That the teacher offered to resign in the evening does not appear from the evidence offered in behalf of the board, while it does appear that at least one member of the board told him "he had better quit."

We are compelled to hold that the teacher was dismissed, and that in doing so for no sufficient reason the board erred, and the decision of the county superintendent is therefore

February 16, 1883.

AFFIRMED.

J. W. AKERS,

Superintendent of Public Instruction.

NOTE-Our supreme court rendered a decision regarding the measure of damages resulting from the wrongful discharge of this teacher. The opinion is found in 65 Iowa, 209.

H. D. FISHER V. DISTRICT TOWNSHIP OF TIPTON.

Appeal from Hardin County.

1. SCHOOL-HOUSE SITE. When purchased by the board the provisions of sections 1825-1828 do not apply.

2. LOCATION. May be within less than forty rods of a dwelling when obtained by purchase.

On the 28th day of March, 1884, the board ordered the purchase of an acre of ground for a school-house site on the corner of section 15, township 87 north, range 21 west. H. D. Fisher, who is the owner of land immediately adjoining said site, objected to the location, on the ground that the site was within less than forty rods of his residence. The board adhered to their decision in disregard of his objection, whereupon H. D. Fisher appealed to the county superintendent, who affirmed the action of the board. H. D. Fisher appeals.

Affiant alleges that the board violated law in purchasing a site within less than forty rods of his residence, against his will and without his consent. This was the only error assigned in his affidavit of appeal to the county superintendent, and the same is the only error assigned in the affidavit of appeal to the superintendent of public instruction. The case will therefore be confined to a consideration of the alleged grievance, and all argument of counsel and all evidence taken to establish an abuse of discretion in changing the location of the house need not be considered.

On trial before the county superintendent, defendant filed a motion to dismiss the action for want of jurisdiction. This motion to dismiss was overruled, and defendant excepted. The motion to dismiss was filed on

the ground that there had been no order or decision of the district township board from which an appeal could be taken, and no action

taken as shown by the transcript of the record, upon any matter affecting the rights of H. D. Fisher.

The transcript of the secretary states that on the 29th of March the board located the new site on a piece of ground bought of Ferdinand Beckman. This was an action from which any person aggrieved might appeal. The appeal was based on a charge that the board had violated law, and it was proper for the county superintendent to hear the case in order to determine whether the law had been violated or not.

Counsel urges that the case should have been dismissed because affiant made no objection to the location until after the purchase of the land and until after he was estopped for so objecting. But even though the neglect to object in season would bar affiant from subsequent interference, it was the duty of the county superintendent to proceed with the trial in order to determine by evidence when and how objection was made. We think that the county superintendent had jurisdiction, and the motion to dismiss was properly overruled.

In the eighth count of defendant's argument it is urged that the county superintendent had not original jurisdiction to try or to adjudicate a matter not acted upon by the board. But the removal of the schoolhouse to the proposed location was determined by the board, and from that action appeal was taken, and not from their refusal to consider the objection of affiant.

The ground of the defense is the delay of H. D. Fisher to make known his objection to the location of the school-house within forty rods of his dwelling.

The county superintendent sustains the action of the board for the reason that the site was purchased, affiant knowing of the intention of the board to purchase the ground and to locate the house, and making no objection until after the contract to move the house had been let by the board.

Whether the decision of the county superintendent should be affirmed, for the reasons assigned, need not be considered, as the case will be determined upon the construction of the statute prohibiting the location of a school-house within less than forty rods of a dwelling, the owner whereof objects.

The case was tried by the county superintendent and argued by counsel on both sides as coming under the act authorizing boards to condemn, and to take and to hold school-house sites. We think this point worthy of a careful examination. Chapter 124, laws of 1870, first authorized boards to take and hold land for school-house sites. Recognizing that they were conferring a dangerous power, they prudently enacted certain restrictions to govern such boards in the exercise of that power. But it it was not intended, we think, to so restrict boards, except when exercis

ing the power therein conferred. This chapter was subsequently embodied in the Code, and is now found in sections 1825, 1826, 1827, and 1828, School Laws of 1880.

Section 1825 says: "It shall be lawful for any district township or independent district, to take and hold, under the provisions contained in this chapter," etc. The provisions contained in this chapter, or in the following sections, are as follows: That the real estate so taken shall not exceed one acre. The site "so taken " must be on some public highway, at least forty rods from any residence the owner (of the residence) whereof objects to its being placed nearer. And not in an orchard, garden or public park.

It is perfectly clear that ground cannot be condemned in disregard of any one of these provisions. But the site in question was not condemned and taken, but it was purchased of a third party and a good and sufficient deed made over to the district township of Tipton.

Do the provisions above quoted apply in cases where sites are purchased? If any one of them does, they all do.

First, "the land so taken shall not exceed one acre." No one would hold that boards may not buy, and districts hold, more than one acre of land for school-house purposes, provided they are limited to a reasonable amount. This restriction then, is of no force except in cases where sites are condemned.

Again, "and not in any orchard, garden or public park." Does it follow, therefore, that boards cannot purchase an orchard, garden, or park, for a school-house site if they desire it, and the owner is willing to sell? We think not, by any means.

And "at least forty rods from any dwelling, the owner whereof objects," etc. This limitation has exactly the same force and application, and no other. Land within forty rods of a residence cannot be condemned if the owner objects. But if a third party is willing to sell a school-house site, and the district purchases and pays for it, it is not competent for the owner of a dwelling to restrain the location on the ground that it is within forty rods of such dwelling.

We think this interpretation of the law borne out both by its evident meaning and its phraseology.

We are aware that it has for many years been the holding of this department that a school-house site, whether obtained by purchase or otherwise, could not be placed nearer than forty rods to any residence, the owner objecting, and it is with regret that we must reverse a ruling of so long standing; but from the fact that in many thickly settled communities our school-houses are being crowded into sloughs and out of the way places, and the further fact that it is not warranted by law, we are compelled to do so.

We must, therefore, hold that the board of the district township of Tipton violated no law in purchasing the site and in ordering the removal of the school-house thereon. The decision of the county superintendent is therefore

July 7, 1884.

AFFIRMED.

J. W. AKERS,

Superintendent of Public Instruction.

1.

EZRA KOONTZ V. DISTRICT TOWNSHIP OF LISCOMB.

Appeal from Marshall County.

SUBDISTRICTS: Form of. It is very important that subdistricts should be regular in form, and that where it is possible, school-houses should be located at or near geographical centers.

2. SCHOOL-HOUSE SITE: Location of. The condition of matters within the subdistrict should govern the location of the house. The attendance of parties from an adjoining subdistrict should not determine change of site.

A petition was presented to the board asking that certain changes be made in subdistrict boundaries, viz.: That the southwest quarter of section eighteen be detached from subdistrict number four, and attached to subdistrict number five; also that the south half of section twenty-one be detached from subdistrict number five, and attached to subdistrict number six. On the 16th day of February, 1884, the board granted the prayer of petitioners and ordered the plat of subdistrict boundaries to be so altered as to agree with the above changes. Ezra Koontz appealed to the county superintendent, who reversed the order of the board. P. T. Beatch, president of said board, appeals.

Subdistrict number five contains a little more than five sections of land, and if the order of the board is sustained it will contain a little more than four and one-half sections. The south half of section twenty-one formerly belonged to subdistrict number six, but was transferred to subdistrict number five in order to create better school facilities for the children of Ezra Koontz, who lives on the extreme south line of subdistrict number six, while the school-house is at the geographical center, and no public road leading to it. The electors of the district township voted $1,000 to procure a highway for the accommodation of Mr. Koontz; but this fund was subsequently transferred to the teachers' fund, and the movement to secure the highway was indefinitely postponed.

Mr. Koontz is unfortunately located, but it appears from the entire proceedings that there is a disposition to remove the obstacles in his way.

This is shown both by the efforts to secure a highway at the cost of $1,000 and in the former action of the board in breaking up the regular form of subdistricts, in order to include him in number five. We think it very important that subdistrict boundaries should be regular, and that where it is possible school-houses should be located at geographical centers.

The action of the board in transferring the south half of section twenty-one to subdistrict number six, and the southwest quarter of section eighteen to number five, was wise, and should have been sustained. Mr. Koontz must seek to secure proper accommodations in number six, and if this proves to be impossible, he must charge it to the account of an unfavorable location.

It cannot reasonably be demanded that his property should be included in number five, and the school-house in that district be moved away from the center and taken to the south line of the district, and away from families living in the north of number five, in order to accommodate others not living in the subdistrict, especially when it is considered that those living in the north will be compelled to send out of their own subdistrict, in such case.

We are compelled to hold that the action of the board should have been sustained, and the decision of the county superintendent is therefore REVERSED.

July 21, 1884.

J. W. AKERS,

Superintendent of Public Instruction.

J. L. MARSHALL et al. v. DISTRICT TOWnship of MARSHALL.

Appeal from Louisa County.

1. SUBDISTRICT. The board may not redistrict so as to abolish a subdistrict, with intent to prevent the building of a house provided for by the electors.

2. TAXES: School-house. Must be certified, collected, and expended, in accordance with the vote of the electors.

On the 22d day of February, 1886, the board abandoned subdistrict number four, and transferred its territory in parcels to adjoining subdistricts. J. L. Marshall et al appealed to the county superintendent, who reversed the order of the board. N. W. Mackay, president of the board of directors, appeals.

It is unnecessary to consider the real merits of this case. The board must be reversed upon the ground that at the meeting of the electors of subdistrict number four, held in March, 1885, a tax of $300 was voted to build a school-house in said subdistrict number four.