1 OAG 503 (1913)  TOP 503 504 END

Public Officers

1.  Under Section 975 a county superintendent
    of schools may be removed for wilful
    neglect of duty, in failing to
    render reports.

2.  Such wilful neglect of duty would
    subject  a county or city superintendent
    to the penalties imposed by
    Sections 4549 and 4550.

January 7, 1913.


In your favor of December 27th you state
that Sections 439cc and 439ce of the Stats.
provide for certain reports to be made to the
Industrial Commission by county and city
superintendents of schools and you request
my opinion on the following questions:

     May a county superintendent who fails
     to make such reports be removed from
     office by the circuit judge on that

    Is a county or city superintendent who
    fails to make such reports guilty of
    official malfeasance under Sections
    4549 and 455O of the Statutes? "

Section 975 of the Wisconsin Statutes

     the judge of the circuit court may . .
     remove any county superintendent
     of schools in his circuit for
     incompetency, willful
     neglect of duty, etc.

There would be such "wilful neglect of duty"
in falling to report under Section 439cc
(ch. 421, Laws of 1911) only in case
the superintendent had received

     the reports and information as
     provided in the preceding sections
     and after blanks had been "furnished
     for that purpose."

The same would seem to be true of his failure
to report under Section 439ce (ch. 542 Laws
of 1911) since a knowledge of the facts
required to be reported would depend
upon his having received the reports
and information required to be
furnished to him.

Brown vs. State, 137 Wis. 543, 9,

1 OAG 503 (1913)  TOP 503 504 END

In order for a neglect of duty to be
willful there must be "an evil intent
without justifiable excuse, - not a
mere "inadvertent omission of
a required act."

Brown vs. State,   137 Wis. 543, 9;
State vs. McAloon, 142 Wis.  72, 3.

Sections 4549 and 4550 impose a penalty on

     any officer, agent or clerk of the state
     or of any county, town, school district,
     school board, city or village therein

     who shall

     wilfully violate any provision of law
     authorizing or requiring anything to
     be done or prohibiting anything from
     being done by him in his official
     capacity or employment or who shall
     refuse or wilfully neglect to perform
     any duty in his office required by law.

I see no reason why a failure to report as
required by sections 439cc and 439ce by a
county superintendent if "willful" within the
legal meaning of that word as defined in the
cases previously cited will not subject such
superintendent to removal pursuant to
Section 975, nor why such failure on
the part of either a county or city
superintendent is not punishable as
provided in Sections 4549 and 4550.

1 OAG 503 (1913)  TOP 503 504 END