It could appeal to the superintendent of public instruction, but in that event it must base its case wholly upon the evidence as presented before the county superintendent, as this department has no right to hear additional testimony.

It could begin the case de novo, amend its record if it was faulty, supply omissions, introduce new testimony, and perfect its proceedings in such ways as to obtain a possible different decision from the county superintendendent, or so as to make a stronger case before the superintendent of public instruction if either party found it necessary to appeal to him.

In this case the board chose the last remedy, and we think it was wise in doing so, as the most ready manner of obtaining a final adjudication of the whole matter.

After careful study of the authorities cited by counsel, we can only reach this conclusion. If the aggrieved party fails to appeal within the thirty days allowed by the law, the decision of the county superintendent becomes final as far as that particular case is concerned; but we find nothing in the law to warrant the conclusion that a reversal by the county superintendent acts as a bar to any further proceedings because the district board did not then and there take an appeal to the superintendent of public instruction. Such a conclusion would defeat the ends aimed at by the law in placing the management of the schools in the hands of the school officers as chosen by the people. The county superintendent and the superintendent of public instruction, in hearing these appeal cases have the jurisdiction, somewhat of a court of equity and are not bound by a rigid adherence to the technical forms and customs which prevail in the courts of justice.

In reaching this conclusion we are supported by the case of Morgan v. Wilfley et al., 70 Iowa, 338. "The power to redistrict and change subdistricts is conferred upon the board by the statute, and action in that direction, for sufficient cause, can not be considered as unauthorized." The power to change or fix the schoolhouse site is conferred in the same manner. Further: "The board of directors can not be so fettered by its prior action, or by legal proceedings that it may not, at any time, for sufficient cause, redistrict the township, as in its best judgment may be demanded by the interest of all the children of the district." The principle here enunciated is so broad that it applies to all the actions of the board, and it is not necessary to dwell upon it.

In regard to the merits of the case, there is nothing to be said. There is no evidence to show that the board abused its authority, and consequently no reason for setting its order aside. The decision of the superintendent is

AFFIRMED.

HENRY SABIN,

July 9, 1888.

Superintendent of Public Instruction.

SAMUEL WALKER V. J. S. CRAWFORD, COUNTY SUPERINTENDENT.

Appeal from Cass County.

CERTIFICATE. The county superintendent is his own judge as to how fully he will give the applicant reasons for the refusal of a certificate.

CERTIFICATE. The county superintendent is charged with the responsibility of refusing to issue a certificate to any person unless fully satisfied that the applicant possesses the essential qualifications demanded of teachers by the law.

DISCRETIONARY ACTS. Unless a marked violation of the large discretion vested in the county superintendent is proved clearly and conclusively, his action in refusing or revoking a certificate will not be interfered with on appeal. CERTIFICATE. The decision of a county superintendent refusing a certificate will not be interfered with on appeal unless it appears that he acted from passion or prejudice.

This case arises from the refusal of J. S. Crawford, county superintendent of Cass county, to grant a certificate to Samuel Walker to teach in the schools of said county. The case was reheard on the first day of December, 1888, by way of appeal, the superintendent affirming his former decision. Samuel Walker appeals.

Section 1766 requires the county superintendent to examine each candidate desiring to teach in the public schools of the county, in certain branches enumerated therein, with special reference to his competency and ability to teach the same. But section 1767 still further directs that the county superintendent must satisfy himself that the applicant possesses a good moral character and the essential qualifications for governing and instructing children and youth. Here, then, are three distinct qualifications to be investigated and determined by the county superintendent before he issues the certificate. My predecessor very pointedly says in a written opinion on file in this office: "Under the law the county superintendent must be satisfied that you (the candidate) possess all the qualifications enumerated by law."

In this case it is not claimed that the appellant is deficient in the branches usually taught in the public schools. Neither is it charged that he does not possess a good moral character. The only point in question is his ability to instruct and govern children and youth. We confess that this is an exceedingly difficult point to determine in many cases. The surest way undoubtedly is to visit and inspect the school, but we think the county superintendent took the next best way when he drew the candidate into a conversation and allowed him to express himself freely and without reserve. Certain traits of character most essential to a teacher can not be ascertained by a written examination alone.

At the time of the trial on appeal the county superintendent was placed on the stand as a witness for the appellant. In the course of his testimony he made this statement: "I refused Mr. Walker a certificate because

I thought, and still think, Mr. Walker did not have judgment, a well balanced mind, and common sense, to teach a good school." It is not the duty of the superintendent of public instruction to try this case de novo in order to determine the correctness of this conclusion. We are not called upon to pass upon the fitness or unfitness of Mr. Walker to teach in the schools of Cass county.

Did the county superintendent err, in that he was actuated by wrong motives? If through passion or prejudice he refused Mr. Walker a certificate he did him an injustice, and his decision should be reversed. The existence of such a ruling motive would show itself somewhere in the evi

dence. We have read the transcript several times with care, and we fail to find any disagreement existing between the parties previous to, or at the time the appellant was first examined, or that Mr. Crawford has spoken unkindly of Mr. Walker or shown a disposition to injure him in any way. It was competent for the appellant to show clearly at the trial that the county superintendent was prejudiced against him to such an extent as not to do him justice; this he has failed to do by any reliable testimony. The weight of the testimony is to the effect that the county superintendent was endeavoring to do his duty as a school officer and in this the superintendent of public instruction must sustain him.

The counsel for the appellant claims that the county superintendent erred in not informing the applicant upon what grounds he refused him a certificate. The testimony of Mr. Frosi, from his long experience in the office of county superintendent, has great weight. We agree with him that it is usually better to inform the applicant frankly and fully why the certificate is refused, but cases may arise in which it is as well not to do this. The law is silent upon this point, the county superintendent must be his own judge of what it is best to do. We do not think the refusal in this case is an error on the part of the county superintendent.

It is also alleged on the part of the appellant that "the county superintendent made a wrongful decision upon the facts in the case." The appellant introduced evidence to show that he had taught a fairly successful school, and that he was in good repute as a teacher in his own neighborhood. All this was pertinent to the question at issue, but if the conversation and actions of the appellant made such an impression upon the mind of the county superintendent at the time of examination that this evidence even could not overcome it, the county superintendent could not consistently do otherwise than as he did.

The discretion vested in the county superintendent by the law is very large, and for this purpose, that he may guard the public schools against the intrusion of persons unworthy or unfit for the office of teacher. The department of public instruction can not release him from his responsibility, nor can it interfere with his discretionary acts except upon the clearest and most convincing proofs of violation of law, or of the influence of passion or prejudice in the performance of his official duty.

The appellee on the other hand seems to argue that the action of the county superintendent, in refusing to grant a certificate, can not be interfered with by the superintendent of public instruction. In 1867, Hon. D. Franklin Wells, then superintendent of public instruction, obtained an opinion from the attorney-general of the state, Hon. F. E. Bissell, upon this point. The following extract from that opinion is answer to each of the claims just considered. "Chapter 52, laws of the tenth general assembly, provides that the superintendent of public instruction shall be charged with the supervision of all the county superintendents, and shall determine all cases appealed from the decision of the county superintendent. I hold that under the above provisions, the right of appeal is clearly inferable, if not directly given to any one aggrieved by the refusal of the county superintendent to give a certificate, or by the revocation of a certificate. The power should, however, be very cautiously exercised and the decision of the county superintendent should not be interfered with except in case of a clear violation of duty, or when the act was the clear result of passion or prejudice."

After a careful review of the testimony and the able arguments submitted to us, we do not find sufficient reason for reversing the decision made heretofore.

February 4, 1889.

AFFIRMED.

HENRY SABIN, Superintendent of Public Instruction.

G. W. DAVIS et al. v. DISTRICT TOWNSHIP OF LINN.

Appeal from Linn County.

APPEAL. Will not lie to control the action of a board or of the county superintendent, where concurrence is provided for.

TUITION. To enable the districts in which the children reside to collect tuition, all the requirements of the law must first be fulfilled.

At its regular meeting on the eighteenth of March, 1889, the board passed a resolution excluding from the privileges of the school, in subdistrict number seven, children from the independent district of Laurel Hill, in Jones county, who had from time to time for many years, been allowed to attend the school in said subdistrict number seven. On the thirtenth of April the board considered a petition of parties in the adjoining district of Laurel Hill desiring to send to the school in Linn township, and passed an order refusing to admit their scholars. From this action, G. W. Davis and others appealed to the county superintendent, who heard the case on the ninth of May, affirming the order of the board. From his decision G. W. Davis appeals.

The attendance of scholars living in an adjoining district is governed by section 1793. By the portion of the section to .which this appeal relates, children may attend in another district on such terms as may be agreed upon by the respective boards. In the history of this case, it is not shown that any action was taken by the board of Laurel Hill as to agreement regarding terms of attendance. The board of the district township of Linn refused to admit the scholars in question. It is from this order, an initial action, that appeal was taken.

At the trial before the county superintendent a statement of facts was submitted and was agreed to by both parties to the appeal, as a basis upon which the appeal should be heard. At this point the board by its attorney filed a demurrer, urging that the county superintendent could not acquire jurisdiction; that the action of the board complained of was not subject to revision upon appeal and asking the county superintendent to dismiss the case for want of jurisdiction. The demurrer was overruled, the case was tried on the agreed statement of facts, and the order of the board affirmed. Did the county superintendent err in overruling the motion to dismiss the case for want of jurisdiction? We think he did.

The

If the boards fail to agree upon terms of attendance, certain conditions regarding distance from the respective schools being fulfilled, as they are in this case, section 1793 itself provides the next step to be taken. county superintendent of the county in which the children reside may give his consent with that of the board of the district where the children desire to attend, admitting them. But from the refusal of the board to admit the

children it is held and has been uniformly held in opinions by this department, that appeal will not lie. It has always been conceded to be the intention of the lawmakers to leave with the board of the district in which the school is maintained, the matter of determining finally and conclusively, if it chooses, that scholars shall not be admitted under the provisions of section 1793. If its consent is withheld, neither the courts of law nor any appellate tribunal may set aside its order of refusal, and compel it to admit outsiders and accept as compensation for their instruction the amounts fixed by section 1793. We have referred to this matter at such length, because the counsel for the appellant urges the claim that the case should be remanded for a new trial.

We are compelled to find that there are but two methods in law, by which attendance in subdistrict number seven may be secured for their children by the appellants. The two boards may agree as to the terms of attendance. Or after they have refused to agree the concurrent consent of the county superintendent of Jones county and the board of the district township of Linn, will entitle the children to attendance and bind their home district for the expenses of their instruction in the manner provided by section 1793. But appeal will not lie to control the action of either board or of the county superintendent.

August 6, 1889.

REVERSED AND DISMISSED.
HENRY SABIN,

Superintendent of Public Instruction.

ISHAM WATKINS V. INDEPENDENT DISTRICT OF EMPIRE.

Appeal from Marion County.

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

APPEAL. 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.

JURISDICTION. The jurisdiction of an appellate tribunal is not greater than that of the board from whose action the appeal is taken.

On the sixteenth of September, 1889, the board of the independent district of Highland determined to notify Isham Watkins of Empire district, that his children could not any longer attend the school in Highland district. The records show that it was willing that he should be attached to Highland district. This was taken as an initiatory movement. Isham Watkins petitioned the board of the Empire district to set off the north half of northeast quarter of sections 25, 75, 21, to the independent district of Highland. The petition was rejected; in effect the Empire board refused to concur. An appeal was taken to the county superintendent, who ordered that the northeast quarter of northeast quarter of section 25 be detached from the independent district of Empire and attached to the independent district of Highland.