SCHOOL LAW DECISIONS.

S. L. CURRY V. DISTRICT TOWNSHIP OF FRANKLIN.

Appeal from Decatur County.

COUNTY SUPERINTENDENT. Has no jurisdiction of an appeal until an affidavit is filed in his office. The appeal must be taken by affidavit.

AFFIDAVIT. An affidavit is a statement in writing of the errors complained of, signed and made upon oath before an authorized magistrate.

JURISDICTION. An application for an appeal filed within thirty days from the act complained of will not give the county superintendent jurisdiction of the

case.

NOTICE. The county superintendent should not issue notice of final hearing until the transcript of the district secretary has been filed.

TESTIMONY. Unless obviously immaterial, testimony offered should be admitted and given such weight as it merits.

DISCRETIONARY ACTS. Should not be disturbed except upon evidence of unjust exercise of discretion.

December 16, 1867, at a special meeting of the board, a vote to change the boundaries of subdistricts so as to form a new subdistrict in accordance with the prayer of petitioners, resulted in a tie. From this virtual refusal to act, S. L. Curry appealed to the county superintendent, who on the thirty-first of the same month formed a new subdistrict. Appellant alleges in his affidavit that the county superintendent assumed jurisdiction of this case without warrant of law, that there never was "at any time an affidavit or any other statement in said appeal case filed in the office" of the superintendent, hence the want of jurisdiction.

The "act to provide for appeals," section two, provides that "The basis of proceeding shall be an affidavit, filed by the party aggrieved, with the county superintendent, within the time allowed for taking the appeal." An affidavit is a statement in writing, signed and made upon oath before an authorized magistrate. A county superintendent can have no proper jurisdiction of an appeal

case until such affidavit has been filed. A notice of intention to file an affidavit, a verbal complaint, or a petition, is not sufficient to give the county superintendent jurisdiction in appeal cases. The affidavit setting forth "the errors complained of in a plain and concise manner," must be in his hands before he is justified in commencing proceedings. The decision of the superintendent recites that the affidavit was filed December 21st, which might be taken as conclusive, if it was not contradicted by the record. The transcript shows that said affidavit was not subscribed and sworn to until December 28th, hence we do not clearly see how it could have been filed on the 21st.

December 24th, four days before the affidavit was made, and which appellant alleges was never filed with the superintendent, said superintendent gave notice to the parties that the hearing would take place on the 30th. This proceeding, as an appeal case, was entirely unauthorized by law, and as he commenced proceedings in disregard of the plain provisions of the law and without legal jurisdiction, his decision is annulled. It may be said, and not without authority, that as both parties responded to the notice, and came before the superintendent, he thereby acquired jurisdiction, but we feel unwilling to sanction disregard of law by approving such great irregularities.

Without touching the real merits of the questions at issue, the formation of a new subdistrict, which we are willing to leave to the local authorities, we refer briefly to three points of law raised by appellants.

The county superintendent should not issue notice of final hearing until both the affidavit and the transcript of the secretary have been filed in his office.

Though the change of subdistrict boundaries by the board is a discretionary act, it may be reviewed by the county superintendent, on appeal, but the decision of the board should not be disturbed unless said discretionary power has been abused or exercised unjustly.

The county superintendent should have received the remonstrances offered on trial in evidence, and exercised his judgment as to their weight and value. REVERSED.

March 26, 1868.

D. FRANKLIN WELLS, Superintendent of Public Instruction.

ELIAS SIPPLE V. DISTRICT TOWNSHIP OF LESTER.

Appeal from Black Hawk County.

TESTIMONY. At the hearing of an appeal, it is competent for the county superintendent, upon his own motion, to call additional witnesses to give testimony. RECORDS. In the absence of the allegation of fraud, testimony to contradict or impeach the records of the district cannot be received.

RECORDS. The board may at any time amend the record of the district, when necessary to correct mistakes or supply omissions. And it may upon proper showing be compelled by mandamus to make such corrections.

AFFIDAVIT. The affidavit answers its leading purpose if it sets forth the errors complained of with such clearness that the proper transcript may be secured.

At the regular meeting of the board held September 16, 1867, attended by four of the seven members, motions were made and seconded for the creation of two new subdistricts whose boundaries were described in the motions. In regard to the action on these motions the record of the secretary contains merely the word "carried." At a special meeting held February 15, 1868, the action of the board in September in relation to the formation of new subdistricts was "reconsidered" and "rescinded." From the February action Elias Sipple appealed to the county superintendent. During the progress of the hearing, which took place March 20, 1868, the county superintendent called upon one of the four members that attended the September meeting, who testified that he did not vote for the motion to create a new subdistrict. As it thus appeared that the new subdistricts were not established by a vote of a majority of all the members of the board, as required by law, and as said September action was rescinded at a full meeting of the board in February, the county superintendent, considering the formation of the subdistricts illegal and void, dismissed the appeal. From this decision Barney Wheeler appeals.

Appellant alleges substantially that the county superintendent erred as follows: In himself calling a witness to give testimony; in receiving testimony to impeach the district record, which is claimed to be valid and binding after thirty days; in dismissing the appeal; in not establishing the subdistricts.

The law requires the county superintendent to give a "just and equitable" decision, and as the calling of additional witnesses may sometimes enable him to discharge this duty more faithfully, his action in this respect is sustained.

The second error assigned really includes two distinct points, which will be considered separately; and first, in regard to the impeachment of the district record. The law provides for an annual meeting of the electors of the district township, and for semi-annual and special meetings of the board of directors; also that "the secretary shall record all the proceedings of the board and district meetings in separate books kept for that purpose." It is a general principle of law that "oral evidence can not be substituted for any instrument which the law requires to be in writing, such as records, public documents," etc. 1 Greenleaf's Evidence, §86. "It is a well-settled rule that, where the law requires the evidence of a transaction to be in writing, oral evidence cannot be substituted for that, so long as the writing exists and can be produced; and this rule applies as well to the transactions of public bodies and officers as to those of individuals." The People v. Zeyst, 23 N. Y., 142. In the case of Taylor v. Henry, 2 Pick., 397, the supreme court of Massachusetts held that an omission in the records of a town meeting could not be supplied by parol evidence. Chief Justice Shaw, in discussing the case, said that it would be "dangerous to admit such a proof." Mr. Starkie, in his valuable treatise on evidence, says: "Where written instruments are appointed either by the immediate authority of the 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 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, page 995, volume III, 3d Am. Ed.

The reason of the rule upon which the courts agree with such entire unanimity applies with force in the case now under consideration. The records of the district and board meetings contain a statement of the regulations adopted, and the acts done in the exercise of the powers with which the respective bodies are invested by the law. They present to all the citizens of the district township, in a permanent form, certain and definite information which could be obtained, with equal certainty, in no other way. Memory is defective, but the secretary records the transactions as they occur. The actors change from year to year, but the record is permanent. And though the admission of oral testimony to alter a record or supply an omission therein might sometimes promote the attainment of justice, the prevalence of such a practice would result in more evil than good. It is held, therefore, that in the absence of alleged fraud the county superintendent errs, in admitting parol evidence to contradict or impeach the record of the September meeting of the board.

In regard to the other part of the second point a few words will suffice. The counsel for appellant urges that though the record of the September meeting was imperfect, the lapse of thirty days made the record valid and binding upon the district. It is true that the right to take an appeal to the county superintendent expires after thirty days, but I am unable to see how the lapse of time will validate what was before invalid. The secretary is the proper custodian of the records of the school district, and before the record of the proceedings of the board has been approved or adopted by the board, the secretary may amend them by supplying omissions, or otherwise correcting them. After they have been approved they may be amended and corrected by direction of the board, even after the lapse of thirty days. In Massachusetts a town clerk is permitted to amend the record in order to supply defects, even after a suit involving a question respecting them has been commenced. I am of the opinion that if the secretary or board of directors decline to make necessary corrections in the record, that a party interested may proceed by mandamus to compel the correction. If the record is to be impeached, it must be, in the absence of fraud, by a direct proceeding instituted for that purpose, and not by a collateral or indirect method. The People vs. Zeyst, 23 N. Y., 147-8.

The district record in this case is not as full as it might with propriety be. The law provides that the boundaries of subdistricts shall not be changed except by the vote of a majority of the members of the board. The record fails to show that this requirement of the law was complied with at the September meeting. The secretary says that the motion to redistrict "carried." This is his opinion, but he fails to give the fact upon which it is based. Four of the seven members were present, but he does not say who, or how many voted for the change. Properly this should have been stated. When, however, the district record declares that a motion was "carried," the law will presume that it was carried in accordance with the requirements of the statute; though there is reason to believe that the presumption in this instance is a violent one. It follows that there was no legal evidence that the subdistricts were not established in accordance with law; hence, the conclusion is inevitable that the county superintendent erred in dismissing the appeal for the cause assigned.

At the commencement of the trial and again during its progress, the defendant moved the county superintendent to dismiss the case on account of the insufficiency of the affidavit. The affidavit of Mr. Sipple is not as full as it is usual to make affidavits in such cases, yet it "set forth the errors complained of" with such plainness and conciseness as enabled the county superintendent to obtain the necessary transcripts, and this is all the law really requires. It has not been customary heretofore to force any particular form of affidavit, and the superintendent's ruling refusing to dismiss on defendant's motion is sutained.

As the testimony appears not to have been all in when the case was dismissed by the county superintendent, no opinion can be given in regard to the propriety or necessity of establishing the proposed new subdistricts. The case is therefore returned to the county superintendent, who will proceed with the hearing, first allowing a reasonable time for the correction of the district record or for the enforcement of its correction should such correction be deemed necessary by either of the interested parties. Should the district record be amended so as to show conclusively that the said subdistricts were not legally formed at the said meeting in September, it will follow that the said subdistricts never had a legal existence, and that the plaintiff could not be aggrieved by the action of the February meeting, hence the county superintendent will determine the case in favor of the appellee. Should said record not be amended, or should it be amended so as to show clearly that said subdistricts were established in all respects in conformity with law, the question of establishing the new subdistricts, or more properly retaining their organization, will be determined upon its merits.

July 23, 1868.

REVERSED.

D. FRANKLIN WELLS, Superintendent of Public Instruction.

E. J. MINER V. DISTRICT TOWNSHIP OF CEDAR.

Appeal from Floyd County.

CONTESTED ELECTION. The proper method of determining a contested election for school director is by an action brought in the district court.

ELECTION. The certificate of the officers of the subdistrict meeting is the legal evidence of election as subdirector, and as a general rule a board of directors is justified in declining to recognize a person as a member of the board until he produces such certificate.

EVIDENCE. Where the law requires the evidence of a transaction to be in writing, oral evidence can be substituted only if the writing cannot be produced.

QUO WARRANTO. The remedy of a person denied possession of an office to which he has been chosen is an action in court.

At the regular meeting of the board in March, 1868, E. J. Miner appeared and filed his oath of office as subdirector of subdistrict number three, and claimed recognition as a member of the board. The said Miner failed to pre