The opinion
Smith, J.,
dissenting. The relator submitted a written resignation to the board effective at the end of the school year. The board formally accepted relator’s resignation “as a first step toward his teaching in another school in our system.” Later the board “rescinded” its acceptance of the resignation. The use by the parties of the word “rescinded” is inaccurate
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under the circumstances. Eeferring to the words “rescind” or “rescission” it is stated in V Williston on Contracts (Eev. Ed.) 4063:
“In the Eestatement of Contracts the words in question are used chiefly where the termination of the contractual relation is by mutual consent.”
Eelator herein did not enter into a mutual consent to a rescission of the acceptance of the resignation or his resignation, itself, but deliberately elected to leave his resignation on file with the board and did not withdraw the same. The unilateral action of the board was directed solely to a withdrawal of its acceptance and left the resignation stand as originally filed. With the resignation still on file with the board, relator voluntarily thereafter entered into a limited contract of employment for one year without any protest.
Any issue as to the application of the statute pertaining to the right of relator to a continuing contract of employment can be summarily dismissed since his teaching experience entitled him to such contract if, by his conduct, he has not waived such right. The facts and the decision in
State, ex rel. Ford,
v.
Board of Education,
141 Ohio St. 124 , 145 A. L. R. 1075 (referred to in 165 A. L. R. 1433 n) are consonant to the chief operative facts in the case before this court and should be controlling of a decision of this court denying the petition of relator for a writ of mandamus.
It is stated in the
Ford case, supra,
opinion by Zimmerman, J., as follows at page 127:
“However, subsequent to the effective date of the Teachers’ Tenure Act, with the provisions of which relatrix must be presumed to have been familiar, she accepted from the respondent board a contract dating from September 29, 1941, and continuing only for the remainder of the school year, and, near the time of its issuance, also tendered her resignation as a teacher, effective June 20, 1942, to seek another position. Eelatrix claims no fraud or misrepresentation in these transactions.
“While the respondents do not expressly plead waiver as a defense, the affirmative allegations of the answer certainly suggest it.
‘ ‘ The principle of law is well established that one is free to
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waive the rights and privileges which are dne him, whether secured by contract, conferred by statute, or guaranteed by the Constitution, so long as there is no violation of public policy. 40 Ohio Jurisprudence 1235, Section 3.
“When relatrix accepted without protest the limited contract of September 29, 1941, and likewise tendered her resignation, she covenanted with the respondent board that her services as a teacher would finally end, so far as the board was concerned, on June 20, 1942, and she should be bound by such conduct.
“Instead of demanding a continuing contract and standing on such demand, relatrix deliberately pursued another course, the effect of which was to relieve the board of education from tendering the continuing contract provided by statute.
“Mandamus is not a writ of right, but its issuance rests in the sound discretion of the court.
State, ex rel. Mettler, Pros. Atty.,
v.
Stratton et al., Commrs.,
139 Ohio St. 86 , 38 N. E. 2d 393 .”
Thus, the case at bar, where the resignation of the relator was not withdrawn, and coupled therewith the acceptance, without protest of relator, of a limited contract of employment, presents facts which impel this member of the court to the conclusion that the relator is not entitled to a writ of mandamus for a continuing contract of employment and that the petition, therefore, should be denied. It should be noted that nothing in the majority opinion should be construed as a basis for any monetary award since there is no evidence in the record upon which the court could make such award.