.(dissenting). I am obliged to respectfully dissent from the decision of the court in this case.
It is a general rule of construction that where' a legislative provision is accompanied by a penalty for a failure to ob*125serve it, the provision is mandatory. 50 Am. Jur., Statutes, p. 49, sec. 27. The rule that imperative words may be construed to have only a directory meaning is inapplicable when a consequence or penalty is prescribed for failure to do the act commanded. 82 C. J. S., Statutes, p. 872, sec. 376. The word “shall” is ordinarily imperative, operating to impose a duty which may be enforced. 82 C. J. S., Statutes, p. 877, sec. 380. The provision in sec. 39.15 (2), Stats. 1951, presently sec. 40.43 (2), that a person who contracts to teach in a public school in this state shall within ten days after entering into a teaching contract file in the. office of the proper superintendent a statement showing the date of expiration and the grade and character of certificate held, is manifestly of an imperative nature. The consequence or penalty for failing to comply with this provision of the statute is the loss of the legal right of a teacher to collect any salary under the contract. The statute specifically provides that no order or warrant shall be issued by the clerk of the school board in payment of the teacher’s salary unless such teacher has complied with this particular subsection of the statute. Without an order or warrant from the clerk, a teacher is unable to draw salary. A clerk risking the issuance of an order or warrant for the salary of a teacher who failed to comply with the particulars specified in the statute, would clearly be guilty of malfeasance since sec. 348.29 provides that any clerk of a school board who shall wilfully violate any provision of law prohibiting anything from being done by him in his official capacity or employment, shall be punished by imprisonment or fine. It was clearly within the province of the legislature to prescribe' such consequences in the event a teacher fails to file the statement as required by the statute. It appears that the decision of the majority nullifies the legislature’s action in this regard without valid basis.
‘ The majority opinion directs atténtion to the language of the statute which existed before the amendment in 1939. *126The observation is that the provision which had theretofore existed relative to the forfeiture of a week’s salary for refusal or wilful neglect to file, would have been superfluous and meaningless. Perforce can it not be said that the legislature deliberately deleted that provision because it was meaningless or superfluous? It does not appear reasonable that the purpose was merely to change the meaning of the word “shall.” Whatever the reason, however, it seems that the statute must be construed in accordance with its present context which is not ambiguous.
In the majority opinion it is said that college seniors cannot obtain certificates to teach until they have graduated, and when entering into teaching contracts before graduation they are not able to file the statement as required by the statute. The statute, it is said, would produce an absurd result for those so situated. The school board may enter into teaching contracts at any time. Under provision of sec. 39.15 (1), Stats. 1951, now sec. 40.43 (1), no person may teach in the public schools of this state without a certificate from the state superintendent. Any teaching contract entered into with the student before graduation would of necessity be conditioned on the student’s ability to graduate and to obtain a certificate. It is no hardship to defer the execution of the teaching contract until the student graduates and obtains a certificate and is able to comply with the legal requirements of sec. 39.15 (2), Stats. 1951. Any absurdity, it seems, would be in the making of the contract before the student graduates. For the benefit of a teacher who possesses a certificate at the time of contract and who fails to comply with the filing requirement of the statute, a new contract may readily be entered into and such teacher may file within the time specified and thereby become entitled to salary.
The unauthorized method adopted by the county superintendent of schools in the case at bar and upon which the plaintiff-respondent relies, was clearly in contravention of *127the statute. An unambiguous statutory provision should not be treated as nonexistent or as being ambiguous solely because a county official has considered that a plan devised by him is preferable to that designed by the legislature.
The statute in question is not permissive or directory,— it is mandatory. The plaintiff-respondent’s failure to have complied with the statute was fatal to his cause of action. Summary judgment on motion of the defendant-appellant ought to have been granted.
I am authorized to state that Mr. Justice Brown and Mr. Justice Gehl concur in this dissenting opinion.