previous meeting of the board it took action removing the schoolhouse to a site
near the present new site, which action was reversed by the county superintend-
ent, and that there has been no material change in the district since that. This
does not act as a bar in any sense to the present proceedings. For a full discus-
sion of this point see P. O'Connor, Jr., v. District Township of Badger, page 108,
S. L. Dec. 1892.

The only case in which the board can not act again without a material change
is when a former action has been reversed by the county superintendent, and on
appeal to the superintendent of public instruction has been affirmed. In the
case at bar the county superintendent reversed the action of the board, but ap-
peal was not taken to the superintendent of public instruction.

Much stress has also been laid upon the question whether the road upon
which the new site is located is a highway in the sense intended by the law.
Section 1826 has reference to a case in which the board condemns a piece of land
for schoolhouse purposes. But when said site is purchased by the board the
provisions of sections 1825-1826 do not apply. See, also, for a full discussion of
this point, case of H. D. Fisher v. District Toivnship of Tipton, page 86, S. L.
Dec. 1892.

If the site selected and purchased should be inaccessible it might be a case
warranting the reversing of the board, but in the case at bar the site purchased
by the board is on a highway, which both parties acknowledge has been traveled
more or less for at least nine years.

This leaves the only point for consideration whether the board abused its dis-
cretion in ordering the removal of the schoolhouse. The location of the school-
house is a matter entirely within the discretionary power of the board. Its action
ought not to be reversed by the county superintendent without the clearest proof
that it has acted through passion or prejudice, or from some improper motive.
There is nothing in this case whatever to show that the board was not endeavor-
ing to do what it believed to be for the best interests of all the people of the
subdistrict. The vote in the board stood four in favor of removal and one
opposed.

We can not discover that there are any reasonable grounds for reversing its
action. We are not called upon to decide whether it acted wisely or unwisely,
but simply and solely whether there is sufficient evidence to warrant the county
superintendent in reversing its action on the grounds of abuse of discretion. We
regret very much that we are obliged to reverse the action of the county superin-
tendent, and do not doubt that he acted according to his best judgment. We
are, however, compelled to decide that the board did not in any way so abuse its
discretion as to warrant an interference. Reversed.

HENRY SABIN,

February 8, 1896. Superintendent of Public Instruction.



SCHOOL LAWS OF IOWA 63



Hugh McMillan v. District Township of Waveland.

Appeal from Pottaivattamie County.

Board of Directors. It is the first duty of a board to co-operate with and assist
the teacher in the conduct of tlie school.

Teacher. A teacher may justly claim and expect to receive the assistance and
advice of the board, and especially the help of his own subdirector, in the proper
conduct of his school.

Board of Directors. In exercising its power in a semi-judicial capacity the
board should be able to show the very best reasons for its conclusions.

Teacher. It is alike due to the dignity of the board and the rights of the teacher
that no one should be discharged except after thorough investigation and the
clearest proof. If possible, the teacher should be shielded from the stigma of
discharge.

After a trial, conducted in accordance with law, the board, by a vote of three
to two in a board of nine members, discharged the teacher for incompetency, in
accordance with the provisions of section 1734. Hugh McMillan appealed to the
county superintendent, who reversed the order of the board. John W. Rush,
president of the board, appeals here.

The proceedings of the board in this case were entirely regular, and it is not
claimed that the law was violated by it in any particular, as to its manner of
proceeding. The question to be determined by us is, was the county superin-
tendent warranted in finding that the board abused its discretion to that ex-
tent to require a reversal of its action in discharging the teacher.

The testimony discloses a very undesirable condition in the school in question,
as to the matter of discipline and behavior of the scholars. The testimony dis-
closes the fact that many of the older scholars, instead of being an assistance to
the teacher, and a credit to themselves and their parents, were insubordinate,
disobedient and disrespectful to the teacher. The testimony also discloses that the
subdirector, instead of assisting the teacher in maintaining discipline and good
order in the school, withheld that support so much needed by any teacher under
such circumstances. It is not shown nor is it claimed that any of the board had
visited the school for the purpose of aiding the teacher in enforcing rules for its
government, as it is required to do by the first part of section 1734. Nor did the
subdirector visit his school, as he is required to do by the latter part of section
1756.

The testimony in the case is to the effect that after the incorrigible scholars
were dismissed the teacher was much more successful in his work. We can not
find from the testimony that the teacher failed in any important particular to
attempt to do his full duty by his school, and to rega,rd equally the rights of
every scholar. Under all circumstances, we think it is the first duty of any
board to co-operate with and assist the teacher in the conduct of his school.
This is the duty of the local subdirector in a peculiar sense, as he is in close
relation to his own school and his teacher. A teacher may justly claim and ex-
pect to receive the assistance and advice of the board, and especially the help of
his own subdirector, in the proper conduct of his school. See case on page 135,



64 SCHOOL LAWS OF IOWA

S. L. Dec. 1892. It is often the case that a little timely assistance, offered at the
right time and in the proper spirit, will aid a teacher very materially in main-
taining good order and discipline in his school, and in preventing many difficul-
ties from arising which might, under a different course, almost certainly tend to
injure the efficiency of the school.

In this case, two of the five members present at the trial voted to discharge
the teacher, two voted in the negative, leaving the casting vote with the subdi-
rector of the school, who, as we have seen, was out of sympathy with the teach-
er, and had failed to afford his assistance to a successful management of the
school. While it is true that in general the discretionary acts of a board are en-
titled to great weight, yet it is also true that in exercising its power in a semi-
judicial capacity, the board should be able to show the very best reasons for its
conclusions. Except upon the clearest proof, and the most convincing reasons
apparent to the board that the good of the school demands the discharge of the
teacher, a teacher should be shielded from the stigma of discharge, and the au-
thority of the board and the respect due the board and its teachers, should be
maintained, by a decision on the part of the board to assist and support the
teacher in bringing his school to a conclusion as nearly as possible satisfactory
to the board and creditable to himself. The decision of the county superintend-
ent is Affirmed.

HENRY SABIN,

May 20, 1896. Superintendent of Public Instruction.



S. B. Heath v. District Township of Iowa.

Appeal -from Wright County.

County Superintendent. On appeal may do more than the board might have
done.

Independent District. The boundaries outside the town plat depending upon
the petition of the electors, such boundaries may not be fixed until petitioned for.

This is a case arising under the amendment to section 1800 made by the
Twenty-fifth General Assembly. It is the effect of this amendment that when a
town or village has less than two hundred inhabitants and not less than one hun-
dred inhabitants, the territory contiguous to such town plat may not be included
in the proposed independent town district except on a written petition of a ma-
jority of the electors residing upon such territory outside the town plat.

In this case the board refused to fix the boundaries of a contemplated inde-
pendent town district. From its order appeal was taken to the county superin-
tendent, who reversed the order of the board and fixed the boundaries of a con-
templated independent district, but different from the boundaries asked for in
the petition presented to the board from the electors residing outside the town.

Without considering any of the other merits of the case it becomes necessary
to inquire whether the county superintendent might in reversing the order of
the board, fix different boundaries than those petitioned for by the majority of
the electors residing upon the outside territory. We find that the territory in-
cluded in the contemplated district by order of the county superintendent excludes
at least four and one-half sections that were before included. Did the county
superintendent have power to fix different boundaries for the outside territory
from those petitioned for when application was made to the board, without first



SCHOOL LAWS OF IOWA 65

himself having a written petition from a majority of the resident electors upon
the territory outside the town which said county superintendent included within
the contemplated independent district? We think he did not. If our view is
correct it is decisive of the case and we will be compelled to reverse the county
superintendent's decision.

Not many cases have arisen under the amendment to section 1800, found in
chapter 38, Laws of 1894. But it seems to us that there can be no doubt as to the
intention of the general assembly to require that before territory outside a town
or village of over one hundred and of less than two hundred inhabitants may be
included within a contemplated independent town district, a majority of the
electors must consent that such boundaries may be fixed. Any other conclusion
would seem to defeat the purpose of the amendment. It is not reasonable to urge
that the county superintendent would have greater power on appeal than the
board would have.

It will be noticed that this decision has no reference whatever to the merits of
the case as to the boundaries which should be fixed for a town independent dis-
trict. That matter is still within the discretion of the board under the limitation
of the law. Reversed.

HENRY SARIN,

August 3, 1896. Superintendent of Public Instruction.



Letha Jackson v. Independent District of Steamboat Rock.

Appeal from Hardin County.

Teacher. Full opportunity must be afforded the teacher to make defense against
charges.

Board of Directors. Is required by the law to visit the school and to aid and
sustain the teacher in maintaining order and discipline.

Teacher. Should not employ unsuitable and unusual methods of punishment.

On the twenty-eighth day of November, 1896, the board voted to discharge
from its employ Miss Letha Jackson, the teacher in the intermediate room of its
school. The reason, as spread upon the record, is that she inflicted inhuman and
cruel punishment upon her pupils, especially upon Minnie Platts. An appeal was
taken to the county superintendent, who reversed the order of the board. Ap-
peal was then taken to the superintendent of public instruction.

There is no doubt from the testimony sent up with the transcript that Minnie
Platts was insolent and disobedient, and also that the teacher failed to control
herself, and that they engaged in an unseemly squabble in the presence of the
school. It is also evident that the teacher was accustomed to use methods' of
punishment which are, at the best, not customary in well disciplined schools.
Much of the testimony is conflicting, and that part of it relating to matters
which occurred under a previous contract cannot be allowed to have any weight
in determining this case.

The contract, as placed in evidence, specifies that the teacher shall not make
use of any cruel or unusual punishment in the discipline of the school. Whether
she violated the contract in this respect is a matter to be determined by the
board, and in doing so it may avail itself of any sources of reliable information



66 SCHCXDL LAWS OF IOWA

within its power. The notice sent to the teacher, November 23, 1896, charges as
follows: "For inhuman and unjustifiable punishment of pupils by pinching,
pulling their ears, pulling their hair, and pounding their heads and faces with
your fists, and pounding their heads on the wall, floor, and seats of the school-
room with your fists." November 28th she was notified by the secretary that
she was dismissed from the school. At a meeting of the board held November
27th, the president appointed the entire board an investigating committee. It
appears that it carried on its investigation by questioning the pupils in Miss
Jackson's room, and that its vote to dismiss her was based entirely upon infor-
mation obtained in this way, as appears in the records of November 27th. This
method placed the teacher at an immense disadvantage. It would at least have
been just to have examined these pupils in her presence, and that she should
have been allowed to correct their misstatements, if any, and to give the investi-
gating committee her own account of the matter. We can not consider this an
impartial method of conducting an investigation against a teacher. Justice
would seem to demand that she should have been furnished a copy of the find-
ings of this committee, and should have been given a reasonable time in which
to prepare her defense. The board places on file the unanimous report of this in-
vestigating committee recommending that the teacher be discharged. It, in ef-
fect, finds her guilty and asks her to show cause why sentence should not be
pronounced.

Now, as to Miss Jackson's failure to appear before the board. Her physician
sent a certificate to be read at the first meeting, stating that she was not able to
attend on account of sickness. At the same meeting her attorney, Mr. Albrook,
in a letter, asks that the board appoint Monday afternoon as a time for hearing
the case. It appears to have been a reasonable request and should have been
granted in justice to all parties. That Miss Jackson sent her statement denying
the charges and averring that she, by her conduct, had given the board no occa-
sion to investigate, furnishes an additional reason and a very strong one why
she should have been given the opportunity to be heard by counsel of her own
choosing. We do not think that the board intended by an early adjournment to
shut her counsel out Saturday night, but it ought to have shown an anxiety to
have him present if possible, in order that it might ascertain the very right and
justice of all parties in the case. Miss Jackson could very justly plead that her
presence would avail nothing after the board had before it a report signed by
every member of that tribunal, saying that she ought to be dismissed from her
school. The board seems also to have forgotten that the law makes it its duty to
visit the school and to aid and sustain the teacher in her efforts to maintain
order and discipline. It has duties on the side of the teacher as well as on that
of the pupils or the community at large.

We do not wish to be understood as upholding a teacher in the methods of
punishment which appear in this case. To pull the hair or the ears of pupils, or
to strike them with the fists, are relics of another age of school government, and
can not be justified today. We only reach the conclusion that the teacher aid
not have that fair and impartial trial before the board that is contemplated in the
law. Therefore the decision of the county superintendent is Affirmed.

* HENRY SABIN,

April 7, 1897. Superintendent of Public Instruction.



*The teacher's right to recover for wrongful dismissal in this case was sus-
tained in 110 Iowa, 313.



SCHOOL LAWS OF IOWA 67



R. Odendaiil et al v. District Township of Grant.

Appeal from Carroll County.

Appeal. Will not lie from joint action of boards making settlement of assets
and liabilities.

County Superintendent. Should dismiss an appeal as soon as it becomes cer-
tain that the leading issue may be heard and decided only by a court of law.

Jurisdiction. It is very undesirable to bring matters involving a money con-
sideration before the county superintendent on appeal.

Certain territory in the civil township of Grant and part of the independent
district of Carroll was restored to the district township of Grant. A settlement
of assets and liabilities between the two districts necessarily followed. Robert
Odendahl and others were aggrieved with the conclusions reached by the two
boards, and took an appeal to the county superintendent, who reviewed the
questions presented to him, finding in effect as to the time when the territory
did actually become a part of the district township of Grant, as to the disposition
of taxes during a period when the control of such territory was in controversy,
and also whether the agreement entered into by the board should be changed by
him.

The first question we are required to consider is whether the county superin-
tendent had jurisdiction to hear the case. If we find that he did not have juris-
diction, it will of course be impossible for us to review the questions he deter-
mined, and we shall be compelled to dismiss the case for want of jurisdiction.

It has been the uniform opinion of this department that appeal will not lie
from the joint action of boards in making the settlement of assets and liabilities
required by section 1715, but that the only remedy, if the law affords relief,
would be an action in court to protect the rights of the persons complaining. In
order that the matter might be more authoritatively determined, so that this
case may be a guide to school officers, we submitted an inquiry to the attorney-
general, and quote briefly from his reply:

"Your favor came duly to hand, requesting my opinion upon the following
question:

"When the two boards have made a division of assets and liabilities, under sec-
tion 1715 of the code, will a person claiming the settlement to be inequitable and
insufficient as to the amount agreed upon have the right to appeal to the county
superintendent from such agreement, that is, from such joint action of the boards
taken as provided in section 1715, will an appeal lie?

"The section in question provides that the respective boards shall make an
equitable division of the then existing assets and liabilities between the old and
the new districts; it also provides that in case of the failure to agree the mat-
ter may be decided by arbitrators chosen by the parties in interest. It has been
held by our supreme court that under this section the boards of directors become
a special tribunal for the determination of the respective rights of the parties.
And it is held that this tribunal thus constituted has exclusive jurisdiction. The
action of the special tribunal, consisting of the several boards of directors, is not
the action or order of a board of directors, but an order of a special court for the
determination of the rights of the several new districts with reference to the as-



68 SCHOOL LAWS OF IOWA

sets and liabilities of the old district of whicli they formed a part. The statute
does not give an appeal from such tribunal. My conclusion is that a right of
appeal does not exist and a person claiming the settlement to be inequitable has
no right of appeal to the county superintendent."

The opinion of the attorney-general is decisive of the case. We think there
are many added reasons why questions of this kind should not be heard on ap-
peal before the county superintendent. That officer should not be compelled to
review matters involving the jurisdiction over territory, the disposition of taxes,
or the right and justice of finding of boards upon a settlement of assets and lia-
bilities. But these a court may very properly do, as its jurisdiction for such pur-
poses is not questioned, and the precedents for the control of the courts over
this class of cases are well established. It is very undesirable to attempt to
bring matters involving a money consideration before the county superintendent
on 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. In this case it was the duty of the boards
interested to make a proper settlement. If fraud or other irregularity was
urged, perhaps a court would afford relief to a complainant, but an appeal to the
county superintendent would not become a remedy.

We are compelled to remand this case to the county superintendent with in-
structions to dismiss the case for lack of jurisdiction. Dismissed.

HENRY SABIN,

June 16, 1897. Superintenddnt of Public Instruction.



C. M. Baxter v. School Township of Bear Grove.

Appeal from Cass County.

Public Road to Schoolhouse. The board is bound to carry out the vote of the
electors in the matter of opening roads to schoolhouses.

Abuse of Discretion. The board may not substitute its own discretion for the
clearly expressed instruction of the electors.

At their regular meeting, on the second Monday in March, 1897, the electors
voted a schoolhouse tax of $200 and instructed the board to open an east and
west road to intersect a north and south road which would give Mr. Baxter ac-
cess by the public road to his schoolhouse. Instead of carrying into effect the
vote of the electors, the board took steps to secure a different road, and from
their action in so doing appeal was taken to the county superintendent, who re-
versed the order of the board, finding that the board should have attempted in
good faith to carry out the expressed wish of the electors. The board appeals
here.

It is shown in the testimony, and it is not denied, that the board thought best
to attempt to secure the cheapest road possible, in order to provide a way by
which Mr. Baxter could reach the schoolhouse. The real question in this case,
and the one which the county superintendent was compelled to determine, was
whether the board committed error in its discretion. From a careful examina-
tion of the entire case we must conclude that the county superintendent made
no mistake in determining that it is the -duty of the board to make a strenuous
effort to fulfill the intention of the electors. We think it was the duty of the
board to carry into execution the vote of the electors, if possible to do so, and if



SCHOOL LAWS OF IOWA 6J

not possible, the attempt should have been made, and the matter then referred
back to the electors for further instructions. See first part of section 2778 and
first division of syllabus in appeal case on page 17 S. L. Decisions 1897. We
think it was not within the power of the board to substitute its own discretion
for the clearly expressed instruction by the electors.

It is clear that the electors intended to provide relief for Mr. Baxter. This
could be done only by providing him with a public highway upon which his
children could reach school. This matter is of such importance to Mr. Baxter,
and the vote of the electors providing the means by which the road was to be
secured was so definite, that we feel compelled to suggest to the electors that at
their annual meeting on next Monday, the fourteenth day of this month, they in-
dicate still more clearly their desires in the matter, and that they instruct the
board what further steps shall be taken by the board. As indicated, we can see
no reason to interfere with the finding of the county superintendent and his de-
cision is therefore Affirmed.

RICHARD C. BARRETT,

Des Moines, March 9, 1898. Superintendent of Public histruction.



John Martin v. School Township of Baker.

Appeal from Guthrie County.

Notice of Appeal. The superintendent of public instruction may not entertain
an appeal unless thirty days' notice of such appeal has been served upon the
adverse party.

Costs. Before an appeal from the order of the county superintendent taxing
costs can be entertained by the superintendent of public instruction, a motion to