State ex rel. Thomson v. Giessel

• Decision Date: 30 December 1953
• Citation: 61 N.W.2d 903,265 Wis. 558
• Parties: STATE ex rel. THOMSON, Atty. Gen. v. GIESSEL.
• Court: Wisconsin Supreme Court

Page 903

61 N.W.2d 903

265 Wis. 558

STATE ex rel. THOMSON, Atty. Gen. v. GIESSEL.

Supreme Court of Wisconsin.

Dec. 30, 1953.

The action was brought by the state of Wisconsin upon the relation of the attorney general for a writ of mandamus to compel E. C. Giessel, director of the Department of Budget and Accounts for the state to conduct a preaudit of requisition made by the Department of Public Instruction for the reproduction of certain forms necessary to the administration of section 39.35 Stats. created by Chapter 434, Laws of 1953.

Respondent declined to approve the expenditure of the funds required by the requisition. A writ was issued requiring respondent in the alternative to approve the requisition or to show cause for his refusal to do so. He made return to the writ excusing his failure and refusal on the ground that chapter 434, Laws of 1953, is unconstitutional.

The cause is before the court upon petitioner's demurrer to respondent's return to the writ.

Vernon W. Thomson, Atty. Gen., Stewart G. Honeck, Deputy Attv. Gen., for petitioner.

E. L. Wingert, Sp. Counsel, and Stroud, Stebbins, Wingert & Stroud, Madison, of counsel, for respondent.

Toebaas, Hart, Kraege & Jackman Madison, amicus curiae, for Wisconsin Education Assn.

GEHL, Justice.

Chapter 434 provides as follows:

'Section 1. 20.26 of the statutes is created to read:

'20.26 State Superintendent; Emergency Substitute Teachers. There is appropriated from the general fund to the state superintendent a sum sufficient for the biennium 1953-1955 for the administration of his functions under s. 39.35 and for making the payments provided for therein.

'Section 2. 39.35 of the statutes is created to read:

'39.35 Emergency Substitute Teachers; Compensation. (1) The legislature hereby finds and declares: The difficulty of obtaining qualified persons to substitute during the absence of regularly employed teachers because of illness or other emergency is a serious problem in the day to day operation of the public schools. The shortage of teachers renders the problem particularly acute. Any steps to relieve the situation in any way are in the public interest. The number of qualified persons in a community who have made it known they are available to act as substitute teachers is inadequate. Former teachers in the public schools of this state, and especially those with sufficient number of years of teaching experience to retire and receive benefits under the state retirement law §§ 42.20 to 42.54 are especially qualified to serve as substitute teachers. Registration of qualified persons available to be called in emergencies to act as substitute teachers in the public schools of this state and maintenance of a roster thereof will assist those in charge of the operation of said schools in speedily obtaining substitute teachers when emergency absences of regularly employed teachers makes the same necessary. In the main the benefits being received under said state retirement law by those former teachers in the public schools of this state who retired from active teaching prior to July 1, 1951, are comparably lower than the benefits received under said law by former teachers in said schools who retired on or after July 1, 1951. Those who retired under said law and were receiving benefits thereunder on June 30, 1951, in general feel inequitably treated by reason of this disparity. Their sense of aggrievement results in an attitude inappropriate to substitute teaching. Said teachers generally are not making themselves available for substitute teaching in the public schools. In order to promote in said retired teachers who were receiving retirement benefits under said law on June 30, 1951, an attitude conducive to acting as substitute teachers in said schools and to induce them to register their availability to be called to act as substitute teachers therein upon the short notice usual in such cases, it is necessary to compensate them during the time they are holding themselves in readiness to be called as such substitute teachers or for other educational services.

'(2) There is hereby established in the office of the state superintendent of public instruction (hereinafter referred to as state superintendent) a roster of persons qualified to teach in the public schools of this state who are available to substitute therein as teachers or for other educational services during the absence of regularly employed teachers because of illness or other emergency.

'(3) Any person who resides in the state, is qualified to teach in the public schools as defined in § 42.20, and is not regularly employed as a teacher, and any former teacher who has retired from teaching and is receiving benefit payments under the state retirement law upon application in writing to the state superintendent, in such form as he may prescribe, shall be placed upon said roster of substitute teachers or for other educational services. On August 1, 1953, the state superintendent shall prepare from said roster a list for each county which shall contain the names of all persons residing in such county who are registered on said roster, with their addresses and such other data as he may deem pertinent, and send a copy thereof to the county superintendent of schools of the county, the clerk of each school district in the county, and to the clerk or secretary of every board or body having the control and management of a public school located in the county. On the first of each month thereafter the state superintendent shall prepare a supplemental list for each county containing the names of all persons residing in the county who have been added to or removed from said roster during the preceding month and any changes of address of persons on said roster residing in said county, and transmit copies thereof to the officials above mentioned.

'(4) Persons shall be removed from said roster forthwith upon death or ceasing to reside in the state or when regularly employed as a teacher in any school, and may be removed therefrom for just cause in the manner provided herein. Upon the failure or refusal of any person upon said roster to act as substitute teacher or for other educational services in a public school of this state when requested so to do by any official charged with the obtaining of substitute teachers in said school, such official shall report the same to the board or body having the control and management of such school if such official deems that such failure or refusal was unreasonable. If such board or body deems such failure or refusal to be unreasonable, it may file with the state superintendent a written complaint, in duplicate, setting forth the circumstances thereof. The state superintendent shall send one copy thereof by registered mail to the person against whom such complaint is filed, addressed to the last address of said person upon said roster. The state superintendent shall conduct such investigations as he may deem advisable in order to ascertain the facts relative thereto, and is authorized, but not required, to hold hearings thereon. If the state superintendent finds that such failure or refusal was without just cause, he shall remove the name of said person from said roster of substitute teachers and shall notify such person thereof by registered mail, addressed to the last address thereof upon said roster. The making of application for registration upon said roster shall constitute agreement by such applicant to accept and abide by all determinations of the state superintendent in respect to such applicant's removal from or re-instatement upon said roster.

'(5) Any person removed from said roster may apply for reregistration thereon, in the same manner and subject to the same requirements as provided herein for initial registration. No person removed from the roster for just cause shall so apply within 3 months following the month of removal.

'(6) Every former teacher in the public schools of this state who has been retired therefrom continuously since June 30, 1951, and on that date was receiving benefit payments under the state retirement law, §§ 42.20 to 42.54, shall receive as compensation for services in standing by as an available substitute teacher or for other educational services in the public schools of this state, the sum of $25 per month for each month subsequent to the month of June, 1953 such former teacher is registered upon said roster, except as hereinafter provided, payable on the first of each month for the preceding month. Any person entitled to said compensation shall receive it for any month during which such person was registered on said roster for 15 days or more. On the first of each month the state superintendent shall prepare and certify a special payroll for the payment of such monthly compensation to those registrants entitled thereto for the previous month.

'(7) No person shall be entitled to receive for any month the compensation herein provided, to the extent said monthly compensation when added to the benefit received for that month under the state retirement law exceeds $100. No person who has withdrawn all or any part of the deposit made by said person under the state retirement law, including accumulations thereon, shall be entitled to the monthly compensation provided herein.

'(8)...