Opinion
No. 77-973
Decided March 29, 1978.
Mandamus and quo warranto — Relief improper, when — Adequate remedies at law available.
APPEAL from the Court of Appeals for Summit County.
Relator, Nicholas Buian, was the Personnel Director of the city of Akron under an oral employment contract with the Civil Service Commission of Akron ("commission"). His term of employment was to expire on December 31, 1978. On March 17, 1977, relator sent a letter to the president of the commission in which he submitted his resignation effective March 19, 1977.
Relator asserts that three days later he delivered letters of withdrawal of his resignation to two members of the commission. On the following day, the commission appointed an interim personnel director to fill the vacancy left by relator's resignation.
On June 6, 1977, relator filed the instant action in quo warranto in the Court of Appeals for Summit County naming the interim personnel director, Richard F. Pamley, the commission, and its individual members as respondents.
On July 6, 1977, respondent Pamley filed an answer, and the remaining respondents filed a motion for an order dismissing them as parties to the action. Relator then filed a brief in opposition to respondents' motion to dismiss in which he requested, in the alternative, a writ of mandamus. Respondents, on July 27, moved to dismiss relator's request for a writ of mandamus.
On July 28, 1977, the court granted respondents' motion to dismiss filed on July 6, finding that they were not proper parties to a quo warranto action. On August 11, 1977, the Court of Appeals denied the relator's motion for reconsideration of the July 28th order as well as the motion for a writ of mandamus. Relator is now appealing from the court's July 28, 1977, and August 11, 1977, orders.
Mr. John R. Vintilla, for appellant.
Mr. John E. Holcomb, director of law, and Mr. Edward J. Reigler, for appellees.
Appellant is basically maintaining that the commission and its members have breached a contract of employment with him. Although he admits submitting a resignation, he avers that he made a revocation of this resignation prior to its acceptance by the commission and its members. However, the commission did "accept" the resignation and proceed to appoint an interim and, eventually, a permanent director.
A writ of quo warranto issues only where there is a clear legal right to the relief requested and is not the proper remedy to test the right of a person having prima facie title to an office. "The proper method of procedure in a case of this character is by mandamus rather than quo warranto." State, ex rel. Keyser, v. Babst (1920), 101 Ohio St. 275, 281.
However, the propriety of the relief here requested is obviously bottomed upon resolution of a contractual law question. It is not the obligation of this court or the Court of Appeals to resolve contractual disputes in the guise of applications for extraordinary writs, especially in view of the fact that appellant has a plain and adequate remedy in the ordinary course of the law under either Section 116 of the Akron City Charter or a declaratory judgment proceeding under R.C. 2721.03.
Section 116 of the Akron City Charter provides:
"The appointing authority may suspend, reduce in grade and compensation or dismiss any employee in the classified service for just and reasonable cause and upon specific written charges. Such charges shall be served on said employee and a copy filed with the Commission * * *. The Personnel Director and employees of the Civil Service Commission shall have an appeal directly to the Court of Common Pleas. * * *"
This remedy is available even though there is an alternative administrative remedy. Herrick v. Kosydar (1975), 44 Ohio St.2d 128; American Life Accident Ins. Co. v. Jones (1949), 152 Ohio St. 287.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CELEBREZZE, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.