By an opinion filed herein on November 14, 1934, this Court overruled relator's demurrer to respondents' return and denied relators' motion to strike certain portions of respondents' return. A petition for a rehearing suggests that the Court misapprehended the issues raised by the pleadings, and that the Court has in effect overruled its recent decision in the case of State, ex rel. Pittman, v. Barker, 113 Fla. 865,152 Sou. Rep. 682.
The initial command of the alternative writ of mandamus was a direction to respondents to meet in session as a Board of Public Instruction and thereupon declare null and void, and forthwith cancel, the teacher's contract that the Board had theretofore made with Mrs. Gladys Bundick to teach in East Palatka School for the school term 1934-1935.
As a legal as well as practical reason for not complying with the foregoing command, the respondents, as members of the Board of Public Instruction of Putnam County, returned by way of an answer that the contract with Mrs. Bundick had been made by the School Board with the knowledge and consent of the relator-trustees after the members of the Board of Public Instruction had indicated to the Trustees their disinclination to approve the trustees' recommendation for a change in teachers by way of the recommended appointment of Miss Mary Etta Johnson as a teacher in lieu of Mrs. Bundick.
The return must be accepted as the truth in all of its well pleaded allegations.
These allegations are unequivocally to the effect that the School Board called and held a meeting to which two of the Trustees, Mr. Waldron and Mr. Howsare, were summoned and appeared and discussed with the School Board the Trustees' nomination of Miss Johnson to take Mrs. Bundick's place. The return also avers that at this conference *Page 468 there was considered an almost unanimous petition of patrons of the East Palatka School to have Mrs. Bundick re-employed for another year; that at said meetings Mr. Waldron and Mr. Howsare stated that one of their reasons, if not their principal reason, for recommending the employment of Miss Johnson in lieu of Mrs. Bundick was that Mrs. Bundick was married and did not need the job; that as a result of the conference between the two Trustees and all of the members of the County School Board, that the Trustees thereupon concluded the issue by saying, "As far as we are concerned we leave the matter strictly up to the Board and whatever the Board does will be satisfactory to us"; that thereupon, the matter having been thus "left up to" the County School Board, said Board decided to make a teacher's contract with Mrs. Bundick, which relators in this proceeding now ask to have nullified and cancelled as absolutely void.
This Court has neither expressly nor sub silento overruled its decision in State, ex rel. Pittman, v. Barker, supra, as suggested in the petition for a rehearing.
That case holds that it is an abuse of power for school authorities to deny employment to a competent and qualified school teacher merely because she is a married woman or does not need the job. In this case the Trustees and not the County School Board appear to have ignored that consideration, but the principle of the thing is the same.
If the Trustees admitted to the County School Board in joint official conference, as the answer of the School Board members specifically alleges, that their principal objection to Mrs. Bundick was her lack of celibacy and lack of financial disability, and thereupon the matter was submitted by the two Trustees to be decided on that basis by the School Board as between Mrs. Bundick, who was presumptively the Trustees' former nominee for the previous school *Page 469 year, and Miss Johnson, the Trustees' present nominee, both of whom are undeniably capable and qualified as school teachers, it cannot be said that the action of the School Board in deciding to re-employ Mrs. Bundick under such circumstances was either so arbitrary or such an illegal assumption of power, that her contract should be summarily cancelled in a mandamus proceeding in which she can not be accorded the privilege of defending her rights as required under such circumstances.
This is not to hold that Mrs. Bundick would be a necessary party to this proceeding if in fact her contract were shown to have been made in utter disregard of the statutes and was therefore absolutely void.
An absolutely void transaction could be reached by acting directly upon the School Board, as the author of its being by requiring it to recall its unauthorized or illegal contract. And under such circumstances no third party could acquire rights in the premises of greater legal dignity than the law would warrant the School Board in attempting to give.
But in this case the most that can be said against the action of the County School Board is that its proceedings had were irregular, not void. Hence the contract with Mrs. Bundick having been shown to have been made under such circumstances as the return alleges, is not subject to summary denunciation as void in a proceeding of this kind. So the answer was a good return sufficient to show a valid reason for not complying with the command of the alternative writ of mandamus as framed.
Rehearing denied.
DAVIS, C. J., and WHITFIELD, TERRELL and BUFORD, J. J., concur. *Page 470