This proceeding was begun on February 24, 1941, by Otto Wendt, petitioner, against Board of Trustees of the Police Pension Fund of the city of Wausau, respondent, to compel the board to retire the petitioner and award him a pension. Upon the petition an alternative writ of mandamus was issued. The defendant moved to quash the alternative writ, (1) because the court had no jurisdiction to grant the relief prayed for; (2) because the petition fails to state facts that would entitle petitioner to relief; and (3) because the action was not commenced within the time limited by sec. 330.19, Stats.
The facts are not set out concisely but in great detail and in somewhat argumentative form. After alleging the corporate capacity of the city of Wausau and the fact that it has a *Page 56 board of trustees of the police pension fund, the petitioner alleges that on August 26, 1925, he was duly appointed a regular policeman and entered upon the discharge of his duties as such until April 27, 1928, on which date while on active duty he was injured and became thereby permanently disabled from performing any service as policeman; that at the time of his injury and prior thereto there had been deducted from his compensation certain sums pursuant to sec.62.13(9), Stats.
"Petitioner further shows that after his injury on such date, petitioner was duly examined by physicians by or on behalf of the city of Wausau, who duly reported and found that from the date of his injury to April 1, 1930, petitioner was totally disabled from performing any services whatever and was for a period of ten weeks after April 1, 1930, fifty per cent disabled from performing any such service, and that by and as a result of said accident and injury, petitioner had sustained permanent disability equivalent thereafter to thirty per cent of total use of the left leg, to which the main injury resulted."
Petitioner further alleges that on June 26, 1931, he filed a verified petition with the Board of Trustees asking that he be retired and awarded a pension equal to one half of $125 per month, which was his compensation. It is further alleged that he received notice of a hearing on the petition, to be held on July 14, 1931; that at that time he appeared before the board with his attorney; that the meeting was then called to order and petitioner was asked to retire; that upon being recalled to the meeting he was offered a compromise settlement by the terms of which he was to receive $131.18 back pay and I a pension for life of $9.37 per month from July 16, 1931; that because of his necessitous circumstances and relying upon statements made by the mayor who was president of the Board of Trustees, he signed such compromise settlement and accepted *Page 57 $131.18, and since July 16, 1931, has received $9.37 per month pension.
It is further alleged that since that time petitioner has made numerous demands for pension amounting to one half of his compensation, which demands have been ignored. It is further alleged:
"Petitioner is informed and believes that serious fraud, deceit, undue influence and mistake was foisted upon the petitioner and his attorney at said meeting at which said compromise settlement agreement was executed and that such fraud, deceit, undue influence and mistake consisted of" —
(1) Failure of the Board of Trustees to have all members present. (2) Failure of the Board of Trustees, due to ignorance, negligence, and mistake as to the law, to perform their duty to the petitioner. (3) That duress was practiced upon the petitioner by the Board of Trustees. (4) That the mistake committed by the Board of Trustees was contrary to the policy of the statute under which the proceedings were had. (5) That failure of the Board of Trustees to discuss petitioner's application with him and to permit him to be present at the hearing amounted to bad faith and fraudulent conduct.
There are further allegations with respect to the petitioner's ignorance, that he relied upon the information, action, and advice given him by the said Board of Trustees; that the petitioner is now in necessitous circumstances and unable to tender back to the board the amounts received by him but he is willing to offset said sums against any award made him.
From the order quashing the alternative writ the petitioner appeals. Sec. 62.13(9)(c) 1, Stats., provides for the payment of pension in case of disability and is as follows:
"1. 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 performanceof duty, or while engaged in the performance of any other duties under the direction of any superior officer, be injured, or contract a disease due to his occupation, andbe found upon examination by a medical officer, if anyordered by the board, or by a licensed physician ordered bythe board, 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 payments to him monthly of a sum equal to one half his monthly compensation at the date of his retirement."
The petition in this case contains no allegation that the petitioner has been so examined. It is considered that this case is clearly ruled by the case of State ex rel. Weber v.Trustees of Policemen's Pension Fund (1903), 119 Wis. 436,440, 96 N.W. 825. While the statutes are not identical they are substantially the same. In that case, as in this, the petitioner sought a writ of mandamus to compel the board of trustees of the policemen's pension fund to award him a pension. After quoting a provision of the statute which is substantially the same as the provisions of sec. 62.13(9)(c) 1, the court said:
"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 *Page 59 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." The writ was quashed.
The petitioner was entitled to a pension under the law or he was not. What the board did or failed to do did not alter petitioner's rights. Under the allegations of the petition he had no right to a pension, there being no allegation in the petition that the necessary finding by a medical officer or physician "ordered by the board" had been made.
We do not find it necessary to consider the contention that the claim is barred by the statute of limitations inasmuch as the claim does not appear to be valid in any event.
By the Court. — The order appealed from is affirmed. *Page 60