Alternative writ of mandamus issued out of the circuit court for Milwaukee county on July 13, 1942, upon the petition of Warren McKenna, relator, directed to Edward J. Thurow, clerk of school district No. 8, Irvin J. Duecker, treasurer of said school district, and Fred C. Westendorf, director of said school district, requiring them, as such school district officers to enter into a contract with relator and employ him under his right of tenure to teach in said school district *Page 325
for the year 1942-43, or show cause to the contrary. Defendants moved to quash the alternative writ for the reason that it does not State facts sufficient to entitle petitioner to a writ of mandamus as prayed. An order was entered quashing the writ, and on September 14, 1942, judgment thereon was entered. Relator appeals.
The question involved is whether the repeal of sec.
The facts are not in dispute. Appellant, Warren McKenna, graduated from Milwaukee Teachers' College in 1926, and taught continuously in Milwaukee county from that time until June, 1942, and holds a teacher's life certificate entitling him to teach in the schools of the county of Milwaukee. He taught at Happy Hill school, town of Greenfield, Milwaukee county, for six years, and in September, 1933, was appointed principal and teacher at respondent school district, and thereafter acted as principal and taught in the school until June, 1942. On January 8, 1942, appellant was notified by the respondent board of his discharge, to take effect at the termination of the 1941-42 school year.
Sec.
"All employment of teachers as defined in subsection (1) of this section shall be on probation, and after continuous and *Page 326 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 discharged for cause."
It is conceded that appellant taught in this school for more than five years prior to the repeal of sec.
Ch. 151, Laws of 1939, was construed in State ex rel.Schmidt v. District No. 2,
"It is enough that there is nothing in the act to indicate a legislative intent that it operate retroactively upon the status of teachers who have already acquired permanent tenure, and it is a fundamental rule of statutory construction that a retroactive operation is not to be given so as to impair an existing right or obligation otherwise than in matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment."
Morrison v. Board of Education,
"`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 employee 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,
In applying the foregoing test the court then said (p. 488):
"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.'"
It follows that this was a policy created by statute and it is therefore subject to repeal or modification. Will of Robinson, *Page 328
"Section 1. Section
"Section 2. This act shall take effect upon passage and publication."
When the legislature repealed sec.
Sec. 370.04, Stats., does not apply to a repealing act on policy. It preserves pending actions and has no reference to status acquired before the repeal. The law as laid down in 59 C.J. p. 1185, sec. 722, as follows:
"The general rule against the retrospective construction of statutes does not apply to repealing acts, and, in the absence of a saving clause or other clear expression of intention, the repeal of a statute has the effect, except as to transactions passed and closed, of blotting it out as completely as if it had never existed, and of putting an end to all proceedings under it. However, the repeal of a statute will not operate to impair rights vested under it, or to revive rights lost or taken away under the repealed statute, or to affect acts performed or suits commenced, prosecuted, and concluded under the former law."
applies in this case.
By the Court. — Order and judgment affirmed. *Page 329