This was an action filed originally in our court. The petition reads as follows:
"The petition of Maude I. Kohr and Vera M. Kohr respectfully represents:
"I. That there is now and has at all times hereinafter mentioned been in full force and effect in the state of Ohio, a statute known as the Teachers' Tenure Act, being known as Chapter 3319 of the Revised Code of Ohio.
"II. That the defendants-respondents are the duly elected, acting, and qualified members of the Board of Education of the Uhrichsville City School District, Uhrichsville, Ohio, in Tuscarawas County, Ohio.
"III. That said school district is a duly and legally organized school district.
"IV. That one of the plaintiffs-relators, Maude I. Kohr, aged 72 years, has been continuously employed by the Mill Local School District and the members of the said Mill Local Board of Education as a teacher since 1921; that her salary for the past school year was $4,330.00; that according to law the said Mill Local School District became part of the Uhrichsville City School District.
"V. That one of the plaintiffs-relators, Vera M. Kohr, aged 70 years, has been continuously employed by the Mill Local School District and the members of the said Mill Local Board of Education as a teacher since 1916; that her salary for *Page 12 the past school year was $4,130.00; that according to law the said Mill Local School District became part of the Uhrichsville City School District.
"VI. That by reason of the length of their employment by the merged Mill Local Board of Education, the plaintiffs-relators were and are entitled to all the benefits for the provisions for contractual continued service as provided in the said Teachers' Tenure Act, which provides in part as follows:
"That the contract of a teacher may not be terminated except for cause, and then only after a written notice stating the grounds for said termination, and after an opportunity to defend has been given to the affected teacher or teachers.
"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.
"IX. That the plaintiffs-relators on July 22, 1958, and several times previously thereto offered to resume their regular duties in the position for which they had been employed. At said time the plaintiffs-relators were denied the right to resume their positions and were advised by the Superintendent *Page 13 and the Board of Education of the Uhrichsville City School District that they could not resume their duties.
"X. That plaintiffs-relators have been and are now ready and willing to assume their duties in the position for which they were employed, by the Board of Education of the Mill Local District, now merged with the Uhrichsville City School District. That the salary for each of these plaintiffs-relators for the ensuing school year would be $4,075.00.
"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.
"Wherefore, Maude I. Kohr and Vera M. Kohr pray that a writ of mandamus be issued by this court directed to Dean Hooker, member and President; Herman L. Morris, Clerk; Herbert L. Crites, member; John F. Milgate, member, and Kenneth L. Cook, member; as members of the Board of Education of the Uhrichsville City School District, Uhrichsville, Ohio, Tuscarawas County, Ohio, commanding them to reinstate them as teachers at Uhrichsville City School District, Uhrichsville, Tuscarawas County, Ohio, at a salary of four thousand seventy-five ($4,075.00) dollars each for the ensuing school year of 1958 and 1959; or in the alternative, directing them as said defendants-respondents to draw two warrants on the education fund in the amount of four thousand seventy-five ($4,075.00) dollars, payable to the order of each of these plaintiffs-relators in the event that said defendants-respondents do not permit said plaintiffs-relators to resume their positions in accordance with their contracts, immediately upon service of said writ."
To this petition the respondents filed a demurrer. The question before this court is whether that demurrer should be sustained. In a consideration of this case the demurrer searches the record.
Section 3319.16, Revised Code, in part, reads as follows:
"Any teacher affected by an order of termination of contract may appeal to the Court of Common Pleas of the county in which the school is located within thirty days after receipt of notice of the entry of such order. Such appeal shall be an *Page 14 original action in said court and shall be commenced by the filing of a petition against such board, in which petition the facts shall be alleged upon which the teacher relies for a reversal or modification of such order of termination of contract. Upon service or waiver of summons in said appeal, such board shall forthwith transmit to the clerk of said court for filing a transcript of the original papers theretofore filed with said board and a certified transcript of all evidence adduced at the hearing or hearings before such board, whereupon the cause shall be at issue without further pleading and shall be advanced and heard without delay. The court shall examine the transcript and record of the hearing before the board and shall hold such additional hearings as it deems advisable, at which it may consider other evidence in addition to such transcript and record."
This section of the Revised Code clearly provides the remedy of appeal for relators.
Section 2731.05 of the Revised Code provides as follows:
"The writ of mandamus must not be issued when there is a plain and adequate remedy in the ordinary course of the law."
For authority I cite State, ex rel. Brammer, v. Hayes, Clerkof Courts, 164 Ohio St. 373, 374, 130 N.E.2d 795:
"Relator in the instant case had an adequate remedy in the ordinary course of law by way of appeal to this court from the judgment of the Court of Appeals reversing the judgment of the Court of Common Pleas. A writ of mandamus may not be invoked as a substitute for the remedy of appeal. State, ex rel. City ofCincinnati, v. Moulton et al., Public Utilities Commission,160 Ohio St. 397, 116 N.E.2d 445; State, ex rel. Stein, v.Sohngen, Dir., 147 Ohio St. 359, 71 N.E.2d 483; State, exrel. Blackburn, v. Court of Appeals, 154 Ohio St. 237,95 N.E.2d 273."
I also cite State, ex rel., v. Crites, Auditor, 48 Ohio St. 142,26 N.E. 1052:
"1. In mandamus, as in civil actions, a general demurrer to the reply will search the record and put in issue the sufficiency of the petition."
Also, City of Mt. Vernon v. State, ex rel. Berry, 71 Ohio St. 428,73 N.E. 515: *Page 15
"3. A controversy between the parties to a contract as to their respective rights under the contract cannot be determined in proceedings in mandamus."
Also, State, ex rel. Howe Construction Co., v. Moyer, Dir. ofDept. of Public Works, 70 Ohio Law Abs., 246, 127 N.E.2d 777.
"3. Contract rights may not be determined in an action in mandamus but can only be settled in actions at law."
On page 247 of the Howe case it is said:
"It is well established that mandamus may be resorted to only when the right to the relief sought is clear. 25 O. Jur., 997, and cases cited. The duty must be actually ministerial at the time the application seeking its performance is made. SummitCounty Board of Education v. State, 115 Ohio St. 333. The respondent herein is vested with the discretionary power of determining whether or not the relator has complied with all of its contractual obligations. The contract rights may not be determined in mandamus but can only be settled in actions at law.City of Mount Vernon v. State, ex rel. Berry, 71 Ohio St. 428.
"The principle that an unliquidated claim will not be adjudicated in a mandamus proceeding is clearly set forth in 34 Amer. Jur., 943:
"`The general rule that mandamus will not lie to enforce contract rights is held to be ground for denying a writ of mandamus to enforce a claim against a public corporation growing out of contract, where the performance of the contract by the relator and the amount and vitality of the claim are disputed.'"
Also, in 55 Corpus Juris Secundum, 85, Section 51, the text provides:
"The primary purpose or function of a writ of mandamus is to enforce an established right, and to enforce a corresponding imperative duty created or imposed by law. It is designed to promote justice; and, for the furtherance of justice, it is subject to certain well-defined qualifications. Its principal function is to command and execute, and not to inquire and adjudicate, and, therefore, it is not the purpose of the writ to establish a legal right, but to enforce one which has already been established." *Page 16
See, also, State, ex rel. Wilcox, v. Woldman, Dir., 157 Ohio St. 264, 105 N.E.2d 44; and Williams, Dir., v. State, exrel. Gribben, 127 Ohio St. 398, 188 N.E. 654, wherein the same legal principles are sustained.
I cite State, ex rel. Harris, Chief of Police, v. Haynes,Mayor, 157 Ohio St. 214, 105 N.E.2d 53, the syllabus of which is as follows:
"1. Where a mayor files with the city civil service commission what purports to be an order of removal of a chief of police and reasons therefor, and furnishes a copy thereof to such chief, and the chief within ten days after such order of removal files a motion with the commission raising the question whether his removal could be so accomplished, and the commission promptly renders a decision approving such action of the mayor, a writ of mandamus will not be issued to compel the reinstatement of such chief of police.
"2. In such an instance, assuming the facts are such that the proceedings for his removal should comply with Section 486-17a, General Code, and the proceedings actually taken for his removal did not comply therewith, the remedy of such chief of police is by appeal to the Common Pleas Court pursuant to the provisions of Section 486-17a, General Code.
"3. Where a party had a remedy by appeal, whether he exercised that remedy or not, he cannot ordinarily have the extraordinary remedy of mandamus to secure the same rights which he could have secured by such appeal.
"4. At the end of the probationary period provided for in Section 486-13, General Code, an appointing authority has the right to remove an appointee whose service has been unsatisfactory to such appointing authority. Such right of removal is subject only to the approval of the civil service commission.
"5. Any rights of the chief of police of a city to salary, for a period during which he was not paid because excluded from office by reason of a void suspension, may be asserted in an action at law against the city; and such chief is, therefore, not entitled to a writ of mandamus to enforce such rights."
On page 219 of the Harris case (157 Ohio St.) it is said:
"Section 486-17a, General Code, provides so far as material in this case: *Page 17
"`In all cases of removal the appointing authority shallfurnish such employee or subordinate with a copy of the order ofremoval and his reasons for the same, and give such officer, employee or subordinate a reasonable time in which to make andfile an explanation. Such order with the explanation, if any,of the employee or subordinate shall be filed with thecommission.'"
On page 220 of the Harris case the following appears:
"Much reliance is placed by relator upon State, ex rel.Brittain, v. Board of Agriculture, 95 Ohio St. 276,116 N.E. 459. It is sufficient to state that in his letter of February 7 Mayor Haynes did state what purport to be reasons for his order of removal while `no reason whatever' was stated in the order of removal in the Brittain case.
"In the instant case, the mayor furnished Harris a copy of what purports to be an `order of removal and his reasons for the same' when he gave him a copy of the letter of February 7. Thereafter, Harris promptly appealed to the commission from that order by filing his motions with the commission. When the commission rendered its order of February 15, it certainly rendered a decision which appeared upon its face to be final so far as it affirmed the judgment of the mayor in terminating the services of Harris as chief of police. Thereafter, if, as relator contends, the provisions of Sections 486-17 and 486-17a, General Code, were applicable, those statutes certainly gave Harris a right of appeal from that decision of the commission to the Court of Common Pleas. In re Fortune, 138 Ohio St. 385,35 N.E.2d 442. In our opinion the remedy made available to him by that statute was an adequate remedy. See State, ex rel.Sidell, v. Cole, Dir., 147 Ohio St. 203, 206,70 N.E.2d 451. Having had such a remedy, whether he exercised it or not, Harris cannot now have the extraordinary remedy of mandamus in this court to secure the same rights which he could have secured by appeal to the Common Pleas Court. See State, ex rel.Basichis, v. Zangerle, Aud., 126 Ohio St. 118, 184 N.E. 289;State, ex rel. Blackburn, v. Court of Appeals, 154 Ohio St. 464, 96 N.E.2d 297."
And on page 223 of the Harris case (157 Ohio St.) we read as follows: *Page 18
"The only question remaining is whether relator is entitled to the extraordinary writ of mandamus to compel the city to pay him the salary which he claims to be due him for the 15-day period during which Mayor Haynes endeavored to suspend him in January.
"It is not necessary for us to consider whether his claim in this respect is valid or not. If it is valid, it can be asserted in an action at law against the city of Newark. See City ofCleveland v. Luttner, 92 Ohio St. 493, 111 N.E. 280, relied upon by relator. Here again it appears that relator has an adequate remedy at law and is, therefore, not entitled to the extraordinary writ of mandamus to enforce any rights in this respect that he may have. State, ex rel. Curtis, v. DeCorps,134 Ohio St. 295, 300, 16 N.E.2d 459; State, ex rel. White, v.City of Cleveland, 132 Ohio St. 111, 5 N.E.2d 331."
Section 3307.37, Revised Code, in part, reads as follows:
"* * * An employer may as of the thirtieth day of June of any year terminate the contract or the employment of any member who has attained the age of seventy or who will attain the age of seventy by the following thirty-first day of August."
Section 3313.62, Revised Code, reads as follows:
"The school year shall begin on the first day of July of each calendar year and close on the thirtieth day of June of the succeeding calendar year. A school week shall consist of five days, and a school month of four school weeks."
I also cite State, ex rel. Adams, v. Rockwell, 167 Ohio St. 15, 145 N.E.2d 665:
"Per Curiam. Section 2731.05, Revised Code, provides that `the writ of mandamus must not be issued where there is a plain and adequate remedy in the ordinary course of the law.'
"This court has held in State, ex rel. Libbey-Owens-FordGlass Co., v. Industrial Commission, 162 Ohio St. 302,123 N.E.2d 23, that `before a writ of mandamus will be granted by the Supreme Court under its constitutional powers as contained in Section 2 of Article IV of the Ohio Constitution, a clear legal right thereto must be shown, and the burden of establishing such right is upon the relator'; and that `a writ of mandamus will ordinarily be refused by the Supreme Court under *Page 19 its constitutional powers unless the relator shows affirmatively that there is no plain and adequate remedy in the ordinary course of the law, including equitable remedies.' (Emphasis supplied.)
"The demurrer to the petition is sustained on the sole ground that there is another adequate ordinary remedy by way of injunction, and the petition is dismissed."
Prior to the merger of the school districts herein on April 10, 1958, the Mill Township board notified by letter the relators, Maude I. Kohr, aged seventy-two years, and her sister, Vera M. Kohr, aged seventy years, that their contracts of employment would terminate as of July 1, 1958.
Relators several times offered to resume their regular duties in the positions in which they had been employed by the Mill Township board, but were advised by the superintendent and board of education that they could not resume their duties.
It was absolutely necessary that the Mill Township Board of Education should notify the relators before July 1, 1958, that their contracts of employment would be terminated.
It would appear from the reading of the petition that the relators are attempting to force the Board of Education of the Uhrichsville City School District to re-employ them in the positions in which they served the Mill Township board, and that they are asking the court to control the judgment and discretion of the school board, and if it is only money that the Kohr sisters are seeking, there is an adequate remedy at law to sue on their contracts, which they allege in their petition.
In conclusion, for the reasons herein stated, I am of the opinion that the relators have an adequate remedy at law and are not entitled to the ordinary writ of mandamus to enforce their claims, and that the demurrer to the petition of the relators should be sustained and the petition dismissed. *Page 20