STATE, EX REL. v. BOARD, 152 Ohio St. 195 (1949)

88 N.E.2d 291

THE STATE, EX REL. MORGAN v. BOARD OF TRUSTEES OF AND THE OHIO STATE ARCHAEOLOGICAL HISTORICAL SOCIETY.

No. 31727Supreme Court of Ohio.
Decided October 26, 1949.

Mandamus — Writ denied — No duty specially enjoined by law — Section 12283, General Code — Reinstatement to position as curator and payment of compensation under contract.

IN MANDAMUS.

The relator alleges in his petition that he was employed as curator of archaeology under a contract between himself and the respondents, the Board of Trustees of and The Ohio State Archaeological Historical Society, a corporation organized under the laws of this state and designated as an agency of the state by certain sections of the General Code; that in March 1948 he was informed through newspaper releases that he had been dismissed, but he continued to carry on his duties as curator; that on July 22, 1948, he was advised by telegram to be available for a personal interview at a board committee hearing on the succeeding day, on which day he attended a full meeting of the board which voted, in his presence, not to admit a representative of the American Anthropological Association as relator’s observer and representative, and relator refused to participate in such hearing, without counsel and alone; that on or about July 24, 1948, he was informed by letter that he had violated the society’s “Stated Policy of Employment,” of which policy he had no knowledge, and his employment as curator was terminated as of July 31, for the welfare of the society; and that he directed a written communication asking for an opportunity to “make further response or reply,” as provided for in the notice to him and in the “Policy of Tenure,” but he received no reply to his communication.

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He alleges further in the petition that the relator has been denied his rights under the policy of tenure and, if the board had any authority or discretion to make such “Stated Policy of Employment,” the board abused its authority or discretion by denying the relator any knowledge of the stated policy and by denying him the rights granted under the policy of tenure, whereby he has been denied his rights under the 14th Amendment to the U.S. Constitution and Sections 1 and 2 of Article I of the Constitution of Ohio.

Relator pleads further that he has exhausted his remedies under the administrative “setup” of the board of trustees and of the society, and that he has no other adequate remedy at law.

He prays for a writ of mandamus commanding the respondents to reinstate and certify him as of August 1, 1948, to his position as curator and to compensate him under the terms of his contract of employment since that date.

The cause was submitted on demurrer to the petition.

Mr. Frank C. Shearer, for relator.

Mr. Herbert S. Duffy, attorney general, and Mr. Joseph P. Kinneary, for respondents.

BY THE COURT.

Counsel for relator contends that the relator is an employee with a contractual relationship existing between him and the respondents acting as an agency of the state, the duties of which agency are prescribed by statute, and that the performance of those duties may be compelled by mandamus.

Certain sections of the General Code are pleaded in the petition as designating the respondent society as an agency of the state. Those sections relate only either to personnel of the board of trustees or to the

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duties of the society as custodian of memorial and historical properties.

Blackstone’s Commentaries, Book III, Chapter 7, page 110, defines mandamus as follows:

“A writ of mandamus is, in general, a command issuing in the king’s name from the court of king’s bench, and directed to any person, corporation, or inferior court of judicature within the king’s dominions, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the court of king’s bench has previously determined, or at least supposes, to be consonant to right and justice.”

That common-law definition was the genesis of Section 14 of the Act of March 9, 1835 (33 Ohio Laws, 57), and Section 12283, General Code, which now defines mandamus as “a writ issued, in the name of the state, to * * * a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.”

Counsel for relator has cited no provision of the Constitution or statute of this state specially enjoining upon the respondents the duty to employ the relator under either written or oral contract, to retain him in employment, to furnish him with reasons for removal and grant him a hearing thereon, or to reinstate and compensate him after his discharge.

The demurrer to the petition is sustained and a writ of mandamus is denied.

Writ denied.

WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART, TURNER and TAFT, JJ., concur.

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