State ex rel. Mellen v. Public School Teachers' Annuity & Retirement Fund Trustees

The following opinion was -filed December 9, 1924: Eschweiler, J. The sole question here presented is whether or not the petitioner, at the time of her making application for an annuity in August, 1921, and after more than thirtyrfour years of teaching, was still “in the service” as a teacher in the Milwaukee public schools within the meaning of the quoted phrase in sec. 4, ch. 591, Laws of 1921, creating sub. (1), sec. 921 — xx (now sec. 42.55, Stats.). [656] It is in substance contended that either because of her resignation of June, 1920, and the action taken thereupon by the school board in June, 1921, or that, having been granted a leave of absence for the years 1920, 1921, and not having taught during that period and probably contemplating no further active service, coupled with the statement contained in her said application, that she presented therewith the certificate of her attending physician that she was incapacitated, and praying that she might be granted an annuity if found incapacitated, she was no longer in the service as a teacher in August, 1921. The contract relationship between the school board and the petitioner could not be terminated either by the mere sending of the resignation or by the action of the school board in accepting it as of June 17th, when by its express terms it was not to take effect before August 1, 1921. The board, of course, had no power or authority to change the terms or conditions of her voluntary proposal or make it effective prior to the date therein fixed. No attempted acceptance of it as of a time before the date therein fixed could be binding upon her. The action of rescinding their former mistaken action by the school board was entirely proper. Her request that the time be extended to September 1st and the acceptance by the school board of such amended or new resignation was the only agreement between them on the subject of the termination of the relationship so far as the resignation is concerned. The leave of absence granted in September, 1920, cannot be held as an admission on her part or recognition or assertion thereof by the school board that she was for such period no longer under the same contract relationship that had formerly existed. That she did not actually teach during such period, no question being made of the authority of the board to grant such relief, is entirely immaterial. Upon the expiration of the leave-the petitioner stood in exactly the same position, so far as the mutual rights and obligations [657] of the existing contract were concerned, as she did at the time it was granted. There is nothing in the record to show that at the time the leave of absence was granted she was then incapacitated from ever thereafter rendering further active service as a teacher, and even if such condition can be surmised or assumed it is immaterial. Her application in August, 1921, referred to a then incapacity and not to any prior condition. That a then incapacity was a proper matter to be submitted to the trustees of this fund appears from the language of the law itself. Sub. (12), sec. 42.55. It is clear, therefore, that she was “in the service” in August, 1921, within the letter and spirit of the law, and her prayer for relief was properly granted. By the Court. — Judgment affirmed. A motion for a rehearing was denied, with $25 costs, on February 10, 1925.