with the decision of the board, it is compelled to sustain their action, unless it is proved conclusively that they violated law, acted with passion or prejudice, or with manifest injustice, since boards of directors are invested by law with large discretionary powers, and having original jurisdiction, their acts are entitled to great consideration, and should not be reversed without the clearest reasons. The board are entitled to the benefit of every doubt. See Bacon v. District Township of Liberty, School Law Decisions of 1876, page 150, Edwards v. District Township of West Point; also Brown v. District Township of Van Meter.

The superintendent should have affirmed the action of the board, and because we do not believe that the discretionary power of the board has been abused to such an extent as to require a reversal, his decision is hereby

REVERSED.

C. W. VON COELLN,

November 13, 1877.

Superintendent of Public Instruction.

T. J. DUNLAVY V. O. M. KLINGINSMITH.

Appeal from Davis County.

1. PUNISHMENT. The use of the rod is allowable as a last resort.

2. CERTIFICATE: Revocation of. The inability to govern is sufficient reason for withholding a certificate and for the revocation of the same.

3.

A certificate which has expired by limitation cannot be revoked.

In this case T. J. Dunlavy brought charges against O. M. Klinginsmith, the teacher of his children, for brutal treatment, the specification being that said Klinginsmith whipped Dunlavy's stepson cruelly and excessively. Other charges were first prepared, but finally withdrawn. The county superintendent decided that the charges were not sustained, and Mr. Dunlavy appeals to this department.

The claim made by appellant's counsel, that all whipping is now nearly frowned down by the people, if not by the courts, does not seem to be well founded, when we consider the strong position taken by our own court in 45 Iowa, 250. That the use of the rod is the last resort of a good teacher, and is seldom used, we all admit; but scarcely an experienced educator will say that the use of the rod should be absolutely discontinued. On the other hand, the counsel for appellee mistakes the jurisdiction of the county superintendent, when he claims that such a case as this one cannot affect the withholding or revocation of a certifi

cate.

Although the general character of the teacher may be good, if he should fail to be able to govern a school without the constant use of the rod, and govern but poorly at that, it is the duty of the county superintendent to protect the people from abuse by refusing to grant a certificate, or if he has granted it, he may revoke.

In the case before us, it is undoubtedly true that the boy who received the whipping had provoked the teacher and deserved by his persistent small offenses a severe punishment. That the punishment was severe, and perhaps too severe, is apparent from the evidence. There is, however, no good proof to show that the teacher punished with malice or intent to injure beyond a reasonable correction.

The case itself ought to have been dismissed by the county superintendent, because if there was any object in the charges, it was for the purpose of revoking the certificate; but a certificate expiring by limitation on the 6th of January could not be revoked on the 22d of January. As long as the case was decided on its merits, we feel obliged to sustain the discretionary act of the county superintendent.

April 22, 1878.

AFFIRMED.

C. W. VON COELLN,

Superintendent of Public Instruction.

Z. DARNELL v. INDEPENDENT DISTRICT OF AMITY.

Appeal from Lucas County.

1. SUSPENSION OR EXPULSION. Suspension or expulsion of a scholar, in an independent district, requires the action of the board by a majority, and the concurrence of the president.

2. RECORDS. The record of the secretary must be considered as evidence, unless there is proof of fraud or falsehood.

The majority of the board of the independent district of Amity, expelled Z. Darnell from their school for refusing to obey a rule of the teacher. The said Darnell appealed to the county superintendent, who affirmed the action of the board, and an appeal is taken to the superintendent of public instruction.

Section 1735 requires a majority of the board with the concurrence of the president in order to suspend or expel a scholar for gross immorality or persistent violation of the regulations or rules of the school. This we interpret to mean, that the board, in regular or special session, can by a majority of the board, with the concurrence of the president, suspend or

While there is some doubt in this case whether there really was a meeting of the board, we must accept the record of the secretary as correct so long as there is no proof of fraud or falsehood.

Counsel for appellant seems to think that the law requires a regular trial and defense. The law makes no such demand. The remedy for an aggrieved party is an appeal before the county superintendent, where a trial is had and a defense can be made.

The case in controversy shows on the trial that the young man, Darnell, had not obeyed the command of his teacher, who inflicted a slight punishment upon him and others, for a disturbance in which both he and other boys had participated. If this refusal to obey was persisted in, the board, under section 1735, had the right to suspend or expel the said Darnell. The offense for which the punishment was given was perhaps of trivial character, but the refusal to obey on the part of a young man capable of reasoning, was a serious offense, and must be treated as such.

The expulsion of the young man was undoubtedly a severe measure, and if the case had been tried by us de novo, we should have substituted a conditional suspension until obedience was secured. But the discretionary act of the board is not tainted by malice nor passion, and there is sufficient reason for sustaining the action of the board. The decision of the county superintendent is therefore

June 10, 1878.

AFFIRMED.

C. W. VON COELLN,

Superintendent of Public Instruction.

WM. DONALD V. DISTRICT TOWNSHIP OF SOUTH FORK.

Appeal from Wayne County.

1. SALARY OF TEACHERS. The salary of teachers should be in proportion to their ability and responsibility, and not equal when these circumstances differ materially.

2.

The control of salaries is wholly within the power of the board and cannot be determined by an appeal, because it is not within the jurisdiction of county or state superintendent to order the payment of money.

On the 18th day of March, 1878, the board of the district township of South Fork made an order fixing the salaries of teachers in the township for the summer schools at the uniform price of twenty dollars per month. From this action William Donald appealed to the county superintendent, who affirmed the action of the board. From his decision William Donald appeals.

It is alleged by the appellant that the county superintendent erred in deciding that the board did not violate law in voting that the same amount of salary should be paid to the teacher in each subdistrict. It is claimed that the board should have provided for a higher salary in some schools of the township.

The difficulty with appellant's counsel is that he believes the note to be a part of the law. My predecessor gave his own views of the employment of teachers and I most fully agree with him in his view. The law leaves the whole matter to the directors and presumes that they will deal equitably. Unfortunately, selfishness is a nearly universal characteristic of human kind, and too often the majority, representing weak districts, weak both in numbers and in property, demands an equal distribution of the money on hand for teachers' pay.

The law organizing the rural independent districts, passed in 1872, arose from the feeling that this selfishness was working injustice to little towns and wealthy and populous subdistricts. The creation of these independent districts works an injustice to the weaker districts, for it is proper and desirable that the wealthier districts should aid their weaker neighbors to sustain fair schools.

With regard to this case, we do not see wherein the board violated law. The idea of prejudice is slightly apparent from the testimony, but not sufficiently to reverse the action of the board. That equity has not been observed seems very evident, for it must be presumed that a larger school population requires a better teacher, and if a better and more experienced teacher is needed, a better salary ought to be paid. There are other considerations. Generally the expense of living is greater in the town than in the country. It is also the probability that a larger tax is paid by the town than by the country.

We are not able at this distance to determine whether twenty dollars is a sufficient compensation for the teacher of subdistrict number four of South Fork. But if twenty dollars is only sufficient compensation for the country subdistricts, it is our belief that a higher compensation should be given for the teacher in the town.

It is out of our jurisdiction to give advice to the board what to do in this case, after determining that we have no power to reverse their action, but we suggest that equity would be served if they should pay the five dollars per month assumed by Mr. Anderson. After giving our views thus in full, we must agree with the county superintendent, and therefore the decision of the county superintendent is

June 29, 1878.

AFFIRMED.

C. W. VON COELLN, Superintendent of Public Instruction.

JAMES JACOBY et al. v. INDEPENDENT DISTRICT OF NODAWAY.

Appeal from Adams County.

1. SCHOOL-HOUSE SITE. A school-house site fixed by county or state superintendent affirming the discretionary act of the board, allows the board to exercise their discretion again, especially if material changes have occurred.

2.

The endeavor to show regard for the expressed wishes of the electors in the choice of a site, will be an added reason in support of the action of the board.

3. DISCRETIONARY ACTS. Suggestions from the electors upon matters entirely within the control of the board will in no manner prevent the fullest exercise of the discretion vested in the board by the law.

In the summer of 1877, the board of the independent district of Nodaway located a school-house site. They selected one not desired by a large majority of the electors, as expressed at an informal meeting called by the board. An appeal was taken to the county superintendent, who reversed the action of the board, and in turn to the superintendent of public instruction, who reversed the decision of the county superintendent, thereby sustaining the action of the board, on the ground that abuse of the discretion given by the law to the board, as charged, was not proved.

Since the decision above referred to was rendered, a dwelling has been erected within twenty rods of the site chosen. Also, a material addition has been made to the district on its east side of a strip of land three miles in length and one-half mile in width.

At a meeting of the board held April 22, 1878, they relocated the school-house site, choosing the old site in place of the one selected by them last year. From their action James Jacoby and others appealed to the county superintendent, who affirmed the order of the board. From his decision D. Shipley and Ed. Kennedy appeal.

This case was before us last year and we affirmed the action of the board in selecting the new site, sustaining the discretionary act of the board. Hence, the principle that a site selected by the county or state superintendent cannot be changed unless there have been material changes in the district, does not apply. There have been changes by the addition of new territory and a dwelling being erected within less than forty rods of the proposed site. The choice of the old site is in conformity with the wish of a majority of the electors, and does not prove any abuse of discretion, much less a violation of law. The action of the board is therefore sustained, and the decision of the county superintendent AFFIRMED.

August 26, 1878.

C. W. VON COELLN, Superintendent of Public Instruction.