State ex rel. Thomson v. Giessel

• Decision Date: 03 June 1952
• Citation: 53 N.W.2d 726,262 Wis. 51
• Parties: STATE ex rel. THOMSON, Attorney General, v. GIESSEL.
• Court: Wisconsin Supreme Court

Page 726

53 N.W.2d 726

262 Wis. 51

STATE ex rel. THOMSON, Attorney General, v. GIESSEL.

Supreme Court of Wisconsin.

June 3, 1952.

The State Retirement Administration Board presented certain vouchers to the Director of the Department of Budgets and Accounts to be audited and certified for payment. The vouchers were for the payment, to 33 retired teachers, of the additional retirement benefits provided by sec. 42.535, Stats. The director refused to certify the vouchers on the ground that such section was void for uncertainty and was in conflict with designated provisions of the state and federal constitutions. The attorney general, believing sec. 42.535, Stats., valid in all respects, obtained from this court an alternative writ of mandamus commanding the director either to audit and certify the vouchers or show cause why he should not do so.

As the attorney general was engaged on the side of the State Retirement Administration Board, Governor Kohler appointed San W. Orr, Esq., counsel for the Director of the Department of Budgets and Accounts. The director's return to the writ set forth in more detail his contention that sec. 42.535, Stats., was defective in certainty and constitutionality. The attorney general demurred to the return on the ground that it did not state facts sufficient to constitute a defense nor show any cause for not obeying the writ.

Because a legislative enactment is presumed to be valid until the contrary is clearly shown, the cause was argued to the court by the director first attacking the statute, followed by the attorney general, seeking to sustain its certainty and constitutionality. The statute in question is:

'42.535 Additional retirement benefits for teachers. Every person who retired before June 30, 1951, and who will not receive any additional benefits under any legislative enactment passed in 1951, shall be paid an additional $1 per month for each year of teaching experience in the public schools, teachers' colleges and the university of this state. Persons to become eligible for the additional benefit must have left their own deposits in the fund or return this deposit to the fund with interest at 3 per cent per annum from the date of withdrawal of the deposits to the date of the return thereof, and provided that such retired persons shall, before receiving any benefits granted by this subsection, make a total additional contribution into the general fund of $100 therefor to open a new contract or renew an old contract for retirement benefits. This additional annuity shall cease at the death of the annuitant.'

It was enacted as Chapter 551, Laws of 1951, to become a part of the State Retirement Law, Chapter 42, Stats., first enacted in 1921. The petition for the writ and the return state many facts which for the purposes of the argument are admitted to be true, so that only a question of law is presented.

The respondent submits that the language of sec. 42.535, Stats., gives rise to uncertainty concerning what persons, under varying fact situations, are entitled to receive the additional benefits, and such uncertainty is so great that the administrative officer who must certify the vouchers submitted for audit is unable to discharge his duty. The petitioner submits that sec. 42.535, Stats., is definite and certain and that it designates as persons to be benefited thereby no teachers except those who had ceased teaching on or before June 30, 1951, and who on that date were receiving teachers' retirement payments or had applied for them. Whether or not the scope of the section is thus limited by its own language is a question which would have received our serious attention if we had not determined that the section suffers from even more serious infirmities. For present purposes we accept the petitioner's construction, under which he estimates that no more than 3,367 retired teachers could possibly become eligible for the additional benefits of sec. 42.535, Stats., and that no more than 3,000 would become eligible, and that up to the time his brief was printed only 1,222 were actually qualified for them.

Vernon W. Thomson, Atty. Gen., Harold H. Persons, Asst. Atty. Gen., E. Weston Wood, Asst. Atty. Gen., for petitioner.

San W. Orr, Madison, Thomas, Orr, Isaksen & Werner, Madison, of counsel, for respondent.

Padway, Goldberg & Previant, Milwaukee, for Wis. Federation of Teachers, amicus curiae.

Toebaas, Hart, Kraege & Jackman, Madison, for Wis. Education Ass'n amici curiae.

BROWN, Justice.

Art. IV, sec. 26 of the Wisconsin Constitution states:

'Extra compensation; salary change. Section 26. The legislature shall never grant any extra compensation to any public officer, agent, servant or contractor, after the services shall have been rendered or the contract entered into; nor shall the compensation of any public officer be increased or diminished during his term of office.'

Sec. 42.535, Stats., provides that every qualified retired teacher 'shall be paid an additional $1 per month for each year of teaching experience' and it designates such payments as an 'additional benefit' and an 'additional annuity'. The benefits and annuities to which these are additional are those provided by other sections of Chap. 42, Stats. By sec. 42.42, Stats., every contract of employment as a teacher made after July 8, 1921 is subject to the provisions of the state retirement law, secs. 42.20 to 42.54, Stats, which confers specific benefits. Thereby such retirement benefits become part of the teaching contract and are consideration for the teachers' services; that is, compensation for them. Hence, 'additional benefits' and 'additional annuities' at first glance appear quite plainly to be additional compensation. Just as clearly, additional compensation is extra compensation;--that is, compensation outside of that previously agreed upon. Sec. 42.535, Stats., grants such benefits to certain teachers who retired before June 30, 1951. The new section became effective July 19, 1951. It is apparent, therefore, that this extra compensation is not granted until after the teaching contracts had not only been entered into but the teachers' services had been performed and the teacher had ceased to serve. If it be true, then, that the additional benefits and annuities form extra compensation, which was not granted until after the contracts were entered into or until the services had been rendered, the prohibition of Art. IV, sec. 26, Wis. Const., renders the legislation void.

The petitioner submits, however, that this legislation is of a sort not forbidden by the constitution, for several reasons, which are not necessarily consistent with each other but any one of which will serve to sustain the legislation. First, he says, benefits provided by sec. 42.535, Stats., are merely restoration or preservation of economic value of the compensation already granted, and he argues that the legislature by giving the retired teacher more dollars was, as nearly as possible, giving him only the equivalent of the fewer dollars which his contract promised: hence there is no extra or additional compensation. Unfortunately for this contention, it has long been established that the compensation is governed by the contract's terms. The purpose of Art. IV, sec. 26, Wis. Const., said Chief Justice Ryan in Carpenter v. The State, 1876, 39 Wis. 271, 285, is to limit contractors with the state to the precise compensation fixed by their contracts. The teachers' contracts for retirement benefits were contracts with the state and the compensation provided therein may not thereafter be increased by the legislature when the teaching is over. Their contract compensation was not expressed in purchasing power. Contracts can be so drawn and many of them are, whereby compensation is governed by a 'cost of living' index or some other standard. The instant contracts, however, did not demand performance by the state in terms of goods, wares or merchandise. Compensation was expressed in dollars and additional dollars are extra compensation, which the constitution forbids the legislature to grant.

The petitioner then suggests that the additional benefits need not be regarded as compensation at all and are not payments made upon any contract, but on the contrary they are gratuities given former teachers by a sympathetic state, genuinely concerned over their economic plight, for the purpose of encouraging third persons to enter the profession and those now in it to stay in. A number of questions present themselves affecting this hypothesis. We find no declaration by the legislature that it had any such purpose in mind nor is there anything in the legislation to indicate that the economic plight of persons who are eligible for the benefits under the petitioner's interpretation of eligibility differs from that of other teachers who were not included. The legislation itself, by requiring the return of deposits already withdrawn plus $100 per person indicates, rather, a lack of concern for the most destitute, when it extends its benefits only to those with some resources of cash or credit. Then, too, a purpose to retain or attract those whom the legislature wishes to have as teachers can hardly be read into an act for whose benefits such desirable teachers are not and cannot become eligible, and which tenders its advantages only to 1,635 retired teachers (petitioner's estimate of the number who are both theoretically and practically eligible) whom it does not expect or wish to attract. This alleged purpose of the legislation is the more doubtful when if it existed, it could obviously be easily, effectively and directly served by similar inducements made to the prospective desirable, teachers themselves. In this connection petitioner relies on State ex rel. Dudgeon v. Levitan, 1923, 181 Wis. 326, 193 N.W. 499, in which we sustained the constitutionality of the 1921 teachers' retirement law and held that in establishing a pension...