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We can not concur with the view expressed by the county superintendent that appellant was not given a fair trial. That the board gave the case careful thought is shown by the fact that the hearing occupied nearly all of a week. Appellant was given every opportunity to prepare for his defense, to call witnesses, and was ably represented by his attorney. So far as we have been able to learn from the transcript, which appears to be complete, it is not shown that malice or prejudice was exhibited on the part of any member of the board. The fact that Mr. Stevens, the president of the board, is an attorney, may not be considered prejudicial. Naturally, as president, he would be expected to lead in the investigation of complaints, since in cases of this kind the board may not employ counsel.

The claim that the board had negligently or wilfully refrained from visiting the school or advising with the teacher, is worthy of most careful consideration. It is the duty of the board to aid teachers in the government and management of schools; to counsel with them and co-operate in the promotion of all the educational interests of the district. It does not appear that members made regular and frequent visits to the school, but that general interest was manifested and a desire shown on the board's part to strengthen the schools is evidenced by the fact that the course of study was revised, rules for the government of teachers and pupils adopted, and consultations held by members of the board with the principal.

In his decision, the county superintendent finds that appellant Kletzing was obstinate and worked in opposition to the board of directors; that his punishment of pupils was open to severe criticism; that he was disliked; that he did not give satisfaction; that a very undesirable condition existed; and that he did not exercise that judgment necessary to carry on the school harmoniously and without friction. The evidence clearly sustains the above enumerated findings. The opinion of the county superintendent is REVERSED.

RICHARD C. BARRETT, Superintendent of Public Instruction.

Des Moines, Iowa, September 10, 1898.

J. L. MUNN V. SCHOOL TOWNSHIP OF SOAP CREEK.

INDEPENDENT DISTRICT BOUNDARIES. The provision of section 2794 of the Code, requiring the board of a school township, upon proper petition, to establish the boundaries of a proposed independent district, is mandatory.

BOUNDARIES. Must include all of the city, town or village, and also such contiguous territory as is petitioned for by a majority of the resident electors.

COUNTY SUPERINTENDENT. On appeal the county superintendent can make such order touching the boundaries as the board should have made.

TIME. The time in which to take the initiatory steps to form an independent district is not fixed by the statute.

COMPLETION. The provision of section 2796, "that the organization of such independent district shall be effected on or before the first day of August of the

year in which it is attempted," is directory and has special reference to the levying of taxes. It does not apply where by reason of an appeal to the county superintendent, or to the superintendent of public instruction the completion is not effected until after such date.

ELECTION. The boundaries having been fixed, it is the duty of the board to give notice of a meeting of the voters of the territory included in the proposed district.

MANDAMUS. Should the board fail or refuse to give the required notice of election, they may be compelled to do so by mandamus.

ELECTORS. The electors are the sole and final judges of the desirability of a separate organization.

This case relates to the formation of an independent district out of a school township.

Residents of the village of Belknap petitioned the board of directors to form an independent district. The board by a vote of two to six refused to establish the boundaries of the district. From the board's refusal appeal was taken to the county superintendent.

Before this officer motion to dismiss was made by appellee on the ground that mandamus and not appeal was the proper remedy.

The statute provides that a writ of mandamus "shall not be used in any case where there is a plain, speedy and adequate remedy in the ordinary courts of law, save as herein provided." Section 4344 Code. In the 73 Iowa, 134, case of Barnett et al v. Board of Directors Independent District of Earlham, the supreme court held that where the party has the right of appeal to the county superintendent, mandamus will not lie against a board of directors.

It is provided in the school laws that "any person aggrieved by any decision or order of the board of directors of any school corporation in a matter of law or fact may, within thirty days after the rendition of such decision or the making of such order, appeal therefrom to the county superintendent of the proper county." Section 2818 Code. "Upon the hearing of the appeal the county superintendent is required to hear testimony on behalf of either party. The fullest opportunity is allowed for a thorough investigation of the matter of the appeal and⚫ the superintendent is required to make such decision as shall be just and equitable. And if the appellant is aggrieved at the decision of the county superintendent he may appeal in like manner to the state superintendent of public instruction.” 35 Iowa, 444. We find no error on the superintendent's part in overruling the motion to dismiss.

The superintendent reversed the board and established the boundary lines of Belknap, and ordered that the district consist of the present town plat. J. L. Munn appealed to the superintendent of public instruction, who heard the case July 30th.

At the hearing before this department, appellee moved to dismiss the case for the reason that the organization of the contemplated independent district could not be completed on or before the first day of August, 1898.

The time in which to take the initiatory steps to form an independent district is not fixed. The law says: "Upon the written petition of any ten voters

such board shall establish the boundaries." A petition signed by the requisite number of voters might be presented at such a date as to preclude the possibility of completing the organization on or before the first day of August. To grant reasonable requests made by attorneys for continuance might also prevent the formation of districts. The wishes of parties interested could easily be thwarted by dilatory tactics on the part of attorneys. Under the laws of this state both county and state superintendents are called upon to perform many and varied duties. Not infrequently engagements are made weeks and sometimes months in advance. In some cases it is quite impossible for these officers to grant a hearing and render a decision within the time mentioned in the statute. While it may be desirable that the organization be perfected within the statutory time, we are inclined to the opinion that the date is only directory and has special reference to the levying of taxes. To sustain the motion to dismiss would establish a precedent far-reaching in its effects and one tending in many cases to hinder educational advancement.

The record upon which the county superintendent decided the appeal shows the following facts, which are undisputed: The village of Belknap is located at the crossing of the Rock Island and Wabash railways on the east one-half (1⁄2) of section thirty-five (35) and the west one-half (2) of section thirty-six (36) and includes forty acres more or less. On the twenty-first of March, sixteen residents of Belknap petitioned the township board to form an independent district. At the time action was taken by the board there was on file a petition signed by B. B. Shaffer and twenty-two other citizens asking that sections twenty-five (25), twenty-six (26), thirty-five (35), thirty-six (36) and the east three-quarters (4) of section thirty-four (34) be included in the proposed new district; also a petition from A. J. Blankenship and five others asking that the remainder of section thirty-four (34) and section twenty-seven (27), less the northwest quarter (4) of the northwest quarter (4), together with the southeast quarter (4) of the southeast quarter (4) of section twenty-two (22) be included in the Independen District of Belknap. B. B. Shaffer and P. H. Burns presented an amendment to the original Shaffer petition asking that it be amended by striking out the north one-half (1⁄2) of section twenty-five (25). The record however fails to show that the amendment was filed with the board of directors.

With these petitions before it, what was the duty of the board?

We regard the construction of section 2794 so important that it was submitted to Hon. Milton Remley, attorney-general, for his opinion. He says in part: "The language of the section relating to the duties of the board is as follows: 'Such board shall establish the boundaries of a proposed independent district, including therein all of the city, town or village, and also such contiguous territory as is authorized by a written petition of a majority of the resident electors of the contiguous territory proposed to be included in said district in not smaller subdivisions than entire forties of land in the same or in an adjoining school township, as may best subserve the convenience of the people for school purposes, and shall give the same notices of a meeting as is required in other cases.

"The board of directors of the school township is elected by the people of the entire township. They may have interests antagonistic to the formation of an independent district. There seems to be but little left to the discretion of the board. They are required to include therein all of the contiguous territory pro

posed to be included in said district in not smaller subdivisions than forty acres of land. It seems to be obligatory upon them to include the territory petitioned for, except where the proposed boundary line would divide forty acres of land, according to the government survey. They might, however, in case the convenience of the people of some subdistrict left out of the proposed independent district demanded it, include more territory than was described in the petition. The circumstances might be such that a few families, after the proposed independent district was carved out of the school township, would be practically left without school privileges. The law seems to require, in fixing the boundaries, that all of the contiguous territory petitioned for shall be included, but does not even inferentially prevent the board of directors, in fixing the boundaries, from including some not petitioned for.

"I think the statute is mandatory, requiring the boundaries to be established by the directors, which boundaries shall include all territory petitioned for, and as much more as the judgment of the board of directors shall deem necessary to subserve the convenience of the people for school purposes. It is also mandatory upon the board to give notice of the meeting at which the people may vote." To the question, "In case an appeal is taken to the county superintendent from the action of the board in refusing to establish boundaries, should the county superintendent consider both the convenience of the people and the petition presented by the majority of the electors, or is he limited to the petition alone?"

His reply is: "He can exercise no power not given by statute to the board of directors, and can make such order as the board of directors should have made. In adding any territory not embraced within the petition he should certainly consider the convenience of the people, both in the proposed independent district, and also the convenience of any who are left in a school township; but like the board of the district township, he would not be authorized to omit any of the territory included within the petition from the proposed independent district. He is not, however, limited any more than the board would be by the petition in regard to adding to the proposed independent district land not included in the petition."

Since it is the duty of the board and the superintendent, in case of appeal, to include in the proposed district at least all of the contiguous territory petitioned for, it only remains for us to do likewise. Our opinion is not final, however. The voters themselves are to determine whether or not they desire a separate organization. A careful consideration of the facts in the case leads us to the opinion that the formation of the independent district of Belknap is desirable; that it will accommodate well a large number of children. At no distant day a graded school will be provided, and with modern equipment and trained teachers, pupils will enjoy, advantages superior to those now granted them.

In harmony with the petitions of the electors, and the ruling of the attorneygeneral, it is therefore ordered that the independent district of Belknap be constituted to contain sections twenty-five (25), twenty-six (26), twenty-seven (27), less the northwest quarter (4) of the northwest quarter (4) thirty-four (34), thirty-five (35), thirty-eight (38), and the southeast quarter (4) of the southeast quarter (4) of section twenty-two (22) of Soap Creek township. It is further ordered that in accordance with section 2794 the board shall take the

necessary steps to provide for the holding of an election. The same to be held before November 1, 1898.

REVERSED. RICHARD C. BARRETT,

Superintendent of Public Instruction.

Des Moines, Iowa, October 1, 1898.

J. L. MUNN V. SCHOOL TOWNSHIP OF SOAP CREEK.

Appeal from Davis County.

APPLICATION FOR REHEARING.

NEW QUESTIONS. Questions not raised at the hearing before the county superintendent nor before the superintendent of public instruction at the time the appeal was heard by him can not be considered for the first time on an application for a rehearing.

REHEARING. The application for a rehearing will be denied unless sufficient reasons have been presented warranting a change in the former opinion.

Application for a rehearing in the above entitled case is now made by the appellee, the district township of Washington, on the ground that "this case does not decide whether or not an appeal lies where a board fails to take action." A review of the case shows that the board did act. It declined to establish the boundaries of the proposed independent district of Belknap. We do not understand that counsel contends otherwise.

Affidavit of appellant Munn, made in taking appeal from the decision of the board, says: "The school board of said school township rendered a decision refusing to grant the petitions of residents of Belknap and contiguous territory." Again, quoting from affidavit: "Said board erred in that they have no legal discretion in the matter, and should have granted the independent district as asked for by said petitions."

Attorney for appellee argues that only the single petition from the village of Belknap was refused and that others from contiguous territory are now before the board and may be called up and passed upon at any meeting. This point was presented both orally and in written argument by counsel, and was given due consideration before announcing former decision.

In the case of Johnson v. School Township of Utica, appeal from Chickasaw county, the board had before it at its September meeting a petition requesting the formation of a new subdistrict. Without action the board adjourned to consider the petition the following February. At the trial before the county superintendent motion was made to dismiss the case on the ground that the petition was still before the board. The motion was overruled by the county superintendent. On appeal, this department, we think, rightly sustained the lower tribunal.

In the case before us no action of the board could have barred more effectually the formation of the independent district. That petitions from contiguous ter

*For decision of the Supreme Court in this case see 110 Iowa, 652.

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