Morrison v. Bd. of Educ. of City of W. Allis

• Decision Date: 15 April 1941
• Parties: MORRISON v. BOARD OF EDUCATION OF CITY OF WEST ALLIS et al.
• Court: Wisconsin Supreme Court

237 Wis. 483

297 N.W. 383

MORRISON

v.BOARD OF EDUCATION OF CITY OF WEST ALLIS et al.

Supreme Court of Wisconsin.

April 15, 1941.

Appeal from a judgment of the Circuit Court for Milwaukee County; Roland J. Steinle, Judge.

Reversed, with directions.

Mandamus. Alternative writ of mandamus issued out of the circuit court August 26, 1940, upon the petition of Elsie Morrison, plaintiff, directed to the Board of Education of the City of West Allis, Wisconsin, Michael Benesch, Mrs. P. Bernhardt, John A. Geist, Harry G. Miller, Peter Richard, Jr., Joseph Simon and Mel H. Larson, as school directors and members of the Board of Education of the City of West Allis, Wisconsin, defendants, requiring the board and its officers to assign her to work in the public schools of West Allis or show cause to the contrary. There was a return to the writ, the facts were stipulated, and on September 26, 1940, the trial court issued a peremptory writ as prayed for in the petition with costs to the petitioner. For convenience petitioner and respondents will be designated as plaintiff and defendants respectively. Defendants appeal.John C. Doerfer, of West Allis, for appellants.

A. W. Richter, of Milwaukee, for respondent.

WICKHEM, Justice.

This appeal involves the proper construction and the constitutionality of ch. 121, Laws of 1939, which is now sec. 39.40 (5), Stats. Ch. 121 amends ch. 39, Stats. 1939, commonly known as the “Teachers' Tenure Act,” by permitting local school boards to retire teachers who have reached their sixty-fifth birthday. Sec. 39.40 (2), Stats., so far as material here, provides: “All employment of teachers *** shall be on probation, and after continuous and successful probation for five years in the same school system or school, either before or after the taking effect of this section, such employment shall be permanent during efficiency and good behavior and until discharge for cause. ***”

Ch. 121, Laws of 1939, effective on May 29 of that year, amended sec. 39.40 by the addition of a fifth subsection, as follows: “After July 1, 1940, the provisions of this section shall not apply to a teacher after the close of the school year during which such teacher shall have attained the age of sixty-five years or to any teacher who shall have attained the age of sixty-five years prior to July 1, 1940, except that the provisions of this subsection shall not apply to principals, superintendents or supervising teachers.”

The facts are not in dispute. Plaintiff was engaged as a high school teacher in the city of West Allis in September, 1929, and taught without interruption to the end of the June, 1940, term. On November 4, 1939, plaintiff became sixty-five years of age. On November 6, 1939, she signed a contract to teach up to June, 1940. On that date she was given notice by the board that she would not be given a contract or assigned to any duties for the term commencing in September, 1940. On the following day a hearing was held in response to plaintiff's request to continue as a teacher until June, 1941. This was denied, and on August 5, 1940, plaintiff's position was filled by the board.

The trial court held that the rights created in plaintiff by the Teachers' Tenure Act of 1937 were contractual in nature; that ch. 121 was retrospective in operation, impaired the obligation of this contract, and was invalid under Article I, sec. 10, Constitution of the United States, and Article I, sec. 12, Wisconsin constitution.

[1] Plaintiff claims that under the doctrine announced in the case of State ex rel. Schmidt v. District No. 2, 237 Wis. 186, 295 N.W. 36, this court should construe ch. 121 as prospective in operation in which case all question as to its constitutionality and application to plaintiff would disappear since plaintiff was not sixty-five when the law went into effect. The Schmidt case dealt with ch. 151, Laws of 1939, which amended the Teachers Tenure Act and exempted from its operation common school districts operating one-room schools. It was there stated that unless such an amendment clearly indicates that it was intended to have retrospective operation, it will be considered as addressed to the future and not to the past. The court was unable to discover in ch. 151, Laws of 1939, any evidence of an intention to have the law operate retrospectively. The rule of that case will not support plaintiff's contentions here. Ch. 121 contains ample internal evidence that it was to operate retrospectively. It specifically deals with two classes of teachers, (1) those who at any time after its enactment shall attain the age of sixty-five years, and (2) those who attain the age of sixty-five years prior to July 1, 1940. It is suggested by plaintiff that the provision in relation to those attaining the age of sixty-five years prior to July 1, 1940, which, of course, literally applies to plaintiff and to all teachers who prior to the enactment of ch. 121 had already reached the age of sixty-five years, must be taken to refer to teachers who obtained employment after July 1, 1940, or who had not at that time completed a probationary period of employment. The enactment will not reasonably bear so restricted a meaning. It is not to be supposed that a situation so extraordinary and unusual aroused the legislative concern. The only sensible meaning is that teachers on permanent tenure may be retired when they become sixty-five, and we are faced squarely with the question whether it was competent for the legislature to amend the Tenure Act by an age limitation applicable to teachers who had a permanent status at the time when it became effective.

[2][3] The Supreme Court of the United States in Dodge v. Board of Education, 302 U.S. 74, 58 S.Ct. 98, 100, 82 L.Ed. 57, speaking through Mr. Justice Roberts, said with reference to the power of the legislature to amend a teachers' tenure and retirement law:

“The parties agree that a state may enter into contracts with citizens, the obligation of which the Legislature cannot impair by subsequent enactment. They agree that legislation which merely declares a state policy, and directs a subordinate body to carry it into effect, is subject to revision or repeal in the discretion of the Legislature. ***

“In determining whether a law tenders a contract to a citizen, it is of first importance to examine the language of the statute. If it provides for the execution of a written contract on behalf of the state, the case for an obligation binding upon the state is clear. Equally clear is the case where a statute confirms a settlement of disputed rights and defines its terms. On the other hand, an act merely fixing salaries of officers creates no contract in their favor, and the compensation named may be altered at the will of the Legislature. This is true also of an act fixing the term or tenure of a public officer or an employe of a state agency. The presumption is that such a law is not intended to create private contractual or vested rights, but merely declares a policy to be pursued until the Legislature shall ordain otherwise.”

See also Phelps v. Board of Education, 300 U.S. 319, 57 S.Ct. 483, 81 L.Ed. 674.

[4] The foregoing furnishes the test. It only remains for us to apply the test to sec. 39.40, Stats. Examining the statute we find no reference whatever to a contract. The term is not even mentioned. It is simply provided that all employment of teachers shall be permanent upon satisfaction of the statutory conditions. So far as we can see, there is no requirement of any further written contract. There is no provision that the existing contracts of teachers shall be indefinite in operation. All that is done is to prescribe that those teachers who have been in employment for a five-year period of successful probation shall not thereafter be dismissed except for cause. We discover no intent to create a statutory contract, and nothing to overcome the very strong presumption that this act simply declared a public policy in the important field of education-a policy to be pursued “until the Legislature shall ordain otherwise.” In strong contrast to sec. 39.40 are the terms of a state tenure act held by the United States Supreme Court to be contractual and not subject to an amendment retrospective in operation. The case of Indiana...