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Peterson v. Bd. of Trustees

OCTOBER 7, 1971.

RICHARD D. PETERSON, PLAINTIFF-APPELLEE,

v.

THE BOARD OF TRUSTEES OF THE FIREMEN'S PENSION FUND OF THE CITY OF DES PLAINES ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD F. HEALY, Judge, presiding.

MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 6, 1972.

The Circuit Court reversed a decision of the Board of Trustees of the Firemen's Pension Fund of the City of Des Plaines which had denied the application of the plaintiff, Richard Peterson, for a firemen's disability pension as provided by Ill. Rev. Stat., 1965, ch. 108 1/2, par. 4-110. This appeal is by the City of Des Plaines, pursuant to the Administrative Review Act (Ill. Rev. Stat., 1965, ch. 110 pars. 264-279, from the judgment of the court.

In August 1958 Peterson became a member of the Des Plaines Fire Department and remained on active duty as a fireman until July 1964. In December 1962 he was exposed to phosgene gas while fighting a fire and this resulted in a cardiac injury. The injury prevented him from performing his duties as a fire fighter subsequent to July 1964.

In October 1964 the Board of Fire and Police Commissioners granted Peterson, who was then 30 years of age, a one-year's leave of absence from the department, and in the same month he became employed as a salesman of alcoholic beverages. He applied for an extension of his leave of absence in 1965, but no action was taken on the application. In April 1965 he applied to the Board of Trustees of the Firemen's Pension Fund for a disability pension. Hearings upon the application began in April 1966 and were concluded in September. The board denied his application and determined that the evidence failed to show that he was physically or mentally permanently disabled for service in the fire department so as to necessitate his retirement from the fire service.

Peterson sought administrative review in the Circuit Court, and the decision of the board was reversed as being manifestly against the weight of the evidence. The board of trustees chose not to appeal; the City of Des Plaines, however, which had been a party both in the original administrative proceedings and in the Circuit Court, appealed from the court's decision. Peterson moved to dismiss the appeal on the ground that the City did not have the legal capacity to appeal from the judgment. The motion was taken with the case.

• 1-3 Ill. Rev. Stat., 1965, ch. 110, par. 271, provides:

"In any action to review any final decision of an administrative agency, the administrative agency and all persons, other than the plaintiff, who were parties of record to the proceedings before the administrative agency shall be made defendants."

The City appeared at the hearing before the board of trustees and took a position adverse to Peterson, therefore, joined the City as a defendant when he sought review of the administrative decision.

Section 81 of the Civil Practice Act provides:

"In all cases in which a judgment, order or decree, reviewable by the Appellate or Supreme Court, is rendered in any court, in any case or proceeding whatever, against 2 or more persons, 1 or more of said persons may take an appeal * * *." Ill. Rev. Stat., 1969, ch. 110, par. 81.

It has been held, however, that only those parties to an administrative proceeding whose rights, privileges, or duties are affected by the decision of the administrative agency may seek review of its decision. The parties seeking review must allege and prove that the agency's decision adversely affects them. (222 East Chestnut Street Corp. v. Board of Appeals of Chicago (1958), 14 Ill.2d 190, 152 N.E.2d 465.) The plaintiff contends that the City is not directly affected by the decision of the court compelling the board of trustees to award him his pension. The City council is vested by statute with the duty to "establish and administer a firemen's pension fund * * * for the benefit of its firemen * * *." (Ill. Rev. Stat., 1965, ch. 108 1/2, par. 4-101.) The interest of the City is more substantial than, for example, that of an individual taxpayer who has been held not a proper party to obtain a review of an administrative decision. (Castleman v. Civil Service Commission (1965), 58 Ill. App.2d 25, 206 N.E.2d 514.) The number of firemen given disability pensions directly affects the duty of the City to provide its proportion of funds to enable the pension system to function. The City, therefore, has the right to appeal the court's decision and the motion to dismiss is denied.

The City asserts that the trial court erred in reversing the decision of the board of trustees. The statute states that a disability pension resulting from a service connected injury is to be paid when the applicant is found: "* * * upon examination by a competent physician ordered by the Board, to be physically or mentally permanently disabled for service in the fire department, so as to render necessary his retirement from the fire service * * *." (Ill. Rev. Stat., 1965, ch. 108 1/2, par. 4-110.) The board determined that though Peterson suffered from a heart condition, duties existed within the fire prevention unit of the fire department which could be performed by an individual with his physical and mental capacities. At the time Peterson's cardiac condition was discovered his position in the department was that of fire fighter and he contends that since he can no longer perform the duties of a fire fighter, he should be granted a disability pension.

• 4, 5 In construing a statute, it is to be presumed that the legislature intended the words to have their ordinary meaning unless a statutory definition indicates a contrary intention. (People v. Spencer (1971), (Ill. App.2d), 268 N.E.2d 192; People v. La Porte (1960), 28 Ill. App.2d 139, 171 N.E.2d 95.) The statute under consideration speaks of granting a disability pension when it is necessary for the applicant to retire "from the fire service." It does not award such a pension to a fireman who can no longer carry out his accustomed duties but who can perform other functions necessary to the operation of the fire department and which may be performed by men of similar rank. This was the rationale underlying the decision in Mulder v. Board of Trustees of Firemen's Pension Fund (1968), 103 Ill. App.2d 174, 242 N.E.2d 627, leave to appeal denied March 1969. In Mulder a pension was sought by a fireman who, because of a disability not incurred in the performance of an act of duty, was prevented from discharging unlimited firemen's duties. However, he was capable of performing the duties of fire inspector. The court determined that duty as a fire inspector constituted service in the fire department, and since the applicant could perform such service his disability did not necessitate retirement from "the fire service." Similarly, in Van Ort v. Board of Trustees of Police Pension Fund (1949), 337 Ill. App. 489, 86 N.E.2d 273, where the injury was service connected, the court determined that the ...


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