dissenting. Since I find myself unable to agree with the majority opinion rendered in this case, and in view of the fact that after studying the record and the authorities relating to the facts of this case, I feel I would be derelict in my duty if I did not set forth at least in short form the reasons why I am dissenting. I must start by stating in my opinion, the North G-allia Local School Board, the Respondent in this case, has been playing a “Cat and Mouse” game with the Relator for at least the last three years of his employment by said board. After the employment on the first three year limited contract, said Board attempted to discharge him every spring, but then reversed themselves shortly before the beginning of the fall term, the last contract being for the school year of 1961-1962.
Judge Collier states on page 360 of the majority opinion that the obvious purpose of the amendment of Section 3319.11, Revised Code, effective October 17, 1961, was to nullify the rule pronounced in the Farley case, and yet the opinion which he wrote was based primarily upon the law as set forth by the Supreme Court of Ohio, in the Farley case, and in my view gives no effect whatever to the 1961 amendment referred to above. Furthermore, the statement found at the bottom of page 360 of said majority opinion is absolutely contrary to the record, and therefore an unsupported inference made by Judge Collier in which Judge Brown, of course, concurs. On the contrary, I am of the opinion that the Relator’s rights should be determined as of October 17,1961, the effective date of the amendment to Section 3319.11, Revised Code, and there is no reason whatever for this court to legislate and make this amendment by its opinion effective either retroactively or prospectively. The legislature specifically and the amendment itself make it effective on October 17, 1961, and in the view of the writer, the Relator’s contract Immediately upon the effective date of this amendment, changed by operation of law from a limited contract to a continuing contract, since teachers tenure statutes serve merely to extend the term of employment by operation of law, and not to change the relationship of employer and employee existing between the district and the teacher. Vol. 47, American Jurisprudence, Section 134 on schools at page 393, *364and also to the same effect Vol. 47, Section 137 on schools in American Jurisprudence, 395.
Judge Collier in the majority opinion correctly says in the first paragraph on page 361 that a teacher under a limited contract may not be re-employed for a term to exceed five years. This is specifically set forth in Section 3319.11, Revised Code, and is still the law of Ohio, and yet the facts in this case are undisputed that the Relator served 6 years under so-called limited contracts in violation of the section referred to in this sentence. If this can be done, would a school board be permitted to let teachers teach on limited contracts for 15 or 20 years, and still have no rights under the Teachers Tenure Law? What then was King’s status for the year 1961-1962 which, was his 6th year of teaching in that same school district? My answer is that he had all the qualifications to be eligible for a continuing contract on October 17, 1961, except the recommendation of the Superintendent of Schools, and when the amendment made that unnecessary, he was immediately entitled to a continuing contract, and the amendment immediately became a part of his contract, and was written therein. Also, the same would be true on April 13,1962, when the Respondent board delivered notice that it was the intention of the Board not to re-employ him at the expiration of his present contract. Respondent’s exhibit 5 shows that said motion by the Board was passed, but does not show what members of the Board were present at that time, or what members voted thereon. However, the testimony of Mrs. Roush showed that it was a vote of 4 to 1 in favor of the motion not to re-employ. It is my contention and conclusion that this action on the part of the Board was a nullity, since it did not comply with the provisions of Section 3319.16, Revised Code, which specifically holds that “before terminating any contract the employing board shall furnish the teacher a written notice signed by its clerk of its intention to consider the termination of his contract with full specifications of the grounds for such consideration.” Exhibit 5, which was the only notice received by the Relator, is completely silent as to any specifications of the grounds required by Section 3319.16, Revised Code, even though the motion, according to the clerk’s testimony, was to the effect that the minutes showed that his *365contract was being terminated for inefficiency etc.; neither was his contract being terminated in accordance with Section 3307.-37, Revised Code, which relates to the only other method by which teachers contracts may be terminated.
Also, in my view the majority opinion is not well founded in holding that there were no contractual relations existing between the Relator and the Board at the time of the effective date of the amendment hereinbefore referred to. The truth of the matter is that on October 17, 1961, and also on April 13, 1962, the Relator and the Board still had contractual relations in that Mr. King had a right to complete his year of teaching, barring his removal for cause as provided for in Section 3319.16, Revised Code, and draw his salary for the same which he did; likewise, the Board had a legal right to expect Mr. King to complete his year of teaching at that time, which he did, and we all know, of course, if he had not done so, his salary would not have been paid to him. In addition to the above, the Relator still retained all the rights and privileges which the Teacher’s Tenure Law gave him and as the law provides, all enactments of the legislature become part of the teacher’s contract upon their effective date, the same as if written therein.
I agree with Judge Collier in his majority opinion that in order to be entitled to a writ of mandamus, the Relator must show a clear right thereto, and in this case, after many weeks of studying the facts and the law, I am thoroughly convinced that by the terms of Section 3319.11, Revised Code, as well as by the many authorities I have also read and studied, and in addition thereto by the amendment of Section 3319.11, Revised Code, effective October 17, 1961, gave the Relator such clear remedy that the Respondent Board was divested by law from terminating the Relator’s right to a continuing contract. The amendment of October 17,1961, nullified completely what Judge Collier quoted from 48 Ohio Jurisprudence (2d), 541, Section 118, found on page 361 of the majority opinion. If Mr. King is not entitled to a continuing contract under the facts of this case, then our teachers have little or no security under the Teachers’ Tenure Law. Under the holding of the case of State, ex rel., v. Board of Education, 88 Ohio App., 175, a teacher employed by a Board of Education fof 5 or more consecutive years immediately prior to the enactment of the Teachers’ *366Tenure Law and wbo bolds a professional permanent or life certificate is entitled to a continuing contract. Also, in this dissent, I rely upon the case of Rose v. Board of Education, 74 Ohio App., 63, 57 N. E. (2d), 609, which holds that a teacher holding a life certificate who was completing 5 consecutive years as a teacher in one school district at the time of passage of Teachers’ Tenure Act on May 15,1941, was entitled under Section 7690-2, General Code, to a continuing contract, although such teacher since that time had been employed on a yearly basis, and had accepted and taught under one year contracts. Section 7690-2, General Code, is now Section 3319.11, Revised Code.
Lastly, since the evidence and the exhibits plainly and clearly show that the Relator had taught 6 consecutive years in the North Gallia School District and held a professional certificate effective September 1, 1959, and lacked only the recommendation of the Superintendent of Schools to entitle him to a continuing contract, I would have the judgment of this court be to the effect that the Relator was and is entitled to a continuing contract, beginning with the school year of 1962-1963, and that his continuing contract status arose as a matter of law and by operaiton of law on October 17, 1961, and that he is entitled to all the rights and privileges accorded by the Teachers’ Tenure Law of this state, since all that time he no longer needed any recommendation from the Superintendent of Schools. If the Board decided to terminate his services, it should have proceeded under Section 3319.16, Revised Code, hereinbefore referred to. It would be my order that Respondent pay to the Relator his salary accrued from the beginning of the school year of 1962, including such sick pay as may be applicable forthwith, and recognize his continuing contract status as a teacher in said school district until and unless the same be terminated in the manner provided for by Section 3319.16 or Section 3307.37, Revised Code. I would not enter any money judgment in this cause for the reason that no evidence was introduced before the court by either party to show the amount which would be due Relator from the Respondent. However, should this matter finally be determined in Relator’s favor he has an adequate remedy at law for this, and the lower courts *367would be open to him for this cause of action. I would have the writ of mandamus granted and ordered issued forthwith.