party, and the teacher as the other party. Section 1734 prescribes the only method by which the directors 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 the evidence, that the present board were 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 their first meeting, and upon his refusal they 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 a passion, or to have resulted in any permanent injury. These punishments happened some weeks before and if worthy of notice 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

AFFIRMED.

HENRY SABIN,

October 20, 1891.

Superintendent of Public Instruction.

L.. GOFF V. INDEPENDENT DISTRICT OF DALLAS.

Appeal from Marion County.

1. BOARD OF DIRECTORS. The board must endeavor to determine the actual intention of the electors, and to carry out their expressed wishes.

2. REMANDING OF CASES. Unless the transcript indicates clearly the manner in which the board understand the expression of the electors, an appellate tribunal on the trial will be compelled to remand the case to the board for a more definite action.

3. MANDAMUS. The surest method to secure the performance of a mandatory duty is application to a court for a writ of mandamus.

At a meeting held August 12–13, 1891, the board voted in effect to sell the site at present occupied for school-house purposes in or adjoining the village of Dallas, and to build two school buildings one to be located at a site about one mile east of said village of Dallas, and another about twenty rods west of S. E. corner of section 2. Appeal was taken to the county superintendent, who affirmed the action of the board in locating the site in the west part of the district, but reversed their action in regard to the location east of the village of Dallas. Appeal was then taken to the superintendent of public instruction.

It is difficult to determine from the transcript sent up with this case, what were the intentions of the electors regarding the matter of a new school-house, as expressed at the district meeting, March 9, 1891. The secretary's records show that the motion to erect a school-house at each end of the district was voted down, as was also a motion to repair the old school-house or to sell that and build a new one with two rooms.

The vote to raise a tax for the purpose of building a school-house was declared carried, but the records do not show the amount to be raised by said tax, nor is there anything to show what amount if any was certified up to the board of supervisors. On the 20th of April the board voted that $1,500 was necessary for the erection of two school-houses, and on the 2nd of May the electors voted bonds to that amount for school-house purposes. There is nothing to show what form of ballots was used, or what was the intention of the electors in voting the bonds. When the intention of the electors in voting money for school-house purposes is clearly known, it is the duty of the directors to proceed in accordance therewith.

We therefore deem it best to remand the case to the county superintendent, with instructions to remand it to the board in order that they may ascertain what was the intention of the electors and that they attempt

in good faith to carry it out. If they fail to do this, the surest remedy is an application to the court for a writ compelling them to carry out the intention of the electors.

December 23, 1891.

REMANDED.

HENRY SABIN,

Superintendent of Public Instruction.

C. A. WEBSTER V. INDEPENDENT DISTRICT NUMBER SEVEN, BURR OAK

TOWNSHIP.

Appeal from Winneshiek County.

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

2.

It is not the province of an appeal to discover and 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. On the 3d day of October, 1891, the board relocated the school-house site. 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 plainly 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 to the site selected will bring the school-house 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 they endeavored to find the best site. The evidence is by no means conclusive that they 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.

J. B. KNOEPFLER,

February 26, 1892.

Superintendent of Public Instruction.

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

Appeal from Wapello County.

1. APPEAL. Where changes are effected in district boundaries by the concurrent. action of two boards, appeal may be taken from the order of the board con curring or refusing to concur, but not from the order of the board taking action first.

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

3. 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 to affirm the order, or to reverse and do what the board refused to do.

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 N. W. quarter of the S. W. quarter of section 18, which the county superintendent directed should remain a part of the district township of Richland, and also ordered the transfer of the N. W. quarter of the N. W. quarter of section 18, 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. See Dobbins and Briggs v. District Township of Salem, page 24, School Law Decisions of 1888. Therefore we are compelled to hold that the county superintendent did not have the power to decide that the N. W. quarter of the N. W. quarter of section 18 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