an appeal unless thirty days' notice of such appeal has been served upon the adverse party.

COSTS. Before an appeal from the order of the county superintendent taxing costs can be entertained by the superintendent of public instruction, a motion to retax such costs should be filed with the county superintendent.

The question involved in this case is the taxing of costs. In 1897 John Martin petitioned the board of directors of the school township of Baker for a school for the accommodation of his ten children. The board refused to grant the request of the petitioner. Appeal was taken to the county superintendent, who affirmed the action of the board. In rendering his opinion, the county superintendent taxed the costs, amounting to $30.75, to appellant Martin. From the action of the county superintendent Martin appeals to this department.

Counsel for appellee moves the dismissal of the appeal for the following reasons: First, that notice of appeal was not given as is required by section 2820 of the code of Iowa. Second, that all of the record in the case was not certified to this department by the county superintendent, and for that reason the department should refuse to consider or entertain the appeal. Third, that the record nowhere discloses that the county superintendent, before whom the appeal was tried, ever had opportunity or occasion to pass upon the question of taxation of costs, that no motion or request was made for him to retax. Fourth, that said appeal from decision of county superintendent was taken too late.

The question to be determined is whether this department has jurisdiction to hear the case. Section 2820 provides that "thirty days' notice of the appeal shall be given by the appellant to the county superintendent and also to the adverse party."

There is nothing in the transcript to show that this notice was served either on the county superintendent or the adverse party. For many years it has been the holding of the supreme court of the state of Iowa, that appeal can only be taken by serving a written notice upon the adverse party or his attorney, and the clerk. In the 74th Iowa the court rules that service of notice of appeal is essential to give a court jurisdiction of the case and that fact must be shown by the record. A recent general assembly makes similar provisions applicable in cases of appeal to this department.

While it is true that only a partial record is presented, we are of the opinion that the transcript is sufficiently complete to enable us to pass upon the question raised. By this we would not be understood as favoring the certification of only a part of the transcript, in case of appeal. In regard to the taxation of costs, the code of 1897 provides that in all matters triable before him the county superintendent "shall have power to issue subpoenas for witnesses which may be served by any peace officer, compel the attendance of those thus served, and the giving of evidence by them, in the same manner and to the same extent as the district court may do, and such witnesses and officers may be allowed the same compensation as is paid for like attendance or service in such court, which shall be paid out of the contingent fund of the proper school corporation, upon a certificate of the superintendent to and warrants of the secretary upon the treasurer; but if the superintendent is of the opinion that the proceedings were instituted without reasonable cause therefor, or, if in case of an appeal, it shall

not be sustained, he shall enter such findings in the record, and shall tax all costs to the party responsible therefor. A transcript thereof shall be filed in the office of the clerk of the district court and a judgment entered thereon be made, which shall be collected as other judgments."

The question of costs is one entirely new to this department. Prior to October 1, 1897, any one aggrieved by the order or decision of a board of directors could, without cost, appeal to the county superintendent and again to the superintendent of public instruction.

The provisions of the law are plain. If the county superintendent is of the opinion that the proceedings were instituted without reasonable cause, or the case be not sustained on appeal, he shall tax all costs to the party responsible therefor. A careful study of the case reveals no error on the part of the county superintendent. The costs appear to have been taxed and filed as required by the statute. Any person aggrieved might upon application, have had the same retaxed and all errors corrected.

Counsel for appellant argues that the question at bar was presented informally to the county superintendent, who overruled his objections, after having considered the same. An additional transcript of the proceedings filed by the county superintendent, substantiates the claim of counsel but nullifies the force of it by stating "that no formal or written objection to the taxing of said costs were filed by said appellant, nor any motion to retax said costs.". In the 101 Iowa, case of John Roane, appellant, vs. J. A. Hamilton et al., involving the question of costs, the supreme court held that since no motion was made in the district court to retax costs, no consideration would be given the matter by the supreme court. It can not, we think, be contended reasonably that rules of court practice, so far as applicable, should not be followed in matters triable before this department. A failure on appellant's part to avail himself of his legal rights may not wisely be overlooked here.

In regard to the time in which appeal may be taken, the law provides that thirty days' notice shall be given. The transcript shows that the case was heard by the county superintendent, January 7, 1898. The affidavit of appeal was received by special delivery Sunday, February 6, and filed Monday, February 7, 1898. We think appeal was taken in time, since in computing time, the first day shall be excluded and the last day included, unless the last day falls on Sunday, in which case the time prescribed shall be extended so as to include the whole of the following Monday. Code, section 48, sub-section 23.

While the counsel for appellee does not refer to the fact, we find in addition to the foregoing that the affidavit of appeal presented is defective in this, that the notary, before whom appellant was sworn, failed to attach notarial seal. This, however, has not been considered irremediable in the consideration of the appeal.

After having carefully considered the whole matter, we are of the opinion that the case is not legally before us, since the transcript fails to show service of proper notice and a motion to retax costs.

The legality of this department entertaining any appeal in which a money consideration is the principal issue is seriously questioned. Certainly neither the county nor the state superintendent is authorized to render judgment for money. Acts of these officers are held by the courts to be ministerial, and not judicial. To burden this office with the adjustment of affairs involving such con

siderations as can best and only be determined finally by the courts is, from our point of view, to place unnecessary and unproductive labor upon the department. DISMISSED.

RICHARD C. BARRETT.

Des Moines, Iowa, May 26, 1898.

Superintendent of Public Instruction.

THOMAS HUDGENS V. INDEPENDENT DISTRICT NO. TEN, CEDAR FALLS TOWNSHIP.

Appeal from Black Hawk County.

DISCHARGE OF TEACHER. A teacher can not be discharged by the board except after a full and fair investigation.

SPECIAL MEETING. A meeting of the board, called for no specific purpose and of which the teacher was not served with due and proper notice, could not legally discharge such teacher.

DEFENSE. The teacher is entitled to a reasonable time to prepare for and make his defense. The refusal of the board to grant a teacher a single day's time in which to make such defense is not only an abuse of discretion but a violation of law.

On the third day of January, 1898, Thomas Hudgens, a teacher in Independent District Number Ten, Cedar Falls Township, was dismissed by a majority vote of the board. From the action of the board he appealed to the county superintendent, who affirmed the order of the board. From his decision appeal is taken to this department.

Section 2782, laws of Iowa, concerning the dismissal of the teacher, is as follows: "It may by a majority vote discharge any teacher for incompetency, inattention to duty, partiality, or any good cause, after a full and fair investigation made at a meeting of the board, held for that purpose, at which the teacher shall be permitted to be present and make defense, allowing him a reasonable time therefor."

Did appellant have a fair trial? Was the meeting held for the purpose of discharging the teacher or giving a full and fair investigation? Did the teacher have a reasonable time to make defense?

In his decision the county superintendent says: "Then from the minutes of the school board as kept by the secretary, January 3d, we must determine what occurred at this meeting." If the correctness of the record were unquestioned this would be true.

In the case of Appleton Park v. Independent District of Pleasant Grove, this department held that "the fact that the transcript referred to is not certified to by the secretary, and the further fact that he was not present at the board meeting in question, and wrote the minutes as dictated from memory by the presi dent of the board, three days after the meeting, fully justified the superintendent in ruling it out and in admitting parol evidence." The testimony of the secretary of the board is to the effect that the original notes made by himself at the time of the discharge of the teacher were destroyed; that the notes from which the certified transcript was made were written days after the meeting. His

further testimony, which is not denied, is that the record of the meeting as finally certified to the county superintendent was written by himself, aided by the president and another member of the board, after appeal was taken to the county superintendent. A record of such a character "made in view of appeal" can scarcely be said to be its own best evidence.

In his decision the county superintendent quotes a former opinion of this department to this effect: "The discharge of a teacher is largely within the discretionary power of the board. It is to guard the rights of the school, as well as the rights of the teacher. After a full and fair investigation it is its duty to act as it deems best under all circumstances of the case. This being the case, it is the duty of the county superintendent not to interfere with the action of the board unless he is convinced that it in some way abused its discretion. He is right in sustaining the board even though as an individual he would have preferred some other action on his part."

In the case at bar did the board make that full and fair investigation contemplated? We think not. The evidence submitted reveals many irregularities on the part of the board. The meeting was not called for a specific purpose. Appellant was not served with due and proper notice. The law provides that a reasonable time shall be given the teacher in which to make his defense. Appellant's request for a single day's time was refused. In fact, according to the president's own testimony, no investigation took place.

The school may not have been as ably conducted as the board desired, or in accordance with the particular views of the diffe: ent members, but we can not approve of the action of the board in discharging the teacher without first making that full and fair investigation contemplated by the statute. A teacher is the employe of the board and as such is entitled to its co-operation and support. For certain causes the teacher may be discharged, but only after charges preferred have been carefully and impartially investigated. We have given the case unusual attention and are forced to the conclusion that the teacher was not accorded that investigation which the law intends. The decision of the county superintendent is REVERSED.

Des Moines, Iowa, June 23, 1898.

RICHARD C. BARRETT, Superintendent of Public Instruction.

R. A. KLETZING V. THE INDEPENDENT DISTRICT OF MONTOUR.

Appeal from Tama County.

DISCHARGE OF TEACHER. The action of the board in discharging a teacher, after a full and fair investigation, will not be reversed unless it is clearly shown that that board violated the law, abused its discretion, or acted with manifest injustice.

COUNTY SUPERINTENDENT. The county superintendent has only appellate jurisdiction, and should sustain the action of the board unless it be clearly shown that they violated law or abused their discretion.

On February 14th, J. D. Booher, a resident of Montour, filed with the secretary of the school corporation a complaint charging the principal, R. A. Kletzing with incompetency, partiality, the infliction of inhuman and cruel punishment and general inability to govern the school over which he had supervision.

The record, which is unquestioned, shows that a notice of the hearing was served on the appellant and the time fixed for the nineteenth day of February, at which time all parties interested appeared. Appellant was represented by his attorney who filed a general statement denying charges preferred. Affidavit of appellant was also filed claiming that the board had negligently or willfully refrained from visiting the school or in any manner advised with or directed appellant in his conduct and management of the school. The hearing was concluded on February 26th and appellant was discharged by the unanimous vote of the board. Appeal was then taken to the county superintendent who reversed the board. The board appeals to this department.

As it appears to us, the question to be determined is of sound judgment and discretion and not of law. Should it appear that the county superintendent opposed his judgment to the judgment of the board, there is but one course for an ultimate tribunal to pursue.

It is the earnest desire of this department to sustain decisions of county sup erintendents. Their official acts and the correctness of their views will not be set aside unless for cause. A similar principle should be held by county superintendents when called upon to pass upon the decisions or orders of boards of directors.

For almost a third of a century it has been the holding of this department that discretionary action of a board should be affirmed on appeal, unless by the evidence it is clearly proven that the board violated law or abused its discretion. "If there is reasonable doubt the board is entitled to its benefits. The action of the board may not be wholly approved by the judgment of the county superintendent, but if it be not illegal or clearly unjust, it should be sustained." See Edwards et al v. District Township of West Point, School Law Decisions of 1884.

The county superintendent is a court of appellate jurisdiction and is compelled to sustain the action of boards unless the evidence clearly indicates that they have violated law, acted with passion or prejudice, or with manifest injustice, or abused their discretion.

In the case before us we are inclined to the opinion that the superintendent passed upon the case as though he had original instead of appellate jurisdiction, and failed to give due consideration to the discretionary power granted school boards.

The power to discharge a teacher is conferred upon boards of directors by section 2782, which in part reads as follows: "It may by a majority vote discharge any teacher for incompetency, inattention to duty, partiality, or any good cause, after a full and fair investigation made at a meeting of the board held for that purpose, at which the teacher shall be permitted to be present and make defense, allowing him a reasonable time therefor.”

Affiant, in appealing to the county superintendent, alleges that he was not accorded a full and fair investigation. In reversing the board the county superintendent so found and assigned as a reason that Mr. Stevens, president of the board, appeared as the prosecuting attorney.