the schools are maintained. With this principle this department is not willing
to interfere.

Is it right, then, that in this present case because the county superintendent
reversed the board in November, 1887, it should be left without further rem-
edy? We think not. After its former action was reversed, the board had
its choice of three courses of action; it was bound to take the one which
it believed to be for the best interests of the subdistrict.

It could ask for a rehearing, but to obtain that it must be able to show
that some very grave mistake had been made, or that it had discovered some
additional evidence which could not have been presented before by using reason-
able diligence.

It could appeal to the superintendent of public instruction, but in that event
it must base its case wholly upon the evidence as presented before the county
superintendent, as this department has no right to hear additional testimony.

It could begin the case de novo, amend its record if it was faulty, supply
omissions, introduce new testimony, and perfect its proceedings in such ways
as to obtain a possible different decision from the county superintendent, or
so as to make a stronger case before the superintendent of public instruction
if either party found it necessary to appeal to him.

In this case the board chose the last remedy, and we think it was wise
in doing so, as the most ready manner of obtaining a final adjudication of the
whole matter.

After careful study of the authorities cited by counsel, we can only reach

this conclusion. If the aggrieved party fails to appeal within the thirty days

allowed by the law, the decision of the county superintendent becomes final as

far as that particular case is concerned; but we find nothing in the law to war-

17



40 SCHOOL LAWS OF IOWA

rant the conclusion that a reversal by the county superintendent acts as a bar
to any further proceedings because the district board did not then and there take
an appeal to the superintendent of public instruction. Such a conclusion would
defeat the ends aimed at by the law in placing the management of the schools in
the hands of the school officers as chosen by the people. The county superintend-
ent and the superintendent of public instruction, in hearing these appeal cases
have the jurisdiction, somewhat of a court of equity and are not bound by a rigid
adherence to the technical forms and customs which prevail in the courts
of justice.

In reaching this conclusion we are supported by the case of Morgan v. Wilfley
et al., 70 Iowa, 338. "The power to redistrict and change subdistricts is con-
ferred upon the board by the statute, and action in that direction, for suffi-
cient cause, can not be considered as unauthorized." The power to change or
fix the schoolhouse site is conferred in the same manner. Further: "The board
of directors can not be so fettered by its prior action, or by legal proceedings that
it may not, at any time, for sufficient cause, redistrict the township, as in its
best judgment may be demanded by the interest of all the children of the dis-
trict." The principle here enunciated is so broad that it applies to all the actions
of the board, and it is not necessary to dwell upon it.

In regard to the merits of the case, there is nothing to be said. There is no
evidence to show that the board abused its authority, and consequently no rea-
son for setting its order aside. The decision of the superintendent is

Affirmed.
HENRY SABIN,

July 9, 1888. Superintendent of Puhlic Instruction.



G. W. Davis, et al v. District Township of Linn.

Appeal from Linn Coxinty.

Appeal. Will not lie to control the action of a board or of the county superin-
tendent, where concurrence is provided for.

Tuition. To enable the districts in which the children reside to collect tuition,
all the requirements of the law must first be fulfilled.

At its regular meeting on the eighteenth of March, 1889, the board passed a
resolution excluding from the privileges of the school, in subdistrict number
seven, children from the independent district of Laurel Hill, in Jones county,
who had from time to time for many years, been allowed to attend the school in
said subdistrict number seven. On the thirteenth of April the board considered
a petition of parties in the adjoining district of Laurel Hill desiring to send to
the school in Linn township, and passed an order refusing to admit their schol-
ars. From this action, G. W. Davis and others appealed to the county superin-
tendent, who heard the case on the ninth of May, affirming the order of the
board. From his decision G. W. Davis appeals.

The attendance of scholars living in an adjoining district is governed by sec-
tion 1793. By the portion of the section to which this appeal relates, children
may attend in another district on such terms as may be agreed upon by the re-
spective boards. In the history of this case, it is not shown that any action was
taken by the board of Laurel Hill as to agreement regarding terms of attendance.



SCHOOL LAWS OP IOWA 41

The board of the district township of Linn refused to admit the scholars in
question. It is from tliis order, an initial action, that appeal was taken.

At the trial before the county superintendent a statement of facts was
submitted and was agreed to by both parties to the appeal, as a basis upon
which the appeal should be heard. At this point the board by its attorney
filed a demurrer, urging that the county superintendent could not acquire
jurisdiction; that the action of the board complained of was not subject to
revision upon appeal and asking the county superintendent to dismiss the case
for want of jurisdiction. The demurrer was overruled, the case was tried
on the agreed statement of facts, and the order of the board affirmed. Did
the county superintendent err in overruling the motion to dismiss the case
for want of jurisdiction? We think he did.

If the boards fail to agree upon terms of attendance, certain conditions re-
garding distance from the respective schools being fulfilled, as they are in
this case, section 1793 itself provides the next step to be taken. The county
superintendent of the county in which the children reside may give his con-
sent with that of the board of the district where the children desire to attend,
admitting them. But from the refusal of the board to admit the children it is
held and has been uniformly held in opinions by this department, that appeal
will not lie. It has always been conceded to be the intention of the law-
makers to leave with the board of the district in which the school is main-
tained, the matter of determining finally and conclusively, if it chooses, that
scholars shall not be admitted under the provisions of section 1793. If its con-
sent is withheld, neither the courts of law nor any appellate tribunal may set
aside its order of refusal, and compel it to admit outsiders and accept as com-
pensation for their instruction the amounts fixed by section 1793. We have
referred to this matter at such length, because the counsel for the appellant
urges the claim that the case should be remanded for a new trial.

We are compelled to find that there are but two methods in law, by which
attendance in subdistrict number seven may be secured for their children by
the appellants. The two boards may agree as to the terms of attendance. Or
after they have refused to agree the concurrent consent of the county super-
intendent of Jones county and the board of the district township of Linn, will
entitle the children to attendance and bind their home district for the ex-
penses of their instruction in the manner provided by section 1793. But appeal
will not lie to control the action of either board or of the county superin-
tendent. Reveksed and Dismissed.

HENRY SABIN,
August 6, 1889. Superintendent of Puhlic Instructio'n.



ISHAM WaTKINS V. INDEPENDENT DISTRICT OF EMPIRE.

Appeal from Marion County.

Appeal. An appeal will not lie from an order of the board initiating a change
in boundaries, where the concurrence of the board of an adjoining district is
necessary to effect the change.

Appeal. Where changes are effected in district boundaries by the concurrent
action of two boards, appeal may be taken from the order of the board con-
curring or refusing to concur, but not from the order of the board taking
action first.



42 SCHOOL LAWS OF IOWA

Jurisdiction. The jurisdiction of an appellate tribunal is not greater than
that of the board from whose action the appeal is taken.

On the sixteenth of September, 1889, the board of the independent district
of Highland determined to notify Isham Watkins of Empire district, that his
children could not any longer attend the school in Highland district. The
records show that it was willing that he should be attached to Highland dis-
trict. This was taken as an initiatory movement. Isham Watkins petitioned
the board of the Empire district to set off the north half of northeast quarter
of sections 25, 75, 21, to the independent district of Highland. The petition
was rejected; in effect the Empire board refused to concur. An appeal was
taken to the county superintendent, who ordered that the northeast quarter
of northeast quarter of section 25 be detached from the independent district
of Empire and attached to the independent district of Highland.

Of the several questions involved in this case it is necessary to discuss
only one. Did the county superintendent exceed his jurisdiction? The board
of Highland initiated an action. The board of Empire district must either
concur or non-concur, and from its action an appeal could be taken. If it did
not choose to accede to the proposition of the Highland district, then action
in that particular ended with its vote to non-concur. If it had a different
proposition to make, as for instance granting forty acres, it could only initiate
a movement to that effect and leave it for Highland district to act, and from the
action of the latter board an appeal could then be taken.

In this case the county superintendent initiates a new action, and leaves
it for Highland district to act. Now, if this action is allowed to stand, anyone
aggrieved may take an appeal from the action of the board of the Highland
district. He would then have an appeal brought before the county superin-
tendent from an action which he himself initiated. It might be further agreed
that if the county superintendent has original jurisdiction, then this appeal
can not lie, as an appeal can be taken only from the order of the board com-
pleting the action. The precedents established have been followed closely by
this department and we can see no reason for breaking away from them.

It is held that in cases requiring the concurrent action of two boards, the
board completing the action can only concur or non-concur. Any action in-
volving a new proposition initiates a new case, which must be passed upon by
the other board concerned in the matter, and from which an appeal can be
taken. It is further held that the county superintendent upon appeals is lim-
ited to reversing or affirming the action of the board completing the action,
and that he can not assume original jurisdiction and do what the board ap-
pealed from could not do.

It seems apparent that Mr. Watkins has not reasonably good school facilities,
and we regret that we are compelled to set aside the decision of the county
superintendent. He was actuated by laudable motives and was looking for
the best interests of the children in this case. We are, however, forced to the
conclusion that the county superintendent erred in assuming original juris-
diction. Reversed and Dismissed.

HENRY SARIN,

March 18, 1890. Superintendent of Public Instruction.



SCHOOL LAWS OF IOWA 43



Robert Maxwell v. District Township of Lincoln.

Appeal from Union County.

Proceedings. The regularity of all the proceedings will be presumed upon.
This is true in an especial sense when the records are more than usually
complete.

Teacher. In the trial of a teacher the board is bound carefully to protect the
interests of the district and to seek the welfare of the school, as well as to
regard the rights guaranteed to the teacher.

Notice. Appearance at the trial is a complete waiver of notice.

Records. The record of the secretary must be considered as evidence, unless
there is proof of fraud or falsehood.

On the ninth day of December, 1SS9, the secretary, acting upon a petition
signed by five residents, called a Ineeting of the board for December 14th, to
examine the teacher of subdistrict number eight. A notice was also served
upon the teacher the same date, signed by the secretary, both the call and the
notice being spread upon the records in due form. The meeting was held on
December 14th. The records show that the appellant was present and ob-
jected to the consideration of the charges, as the proceedings were not in ac-
cordance with section 1734. At the same time he demanded a copy of the
charges and that one week be given him in which to prepare his defense,
which demand was complied with and the board adjourned to December 21st.

If the appellant had moved to dismiss the case it would not have been
an error to sustain the motion, but he submitted to the jurisdiction of the
board and obtained a continuance of the case until December 21st. It must
be held that by this action he waived any defect or irregularity in the jurisdic-
tion of the board in this case. The purpose and object of the process, as
pointed out in section 1734, was fully accomplished. See Wilgus et al. v.
Gettings et al., 19 Iowa, page 82. At the meeting held December 21st the board
voted to discharge the teacher. An appeal was taken to the county super-
intendent, who affirmed the board. The appellant appeals to the superin-
tendent of public instruction.

The only question before the county superintendent was whether the
conditions as prescribed in section 1734 were fully complied with. It is alleged
that while the teacher was present he was not allowed to make his defense.
The secretary's transcript furnishes the only means of determining this. The
records show that he was allowed to cross-examine witnesses, and they do
not show that he was barred from offering evidence had he chosen to do so.
There can be no question of the power of the board under the law to discharge
the teacher. It is held in the case of Kirkpatrick v. Independent District of
Liberty, 53 Iowa, 585, that the board does not act as a court, in any strict
sense, and is not bound by the rules applicable to a court. The intent of the
statute is evidently, while it guards carefully the rights of the teacher, to en-
able the board to discharge a teacher who, after a careful investigation, is de-
termined to be unfit for the position. It is termed "a simple and inexpensive
way of determining rights." It is claimed by the counsel for the appellant



44 SCHOOL LAWS OF IOWA

that when a certain mode is prescribed in determining a case not in the usual
course of the common law, such mode must be followed, and reference is made
to the case of Cooper v. Sunderland, 3 Iowa, 114. But it is held in the same
case that when sufficient evidence appears on the face of the records to give it
jurisdiction under the law conferring the power, then the presumption attaches
in favor of the remainder of the proceedings of the court. If the action of the
appellant in appearing for trial gave the board jurisdiction, then all the pro-
ceedings must be held to be regular. The discharge of a teacher is largely
within the discretionary power of the board. It is to guard the rights of the
district and the interests of the school, as well as the rights of the teacher.
After a full and fair investigation it is its duty to act as it deems best, under
all the conditions and circumstances of the case. See Smith v. Township of
Knox, 42 Iowa, 522. This being the case, it is the duty of the county super-
intendent not to interfere with the action of the board unless he is con-
vinced that it in some way abused its discretion. He is right in sustaining the
board, even though as an individual he would have preferred some other action
on its part.

Our conclusion is, after a careful consideration of the matter and after
reading the transcript with unusual care, that the defendant had a fair and
impartial trial, and that the terms of the law were substantially complied with.
The decision of the county superintendent is Affirmed.

HENRY SABIN,

June 12, 1890. Superintendent of Public Instruction.



Elisha and Elda Tanner v. Independent District of Clarence.

Appeal from Cedar County.

Affidavit. A technical error in the affidavit not prejudicial to either party
will not defeat the appeal.

Affidavit. The affidavit may be amended when such action is not prejudicial
to the rights of any one interested.

School Privileges. The law is to be construed in the interest of the child.
The actual residence of the scholar at the time will establish the right to at-
tend school free of tuition.

The board excluded Elda Tanner from school until such time as her tuition
is paid, on the ground that she is a non-resident pupil. The county superin-
tendent, on appeal, reversed the action of the board and appeal was taken
to the superintendent of public instruction. It was claimed before the county
superintendent that inasmuch as the affidavit upon which the appeal was based
was without the seal of the notary public, that there were no grounds upon
which the appeal could be legally based. While it is true that the notarial
seal is necessary to constitute an affidavit, in this case the notary public was
present at the time of trial and under oath testified that the omission of
the seal was only an oversight on his part, and that the persons therein desig-
nated did make oath to the paper and affix their signatures to it in his presence,
then he also there affixed the notarial seal. It is held that since no interests
were prejudiced by the error which at the best was only technical, the county
superintendent did not commit an error in overruling the motion to dismiss
the case.



SCHOOL LAWS OF IOWA 45

The allegations of facts made by Elda Tanner are that she is sixteen years
of age, that her father and mother have parted, and that for ten years or more
she made her home in the family of Mrs. McCartney in Massilon township.
Before she came to Clarence she had an understanding with her father tnat
she was to care for herself thereafter. She also claims that, being thus emanci-
pated from her father's control, she chose to become a resident of Clarence,
and as an actual resident of that school district is entitled to the privileges
of school under the provisions of section 1794.

It is of interest to ascertain how far such an agreement constitutes eman-
cipation of a minor child. It is held in 1 Iowa, 356, that in the absence of
statutory requirements such emancipation need not be evidenced by any formal
or record act, but may be proved like any other fact. The evidence of Elda
Tanner in this case is corroborated by that of her father, and of Mrs. Mc-
Cartney, who was present during the conversation. We are disposed to hold
that Elda Tanner under the facts as sworn to before the county superin-
tendent was at liberty to choose such a place of residence as seemed to her
most fitting. The evident and beneficient intent of the law is that no child
shall be deprived of school privileges. The father of a family may move into
the district from an adjoining State, and although certain time must elapse
before he is entitled to vote he may place his children in school the very
day he arrives. In the same spirit it has been held that children living in
families in which their work compensates for their board, are actual residents
and are entitled to school privileges. The law is to be construed in their in-
terests. The district is entitled to have such children enumerated, if they are
thus actual residents at the time the school census is taken. We do not under-
take to decide that parents or guardians can transfer children from one district
to another for school purposes alone, but only that those who are actual resi-
dents under the provisions of the law may attend school without the payment
of tuition. While it is true in general that the residence of a child is the
same as that of the parents or guardian, the law evidently contemplates ex-
ceptions to this general rule and leaves the right to attend school to be estao-
lished by the actual residence of the child. Any other construction would not
be in accordance with the spirit of the law, and would deprive many children of
the right to attend the public schools.

In this case the question of residence is largely one of intent. The testimony
of Elda Tanner is to the effect that she was at the time of attendance an actual
resident of Clarence, and had no other residence. It was competent for the
board to disprove this, but we do not find the evidence to that effect conclusive.

It is held that the board erred in excluding Elda Tanner from school and
the decision of the county superintendent is

Affirmed.
HENRY SABIN,

April 24, 1891. Superintendent of Public Instruction.



J. C. Reed ct al. v. District Township of Eagle.

Appeal from Sioux County.

SuBDisTRicTs. The board should be encouraged in forecasting a general plan
looking toward an ultimate regularity in the form of subdistricts.



46 SCHOOL LAWS OF IOWA

ScHOOLHousE. There is no limitation in law as to the number of scholars
to be accommodated, in order that the board may provide a schoolhouse.

SuBDiSTEicTS. Should be, if possible, compact and regular in form. In well
populated district townships two miles square is considered a desirable area
for each subdistrict.

SuBDiSTBiCTS. It is Very important that subdistricts should be regular in form,
and that where it is possible schoolhouses should be located at or near geo-
graphical centers.

BouNDABiES. In the determination of district and subdistrict boundaries, tem-
porary expenditures and individual convenience should be subordinated to the
more important considerations relating to simplicity of outline, compactness
of shape, uniformity of size, and permanence of sites and boundaries.

The above named district township coincides with a congressional township
and consists of a single subdistrict. Portions of the district are yet sparsely
settled. The board seems to have projected a plan to so locate schoolhouses
when they must be supplied, that ultimately the township shall have nine sub-
districts, each of four sections.

On the sixteenth of March the board ordered a schoolhouse built at the
center of the square of four sections in the southeastern corner of the township.
From this action J. C. Reed appealed to the county superintendent, who
affirmed the order of the board. From this decision Mr. Reed appeals.

It was urged before the county superintendent that the board was prevented
by the law from building a schoolhouse for the accommodation of a less num-
ber than fifteen of school age. The question now to be determined is whether
the county superintendent erred in affirming the order of the board.

The board seemed to have outlined a policy of regarding each four sections
as a separate division, to be provided with school advantages by itself. So far
as forecasting the probable form of subdistricts to be created in the future, we
think the board might be guided in the location of schoolhouses at the present
time by such policy, in order that ultimately each subdistrict will have the form
desired and each schoolhouse will be located so as best to accommodate all
patrons.

But while matters are in this progressive condition, we think the law does
not confer power upon the board to apply the limitations of section 1725, and
decide that until fifteen of school age are to be accommodated by the school-
house to be built no house can be erected. In this case for instance there is
but one single subdistrict. The board may create other subdistricts provided
fifteen of school age are included within the boundaries of each one so formed.
But the board is not prevented from building more than one schoolhouse in
any subdistrict. See 69 Iowa, 533. In the absence of specific instructions in
connection with the voting of the taxes by the electors, the board is empowered
to locate sites where in its judgment, a schoolhouse seems to be most demanded.

We are unable to find from the evidence any reason to disturb the finding
of the county superintendent and his decision is therefore Affiemed.