J. C. REED et al. v. DISTRICT TOWNSHIP OF EAGLE.

Appeal from Sioux County.

SUBDISTRICTS. The board should be encouraged in forecasting a general plan looking toward an ultimate regularity in the form of subdistricts.

SCHOOLHOUSE. There is no limitation in law as to the number of scholars to be accommodated, in order that the board may provide a schoolhouse. SUBDISTRICTS. Should be, if possible, compact and regular in form. In well populated district townships two miles square is considered a desirable area for each subdistrict.

SUBDISTRICTS. It is very important that subdistricts should be regular in form, and that where it is possible schoolhouses should be located at or near geographical centers.

BOUNDARIES. In the determination of district and subdistrict boundaries, temporary expenditures and individual convenience should be subordinated to the more important considerations relating to simplicity of outline, compactness of shape, uniformity of size, and permanence of sites and boundaries.

The above named district township coincides with a congressional township and consists of a single subdistrict. Portions of the district are yet sparcely settled. The board seems to have projected a plan to so locate schoolhouses when they must be supplied, that ultimately the township shall have nine subdistricts, each of four sections.

On the sixteenth of March the board ordered a schoolhouse built at the center of the square of four sections in the southeastern corner of the township. From this action J. C. Reed appealed to the county superintendent, who affirmed the order of the board. From this decision Mr. Reed appeals.

It was urged before the county superintendent that the board was prevented by the law from building a schoolhouse for the accommodation of a less number than fifteen of school age. The question now to be determined is whether the county superintendent erred in affirming the order of the board.

The board seemed to have outlined a policy of regarding each four sections as a separate division, to be provided with school advantages by itself. So far as forecasting the probable form of subdistricts to be created in the future, we think the board might be guided in the location of schoolhouses at the present time by such policy, in order that ultimately each subdistrict will have the form desired and each schoolhouse will be located so as best to accommodate all patrons.

But while matters are in this progressive condition, we think the law does not confer power upon the board to apply the limitations of section 1725, and decide that until fifteen of school age are to be accommodated by the schoolhouse to be built no house can be erected. In this case for instance there is but one single subdistrict. The board may create other subdistricts provided fifteen of school age are included within the boundaries of each one so formed: But the board is not prevented from building more than one schoolhouse in any subdistrict. See 69 Iowa, 533. In the absence of specific instructions in connection with the voting of the

taxes by the electors, the board is empowered to locate sites where in its judgment a schoolhouse seems to be most demanded.

We are unable to find from the evidence any reason to disturb the finding of the county superintendent and his decision is therefor AFFIRMED.

July 3, 1891.

HENRY SABIN, Superintendent of Public Instruction.

· E. A. SHEAFE V. INDEPENDENT DISTRICT OF CENTER.

Appeal from Wapello County.

TEACHER. As an employe of the district the teacher may justly claim and expect to receive the official assistance and advice of the board.

TEACHER. The law insures the teacher a fair and impartial trial before he may be discharged.

The history of this case presents nothing unusual. The board voted to discharge the teacher upon certain preferred charges. The teacher appealed to the superintendent, who reversed the action of the board. board appeals.

The

Section 1757 sets forth plainly the nature of the contract which is the evidence of agreement between the board acting for the district as one party, and the teacher as the other party. Section 1734 prescribes the only method by which the board may terminate the contract in advance or discharge the teacher. Both parties are equally bound by this contract, and as the board is a continuous body, the election of an entire new board does not change the relations of the contracting parties. But inasmuch as the directors also act as judges whose duty it is to decide whether the contract shall be terminated, being themselves parties to the contract, it becomes them to weigh the evidence in the case with the greatest care and to give the teacher the benefit of any reasonable doubt. In the present case the forms of the law were complied with, and the teacher was permitted to be present and make his defense.

The transcript sent up by the county superintendent shows that one of the complaints upon which the teacher was tried was signed by Jacob Ream, who also is one of the directors and acted as one of the judges in the case. This is strong presumptive evidence of prejudice on the part of one of the judges at least, and this evidence is strengthened by the fact that Jacob Ream is the father of John Ream, whose punishment is made a matter of complaint. It is further strengthened by the fact brought out in evidence, that the present board was elected for the purpose and with the intent of displacing the teacher. The law is very careful to guard the rights of the teacher and to insure him a fair trial. That certainly can not be considered a fair trial in the eyes of the law, in which one of the judges who is to give his vote for acquittal or conviction is a complainant in the case and is as ready to pronounce the verdict before he hears the testimony as afterward.

The board invited the teacher to resign at its first meeting, and upon his refusal it proceeded at once to take steps to discharge him. Under certain circumstances this might be right, when necessary to relieve the

school from a teacher proved to be incompetent or immoral. But general dissatisfaction as alleged in the petition or the desire to hire a lady teacher for the summer term, or to lessen the expenses of the district, can not be held to form any reason for discharging the teacher. The alleged punishment of the two boys is not proved in either case to have been unreasonably severe, to have been inflicted in passion, or to have resulted in any permanent injury. These punishments happened some weeks before and any complaint should have been made to the old board.

It does not appear necessary to enter any further into the merits of this case. It is held that no error was committed in reversing the action of the board and the decision of the county superintendent is therefore

DISCRETIONARY ACTS. To warrant interference with a discretionary act, abuse of discretion must be proved beyond a reasonable doubt.

DISCRETIONARY ACTS. It is not the province of an appeal to discover and to correct a slight mistake. The board alone must bear any blame that may attach to a choice deemed by appellants somewhat undesirable, but not an unwise selection to such a degree as to indicate an abuse of the discretion ordinarily exercised.

DISCRETIONARY ACTS. In the absence of proof that the board has abused the authority given it by the law, its orders will not be set aside, although another decision might to many seem preferable.

JURISDICTION. When its order is affirmed, the board is left free to take another action, if thought best.

On the third day of October, 1891, the board relocated the schoolhouse site in independent district number seven, Burr Oak township. Appeal was taken to the county superintendent, who reversed the action of the board which ordered the house removed to the new location. From this decision John Knox, president of the board, appeals.

The proceedings in this case are entirely regular. It is not claimed that there was any direct violation of law, nor that prejudice or improper motives in the least influenced the action of the board. The very common complaint that the discretion vested in the board by the law had been abused was virtually the only error urged.

The only question for us to determine is the single one as to whether the county superintendent was warranted in setting aside the order of the board. Unless the evidence clearly sustains his conclusions we shall be compelled to reverse his decision. But if the evidence shows plainy a gross abuse of discretion on the part of the board, then we must affirm.

Where an abuse of the large discretion vested in the board is urged, to warrant interference by an appellate tribunal, such abuse must be proved

conclusively. The testimony must disclose so fully the nature of the unwarranted action as to leave no reasonable doubt. The acts of a board must be presumed to be correct, and they are entitled to the benefit of every doubt. Unless it is fully apparent that the discretionary power of the board has been abused to such an extent as to render interference necessary, it is the duty of the county superintendent to allow the act of the board to stand, although he may differ from the board very strongly as to the desirability of the order in question. In this connection, attention is called to appeal decisions found on pages 35, 82, 90, 100 and 135, School Law Decisions of 1888.

In this case while the testimony shows that the removal of the site selected will bring the schoolhouse quite a distance south of the center of the district, it is not in evidence that a suitable site might have been found nearer the center. It must be presumed that the board carefully weighed all the reasons in favor of and against the site chosen, and also that it endeavored to find the best site. The evidence is by no means conclusive that it did not select the best site obtainable. If in the opinion of the people an error has been made, it rests with the electors to choose a board favoring another location.

It is with reluctance that we reverse the decision of the county superintendent. There can be no question that he intended to seek substantial justice for the people of the district. This decision does not prevent the board, if thought desirable to do so, from reconsidering the action by which the new site was chosen and selecting a different site. But we can not find that the evidence supports the county superintendent in overruling the order made by the board and his decision is therefore REVERSED.

February 26, 1892.

J. B. KNOEPFLER, Superintendent of Public Instruction.

APPEAL.

R. G. W. FORSYTHE V. INDEPENDENT DISTRICT OF KIRKVILLE.

Appeal from Wapello County.

Where the 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.

TERRITORY. All territory must be contiguous to the district to which it belongs.

JURISDICTION. In change of boundaries by two boards, an appellate tribunal acquires only the same power possessed by the board from whose action appeal is taken, and may do no more than affirm the order, or to reverse and do what the board refused to do.

PETITION. A petition may be used to bring to the attention of the board the kind of action desired by the petitioners, but a board may act with equal directness without such request.

The board of the above named district refused to concur in the action of the board of the district township of Richland, offering to transfer certain

territory to the independent district. Mr. Forsythe, desiring the transfer, appealed to the county superintendent, who reversed the action of the board and ordered the transfer of the territory under consideration by the two boards, with the exception of the northwest quarter of the southwest quarter of section eighteen, which the county superintendent directed should remain a part of the district township of Richland, and also ordered the transfer of the northwest quarter of section eighteen, which would otherwise be cut off from the district township to which it belongs. From this decision L. Jones, president of the board of the independent district of Kirkville, appeals.

This case turns on the power of the county superintendent to modify the order appealed from in the manner done by him. It is true that even if the board of the independent district of Kirkville had concurred in the transfer of the territory released by the other board, such order would not have been in conformity with the spirit of the law, because forty acres would then be left belonging to the district township of Richland and not contiguous to the remainder of the district. The county superintendent was led to conclude that the forty acres in question should be transferred, if any change of boundaries was made. But could the county superintendent so determine in this appeal? We think not. The board of the independent district might concur or refuse to concur. They might refuse

to concur, and initiate a new proposition which the board of the district township could act upon, when appeal would then lie from the last action. But an attempt to change the order originally made would render it necessary to have such new 'action considered by the other board, before becoming effective, or even in order that the action could be brought within the power of the county superintendent to consider on appeal. For in a case of this kind no matter can come into the case on appeal, unless the second board, the one last acting, concurs or refuses to concur in the order initiated or proposed by the board first taking action.

It follows then that the county superintendent having only appellate jurisdiction, could not assume original jurisdiction and do what the board from whose action the appeal was taken could not have done. Therefore we are compelled to hold that the county superintendent did not have the power to decide that the northwest quarter of the northwest quarter of section eighteen should be transferred.

A careful investigation of the transcript leads us to believe that perhaps such a change of the boundaries as would transfer the residence of Mr. Forsythe to the independent district, might be desirable. Of course such transfer would include entire forties of land, and no territory could be separated from the district to which it should belong. Whether any change is best, must be determined by the boards interested, the action of the board last acting being subject to correction on appeal. In order that the matter may come again without prejudice to the attention of the boards, the decision of the county superintendent is reversed and the case remanded to him to be reopened and heard again. We think he will be compelled by necessity to affirm the decision of the board of the independent district of Kirkville, in refusing to concur in the transfer proposed by the district township. This will leave all matters as nearly as possible in the same condition they were before any action was taken. It will then be in order for either board at any time to initiate such a change of bound