerald Tilkens, was employed by the City of Green Bay as a fireman since October 1928, a period of about 18 years. The City of Green Bay, a city of the second class, has a firemen's pension fund as provided in sec. 62.13(10), Stats. to which fund Tilkens contributed. He is now suffering from arthritis and congenital anomalies. An orthopedic specialist advised him not to do any work requiring bending or lifting. His duties as a fireman evidently involved heavy lifting and straining. Claiming he could no longer do this type of work Tilkens applied to the Board of Trustees of the Firemen's Fund to be retired and allowed a pension under sec. 62.13(10)(e) which provides: ‘The provisions of paragraphs (b) to (d) of subsection (9) shall apply to the firemen's pension fund, * * * except, if any member of the department while contributing to the fund, shall sustain injury while not on duty, and be found upon examination by a medical officer * * * to be permanently disabled, physically or mentally by reason thereof, so as to render necessary his retirement from service in such department, the board shall retire him and order payment to him monthly of a sum equal to 10 per cent of his monthly compensation at the date of his retirement if such disability occurs at any time after the completion of 6 years of service, * * * excepting that no pension shall be paid where the disability or disease herein results from gross negligence or wilful misconduct.’
Paragraph (c)(1) of subsection (9) which is incorporated into subsection (10) deals with pensions for disability. ‘If any member of the department, while contributing to the fund, shall, within the hours when he was required to be on active duty, and while engaged in the performance of duty, * * * be injured, or contract a disease due to his occupation, * * * the board shall retire him * * *.’
On October 8, 1946 the Board held a hearing at which Tilkens and the orthopedic specialist testified. The Board thereafter ordered petitioner examined by Dr. E. R. Killeen who, after examining Tilkens, reported to the Board:
September 11, 1947 the Board denied Tilkens' application for a pension. He then petitioned the circuit court for a writ of mandamus to compel the Board to grant him that relief. On January 27, 1948 an alternative writ was issued which was quashed by order of April 5, 1948 because it failed to show an ‘injury’ as required by the statute and also because Dr. Killeen's report did not show that Tilkens was permanently disabled so as to render his retirement from the department necessary.
Kaftan, Rahr & Kaftan, of Green Bay, for appellant.
Clarence W. Nier, Corp. Counsel, of Green Bay, for respondent.
The decision in this case depends on the construction to be given sec. 62.13(10)(e) Stats. particularly with reference to the phrase therein reading ‘sustain injury while not on duty.’
In determining the meaning of any single phrase of a statute it is necessary to look at it in the light of the whole of the statute. Sec. 62.13(10)(e) provides that a member of the fire department shall be entitled to a pension (1) if he ‘while engaged in the performance of duty * * * be injured, or contract a disease due to his occupation’ or (2) if he ‘sustain injury while not on...
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...single phrase or word in a statute, it is necessary to examine it in light of the entire statute. State ex rel. Tilkens v. Board of Trustees, 253 Wis. 371, 373, 34 N.W.2d 248, 249 (1948). Where the statute is ambiguous, we may look to the legislative intent found in the language of the stat......
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