The transcript in the case does not give a copy of the notice of the annual meeting (required by section 2746 of the code), and the record is silent as to what said notice contained. This omission is unfortunate, for the whole question of the legality of the action taken by the electors and the subsequent actions of the board rests upon the contents of this notice. Section 2749 of the code enumerates certain powers the electors may exercise when assembled at the annual meeting on the second Monday in March, among others the power to vote a schoolhouse tax for the purchase of grounds and the construction of schoolhouses. Section 2746 provides that the secretary of the board of directors shall give not less than ten days' notice of said meeting by posting notices in at least five public places in the corporation, said notices to specify "the place, day, hours during which the meeting will be in session, specifying the number of directors to be elected and the terms thereof, and such propositions as will be submitted to and determined by the voters."

In the case of Goerdt v. Trumm, 118 Iowa, page 207, the supreme court holds that none of the propositions enumerated under section 2749 can be legally acted upon by the electors at the annual meeting unless specific and legal notice has been given that such proposition or propositions will be submitted. In the case at bar, with the incomplete transcript, we are unable to know whether or not the action taken by the electors March thirteenth was legal.

The preponderance of the testimony shows that the motion voted upon was understood by the electors to combine two propositions, viz.: the location of the site and the voting of the tax. If then the notices previously posted by the secretary stated that the question of voting a tax to build on a site at or near one hundred rods south and one-half mile west of the old site would be submitted, the vote on such question locating the schoolhouse and voting the tax for its erection was legal and the board was without power to select a different site.

While the record is entirely silent as to the contents of the notice of the annual meeting posted by the secretary, it is improbable that any mention was made in such notice that a change of site was contemplated, for Mr. W. S. Lindsley, in his testimony, says: "At the annual meeting I made the suggestion that we change the scholhouse site from where it was to one hundred rods south and a half mile west." It appears that this suggestion was made for the first time at the annual meeting, and that it had not been mentioned in the written notices posted by the secretary ten days before, and therefore could not be considered by the electors. If no notice of the site proposition was given, the fact that it was coupled with the tax proposition would invalidate the entire vote, even if legal notice as to the tax proposition had been given, the rule being that the proposition as voted upon must not differ in any essential from the proposition as advertised.

If then the electors acted within their rights in voting the tax and the location, the board was under the necessity of carrying out the instruction given. (Rodgers v. School District of Colfax, 100 Iowa, 317.) If on the other hand the action of the electors in voting the tax and the location was illegal, no tax could be legally raised and no schoolhouse could be legally constructed. In either case an appeal would not lie. If the whole procedure has been without warrant of law, as we suspect, the board may be

enjoined from collecting or applying any public funds for the payment of site or construction of school building.

The county superintendent was without jurisdiction, and the case is therefore DISMISSED.

JOHN F. RIGGS,

Superintendent of Public Instruction.

Des Moines, Iowa, November 27, 1905.

ROSE BYRNE V. INDEPENDENT SCHOOL DISTRICT OF STRUBLE.

Appeal from Plymouth County.

DISMISSAL OF TEACHER-CHARGES. Charges to warrant a dismissal must be specific and sustained by evidence. Indefinite and anonymous complaints are insufficient.

DISMISSAL OF TEACHER-APPEAL-BURDEN OF PROOF. In a trial before the county superintendent on an appeal from an action of the school board dismissing a teacher the burden of proof is on the board.

On the twenty-third day of January, 1906, the board of directors of the Independent District of Struble met in special meeting to investigate certain charges preferred against Rose Byrne, a teacher in the employ of said board. At said meeting seven communications (one of them anonymous), addressed to the school board, were read. Each of these communications contained one or more complaints against defendant teacher. At said meeting Miss Byrne was represented by her attorney and filed a denial of the charges. The transcript does not show that any evidence was introduced before the board in support of the charges, but that, after hearing the complaints read and the denial by defendant teacher, a motion to dismiss Miss Byrne at once was carried, three of the four directors present voting in the affirmative. Appeal was taken, and the case coming on for hearing before the county superintendent, the action of the board was reversed and Miss Byrne ordered reinstated in her position in the Struble school, whereupon the board appealed to the superintendent of public instruction.

The case, as we view it, involves the question:

First. Can a board discharge a teacher on complaints general in character and without the introduction of evidence to fully substantiate the same?

Second. In an appeal to the county superintendent from a decision of the board in dismissing a teacher, is the burden of proof upon the board or upon the teacher?

Section 2782 of the code provides that a teacher may be discharged for "incompetency, inattention to duty, partiality, or for any good cause."

While the boards are given large discretion and, in the trial of such cases, are not required to observe the strict forms of a court of law, it is necessary that they make thorough investigation of charges lodged; that the charges, if proven true, be of sufficient consequence to warrant a termination of the contract, and that such charges be specifically set out and clearly proven.

In the case at bar the charges were so general in character, and some of them so trivial, that full testimony from creditable witnesses would be required to convince any court of review that they were sufficient to warrant the board in dismissing the teacher. Such testimony was not given before the board. It was therefore the duty of the county superintendent upon appeal to take evidence and determine the very case the board had determined. (S. L. 2819.) When the case was before the board, the burden of proof was unquestionably upon that body. The prosecution must establish the guilt of the accused, not the accused proved her innocence. If the board, without examining a witness or taking a word of testimony that would have standing in any court of law, can discharge a teacher, such board can not in the hearing before the county superintendent insist that the burden of proof is upon the teacher. While the county superintendent must give due weight to the decision of the board, and will not reverse the board except upon a clear showing of violation of law or abuse of discretion, he can not require the teacher to offer testimony in proof of her innocence when the board has introduced no testimony to prove her guilt.

The decision of the county superintendent is

Des Moines, Iowa, March 27, 1906.

AFFIRMED.

JOHN F. RIGGS, Superintendent of Public Instruction.

INDEX TO APPEAL CASES

Abuse of Discretion. The board may not substitute its own discretion
for the clearly expressed instruction of the electors.....
Action of Board. Must be affirmed in the absence of showing of malice,
prejudice or violation of law....
Affidavit. An affidavit is a statement in writing of the errors com-
plained of, signed and made upon oath before an authorized mag-
istrate

The affidavit answers its leading purpose if it sets forth the errors com-
plained of with such clearness that the proper transcript may be
secured

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

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

62,

72

72

14

Must be accepted if sufficient to give the appellant a standing.
Appeal. An appeal may be taken from the refusal of the county superin-

tendent to investigate charges brought against a teacher.

A case whose main purpose is to determine the validity of an order on
the district treasury, or the equity of a claim, can not be entertained
on appeal to the county superintendent..
Appeal may not be taken from an action or order complying with the
terms of a contract previously made, nor from an action authoriz-
ing the issuance of an order in payment of a debt contracted by
previous action of the board...

The execution by the board of the vote of the electors upon matters
within their control, is mandatory; from such action of the board
no appeal can be taken. If such action is tainted with fraud, an
application to a court of law is the proper remedy..

The right of appeal is confined to persons injuriously affected by the
decision or order complained of. Ordinarily a person living in one
subdistrict can not appeal from an action of the board locating a
site in another...

Appeal will not lie to determine the constitutionality of a law.
The adoption of the committee's report in favor of retaining the old
schoolhouse site, is an action from which appeal may be taken....
The action of two boards upon a subject over which they have divided
control constitutes a concurrent action, and appeal may be taken
only from the order of the board taking action last...
May be taken by any resident aggrieved by an action of the board.
The hearing is not to be conducted by a rigid adherence to the technical
forms and customs which prevail in the courts.

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

48

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

49

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

49,

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

Will lie from an action of the board which is made a matter of record..
Mere technical objections should not prevent the fullest, presentation of
the merits of the case, in the trial of an appeal.

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

The superintendent of public instruction may not entertain an appeal un-
less thirty days' notice of such appeal has been served upon the
adverse party...

Should be conducted with fairness and impartiality.

The law does not require the filing of a bond for costs or the giving of
security therefor as a condition necessary to perfect an appeal...
It is the evident intent of the law to make it possible for aggrieved
parties to have a hearing with the least possible delay and annoy-
ance, and at the lowest expense.

An appeal may be taken from the decision of the board to place a peti-
tion on the table..

Attendance. An actual resident may not be denied equal school advan-
tages with other residents.....
Board of Directors. The board shall be sustained in all legitimate and
reasonable measures to maintain order and discipline, to uphold the
rightful authority of the teacher, and to prevent or suppress in-
subordination in the school..

If in the selection of a site the board violates law or abuses its discre-
tionary power, its action may be reversed on appeal...
The board, though not bound by a vote of the electors directing the pre-
cise location of a schoolhouse site, is required to so locate it as to
accommodate the people for whom it is designed.

The action of the board can not be reversed upon the allegations of
appellant without proof, or by reason of failure to make defense..
The acts of the board are presumed to be regular, legal, and just, and
should be affirmed unless proof is brought to show the contrary..
The acts of the board must be presumed to be regular and should be
affirmed unless positive proof is brought to show the contrary....
Its action is presumed to be correct and for the interest of the district,
until proved to be otherwise...

Has full power to provide and enforce a course of study.
May adopt its own course to decide the question of actual residence.

In locating a site the board acts wisely in taking into consideration the
prevailing sentiment of the people...

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

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

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

A teacher can not be discharged by the board, except after a full and
fair investigation. . . .

70

84, 86
The board of directors of a school corporation has no jurisdiction over
children after the termination of the school year.
Pupils may be expelled by the board for immorality, violation of the
regulations and rules established by the board, or when their pres-
ence is detrimental to the best interests of the school....
The board may not dismiss a teacher for refusing to teach grades other
than those named in the contract.

95

...

95

103

The law does not require school boards to give parents or pupils notice
or a chance for defense before ordering suspension or expulsion... 107