The only case in which the board can not act again without a material change is when a former action has been reversed by the county superintendent, and on appeal to the superintendent of public instruction has been affirmed. In the case at bar the county superintendent reversed the action of the board, but appeal was not taken to the superintendent of public instruction.

Much stress has also been laid upon the question whether the road upon which the new site is located is a highway in the sense intended by the law. Section 1826 has reference to a case in which the board condemns a piece of land for schoolhouse purposes. But when said site is purchased by the board the provisions of sections 1825-1826 do not apply. See, also, for a full discussion of this point, case of H. D. Fisher v. District Township of Tipton, page 86, S. L. Dec. 1892.

If the site selected and purchased should be inaccessible it might be a case warranting the reversing of the board, but in the case at bar the site purchased by the board is on a highway, which both parties acknowledge has been traveled more or less for at least nine years.

This leaves the only point for consideration whether the board abused its discretion in ordering the removal of the schoolhouse. The location of the schoolhouse is a matter entirely within the discretionary power of the board. Its action ought not to be reversed by the county superintendent without the clearest proof that it has acted through passion or prejudice, or from some improper motive. There is nothing in this case whatever to show that the board was not endeavoring to do what it believed to be for the best interests of all the people of the subdistrict. The vote in the board stood four in favor of removal and one opposed.

We can not discover that there are any reasonable grounds for reversing its action. We are not called upon to decide whether it acted wisely or unwisely, but simply and solely whether there is sufficient evidence to warrant the county superintendent in reversing its action on the grounds of abuse of discretion. We regret very much that we are obliged to reverse the action of the county superintendent, and do not doubt that he acted according to his best judgment. We are, however, compelled to decide that the board did not in any way so abuse its discretion as to warrant an interference.

REVERSED. HENRY SABIN,

February 8, 1896.

Superintendent of Public Instruction.

HUGH MCMILLAN V. DISTRICT TOWNSHIP OF WAVELAND.

Appeal from Pottawattamie County.

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

TEACHER. A teacher may justly claim and expect to receive the assistance and advice of the board, and especially the help of his own subdirector, in the proper conduct of his school.

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

TEACHER. It is alike due to the dignity of the board and the rights of the teacher that no one should be discharged except after thorough investigation and the clearest proof. If possible, the teacher should be shielded from the stigma of discharge.

After a trial, conducted in accordance with law, the board, by a vote of three to two in a board of nine members, discharged the teacher for incompetency, in accordance with the provisions of section 1734. Hugh McMillan appealed to the county superintendent, who reversed the order of the board. John W. Rush, president of the board, appeals here.

The proceedings of the board in this case were entirely regular, and it is not claimed that the law was violated by it in any particular, as to its manner of proceeding. The question to be determined by us is, was the county superintendent warranted in finding that the board abused its discretion to that extent to require a reversal of its action in discharging the teacher.

The testimony discloses a very undesirable condition in the school in question, as to the matter of discipline and behavior of the scholars. The testimony discloses the fact that many of the older scholars, instead of being an assistance to the teacher, and a credit to themselves and their parents, were insubordinate, disobedient and disrespectful to the teacher. The testimony also discloses that the subdirector, instead of assisting the teacher in maintaining discipline and good order in the school, withheld that support so much needed by any teacher under such circumstances. It is not shown nor is it claimed that any of the board had visited the school for the purpose of aiding the teacher in enforcing rules for its government, as it is required to do by the first part of section 1734. Nor did the subdirector visit his school, as he is required to do by the latter part of section 1756.

The testimony in the case is to the effect that after the incorrigible scholars were dismissed the teacher was much more successful in his work. We can not find from the testimony that the teacher failed in any important particular to attempt to do his full duty by his school, and to regard equally the rights of every scholar. Under all circumstances, we think it is the first duty of any board to co-operate with and assist the teacher in the conduct of his school. This is the duty of the local subdirector in a peculiar sense, as he is in close relation to his own school and his teacher. A teacher may justly claim and expect to receive, the assistance and advice of the board, and especially the help of his own subdirector, in the proper conduct of his school. See case on page 135, S. L. Dec. 1892. It is often the case that a little timely assistance, offered at the right time and in the proper spirit, will aid a teacher very materially in maintaining good order and discipline in his school, and in preventing many difficulties from arising which might, under a different course, almost certainly tend to injure the efficiency of the school.

In this case, two of the five members present at the trial voted to discharge the teacher, two voted in the negative, leaving the casting vote with the subdirector of the school, who, as we have seen, was out of sympathy with the teacher, and had failed to afford his assistance to a successful management of the school. While it is true that in general the discretionary acts of a board are entitled to great weight, yet it is also true that in exercising its power in a semi-judicial capacity, the board should be

able to show the very best reasons for its conclusions. Except upon the clearest proof, and the most convincing reasons apparent to the board that the good of the school demands the discharge of the teacher, a teacher should be shielded from the stigma of discharge, and the authority of the board and the respect due the board and its teachers, should be maintained, by a decision on the part of the board to assist and support the teacher in bringing his school to a conclusion as nearly as possible satisfactory to the board and creditable to himself. The decision of the county superintendent is AFFIRMED.

May 20, 1896.

HENRY SABIN, Superintendent of Public Instruction.

S. B. HEATH V. DISTRICT TOWNSHIP OF IOWA.

Appeal from Wright County.

COUNTY SUPERINTENDENT. On appeal may do no more than the board might have done.

INDEPENDENT DISTRICT. The boundaries outside the town plat depending upon the petition of the electors, such boundaries may not be fixed until petitioned for.

This is a cașe arising under the amendment to section 1800 made by the Twenty-fifth General Assembly. It is the effect of this amendment that when a town or village has less than two hundred inhabitants and not less than one hundred inhabitants, the territory contiguous to such town plat may not be included in the proposed independent town district except on a written petition of a majority of the electors residing upon such territory outside the town plat.

In this case the board refused to fix the boundaries of a contemplated independent town district. From its order appeal was taken to the county superintendent, who reversed the order of the board and fixed the boundaries of a contemplated independent district, but different from the boundaries asked for in the petition presented to the board from the electors residing outside the town.

Without considering any of the other merits of the case it becomes necessary to inquire whether the county superintendent might in reversing the order of the board, fix different boundaries than those petitioned for by the majority of the electors residing upon the outside territory. We find that the territory included in the contemplated district by order of the county superintendent excludes at least four and one-half sections that were before included. Did the county superintendent have power to fix different boundaries for the outside territory from those petitioned for when application was made to the board, without first himself having a written petition from a majority of the resident electors upon the territory outside the town which said county superintendent included within the contemplated independent district? We think he did not. If our view is correct it is decisive of the case and we will be compelled to reverse the county superintendent's decision.

Not many cases have arisen under the amendment to section 1800, found in chapter 38, Laws of 1894. But it seems to us that there can be no

doubt as to the intention of the general assembly to require that before territory outside a town or village of over one hundred and of less than two hundred inhabitants may be included within a contemplated independent town district, a majority of the electors must consent that such boundaries may be fixed. Any other conclusion would seem to defeat the purpose of the amendment. It is not reasonable to urge that the county superintendent would have greater power on appeal than the board would have.

It will be noticed that this decision has no reference whatever to the merits of the case as to the boundaries which should be fixed for a town independent district. That matter is still within the discretion of the board under the limitation of the law. REVERSED.

August 3, 1896.

HENRY SABIN,

Superintendent of Public Instruction.

LETHA JACKSON V. INDEPENDENT DISTRICT OF STEAMBOAT ROCK.

Appeal from Hardin County.

TEACHER. Full opportunity must be afforded the teacher to make defense against charges.

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

TEACHER. Should not employ unsuitable and unusual methods of punishment.

On the twenty-eighth day of November, 1896, the board voted to discharge from its employ Miss Letha Jackson, the teacher in the intermediate room of its school. The reason, as spread upon the record, is that she inflicted inhuman and cruel punishment upon her pupils, especially upon Minnie Platts. An appeal was taken to the county superintendent, who reversed the order of the board. Appeal was then taken to the superintendent of public instruction.

There is no doubt from the testimony sent up with the transcript that Minnie Platts was insolent and disobedient, and also that the teacher failed to control herself, and that they engaged in an unseemly squabble in the presence of the school. It is also evident that the teacher was accustomed to use methods of punishment which are, at the best, not customary in well disciplined schools. Much of the testimony is conflicting, and that part of it relating to matters which occurred under a previous contract can not be allowed to have any weight in determining this

case.

The contract, as placed in evidence, specifies that the teacher shall not make use of any cruel or unusual punishment in the discipline of the school. Whether she violated the contract in this respect is a matter to be determined by the board, and in doing so it may avail itself of any sources of reliable information within its power. The notice sent to the teacher, November 23, 1896, charges as follows: "for inhuman and unjustifiable punishment of pupils by pinching, pulling their ears, pulling their hair, and pounding their heads and faces with your fists, and pounding their heads on the wall, floor, and seats of the schoolroom with your

fists." November 28th she was notified by the secretary that she was dismissed from the school. At a meeting of the board held November 27th, the president appointed the entire board an investigating committee. It appears that it carried on its investigation by questioning the pupils in Miss Jackson's room, and that its vote to dismiss her was based entirely upon information obtained in this way, as appears in the records of November 27th. This method placed the teacher at an immense disadvantage. It would at least have been just to have examined these pupils in her presence, and that she should have been allowed to correct their misstatements, if any, and to give the investigating committee her own account of the matter. We can not consider this an impartial method of conducting an investigation against a teacher. Justice would seem to demand that she should have been furnished a copy of the findings of this committee, and should have been given a reasonable time in which to prepare her defense. The board places on file the unanimous report of this investigating committee recommending that the teacher be discharged. It, in effect, finds her guilty and asks her to show cause why sentence should not be pronounced.

Now, as to Miss Jackson's failure to appear before the board. Her physician sent a certificate to be read at the first meeting, stating that she was not able to attend on account of sickness. At the same meeting her attorney, Mr. Albrook, in a letter, asks that the board appoint Monday afternoon as a time for hearing the case. It appears to have been a reasonable request and should have been granted in justice to all parties. That Miss Jackson sent her statement denying the charges and averring that she, by her conduct, had given the board no occasion to investigate, furnishes an additional reason and a very strong one why she should have been given the opportunity to be heard by counsel of her own choosing. We do not think that the board intended by an early adjournment to shut her counsel out Saturday night, but it ought to have shown an anxiety to have him present if possible, in order that it might ascertain the very right and justice of all parties in the case. Miss Jackson could very justly plead that her presence would avail nothing, after the board had before it a report signed by every member of that tribunal, saying that she ought to be dismissed from her school. The board seems also to have forgotten that the law makes it its duty to visit the school and to aid and sustain the teacher in her efforts to maintain order and discipline. It has duties on the side of the teacher as well as on that of the pupils or the community at large.

We do not wish to be understood as upholding a teacher in the methods of punishment which appear in this case. To pull the hair or the ears of pupils, or to strike them with the fists, are relics of another age of school government, and can not be justified today. We only reach the conclusion that the teacher did not have that fair and impartial trial before the board that is contemplated in the law. Therefore the decision of the county superintendent is AFFIRMED.

April 7, 1897.

HENRY SABIN,

Superintendent of. Public Instruction.

The teacher's right to recover for wrongful dismissal in this case was sustained in 110 Iowa, 313,