sufficient cause, after that impartial investigation contemplated. His dismissal under all the circumstances revealed by the record can not be approved. REVERSED

Des Moines, Iowa, May 12, 1900.

RICHARD C. BARRETT, Superintendent of Public Instruction.

J. W. LYTLE V. SCHOOL TOWNSHIP OF WASHINGTON.

Appeal from Story County.

INDEPENDENT DISTRICT BOUNDARIES. It is mandatory upon the board of a school township to include in a proposed independent district all of the territory within the corporate limits of the town.

INCORPORATED TOWN. In the formation of an independent district under section 2794 of the Code, all the town must be included in the proposed district, notwithstanding the fact that said town was formerly located partly in a school township and partly in a rural independent district.

BOUNDARIES. The extension of the boundaries of a municipal corporation extends the boundaries of the independent district of said municipal corporation.

On February 17, 1900, at a special meeting of the board of directors of the school township of Washington there was presented a petition of thirtythree citizens of the town of Kelly, asking the establishment of an independent district, including therein all of the incorporated town.

After discussion, the matter was deferred for a week in order that the board might more thoroughly investigate and obtain an opinion of the county superintendent, county attorney, and other unbiased counsel, if deemed necessary.

At the date fixed the board met and established the boundary lines for the new district, as requested by petitioners.

On March 6, 1900, J. W. Lytle et al. appealed from the order of the board to the county superintendent, who reversed its action.

From the plat submitted, it is shown that the town of Kelley is situated on the township line in the townships of Washington and Palestine, and includes the following territory:

The south three-fourths of section thirty-one (31), and the south threefourths of section thirty-two (32), west one-half of section thirty-three (33), range thirty-three (33), township twenty-four (24), in Washington township; the northwest quarter (4), of section four (4), north one-half (2) of section five (5), and north one-half (2) of section six (6), in Palestine township, range eighty-four (84), township twenty-four (24). The chief point in controversy is, has the board of directors of a school township authority in establishing the boundary lines of a proposed independent district to include in the new district any part of the territory of adjacent rural independent districts? Generally speaking, such territory can not be included.

Section 2794 of the code provides, however, that "upon the written petition of any ten voters of a city, town or village of over one hundred residents, to the board of the school township in which the portion of the

town plat having the largest number of voters is situated, such board shall establish the boundaries of the proposed independent district, including therein all of the city, town or village."

The section clearly indicates that it is mandatory upon the board to include in the proposed district all of the territory within the corporate limits of the town, regardless of whether or not the territory in part belongs to rural independent districts. Failure to do so would, we think, be a plain violation of law.

It is true, as held by the county superintendent in his opinion, that no independent district may, in the formation of a new district, be subdivided so as to contain less than four sections of land, except in certain instances enumerated in section 2798. It is also true that "the independent district from which territory is detached shall, after the change, contain not less than four government sections of land," etc. (Section 2793.) We are of the opinion that these limitations apply to the cases set forth in the sections cited, and are not applicable when it is proposed to form an independent district containing an incorporated town, located largely in a school township, and in adjacent rural independent districts.

On March 23, 1899, in answer to the question: "Does the law as found in chapter eighty-nine (89), acts of the twenty-seventh general assembly, contemplate that 'when the corporate limits of any city or town are extended outside of the existing independent district or districts, the boundaries of said independent district or districts shall be also correspondingly extended,' without regard to township or county lines, manner of organization of the district or districts from which territory is taken, or the condition in which such district or districts will be left after the territory has been taken?" Hon. Milton Remley, attorney-general, in concluding his official opinion to the department said:

"My conclusion is that the extension of the boundaries of a municipal corporation made in the manner required by law, extends the boundaries of the independent districts of said municipal corporation, without any action on the part of the school districts or their officers, and regardless of the effect of such change upon the district from which territory is taken."

Thus it appears that while section 2794 makes it the duty of the board to include all of the territory of the city, town or village in the formation of a new independent district, chapter eighty-nine (89) provides for the enlargement of the boundaries of the independent district, whenever the corporate limits are legally extended. So broad is this provision that the extension of the boundaries of the municipal corporation, so as to include an entire district or districts, correspondingly extends the boundaries of the independent district.

Though the opinion quoted has special reference to the extension of the boundaries of the municipal corporation, we think the holding applicable in the case before us.

We can not find that the board violated law, abused its discretion, nor acted with prejudice or malice.

The decision of the county superintendent is, therefore,

REVERSED.

July 3, 1900.

RICHARD C. BARRETT, Superintendent of Public Instruction.

G. N. WILSON V. INDEPENDENT DISTRICT OF HITEMAN.

Appeal from Monroe County.

EXPULSION OF SCHOLAR. The board may, by a majority vote, expel any scholar from school for immorality, or for any violation of the regulations or rules established by the board.

NOTICE. The law does not require school boards to give parents or pupils notice or a chance for defense before ordering suspension or expulsion.

ACTION OF THE BOARD. Must be affirmed in the absence of showing of malice, prejudice, or violation of law.

The majority of the board of the Independent District of Hiteman expelled a son of the appellant, a pupil in room No. 3, from the school and school grounds for bad and immoral conduct. From the action of the board, appeal was taken to the county superintendent, who sustained the board, and an appeal is taken to the superintendent of public instruction.

Section 2782 provides that the board may, by a majority vote, expel any scholar from school for immorality, or for any violation of the regulations or rules established by the board; and it may also confer upon any teacher, principal or superintendent the power temporarily to dismiss a scholar, notice of such being at once given in writing to the president of the board.

The record presented shows that the board had by Rule No. 2 conferred upon the principal the "power to suspend any pupil for repeated disobedience; for filthy or immoral habits or language, for injuring or defacing school property, or for any intentional violation of the rules." Under the authority thus conferred, the principal did, on the seventeenth day of December, 1900, notify the president of the board of the dismissal of J. Wilson, for conduct unbecoming a pupil. On the following day the board in special session sustained the order of the principal "until such time as his parents shall give assurance to the school board that he will comply with the rules of the school."

In appealing to the county superintendent, appellee alleges that said pupil was "expelled without cause and without legal notice or chance to defend." Appellant seems to have an erroneous idea regarding the power of a board to dismiss a pupil. The law does not demand that the board shall give parents or pupils notice or chance for defense before ordering suspension or expulsion. The power to expel a pupil is wholly within the discretion of the board. However, the undisputed testimony of the principal goes to show that the father of the boy was notified by a member of the board of the meeting to be held for the purpose of investigating the case.

A careful examination of the entire record submitted fails to reveal that the action of the board is in any way tainted by malice or prejudice, or that there has been a violation of law. In expelling the pupil until such time as he was willing to conduct himself properly and obey the reasonable regulations of the school, we think the board acted in a very conserva

tive and proper manner, and that the county superintendent was justified in sustaining its action.

The decision of the county superintendent is

AFFIRMED.

RICHARD C. BARRETT, Superintendent of Public Instruction.

Des Moines, Iowa, May 27, 1901.

H. A. TOPPING AND THOMAS WILLIAMS V. SCHOOL TOWNSHIP OF UNION. Appeal from Van Buren County.

CORRECTION OF DECISION.

The superintendent, in the discharge of his judicial duties, may, within a proper time, recall and correct a decision erroneously rendered.

DECISION. The county superintendent is warranted in rendering a decision based upon certain conditions.

This case arises from the action of the board of directors of the school township of Union in voting to remove the schoolhouse in subdistrict number four from its present location to a site one-half mile south and one mile west.

Upon appeal to the county superintendent, it was shown that the children from the families of appellants would be nearly or quite two and one-half miles from the schoolhouse located upon the new site. The county superintendent remanded the case to the board July 1st, with the recommndation that it make provision for the schooling of the children in adjacent districts, provided they desire to attend, “but if that is not done we will be compelled to reverse the action of the board." On July 16th a statement signed by the president and secretary pro tem. of the board of directors of Union township was filed, alleging that the board had made arrangements to send appellants' children to school in accordance with the decision. On the same date attorneys were notified that the action of the board was sustained. On July 23d counsel for appellants filed a statement from the board of directors of the Independent District of Winchester to the effect that "no provision has been made with the board of the school township of Union for the schooling of the children of Thomas Williams." On the following day counsel filed a motion, asking that the decision rendered July 16th be set aside, since the board had failed to carry out its provisions.

In passing upon this motion the superintendent held, that since notices had been sent to interested parties that the action of the board was sustained, the case was closed and could neither be reopened nor the decision set aside.

In this conclusion we think the superintendent unintentionally erred. In the case of Desmond v. the Independent District of Glenwood, 71 Iowa, page 23, the supreme court held:

"The superintendent of public instruction, in the discharge of his judicial duties, has the power to correct mistakes in rendering judgments in a case before him possessed by all courts and judicial officers. If, through mistake, he should announce a decision differing from the decision actually

rendered, he possesses the power to recall such an announcement, and publish the decision correctly; or if, mistakenly, he should render a decision, he could, before rights had been acquired under it, and within a proper time, upon discovering the mistake, recall it and decide rightly." We think that the county superintendent has the same power.

By the provisions of section 2774 the board of directors has power to contract with boards of other school townships or independent districts for the instruction of children who live at an unreasonable distance from their own school; and we think the county superintendent was warranted in rendering a decision based upon certain conditions.

The case is remanded to him with the suggestion that he reopen the same, and give all parties interested the opportunity to show clearly and definitely that there has or has not been a compliance with the decision.

If such showing is not made within a reasonable time, it is recommended that he make such decision as to him appears just and equitable, after taking into consideration the geographical position, number and conIvenience of pupils. From the decision, any party aggrieved will have the right to appeal. REMANDED.

RICHARD C. BARRETT, Superintendent of Public Instruction.

Des Moines, Iowa, November 13, 1901.

F. E. HAMMER V. WILL COOK.

Appeal from Adair County.

CONSTITUTIONALITY OF LAWS. It is not the province of the county superintendent or of the superintendent of public instruction to determine the constitutionality of the law, since these officers exercise ministerial rather than judicial powers, and no appeal may be had to the supreme court.

JURISDICTION OF SUPERINTENDENT. It is the duty of the county superintendent and of the superintendent of public instruction to give effect to the law as interpreted by the courts.

COSTS-TAXING OF. The costs in cases triable before the county superintendent should be paid by the party instituting the proceedings unless there were good and sufficient reasons for beginning the action and the allegations have been proved.

COSTS-TAXING THE CORPORATION. Under section 2821, where the county superintendent could not under her findings tax the costs to the plaintiff because there was reasonable cause for instituting the proceeding, nor to the defendant for the reason that she had to find for said defendant, she must tax them to the school corporation.

On the twelfth day of January, 1904, Mrs. Ella C. Chantry, county superintendent of Adair county, in rendering a decision in the above entitled case, taxed the costs amounting to $51.05 to the school township of Harrison. Thereupon the school township, through its attorney, filed a motion with the county superintendenț to retax the costs, and on the ninth