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Jenkins v. State

Supreme Court of Wisconsin
May 2, 1961
108 N.W.2d 924 (Wis. 1961)

Opinion

April 5, 1961 —

May 2, 1961.

APPEAL from an order and judgment of the circuit court for Dane county: HERMAN W. SACHTJEN, Reserve Circuit Judge, Presiding. Affirmed.

For the appellants there were briefs by Goldberg, Previant Cooper of Milwaukee, and oral argument by Richard M. Goldberg.

For the respondent the cause was argued by E. Weston Wood, assistant attorney general, with whom on the brief was John W. Reynolds, attorney general.


Action to recover damages for breach of contract. The complaint, except for the attached exhibits, is as follows:

"I.

"That the plaintiffs, William A. Jenkins, John Dulka, and Hugo Engelmann, are faculty members employed by the state of Wisconsin, and perform their services at the University of Wisconsin — Milwaukee, formerly Wisconsin State College, Milwaukee pursuant to their contract of employment more fully set forth below; that pursuant to sec. 260.12, Wisconsin statutes the plaintiffs bring this action on their own behalf and on behalf of all others similarly situated whose names appear upon the legislative bill attached to this complaint as Exhibit `A' and made a part hereof; that all of these claims were denied by the Wisconsin legislature on July 25, 1959; that the issue presented is one of common and general interest to all of the persons listed on Exhibit `A,' the number of which are so numerous that it is impractical to bring them all before the court.

"II.

"That the faculty personnel represented in this action by the plaintiffs performed services pursuant to the resolution No. 926 adopted by the Board of Regents of the state Colleges October 22, 1953, a copy of which is attached to this complaint as Exhibit `B' and made a part hereof; that this resolution was reaffirmed by resolution No. 928 adopted by the Board of Regents of the State Colleges on December 10, 1953, a copy of which is attached to this complaint as Exhibit `C' and made a part hereof; that all of the plaintiffs represented in this action performed services pursuant to the foregoing resolutions thereby becoming eligible for the benefits provided thereunder.

"III.

"That effective July 1, 1956, the Board of Regents of the State Colleges unilaterally adopted a new salary policy to be applicable in the future by adopting resolutions Nos. 1106, 1139, and 1165, copies of which are attached to this complaint as Exhibits `D,' `E,' and `F' respectively and made a part hereof; that these resolutions unilaterally revoked the contract of employment set forth in Exhibits `B' and `C' and put the plaintiffs and all those similarly situated on a ten-month system of employment instead of the previous twelve-month system, with additional compensation to be paid those teachers selected by the board for summer teaching duties; that these new employment resolutions canceled earned rights under the old contract of employment and canceled all summer leave earned pursuant to the previous contract of employment; that this action constituted a breach of the contract of employment between the plaintiffs and the defendant.

"IV.

"That the adoption of the new contract of employment worked a forfeiture of the triennial leave earned prior to the conversion and deprived the plaintiffs and those similarly situated of the earned but deferred compensation which should have been paid for services previously rendered.

"V.

"That the unilateral action of the defendant set forth above also had the effect of canceling an initial salary deficiency which had resulted from the practice of withholding two fifths of the first month's salary and which was traditionally paid upon retirement or severance of employment, pursuant to the agreement restated in `The Faculty Handbook,' a part of which is attached to the complaint as Exhibit `G' and made a part hereof.

"Wherefore, the plaintiffs and those similarly situated demand judgment in the amount of Ninety-eight Thousand Six Hundred Seventy-eight and 44/100 Dollars ($98,678.44) plus interest and costs and whatever further relief may be just and proper."

Resolution 926 defines the word "leave" as follows:

"One summer after teaching two full years of forty-two weeks each plus one academic year of thirty-six weeks."

The pertinent part of Resolution 928 is as follows:

"(a) The normal triennial cycle of one hundred twenty weeks of teaching is reaffirmed as the basis for a `third summer off' of three months with full pay."

Resolution 1106 reads as follows:

"That in making the conversion to the academic-year salary plan with extra compensation for teaching in the summer session, the board recognizes the former policy of triennial summer leave. It shall be the policy of this board, on the retirement of a teacher, to award one month's salary for each work assignment during the summer sessions 1954 and 1955. (Barstow)"

Resolution 1139 reads as follows:

"Resolved, That resolution 1106 dated June 28, 1955, be repealed."

Resolution 1165 stated that the legislature had provided funds to convert annual salaries to academic-year salaries and appropriated money to finance the summer session. The resolution then provided that such conversion of salaries be made during the fiscal year 1956-1957 with the following regulations as to the payment of salaries:

"(1) Faculty members who teach in the 1956 summer session shall have their 1956-1957 academic-year salary and each academic-year salary thereafter paid in 10 instalments payable the beginning of each month with the first payment beginning October 1st.

"(2) Faculty members now being paid on an annual basis in 1955-1956 who do not teach in the 1956 summer session may elect one of the following:

"(a) To have their 1956-1957 academic-year salary and each academic-year salary thereafter paid in 12 instalments with the first payment beginning August 1st until they teach in a summer session, and thereafter in 10 instalments.

"(b) To be paid in 10 instalments with the first payment beginning October 1st.

"(3) A faculty member receiving his academic-year salary in 10 instalments may not revert back to 12 instalments."

Exhibit "G" purports to be an extract from "The Faculty Handbook" and is as follows:

"The Faculty Handbook. "Second Edition "1953 "Chapter IV "Salaries and Other payments

"Regulations for Payment of Salaries.

"The annual salary is paid in 12 equal instalments on the first day of each calendar month.

"Dates on which salaries are presumed to begin for each of the sessions are as follows:

"September 12: For the first semester

"February 1: For the second semester

"July 1: For the summer session.

"These dates affect salary payments as follows: Teachers joining the faculty in the fall receive salary for only three fifths of a month on the check they receive October 1st. Those joining the faculty in the summer session receive no salary for June but are compensated by receiving full salary for the vacation period in August and September.

"When a teacher leaves the college or retires, his year is considered to be up on the day preceding the appropriate date listed above, and his salary is paid in proportion to the extent to which he has completed the services required for that year."

The state of Wisconsin as defendant demurred to the complaint on the following three grounds: (1) That the same does not state facts sufficient to constitute a cause of action; (2) that several causes of action have been improperly united; (3) that there is a defect of parties plaintiff in that the action is brought to recover 133 sums of money alleged to be due to 133 separate individuals, 130 of whom are not joined as parties plaintiff.

On September 20, 1960, the trial court entered an order sustaining the demurrer and granting the plaintiffs twenty days in which to serve and file an amended complaint. No amended complaint was served or filed and on December 9, 1960, judgment was entered dismissing the complaint on the merits without costs to either party. The plaintiffs appealed.


By demurring to the complaint the defendant admitted all of the facts well pleaded therein but it did not admit conclusions of law nor did it admit erroneous conclusions drawn from such facts by the pleader even though the conclusions bear the semblance of statements of facts. Northwestern Mut. Life Ins. Co. v. State, 173 Wis. 119, 180 N.W. 138; Olsen v. Ortell, 264 Wis. 468, 59 N.W.2d 473.

The state, through various agencies, may enter into contracts with individuals and, when properly entered into, the state's rights and duties thereunder are the same as those of a private person. The complaint recites that the plaintiffs and the persons whom they allege to represent had a contract with the state through the Board of Regents of the State Colleges by virtue of certain resolutions adopted by the board and by performing services pursuant thereto. The complaint seems to indicate that this was a single contract with 133 individuals. Neither the body of the complaint nor the resolutions state when the contract was entered into, what the terms thereof were, the termination date, and other facts that should be pleaded in actions for breach of contract. Nor does the complaint allege any facts to show in what manner the contract was breached. The complaint alleges that by a resolution effective July 1, 1956, the board adopted a new salary policy to be applicable in the future and that these new employment resolutions canceled earned rights under the old contract of employment and canceled all summer leave earned pursuant thereto. These allegations, contained in paragraph numbered III, are based upon the pleader's conclusions of law drawn from the resolutions. The allegations together with the resolutions are insufficient to state a cause of action. There is no allegation that any of the teachers received a smaller salary after July 1, 1956, than he received before, nor is there any allegation that any teacher was refused a summer leave without reduction in pay. We can only interpret resolution 1165 as indicating that the plaintiffs and those whom they allege to represent each had a summer leave or were paid extra for teaching in a summer session subsequent to July 1, 1956.

Thus the complaint is deficient in that it does not state a cause of action and that it does not state facts to indicate that any of the claimants was damaged as a result of the adoption of the new salary policy. Without an allegation that salaries were reduced as a result of the new policy there could be no damage whether a teacher received the amount of his salary in 10 instalments or in 12.

In paragraph numbered V it is alleged that the unilateral action of the board also had the effect of canceling an initial salary deficiency which had resulted from the practice of withholding two fifths of the first month's salary and which was traditionally paid upon retirement or severance of employment. Nowhere are there any allegations to indicate that there was ever an initial salary deficiency or the withholding of two fifths of a first month's salary. The extract from the Faculty Handbook indicated that teachers who commenced their teaching services in the fall semester began work on September 12th. They were paid from that date. That handbook was dated in 1953 when all teachers were hired on an annual basis. There is no allegation that after completing one full year of services any teacher had not received his entire annual salary. The allegations contained in the complaint in this respect do not show any breach of contract or any damage resulting to any of the claimants.

Without stating how or why, there is a conclusion of law stated in paragraphs IV and V that the change in the salary policy effective July 1, 1956, resulted in some forfeiture of the triennial leave earned prior to the change as well as of reimbursement for two fifths of a month's salary that was traditionally paid upon retirement or severance of employment. It is possible that if one of the claimants had severed his employment because of the change in the salary policy of the board he might have had some claim against the state. We do not, however, pass upon that issue. It is not before us. It is clear from the complaint that none of the claimants has retired or severed his employment. It is stated in the complaint that the three named plaintiffs and those whom they claim to represent were faculty members employed by the state at the time of the commencement of the action in March, 1960.

For the reasons stated above we agree with the trial court that it appears upon the face of the complaint that the same does not state facts sufficient to constitute a cause of action. It is not necessary, therefore, to pass upon the other grounds for the demurrer.

By the Court. — Order and judgment affirmed.


It seems clear to me that a teacher who taught from September 12, 1953, to July 1, 1956, had, when the latter date arrived, earned a full three years' salary and had received all of it except one fifth of one year's salary. Under the old payment plan, payment of this one fifth would have been made in the August, September, and part of the October instalments. Under the new payment plan, this one fifth was received as part of the salary ostensibly paid for the academic year 1956-1957. Thus, a teacher whose salary was stated at the same total sum for the nine-month academic year 1956-1957 as for the previous twelve-month year did not really receive the same salary for teaching the nine months of the academic year 1956-1957 as he did for his services during the previous full year. The complaint, it seems to me, fails to allege that any teacher represented by plaintiffs had a contract to receive the same total sum for the nine-month academic year 1956-1957 as for the previous twelve-month year.

It seems probable that there may have been, as a matter of personnel policy, unfair discrimination between a teacher newly hired for the 1956-1957 academic year who had no accrued vacation rights and teachers represented by plaintiffs who did have such accrued rights, if the former were hired at the same stated salary and had the same qualifications as the latter. Plaintiffs, however, have not alleged facts to show that such treatment violated any contract.


Summaries of

Jenkins v. State

Supreme Court of Wisconsin
May 2, 1961
108 N.W.2d 924 (Wis. 1961)
Case details for

Jenkins v. State

Case Details

Full title:JENKINS and others, Appellants, v. STATE, Respondent

Court:Supreme Court of Wisconsin

Date published: May 2, 1961

Citations

108 N.W.2d 924 (Wis. 1961)
108 N.W.2d 924

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