two sites is the better.

Testimony. If selfish or other improper motives are complained of, the testi-
mony must show such facts conclusively.

The history of this case is brief. March 20, 1893, the new township board
having then just organized, on motion appointed a committee of three to re-
locate the site of schoolhouse in subdistrict number eight, said site to be near
the geographical center of said subdistrict. On the twentieth of May, at a
special called meeting, it was moved to reconsider the motion to relocate the
schoolhouse in subdistrict number eight, which motion was carried. By an-
other motion the committee appointed at the former meeting was discharged.
It is from this action of the board on May 20th that Bradford Ingraham ap-
pealed to the county superintendent, and from the latter's decision affirming
the action of the board to the superintendent of public instruction.

In his affidavit, Mr. Ingraham alleges that the board was infiuenced by selfish
motives and further alleges in effect that the board abused its discretionary
powers. The abuse of discretion, if such it is, consisted in the unequal distance
of travel from the different parts of the subdistrict to the schoolhouse. A care-
ful reading of the case as filed in the transcript fails to disclose any selfish or
improper motives on the part of the board, and we dismiss this charge without
further comment.

Counsel for appellant discusses at some length the effect of a vote to recon-



SCHOOL LAWS OF IOWA 55

sider, and then not reconsidering, not voting on tlie former motion. It is
claimed tliat the board merely voted to reconsider former motion to relocate, and
that no further action being then taken, the motion to relocate remained before
the board until it should be acted upon one way or the other, or that not being
taken up within a month, it was terminated, leaving the previous action thereon
in force. Counsel for appellees claims if the first be true, then the case should
have been dismissed, as no action had been taken from which to appeal.

Technically the vote to reconsider the former motion placed said motion be-
fore the board again, as if it had not been voted on, and left it ready for de-
bate and adoption or rejection. But it is clear that the board intended to rescind
its former action and evidently understood the word reconsider in the sense of
rescinding. It is quite a common misapplication of the word. That this was
the intention is the more conclusive when we note the subsequent vote of the
board in discharging its committee.

In providing for appeals before the county and state superintendent, it was
the manifest purpose of the lawmakers to afford a speedy, inexpensive remedy,
stripped of undue technicalities, for certain classes of grievance. Holding this
view, we must recognize the intent of the board, rather than what it did under
a technical construction of language. Apparently the board itself made the re-
location, and appointed a committee chiefly to arrange the details and see to
the removal of the schoolhouse. At the May meeting no action was taken by
the board on the report or statement made by the committee. The resolution of
the board at the March meeting located the site about eighty rods east of the
old site. The rescinding of this amounted to a new location or to undoing the
former action, a thing they clearly had a right to do. Members of the board
had changed their views.

No evidence is introduced to show that either site is in itself unsuitable. It
is merely a question of distance. It is a question of moving the schoolhouse
away from some and nearer to others. Neither site would seriously discommode
any one according to the plat sent up with the transcript. It is in evidence
that only one more pupil would be better accommodated at the new site than at
the old. It is not the province of this department, nor of the county superin-
tendent, to determine which of the two sites is the better. An appellate tri-
bunal in such cases may determine only whether the board has chosen a grossly
unsuitable or unjust and unfair site. If so, the board should be reversed. If
not, it should be sustained, even though a better site could be found.

In the present instance no gross injustice is done, no manifest error com-
mitted. In fact, both sites are good, and we should be compelled to sustain the
board on appeal in the selection of either the present or new site. We hold that
the county superintendent committed no error in affirming the action of the
board when it practically rescinded its former motion for relocation and chose
to keep the old site. His decision is therefore Affirmed.

J. B. KNOEPFLER,

December 21, 1893. Superintendent of Public Instruction.



18



56 SCHOOL LAWS OF IOWA



W. S. Kenworthy et al. v. Independent District of Oskaloosa. .

Appeal from Mahaska County.

Discretionary Acts. The order of a board should be reversed only upon the
plain showing that the law has been violated or discretion grossly abused.

Board or Directors. Has full power to provide and enforce a course of study.

Rules and Regulations. The burden of proof is with the appellant to show
that a rule is unreasonable.

The history of the case is this. The board has a regulation that all pupils
shall provide themselves with text-books suitable to their grade, and that fail-
ing to do this they shall be suspended until they comply with the rule.

The children of the appellants were under this rule suspended from school
for not being provided with the music books in use in said schools. The parents
appealed from the ruling of the board to the county superintendent, who re-
versed the action of the board, and the board appeals.

It is an established rule that the action of a school board should be reversed
only upon the showing that it has abused its discretion or violated the law. In
this case the county superintendent avers that it violated the law in that it did
not advertise for bids as required by section 5 of chapter 24, Laws of 1890, be-
fore the music books were adopted.

There is nothing in the transcript to show that it was acting under the pro-
visions of this chapter, which it could not do unless so instructed by the
electors of the district. See section 12 of said chapter. So much of the county
superintendent's decision as refers to this may then be dismissed from the case.

It is further claimed that it abused its discretion by adopting an unreason-
able rule. This is the real question at issue.

With their power to establish and maintain graded schools, all boards are
invested with the authority to prescribe a course of study in the different
branches to be taught. It is not our province to determine what the courts
might hold in this case. They have held that in case a pupil refuses to con-
form to a course of study as prescribed by the board the proper remedy is sus-
pension, and not corporal punishment. See 50 Iowa, 145. They have also held
that a rule suspending a pupil for a certain number of absences or tardinesses
is reasonable, and may be enforced. See 31 Iowa, 562. It is true that they
also have held that a pupil may be suspended only for gross immorality or
persistent violation of reasonable rules. See 56 Iowa, 476.

In this case it is nowhere shown that the children would in any way be
injured by the study of music, or that their health or well being demanded
that they should be excused from the study in question.

There is fair ground for considering the refusal to purchase the books as a
failure to comply with a reasonable regulation of the board. The rule of the
board was made so as to bear with equal force upon all the pupils in the
school. And in order to make it as little oppressive as possible it offered the
books at the least expense possible, and that none might be deprived of the
benefits of the study the board authorized the teachers to loan the text-book
in music without charge to children whose parents were in indigent circum-
stances.



SCHOOL LAWS OP IOWA 57

The law has invested boards with very large discretionary powers, under
which they may grade the schools and establish such regulations as may seem
to them best for the interest of the entire school. The burden of proof in this
case was with the appellants to show that the rule is unreasonable, or that in
obeying it their children would suffer some hardship. This we think they have
failed to do, and the decision of the county superintendent is therefore

Reversed.
HENRY SABIN,
February 12, 1894. Superintendent of Puhlic Instruction.



Ella Benson and Belle Robertson v. District Township of Silver Lake.

Appeal from Dickinson Coimty.

Contract. It is the province of the courts of law to decide as to the validity of
a contract.

County Superintendent. Does not have the power to interpret the legal value
of a contract.

This case turns upon the construction to be given to a contract. The validity
of the contracts in the sense claimed by the appellants is questioned and denied
by the board. The teachers assert that said contracts are of full force for the
nine school months named in the contracts, and the board contends that no au-
thority was granted by it to any one to contract for more than six months, and
that therefore the contracts can have no force beyond the term of six months.
It is the province of the courts of law to decide as to the validity of a contract.
In the trial of an appeal as soon as it becomes clearly apparent that the principal
issue is of a kind intended by our statutes to be heard and determined only by the
courts of law, the appeal should be dismissed. As the real matter to be decided
in this case is what the contracts actually are and what force must be given to
their essential conditions, it follows that the county superintendent did not err in
dismissing the appeal for want of jurisdiction.

This case is not parallel with Kirkpatrick v. The Independent District, etc.,
53 Iowa, 585, in which it is held that the remedy of a teacher wrongfully dis-
charged is appeal, and not an action at once in the courts to recover compensa-
tion. In the present case the board did not make an order discharging these two
teachers, but it is clearly apparent that the county superintendent could not re-
view that order of the board without proceeding upon the assumption that the
contracts had force and validity, and he did not have the power to interpret the
legal value of the contract. We are compelled to find that the only remedy of
the appellants is an action in a court of law. The decision of the county super-
intendent is affirmed and the case Dismissed.

HENRY SABIN,

August 11, 1894. Superintendent of Public Instruction.



Samuel Fallon v. Independent District of Fort Dodge.
Appeal from Webster County.
Attendance. An actual resident may not be denied equal school advantages
with other residents.



58 SCHOOL LAWS OP IOWA

Board of Dieectoes. May adopt its own course to decide the question of actual
residence.

Tuition. Failing to substantiate a claim to residence, a non-resident may attend
school only upon such terms as the hoard deems just and equitable.

In this case the two sons of the appellant, aged nineteen and sixteen years,
were refused admission to the schools unless they would pay tuition. They
claimed to be residents of the district and that they were entitled to the same
privileges as other residents. Being denied admission they appealed to the coun-
ty superintendent, who affirmed the order of the board.

The entire case turns upon the fact of the residence of the children. If a
board concludes that a child is an actual resident, it can not deny him equal
school advantages with other residents. But if it can not be satisfied that an
applicant is an actual resident, then it is its duty to make the same requirements
that are demanded of other scholars who may be sojourning temporarily in the
district.

It will be of interest to inquire as to who may decide definitely the question of
residence, and as to the manner in which the matter should be considered. In
view of the fact that the matter has given a great deal of trouble in a number
of districts, this department has had occasion frequently to submit questions in-
volving some phases of the subject to the attorney-general for his official opin-
ion. In one of these opinions he uses the following language, which we think
is quite applicable in this present case:

"It may be said that it is nowhere provided in the law what course the board
of directors shall pursue in determining whether a pupil is a resident of the
district, nor is the board directed as to the kind of evidence that shall be pro-
duced, nor as to the manner of producing it in determining such question. In
the absence of such a provision directing the board as to its course of proceeding
in such cases I think that body may adopt any course it sees fit, and take any
kind of evidence it chooses in deciding this question of residence. I think it
may make such decision from its own knowledge of facts; from the observa-
tions of the members; from the statements, sworn or unsworn, of parties who
have knowledge of the facts, or from any other fair and impartial method of
obtaining information bearing upon the point at issue. I do not think the board
has power to compel the attendance of witnesses, or to administer oaths to them;
but in gathering its information and in deciding the question it must act in
entire good faith and with a view to getting the exact truth and making its
decision according, to the very right of the matter."

It is in evidence that the board in this case acted with deliberation, and it is
not claimed that it failed to receive any testimony or statements that would tend
to make a final determination of the matter by it any more clear or conclusive.
In reviewing its decision on appeal the county superintendent was unable to find
that it had abused its discretion, had acted without the fullest information with-
in its reach, or had arrived at any other than an equitable conclusion.

This department has continuously held, in interpreting section 1794, that the
board is to be satisfied that the residence of the scholar is actual. The burden
of proof rests upon the child who has recently come into the district, to estab-
lish the fact of residence before he can be admitted to school privileges free of
tuition. Failing to convince the board and to substantiate his claim of residence
he can attend only upon such terms as the board may deem just and equitable.



SCHOOL LAWS OF IOWA 59

In this case we do not find that the county superintendent erred in affirming
the order of the board requiring the children of Mr. Fallon to pay tuition as an
essential condition to attendance. His decision is therefore Affirmed.

HENRY SABIN,

September 1, 1894. Superintendent of Public Instruction.



G. 0. ROGNESS V. DiSTEICT TOWNSHIP OF GleNWOOD.

Appeal from Wirtneshiek County.

Appeal. Will lie from an action of the board which is made a matter of record.

Appeal. May be taken from the action of the board in laying the subject-matter
of a petition on the table.

It appears that at a meeting of the board, held September 17, 1894, George O.
Rogness presented a petition asking that the board redistrict said township,
and also that an extra school be kept for four months in a certain school build-
ing, situated on the farm of E. Bolson. By vote of the board said petition was
laid on the table. An appeal was taken to the county superintendent, who dis-
missed the same on the ground that no action was taken by the board which
could furnish the basis of an appeal. The case comes now on appeal before the
superintendent of public instruction.

The only point to be decided is whether an appeal may be taken from a vote
to lay on the table. The words of the law in section 1829 are that any person
aggrieved by any order or decision of the board may appeal. The transcript sent
up by the secretary in this case reads: "Moved and carried that the bill (peti-
tion) of G. Rogness be laid on the table." It must be held that this constitutes
an action on the part of the board. The motion to lay on the table was made,
was voted upon, was declared carried, and is so recorded upon the secretary's
book. The above conclusion is in accord with the unvarying opinion of this
department for a long number of years.

It is to be noted that in the case cited by counsel for the side of the district,
in 71 Iowa, page 634, the supreme court does not attempt to decide what consti-
tutes an action. It refers to cases in which the board purposely intend, by neg-
lect or refusal, to avoid taking an action or making an order or decision. In
the case we are now deciding the board made an order, which the secretary re-
corded in the minutes, "that the petition be laid upon the table." The decision
of Superintendent Abernethy (see S. L. Dec. 1892, page 62;, that the motion to
lay on the table "furnishes a convenient method of disposing of the matter," ap-
pears to be to the point. The right of the board to make such a disposition of a
case can not be questioned, but it must be regarded as an action subject, like
any other action, to appeal.

After studying up carefully the precedents as established by the rulings of
fhis department, and reading with equal care the cases cited by counsel, we can
arrive at no other conclusion. The case is reversed with the suggestion to the
superintendent that he remand the case, in order that the board may take such
further action as may seem fair and just to all concerned. Reveksed.

HENRY SABIN,

January 11, 1895. Superintendent of Public Instruction.



60 SCHOOL LAWS OF IOWA



E. E. Amsden v. Independent District of Macedonia.

Appeal from Pottaioattamie County.

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

Affidavit. Must be accepted, if sufficient to give the appellant a standing.

Appeal. Mere technical objections should not prevent the fullest presentation
of the merits of the case in the trial of an appeal.

Testimony. Sufficient latitude should be allowed in the introduction of testi-
mony to permit a full presentation of the issues involved, even if irrelevant tes-
timony is occasionally admitted.

There are certain facts in this case "concerning which there is no disagreement.
The board of directors contracted on the twenty-sixth day of March, 1895, witn
E. E. Amsden to teach upon terms clearly set forth in the contract as signed by
both parties. Concerning the validity of this contract there is no doubt ex-
pressed.

Upon the fifth day of July the said Amsden had a hearing before the board
upon definite and well specified charges. He was duly notified of these charges,
was present both himself and by counsel at the time of trial, and was allowed
to make his defense. The board took time for deliberation, and finally on the
eighth day of July made an order annulling the contract, and in effect discharg-
ing the teacher. From this decision Mr. Amsden appealed to the county superin-
tendent, who on the third day of September rendered a decision dismissing the
case on account of the legal insufficiency of the affidavit.

There are only two questions involved. Was the original affidavit sufficient
to enable the county superintendent to assume jurisdiction of the case? And
could the affidavit be amended at the time of trial?

It must be held that the lapse of thirty days from the making of the order
sought to be appealed from does not affect in any way the right of the appellant
to amend his original affidavit. If he offered his amendment at the time of trial
he complied with the usual practice. Whether the amendment should be ad-
mitted depends upon its nature. If it set up a new and distinct issue, one not
involved in any way in the original affidavit, then the county superintendent
should refuse to allow the amendment to be made. See case on page 141 in S. L.
Dec. 1884. An amendment is, however, admissible when it tends to correct mis-
takes or to make clearer or more explicit the charges contained in the original
affidavit. See case on page 25, S. L. Dec. 1892. In the case at bar the amended
affidavit introduces no new issue and does not in any way prejudice the rights
of any person. We think the county superintendent committed error in refus-
ing to admit the amendment.

Now as to the original affidavit. We do not understand what is meant by the
term legal insufficiency. It is to be remembered that no very definite rules have
been or can be adopted for the trial of cases before the county superintendent.
This department has always held that the system of appeals was intended as a
speedy and inexpensive method of adjusting school difficulties. See case on page
25, S. L. Dec. 1892. The supreme court has held that it "is abundantly manifest



SCHOOL LAWS OF IOWA 61

that the legislature designed to afford an inexpensive and summary way of dis-
posing of these cases." See 68 Iowa, 161. Mere technicalities can not be al-
lowed to intervene to defeat the ends for which the system of appeals was in-
stituted.

The appellant sets forth in his affidavit that the board acted through passion
and prejudice, and that he did not have the fair and impartial trial guaranteed
to him by section 1734. On these as well as on other grievances set forth in the
affidavit the appellant has the right to be heard before the county superintend-
ent, to introduce testimony, and to be heard, by himself or liis counsel.

The law makes it obligatory upon the county superintendent to hear such a
case, to weigh carefully and without prejudice the evidence and the arguments,
and to render his decision in accordance with his judgment. This is the more
important in such cases, because the teacher has no other remedy in law of
which he can avail himself. Through some informality which does not in any
way affect the issues in the case he should not be deprived of his right of appeal.

We say nothing of the merits of this case. We know nothing of them. We
believe the affidavit of appeal was sufficient to give the appellant a standing be-
fore the county superintendent, and that is the only point upon which we are
called to pass.

The case is remanded to the county superintendent, with directions to fix a
time of hearing the same within fifteen days from the date of this decision, and
to notify all concerned, that they may be present.

Reversed and Remanded.
HENRY SABIN,

November 21, 1895. Superintendent of Puhlic Instruction.



D. C. McKee v. District Township of Grove.

Appeal from Humboldt County.

Subdistrict Boundaries. When an action has been reversed by the county su-
perintendent, and that decision affirmed by the superintendent of public instruc-
tion, the board can not act again until a material change has taken place.

ScHOOLHOusE SiTE. At time of purchase need not necessarily be upon a high-
way.

Discretionary Acts. An appellate tribunal is not to decide mainly whether the
action complained of was v/ise, or the best that might have been taken, but sim-
ply whether a reversal is required by the evidence.

In this case the board on September 16, 1895, made two orders. By the first
of these it divided subdistrict number seven in said township into two subdis-
tricts, to be known as number seven and number nine, and established the
boundary line between them. By the second action it ordered tlie removal of
the schoolhouse, now located on section 34, township 92 north, range 28 west,
removed and located on section 3,3, township 92 north, range 28 west, on the
Sherman and Dakota road, and authorized the president to draw an order for the
payment of the same on report of the committee.

From these two actions D. C. McKee appealed to the county superintendent,
who reversed both actions of the board and relocated the schoolhouse on the old
site. From the order removing the schoolhouse D. C. McKee takes an appeal to



62 SCHOOL LAWS OF IOWA

the superintendent of public instruction. The former action of the board divid-
ing the subdistrict and reversed by the county superintendent is not in the
case. This simplifies the matter and leaves as the only point to be considered
the discretionary act of tha board in ordering the removal of the building to the
hew site.

The district as at present constituted is four and one-half miles from east to
west in extreme length. The two schoolhouses stand within a mile of each other.

There are several points brought in by the county superintendent and in the
arguments of the attorneys which need but a brief notice. It appears that at a