11. Introduction of evidence. While the county superintendent will not be prevented from entertaining and considering testimony not before the board, the general rule and practice should be to attempt to confine the hearing as far as practicable to the matters considered by the board and to the facts, statements, and testimony, that were within the possession of the board at the time the action complained of, which is being reviewed by the county superintendent, was taken.

12. Preserving order. In case of disturbance or interruption during the trial of an appeal before a county superintendent, as he is not invested with complete judicial power, he has only the ordinary remedy of complaint to the proper authorities. Code, section 5033.

13. Call witness. The county superintendent may upon his own motion call any witness to the stand and have his testimony taken.

14. Technicalities. While mere technicalities should not be permitted to prevent the attainment of justice, it is proper that as to evidence and practice the superintendent should be governed by many of the rules which ordinarily obtain in courts.

15. Question to be determined. The leading question to be determined by the county superintendent is whether in making the decision or order complained of, the board committed error to such an extent as to require a reversal.

16. Discretionary acts-weight of. Acts of a board purely discretionary in their nature should be given great weight. To warrant a reversal, positive error must be found, and such error must appear clearly in the testimony.

17. Remanding. When an appellate tribunal is unable to decide an appeal because the testimony is insufficient or the transcript of the action of the board is incomplete, and the facts are not sufficiently shown to determine what should be done, the case may be remanded for a new trial, or for further action by the board.

18. Report of decision.

To those interested in the issue of an appeal the county superintendent should send a statement of the result; that is, whether the order of the board was affirmed or reversed.

19. Stenographer-evidence. The expense of a stenographer should not be incurred unless the parties to the case provide for defraying it. An abstract of the testimony of each witness should be made and should be signed by him before he is excused. See note 3, section 2821.

20. Decision—jurisdiction.

Section 2818, notes 27 to 34.

SEC. 2820. Appeal to state superintendent-no money judgment. An appeal may be taken from the decision of the county superintendent to the superintendent of public instruction in the same manner as provided in this chapter for taking appeals from the board of a school corporation to the county superintendent, as nearly as applicable, except that thirty days' notice of the appeal shall be given by the appellant to the county superintendent, and also to the adverse party. The decision when made shall be final. Nothing in this chapter shall be so construed as to authorize either the county or state superintendent to render judgment for money; neither shall they be allowed any other compensation than is now allowed by law. All necessary postage must first be paid by the party aggrieved. [C. '73, §§ 1835-6; R., §§ 2139-40.1

NOTES: 1. Appeals-manner of conducting. Appeals to the superintendent of public instruction are conducted in the same manner and governed by the same rules, so far as applicable, as appeals to county superintendents. The basis of appeal must be an affidavit filed in the office of the superintendent of public instruction, within thirty days from the date of the decision appealed from.

2. Notice to county superintendent. Upon the filing of an affidavit the superintendent of public instruction will notify the county superintendent to forward a transcript of the papers in the case within thirty days. original papers must be preserved on file in the county superintendent's office.

The

3. County superintendent's transcript. When an appeal is taken to the superintendent of public instruction, the county superintendent must have a copy of the testimony and of his docket prepared. It is very desirable that this transcript should be in typewritten work.

4. What included. The transcript of the county superintendent will consist of a literal copy of every paper filed and all indorsements thereon, together with a copy of all testimony given, the whole arranged in chronological order, closing with the decision of the county superintendent in full, with the certificate annexed. Form 49.

5. Transcript-a copy. The transcript in an appeal is supposed to be an exact copy of the papers and testimony in the case, preserved on file in the office of the county superintendent. Any one interested may claim the privilege of examining the original records in the case, at any proper time. 6. Expense of stenographer. It is obvious that the county superintendent himself should not be expected to pay for having a typewritten transcript of the record made in an appeal to the superintendent of public instruction. Expenses of this character, closely connected by law with the work of the county superintendent's office, should be paid for by the board of supervisors in the same manner that assistance is furnished to other county officers when needed.

7. Notice. The law requires that the appellant shall give thirty days' notice to the county superintendent, and also to the adverse party, of the taking of the appeal. This notice should be served as soon as the affidavit of appeal has been filed and proof of such service should be filed with the affidavit. The time for final hearing of the appeal will be fixed by the superintendent of public instruction, and may be at any time after thirty days from the filing of the affidavit.

8. Appearance. At the hearing, parties interested may appear personally or by attorney, and argue their cases orally if they desire, or they may send arguments in writing or if possible, in typewriting.

9. Source of data. The record of the case in the office of the county superintendent, which is a public record and open to examination by parties interested, will furnish all needed data, where access to transcript sent up is inconvenient.

10. Original evidence. The superintendent of public instruction will not hear original testimony in cases submitted to him. Decisions, 50, Laws of 1897.

11. Revocation of certificate-appeal. Any person aggrieved by the action of a county superintendent revoking a certificate may. appeal to the superintendent of public instruction, provided such appeal is taken within ten days from the mailing of the notice of revocation. Section 2734-u.

12. Decision-enforcement. A person in whose favor an appeal is decided has the remedy of a writ of mandamus from a court of law to enforce the decision of appeal. 69 Iowa, 533, and 72 Iowa, 379.

13. Decision final. A decision in appeal by a county superintendent or the superintendent of public instruction is final in the sense that no court will attempt to review or set aside such a decision if the matters included are clearly within the jurisdiction of such school officers. 69 Iowa, 533, and 110 Iowa, 652.

14. When board may take different action. An appeal decision does not always prevent the board from acting anew upon the matters involved in the appeal. If the order of a board is affirmed the board will be left free to take any action thought best by it; that is, it will have the same freedom to act that it would have if no appeal had been taken.

15. Mandamus. Until the board has taken a different action no doubt mandamus will be a remedy to compel the board to carry into effect the appeal decision and the former action of the board.

16. Remanding. If it is shown conclusively that a transcript is materially defective, that valuable testimony heard upon the trial before the

county superintendent is not included in the transcript, or that testimony which should not have been omitted was excluded, an appeal case may be remanded to the county superintendent for another trial.

17. Reversing a reversal effect. When the decision of the county superintendent on appeal, reversing the order of the board, is reversed by the superintendent of public instruction on the appeal to him, the effect of the last decision, which is final, is to affirm the original order made by the board, and the result of this is to leave the matter as entirely in the hands of the board as though no appeal had ever been taken from its action. Decisions, 57.

18. Affirming a reversal-effect. But if the county superintendent reverses an order of the board and the superintendent of public instruction affirms the decision of the county superintendent, such decision will prevent the board from taking any action in the matter until some material change occurs, rendering such a new action necessary. Decisions, 40, 74.

19. Postage. Payment for postage in advance will be required with the affidavit. It is impossible to tell what amount of postage will be needed in each case, and one dollar will be required to cover all needed postage. If the dollar does not accompany the affidavit, the filing will be delayed until the amount is received.

20. Material change of conditions-different action. A material change of conditions in a corporation may warrant a board of directors in taking action different from that ordered by the county superintendent or superintendent of public instruction on appeal. Doubet v. Board of Directors, 111 N. W., 326. See also 70 Iowa, 338. Decisions 44.

SEC. 2820-a to 2820-d. Indebtedness authorized-bonds. Following section 2812-f and 1306-b. See page 92.

SEC. 2820-e to 2820-h. Consolidation in cities of fifty thousand or more. Following section 2794-a. See page 76.

SEC. 2821. Witnesses-fees. The county superintendent in all matters triable before him shall have power to issue subpoenas for witnesses, which may be served by any peace officer, compel the attendance of those thus served, and the giving of evidence by them, in the same manner and to the same extent as the district court may do, and such witnesses and officers may be allowed the same compensation as is paid for like attendance or service in such court, which shall be paid out of the contingent fund of the proper school corporation, upon the certificate of the superintendent to and warrant of the secretary upon the treasurer; but if the superintendent is of the opinion that the proceedings were instituted without reasonable cause therefor, or if, in case of an appeal, it shall not be sustained, he shall enter such findings in the record, and tax all costs to the party responsible therefor. A transcript thereof shall be filed in the office of the clerk of the district court and a judgment entered thereon by him, which shall be collected as other judgments.

NOTES: 1. Costs-includes what. The term costs includes only witness fees and fees to officers for the service of subpoenas. Fees cannot be allowed to any witness unless such witness is subpoenaed by the county superintendent. Decisions, 109.

2. Filing transcript. When an appeal is taken from the decision of the county superintendent that officer should not file his transcript of costs with the clerk of courts until the case is finally determined by this department. Bond for costs cannot be required. Decisions, 98.

3. Stenographer-expense of. be taxed as a part of the costs.

The expenses of a stenographer cannot There is no authority in law to employ a

stenographer and tax the expenses of such stenographer as costs in an appeal case. Opinion of attorney-general, 1899.

4. Rehearing-costs. Section 2821 does not provide for the payment of costs or expenses in case of a rehearing on the question of issuing a certificate.

SEC. 2822. Penalties. Any school officer wilfully violating any provision of this chapter, or wilfully failing or refusing to perform any duty imposed by law, shall forfeit and pay into the treasury of the particular school corporation in which the violation occurs the sum of twenty-five dollars, action to recover which shall be brought in the name of the proper school corporation, and be applied to the use of the schools therein. [C. '73, §§ 1746, 1786; R., §§ 2047, 2081; C. '51, § 1137.]

SEC. 2823. Provisions apply to all corporations-issuance of bonds. The provisions of this chapter shall apply alike to all districts, except when otherwise clearly stated, and the power given to one form of corporation, or to a board in one known corporation, shall be exercised by the other in the same manner, as nearly as practicable. But school boards shall not incur original indebtedness by the issuance of bonds until authorized by the voters of the school corporation.

NOTE: What included. The chapter referred to in this section includes everything contained in the school laws from section 2743 to section 2823-t inclusive.

COMPULSORY ATTENDANCE.

SEC. 2823-a. Duties of parents or guardians-penalty. Any person having control of any child of the age of seven (7) to fourteen (14) years inclusive, in proper physical and mental condition to attend school, shall cause such child to attend some public, private, or parochial school, where the common school branches of reading, writing, spelling, arithmetic, grammar, geography, physiology, and United States history are taught, or to attend upon equivalent instruction by a competent teacher elsewhere than school, for at least sixteen (16) consecutive school weeks in each school year, commencing with the first week of school after the first day of September, unless the board of school directors shall determine upon a later date which date shall not be later than the first Monday in December. Provided, that this section shall not apply to any child who lives more than two (2) miles from any school by the nearest traveled road except in those districts in which the pupils are transported at public expense, or who is excused for sufficient reasons by any court of record or judge thereof. Any person who shall violate the provisions of this section shall be guilty of a misdemeanor, and upon conviction thereof shall pay a fine of not less than three ($3) dollars nor more than twenty ($20) dollars, for each offense. [30 G. A., ch. 116, § 1; 29 G. A., ch. 128, § 1.]

NOTE: Seven to fourteen, inclusive-meaning. The language of the section "to fourteen years" cannot be construed to extend beyond the time when the child becomes fourteen years of age. The word "inclusive" following clearly applies to the time intervening between the ages of seven and fourteen years. * ** I am therefore of the opinion that the word "inclusive," as used in the section, does not extend the period during which a child can be compelled to attend school beyond the time he becomes fourteen years of age. Report of attorney general, 1904, page 95.

*

SEC. 2823-b. Reports to secretary. Upon notice from the secretary of the school corporation within which such school is conducted, it shall be the duty of each principal of each private or parochial school, once during each school year, and at any time when requested in individual cases, and within ten days from the receipt of such notice, to furnish to such secretary a certificate and report of the names, ages and attendance of the pupils in attendance at such school during the preceding year and from the time of the last preceding report to the time at which a report is required and any person having the control of any child between seven and fourteen years of age inclusive, who shall place the same under private instruction, not in a regularly conducted school, upon receiving notice from the secretary of the school corporation, shall furnish a like certificate stating the name and age of such child and the period of time during which said child has been under said private instruction; and any person having the control of such child who is physically or mentally unable to attend school, public or private, shall furnish proofs by affidavit or affidavits as to the physical or mental condition of such child. All such certificates, reports and proofs shall be filed and preserved in the office of the secretary of the school corporation as a part of the records of his office. [29 G. A., ch. 128, § 2.]

SEC. 2823-c. Certified copies. It shall be the duty of the secretary of the school corporation to furnish to any person interested, where so requested, certified copies of all certificates contemplated by this act, on file in his office. [29 G. A., ch. 128, § 3.]

SEC. 2823-d. Truant schools. The board of directors of any school corporation may establish truant schools, or set apart separate rooms in any public school building, for the instruction of children who are habitually truant from instruction, as contemplated by this act. Such directors may provide for the confinement, maintenance, and instruction of such children in such schools, under such reasonable rules and regulations as they may prescribe. If any child, committed or sent to the truant school shall prove insubordinate and escape from such school during school hours, or absent himself or herself therefrom without the consent of the persons in charge thereof, then it shall be the duty of the person in charge of said school with the consent of the parent or guardian to file information before the judge of a court of record, who may, if the charge be found to be true and the said child be habitually vagrant, disorderly, or incorrigible commit such child to one of the industrial schools of the state, under the same proceeding as is provided by section twenty-seven hundred eight (2708) of the code so far as the same may be applicable. [29 G. A., ch. 128, § 4.]

SEC. 2823-e. Truant officers. The board or directors of each school corporation may, and in school corporations having a population of twenty thousand (20,000) or more shall, at their annual meeting in each year, appoint one or more truant officers, who shall serve for one year, and who may be a constable or a member of the police force, whose duty it shall be to report violations of this act to the secretary of the school corporation, and see to the enforcement of the provisions of this act. It shall be the duty of said truant officer or officers to apprehend and take into custody without warrant any child of the age of seven