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. HENRY SABIN,

August 3, 1896.

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 ascer tain 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. HENRY SABIN,

*

April 7, 1897.

Superintendent of Public Instruction.

APPEAL.

R. ODENDAHL et al. v. DISTRICT TOWNSHIP OF GRANT.

Appeal from Carroll County.

Will not lie from joint action of boards making settlement of assets and liabilities.

COUNTY SUPERINTENDENT. Should dismiss an appeal as soon as it becomes certain that the leading issue may be heard and decided only by a court of law. JURISDICTION. It is very undesirable to bring matters involving a money consideration before the county superintendent on appeal.

Certain territory in the civil township of Grant and part of the independent district of Carroll was restored to the district township of Grant. A settlement of assets and liabilities between the two districts necessarily followed. Robert Odendahl and others were aggrieved with the conclusions reached by the two boards, and took an appeal to the county superintendent, who reviewed the questions presented to him, finding in effect as to the time when the territory did actually become a part of the district township of Grant, as to the disposition of taxes during a period when the control of such territory was in controversy, and also whether the agreement entered into by the board should be changed by him.

The first question we are required to consider is whether the county superintendent had jurisdiction to hear the case. If we find that he did not have jurisdiction, it will of course be impossible for us to review the questions he determined, and we shall be compelled to dismiss the case for want of jurisdiction.

It has been the uniform opinion of this department that appeal will not lie from the joint action of boards in making the settlement of assets and liabilities required by section 1715, but that the only remedy, if the law affords relief, would be an action in court to protect the rights of the persons complaining. In order that the matter might be more authoritatively determined, so that this case

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

may be a guide to school officers, we submitted an inquiry to the attorney-general, and quote briefly from his reply:

"Your favor came duly to hand, requesting my opinion upon the following question:

"When the two boards have made a division of assets and liabilities, under section 1715 of the code, will a person claiming the settlement to be inequitable and insufficient as to the amount agreed upon have the right to appeal to the county superintendent from such agreement, that is, from such joint action of the boards taken as provided in section 1715, will an appeal lie?

"The section in question provides that the respective boards shall make an equitable division of the then existing assets and liabilities between the old and the new dstricts; it also provides that in case of the failure to agree the matter may be decided by arbitrators chosen by the parties in interest. It has been held by our supreme court that under this section the boards of directors become a special tibunal for the determination of the respective rights of the parties. And it is held that this tribunal thus constituted has exclusive jurisdiction. The action of the special tribunal, consisting of the several boards of directors, is not the action or order of a board of directors, but an order of a special court for the determination of the rights of the several new districts with reference to the assets and liabilities of the old district of which they formed a part. The statute does not give an appeal from such tribunal. My conclusion is that a right of appeal does not exist and a person claiming the settlement to be inequitable has no right of appeal to the county superintendent."

The opinion of the attorney-general is decisive of the case. We think there are many added reasons why questions of this kind should not be heard on appeal before the county superintendent. That officer should not be compelled to review matters involving the jurisdiction over territory, the disposition of taxes, or the right and justice of finding of boards upon a settlement of assets and liabilities. But these a court may very properly do, as its jurisdiction for such purposes is not questioned, and the precedents for the control of the courts over this class of cases are well established. It is very undesirable to attempt to bring matters involving a money consideration before the county superintendent on appeal. As soon as it becomes clearly apparent that the principal issue is of a kind intended by our statutes to be heard and determined only by the courts of law, the appeal should be dismissed. In this case it was the duty of the boards interested to make a proper settlement. If fraud or other irregularity was urged, perhaps a court would afford relief to a complainant, but an appeal to the county superintendent would not become a remedy.

We are compelled to remand this case to the county superintendent with instructions to dismiss the case for lack of jurisdiction. DISMISSED.

HENRY SABIN,

!

June 16, 1897.

Superintendent of Public Instruction.

C. M. BAXTER V. SCHOOL TOWNSHIP OF BEAR GROVE.

Appeal from Cass County.

PUBLIC ROAD TO SCHOOLHOUSE. The board is bound to carry out the vote of the electors in the matter of opening roads to schoolhouses.

ABUSE OF DISCRETION. The board may not substitute its own discretion for the clearly expressed instruction of the electors.

At their regular meeting, on the second Monday in March, 1897, the electors voted a schoolhouse tax of $200 and instructed the board to open an east and west road to intersect a north and south road which would give Mr. Baxter access by the public road to his schoolhouse. Instead of carrying into effect the vote of the electors, the board took steps to secure a different road, and from their action in so doing appeal was taken to the county superintendent, who reversed the order of the board, finding that the board should have attempted in good faith to carry out the expressed wish of the electors. The board appeals here.

It is shown in the testimony, and it is not denied, that the board thought best to attempt to secure the cheapest road possible, in order to provide a way by which Mr. Baxter could reach the schoolhouse. The real question in this case, and the one which the county superintendent was compelled to determine, was whether the board committed error in its discretion. From a careful examination of the entire case we must conclude that the county superintendent made no mistake in determining that it is the duty of the board to make a strenuous effort to fulfill the intention of the electors. We think it was the duty of the board to carry into execution the vote of the electors, if possible to do so, and if not possible, the attempt should have been made, and the matter then referred back to the electors for further instructions. See first part of section 2778 and first division of syllabus in appeal case on page 17 S. L. Decisions 1897. We think it was not within the power of the board to substitute its own discretion for the clearly expressed instruction by the electors.

It is clear that the electors intended to provide relief for Mr. Baxter. This could be done only by providing him with a public highway upon which his children could reach school. This matter is of such importance to Mr. Baxter, and the vote of the electors providing the means by which the road was to be secured was so definite, that we feel compelled to suggest to the electors that at their annual meeting on next Monday, the fourteenth day of this month, they indicate still more clearly their desires in the matter, and that they instruct the board what further steps shall be taken by the board. As indicated, we can see no reason to interfere with the finding of the county superintendent and his decision is therefore AFFIRMED.

Des Moines, March 9, 1898.

RICHARD C. BARRETT. Superintendent of Public Instruction.

JOHN MARTIN V. SCHOOL TOWNSHIP OF BAKER.

Appeal from Guthrie County.

NOTICE OF APPEAL. The superintendent of public instruction may not entertain