be obtained from the independent district of Liberty, number eight, a new subdistrict to be known as subdistrict number nine, Des Moines township. The board acted on this petition and made the following order: "In the matter of the petition of J. D. Handersheldt and Silas Pearson, asking for the formation of a new subdistrict to be known as number nine, in the district township of Des Moines, all the territory within the boundary lines therein described, is hereby granted, provided sufficient territory be granted by the independent school district of Liberty, 'number eight, to make a suitable and convenient subdistrict as to the amount of territory and the number of children of school age; and, provided, that in case the territory is not granted by said independent district of Liberty number eight, then said territory hereby granted shall remain and be a part of subdistrict number five, of the district township of Des Moines."

On the twenty-eighth day of April, 1882, the board of the district township of Des Moines, at a special meeting, adopted the following resolution: "It is hereby ordered that all action heretofore taken by the board of the district township of Des Moines, in the formation and organization of subdistrict number nine, in the above named township, is hereby rescinded." From this action of the board, J. D. Handersheldt appealed to the county superintendent, who upon hearing the case on appeal rendered the following decision: "A resolution passed rescinding an action which has not yet taken effect, is legal, but so far as it concerns formation and organization which is already completed, it is illegal." From this action or decision of the county superintendent, J. D. Handersheldt appeals.

It appears from the transcript of the county superintendent that the witnesses were not sworn. A failure to take testimony under oath is fatal to the case, even though from its nature it came properly before the superintendent on appeal.

A brief examination will be sufficient, we think, to show that this action should have been dismissed by the county superintendent for want of jurisdiction, since no appeal will lie when the validity of the district organization is involved.

This appeal was taken from the action of the board to the superintendent, for the purpose of determining whether or not the board erred in rescinding its former action creating subdistrict number nine. There was very little evidence bearing on this, the sole issue in the case. Witnesses

simply stated that they were or were not in favor of subdistrict number nine.

Such testimony can have no bearing in an action to establish error on the part of the board. Appellants set forth in their affidavit that the county superintendent erred, in that he refused to admit testimony to show that there never had been any legal organization of subdistrict number nine. We think such evidence was properly excluded, and yet it is necessary, to enable any tribunal to arrive at a decision of the case; for if the district was organized according to law, then the board committed error in making an order which operated to discontinue it, and hence to change boundaries of subdistricts at a time of year in which, according to our holding, it can not be done. Upon the presumption that the district was legally organized, it committed error by making a change of subdistrict boundaries without a majority of the whole board,

But

It must therefore be determined whether the conditions upon which the board of Des Moines township granted the territory, were fulfilled, or, in other words, it must be known whether or not the independent district number eight, of Liberty, concurred in the transfer of the territory. neither the county superintendent nor this department is competent to determine the legality of a district organization, and it is therefore impossible for us to decide whether or not the board committed error.

The remedy is an application to a court of law for mandamus to compel the board to recognize the subdirector of subdistrict number nine, as a school officer and member of the board of the district township of Des Moines. Were the issues involved within our jurisdiction, we would not hesitate to consider them, but as no question of such nature is connected with the case it is DISMISSED.

November 2, 1882.

J. W. AKERS,

Superintendent of Public Instruction.

APPLETON PARK V. INDENPENDENT DISTRICT OF PLEASANT GROVE.

Appeal from Des Moines County.

RECORDS. The official record is its own best evidence. Testimony intended to contradict the record should not be admitted.

RECORDS. Records not made and certified to by the proper officers as required by law are defective and may be impeached by collateral evidence.

TEACHER. The law provides that a teacher shall have a fair and impartial trial, with sufficient notice to enable him to rebut the charges of his accusers.

CHARGES. Must be clearly sustained by the evidence.

Appleton Park was duly engaged and contracted with. He began teaching on the fourth day of September, 1882; after some ten or eleven days had expired, during which time he had taught the school, he was waited upon by the entire board, called to the door and informed that certain rumors were being circulated, to the effect that he had been guilty of using obscene and vulgar language in the presence of his pupils, and during regular school hours. The board called at the schoolhouse again about the hour for closing the school in the afternoon, and the school having been dismissed, it proceeded to examine three of the boys as to the truth of the charges above referred to. The result of this action was that the teacher left the school and the board employed another teacher. Mr. Park appealed to the county superintendent, who reversed the action of the board, whereupon D. L. Portlock, president of the board, appeals.

The principal difficulty presented in this case seems to be to determine just what that action or order of the board was from which the appeal was taken. The transcript filed by the secretary of the board, is as follows:. "Complaint being made by some of the scholars to the school board, in regard to the teacher, Appleton Park, using indecent, rough and insulting language during school time, the board met at the schoolhouse to make an investigation. The board stated the above charges to the teacher, Appleton Park, who after reflecting upon the matter, proposed his

resignation to the board. The board, after due consideration, accepted the same. The question being settled in the above way, and no other business before the board, the board then adjourned."

The parol evidence of Appleton Park was admitted to offset and impeach the record. This was clearly in violation of well established law, if the record was really what it purported to be, a true and authenticated copy of the proceedings of the meeting of the board referred to.

Starkie on Evidence, says: "Where written instruments are appointed, either by the immediate authority of law, or by the compact of the parties, to be the permanent repositories and testimony of truth, it is a matter both of principle and of policy, to exclude any inferior evidence from being used, either as a substitute for such instruments, or to contradict or alter them; of principle, because such instruments are in their own nature and origin entitled to a much higher degree of credit than that which appertains to parol evidence; of policy, because it would be attended with great mischief and inconvenience if those instruments upon which men's rights depend were liable to be impeached and controverted by loose collateral evidence." Starkie, part IV. p. 995, Vol. III, 3d Amer. Ed.

The fact that the transcript referred to is not certified to by the secretary, and the further fact that he was not present at the board meeting in question, and wrote the minutes as dictated from memory by the president of the board, three days after the meeting, fully justified the superintendent in ruling it out and in admitting parol evidence.

We come now to consider whether the trial before the board was such a proceeding as is required by section 1734. The board called in the morning and informed the teacher of the charges preferred against him, whereupon he offered to resign. It instructed him to proceed with his school and stated that it would return in the evening. During the day the board worked up its case against the teacher, while he was so employed as to prevent him from giving thought or attention to the charges, or to the preparation of any adequate defense.

We must sustain the superintendent in finding that the trial and opportunity to defend was not what the law intends every teacher shall have. Every teacher is entitled to the sympathy and support of the school board, and where there is any reasonable doubt as to the truth of stories circulated by school children, the teacher should have the benefit of such doubt. We believe that had the board been in sympathy with the teacher in this instance, it would have decided that the charges were not sustained by the evidence, at least by any evidence which appears of record. That the teacher offered to resign in the evening does not appear from the evidence offered in behalf of the board, while it does appear that at least one member of the board told him "he had better quit."

We are compelled to hold that the teacher was dismissed, and that in doing so for no sufficient reason the board erred and the decision of the county superintendent is therefore

February 16, 1883.

AFFIRMED.

J. W. AKERS, Superintendent of Public Instruction.

*Note-Our supreme court rendered a decision regarding the measure of damages resulting from the wrongful discharge of this teacher. The opinion is found in 65 Iowa, 209.

J. B. B. BAKER V. INDEPENDENT DISTRICT OF WAUKON.

Appeal from Allamakee County.

RULES AND REGULATIONS. In establishing and enforcing regulations for the government of scholars the board has a large discretion.

On the seventh day of June, 1886, Maud Baker was suspended for repeated violation of a rule of the board, known as rule five, which reads as follows: "Any scholar who shall be absent five half-days in four consecutive weeks, without any excuse from parent or guardian satisfactory to the teacher that the absence was caused by said pupil's sickness, or by sickness in the family, or, in the primary grades, by severity of the weather, shall forthwith be suspended. No pupil so suspended shall be reinstated without a permit from the principal."

Rule twelve provides that the principal of the school may suspend pupils temporarily, and that he shall immediately notify the parent or guardian of a suspended child of such suspension, the notice to be in writing, and furthermore, that he shall immediately inform the board of his action. Maud Baker was absent without excuse, and when called to account for her absence stated that she had gone on a fishing excursion, and expected to go the week following. Having failed to render a satisfactory excuse, she was suspended, as above stated. Notice in writing was sent to parent, as required by rule five, and the board informed of the suspension. The board approved the action of the principal. J. B. B. Baker appealed to the county superintendent, who reversed the action of the board. D. W. Reed appeals.

The facts in this case are not controverted. It appears in evidence that the suspension of Maud Baker was reported to the board, and that a special meeting of the board was held for the consideration of the act of the principal. Maud Baker was present at this meeting of the board, and the president testifies that he read to her the rule under which she had been suspended, and asked her to give the board some promise of amendment in the future, as a condition of reinstatement and she replied that she would not make any promise for the future, and expected to go fishing the following week.

The county superintendent finds that the suspension was made in compliance with the rules of the board for the government and regulation of the schools, and that the act of the principal in suspending, and of the board in approving his action, was without prejudice or malice. The board was reversed on the ground that the law does not confer upon the principal, or the board, power to suspend for the cause for which Maud Baker was suspended.

The case turns, therefore, upon the power of the board to establish and enforce a rule providing for the suspension of pupils, who are absent a given number of days, or half-days, without a satisfactory excuse. The point has been fully discussed and settled by our supreme court in the case of Burdick v. Babcock, 31 Iowa, 562, and need not be considered here. Murphy v. Independent District of Marengo has been cited, but does not apply, as in that case it is stated that the offense for which the pupil was dismissed was not in violation of any rule or regulation.

We are compelled to overrule the decision of the county superintendent, and to sustain the action of the board. REVERSED.

October 23, 1886.

J. W. AKERS, Superintendent of Public Instruction.

N. R. JOHNSTON V. DISTRICT TOWNSHIP OF UTICA.

Appeal from Chickasaw County.

MANDAMUS. To compel the performance of an official duty, appeal sometimes consumes valuable time. Mandamus is often a more speedy and better remedy. DISCRETIONARY ACTS. Action by the board unduly delaying the final consideration of an important matter, may be regarded as an evidence of prejudice.

The issues involved in this case were the formation of a new subdistrict to be known as number twelve, and the providing for a school during the winter of 1887-8, pending the election of subdirector for the new subdistrict. The case came in due order to the county superintendent on appeal, and from his decision the board appeals.

At its meeting on the nineteenth of September, 1887, the board had before it a petition signed by Caleb Boylan and others, to redistrict number two, and to form a new subdistrict. After various motions it was voted to adjourn to the second Saturday in February, 1888, to consider said petition. Appeal was taken to the county superintendent.

At the trial before that officer, October 27, 1887, and adjourned to October 31st, a motion was made to dismiss the case, on the ground that the matter was still pending before the board, as no final action had been taken by that body. The motion to dismiss was overruled, and the county superintendent proceeded to hear the case. Did the county superintendent commit an error? We think not.

Without impunging in any way the motives of the board, its action in adjourning to a date as late as the second Saturday in February, was calculated to delay and defeat the prayer of the petitioners. The ag

grieved parties had an undoubted right to appeal, but we regret that they did not avail themselves of the more speedy remedy of resorting to the courts. A writ of mandamus would undoubtedly issue in such a case, compelling the board to perform its enjoined duty.

A motion to dismiss on the ground that there was no evidence to show that the board acted with passion, prejudice, or injustice, was also very properly overruled. The action of the board delaying the whole matter until the second Saturday of February, 1888, was in our opinion an act of manifest injustice, which the superintendent very properly took into account in making his decision.

The county superintendent reversed the action of the township board and ordered the new subdistrict, number twelve, to be formed, with an extra school for the winter of 1887-8, in accordance with the prayer of the petitioners. Ought his decision to be sustained?

A careful review of the evidence in the case, including the plat "exhibit A," shows that the township of Utica is divided into eleven subdistricts, some of them very large and irregular in shape. A better division than that