State ex rel. Kohr v. Hooker

• Decision Date: 19 August 1958
• Citation: 6 O.O.2d 269,152 N.E.2d 788,106 Ohio App. 1
• Parties: , 6 O.O.2d 269 STATE of Ohio ex rel. Maude I. KOHR and Vera M. Kohr, Plaintiffs-Relators, v. Dean HOOKER, member and President, Herman L. Morris, Clerk; Herbert L. Crites, member; John F. Milgate, member; and Kenneth L. Cook, member Uhrichsville City School District Board of Education, Defendants-Respondents.
• Court: Ohio Court of Appeals

Page 1

106 Ohio App. 1

152 N.E.2d 788, 6 O.O.2d 269

STATE of Ohio ex rel. Maude I. KOHR and Vera M. Kohr, Plaintiffs-Relators, v. Dean HOOKER, member and President, Herman L. Morris, Clerk; Herbert L. Crites, member; John F. Milgate, member; and Kenneth L. Cook, member Uhrichsville City School District Board of Education, Defendants-Respondents.

Court of Appeals of Ohio, Tuscarawas County.

Aug. 19, 1958.

Syllabus by the Court

1. Mandamus is the proper proceeding to compel a School Board to employ a teacher.

2. The provisions of the Teachers Tenure Act are to be liberally construed in favor of the teacher.

3. When a Local School District is merged into a City School District, the Board of Education of that City School District becomes the Employing Board of Teachers of the Local School District, who, under the provisions of Revised Code, § 3319.18 have continuing service status therein.

4. Revised Code, Section 3307.37, prescribes what must be done to retire a teacher for superannuation. It requires formal notice (1) to the teacher (b) from her Employing Board (c) on or before June 30th (d) giving superannuation as the reason. When there is a failure to comply therewith, a Writ of Mandamus will issue to compel the Employing Board to restore her to her position.

Lamneck & Johnson, New Philadelphia, for plaintiffs-relators.

Scott Harrison, Uhrichsville, for defendants-respondents.

McLAUGHLIN, Judge.

This is an original action for a writ of mandamus. It comes about by reason of the merger of Mill Local School District with the Uhrichsville City School District in Tuscarawas County.

Since the question is presented to this Court by demurrer, all well pleaded allegations must be taken as true. Paragraphs 7, 8 and 11 of the petition are especially to be noticed.

Paragraphs 7, 8 and 11 of the petition, we quote:

'VII. That each plaintiff-relator received under date of April 10, 1958 over the signatures of S. J. Mahaffey, President, and Lucille Born, Clerk of the Board of Education of Mill Local School District a letter advising them as follows:

'Dear Miss Kohr:

"This is to notify you that after July 1, 1958 the Board of Education of Mill Township will cease to exist and will be legally merged with the Uhrichsville City School District. Under the circumstances, it is my duty to notify you that your employment with the Board of Education of Mill Township will terminate as of July 1, 1958.

"Please consider your contract and employment terminated as of July 1, 1958 by the Board of Education of Mill Township.

"The Board appreciates your services and cooperation and we regret the termination of the contract.

"Respectfully'

'That the above letter was sent to all of the teachers of the Mill Local School District.'

'VIII. That since the merger of the Mill Local School District into the Uhrichsville City School District no reduction in the number of teachers has been necessary.'

'XI. That at all times the defendants-respondents in their attempt to dismiss the plaintiffs-relators from their positions have failed to follow the provisions of the Teachers' Tenure Act and deprived them of their rights thereunder.'

Relators are two teachers in the former Mill Local School District. Both have attained more than seventy years of age and have more than thirty-six years of service credit.

Respondents are members of the School Board of the Uhrichsville City School District.

The petition also alleges that Relators have been and are now ready and willing to assume their duties as teachers and that they have been advised on July 22nd and on other previous occasions, by Respondents, that they could not do so.

Mandamus is a high prerogative writ to be issued at the discretion of the Court, when it is clearly shown that there is a plain dereliction of duty by public officers. State ex rel. Van Harlingen v. Board of Education of Mad River Tp., 104 Ohio St. 360, 362, 136 N.E. 196. It will issue when a clear right thereto appears and when there is no plain and adequate remedy at law. Sections 2731.01 R.C. to 2731.05 R.C.

It these relator teachers are entitled to continue in their positions, they are entitled to the benefits that may accrue by way of retirement income, or otherwise, from more service credit. We are aware of no legal remedy except mandamus that would be adequate to continue them as teachers.

The Teachers' Tenure Act of this State was enacted in 1941. It was modeled after similar Acts of other States, particularly Indiana and Pennsylvania, whose Supreme Courts have spoken, in actions similar to the one at bar, that mandamus is the proper remedy and that teachers similarly situated have no other adequate remedy at law.

Where a teacher by positive provision of law has a fixed tenure of office or can be removed only in some prescribed manner, mandamus will issue. School City of Elwood v. State ex rel. Griffin, 203 Ind. 626, 180 N.E. 471, 81 A.L.R. 1027.

'The school boards are given no discretion in the execution of these contracts, mandamus was unquestionably the proper proceeding to compel the respondent school board to perform their duty.' Teachers' Tenure Act cases, 329 Pa. 213 at 222, 197 A. 344, 351.

Ohio has recognized the propriety of mandamus in similar cases. See State ex rel. Bishop v. Board of Education of Mt. Orab Village School Dist., 139 Ohio St. 427, 40 N.E.2d 913; State ex rel. Frank v. Meigs County Board of Education, 140 Ohio St. 381, 44 N.E.2d 455; State ex rel. Saltsman v. Burton, 154 Ohio St. 262, 95 N.E.2d 377.

Somewhat similar situations were presented in four consolidated cases before the Supreme Court, reported in 139 Ohio St. 427, 40 N.E.2d 913. This decision was handed down soon after the Teachers' Tenure Act became effective September 1, 1941.

In those cases writs of mandamus were caused to be issued as against four different employing School Boards, ordering them to tender continuing contracts to the teacher who, at the time of the passage of the Act, is completing five or more consecutive years of employment. All four of the teacher-relators therein were found to be completing such terms of service and by operation of law entitled to continuing contracts under the mandatory terms of the Teachers' Tenure Act.

At the outset attention is directed to the now universally recognized principle that the Teachers' Tenure Act should be liberally construed in favor of the teachers and the corollary principle of strict construction as against their employing School Boards.

Judge Zimmerman in his opinion in 139 Ohio St. 427, 40 N.E.2d 913, 919, says of the Teachers' Tenure Act:

'Such legislation bears a resemblance to the order civil service laws.'

Recognizing such resemblance we go to Ohio case law as to the use of mandamus actions to restore such civil service officers to their positions.

The leading Ohio case thereon is State ex rel. Brittain v. Board of Agriculture, 95 Ohio St. 276, 116 N.E. 459. In that case a writ of mandamus was granted. The claim was made therein that Relator had an adequate remedy at law in that G.C. § 486.17a (now R.C. § 143.27) provided for an appeal.

The ruling of the Court is epitomized in the 2nd and 3rd syllabi as follows:

'2. The provisions of that section do not confer upon the commission authority to hear an appeal from an order of removal made by an appointing authority where the employe has not been furnished its reasons for the removal.'

'3. The provision of section 486-17a General Code, * * * that in all cases of removal the appointing authority shall furnish the employe its reasons for the order of removal, is mandatory, and the failure of the appointing authority to comply with this provision is fatal to such order, and the same is a nullity.'

In the case of State ex rel. Harris v. Haynes, 157 Ohio St. 214, 105 N.E.2d 53, 56, Judge Taft distinguishes but does not overrule the Brittain case because 'no reason whatever' was stated in its order of removal.

In the instant case it is likewise claimed that relators here had an adequate remedy at law in that R.C. § 3319.16 provides for an appeal. Such contention is based upon the premise that the letter from the Mill Local School District Board above quoted was sufficient and valid as an 'order of termination of contract'. It follows that if that letter was insufficient, invalid and a nullity as such order, there is no right of appeal therefrom.

The following language by Newman, J., 95 Ohio St. at page 283, 116 N.E. at page 460, of the Brittain opinion is pertinent:

'The purpose of the civil service law is to continue in positions those who are efficient, faithful, and trustworthy. By force of the provisions of the section we have quoted the relator was entitled to hold his position during good behavior and efficient service. The defendant in error could remove him, but there was a limitation on the power to remove. There must have existed one or more of the grounds enumerated in the statute before an order of removal could be made, and, then, the process for removal as therein prescribed must have been followed.'

By analogy the purpose of the Teachers' Tenure Act is 'protection of those established and qualified in the teaching profession' and by force of its provisions Relators are entitled to hold their positions and have continuing service status. The employing Board could remove them, but there are limitations upon its power to retire, terminate or suspend. The provisions of the Act enumerate and prescribe the process for retirement, termination or suspension.

Most of the questions raised here are resolved by simple reference to, and application of, specific sections of the Teachers' Tenure Act.

Revised Code §§ 3319.08 through 3319.18 contain all of the provisions of the Teachers' Tenure Act. These provisions were contained in former G.C. §§ 7690-1 through 7690-8.

First, R.C. Section 3319-18 answers the question about the status of Relators as teachers after the merger and specifically...