grant, and without which the grant would be useless. But if a tract of land in the center of an enclosed field is condemned for a school house site, without any attempt to condemn a right-of-way to such site, no way by necessity can be claimed as incident to the title acquired by the condemnation judgment. A way by necessity is based on a grant only. Ibid.

3. School directors are given the control and supervision of school houses in their respective districts. They are authorized to agree upon or determine the compensation to be paid for a school house site with the parties interested in the land, and in case of failure they may proceed to have such compensation determined in the manner which may be at the time provided by law for the exercise of the right of eminent domain. But if they should agree upon the compensation to be paid and obtain a conveyance of the real estate for a school house site, it would be made to the trustees of schools and not to them. If they fail to agree, the method provided by law for vesting title for the public use is by a proceeding to condemn the land, and the title would have to be vested in the trustees. The trustees are consequently the proper and necessary petitioners in whom, under the statute, the judgment of the court vests the title upon the payment of the compensation. Ibid.

§ 33. Any director wilfully failing to perform his duties as directed under this act, may be removed by the county superintendent, and a new election ordered, as in other cases of vacancies.

§ 34. All funds belonging to any school district and coming from any source, shall be paid out only on order of the board of directors, signed by the president and clerk of said board, or by a majority of said board. In all such orders shall be stated the purpose for which or on what account such order was drawn. Such order may be in

the following form:

The treasurer of township No..

county, will pay to.....

cents, (on his contract for repairing school house, or whatever the purpose may be.) By order of the board of directors of school district No....

in said township.

§ 35. Pupils shall not be transferred from one district to another without the written consent of a majority of the directors of each district, which written consent shall be delivered to and filed with the proper township treasurer, and shall be evidence of such consent. A separate schedule shall be kept for each district, and in each schedule shall be certified the proper amount due the teacher from that district, computed upon the basis of the total number of days' attendance of all schedules. If the district from which the pupils are transferred is in the same township as the district in which the school is taught, the directors of said district shall deliver the separate schedules to their township treasurer, who shall credit the district in which the school was taught, and charge the other district with the respective amounts certified in said separate schedule to be due. If pupils are transferred from a district of another township, the schedule for that district shall be delivered to the directors thereof, who shall immediately draw an order on their treasurer in favor of the treasurer of the township in which the school was taught for the amount certified to be due in said separate schedule.

§ 36. When a school is composed in part of pupils transferred, as provided for in the preceding section, from other townships, the

"

duty of collecting the amount due on account of such pupils shall devolve upon the directors of the district in which the school was taught.

SECTION 1. Incorporated cities and villages, except such as now have charge and control of free schools by special acts, shall be and remain parts of the school townships in which they are respectively situated and be subject to the general provisions of the school law, except as otherwise provided in this article.

1. It will be seen upon examination that article 6 of the school law relates to school districts in incorporated cities, towns and villages, and provides for their organization and government in a manner, in certain respects, peculiar to themselves. It declares that all such school districts, except those existing under special acts, shall remain parts of the school townships in which they are respectively situated, and subject to the general provisions of the law applicable to such townships, but provides for their government by boards of education instead of school directors. People v. Ricker, 142–650.

§ 2. In all school districts having a population of not less than 1,000 and not over 100,000 inhabitants, and not governed by any special act in relation to free schools now in force, there shall be elected, instead of the directors provided by law in other districts, a board of education, to consist of a president of the board of education, six members, and three additional members for every additional 10,000 inhabitants. Whenever additional members of such board of education are to be elected by reason of increased population of such district, such members shall be elected on the third Saturday of April succeeding the ascertaining of such increase by any special or general census, and the notice of such election shall designate the term for which the members are to be elected, so that one-third of the board shall be elected for each year; Provided, that in no case shall said board consist of more than 15 members.

1. This section should be construed with section 59, article 3. Where a new district is formed which has a population of not less than 1,000 nor more than 100,000 inhabitants, there must be an election for a board of education, and not for three directors. But this section does not provide that the board, in the first instance, shall be elected only on the third Saturday in April. It relates to the election of additional members to be elected by reason of the increased population of said district. Nor does it require any census of the district, special or general to be taken in order to authorize the election of the president and members of the board. It is only when additional members are to be elected, that the increased population must be ascertained by the census. People v. Keechler, 194-235.

§ 3. The president of said board of education shall be elected annually, at the same time the members of the board of education are elected, and he shall hold his office for the term of one year and until his successor is elected and qualified.

1. The school law provides that school elections may be contested in the same manner as is provided by the general election law in case of the election of township officers. The county court is vested with jurisdiction of proceedings to contest school elections. Misch v. Russell, 136-22.

2. A candidate may be voted for at the same election for two offices-president and a member of a board of education, but if he should be elected to both, he would be incapable of discharging the duties of both offices and would be compelled to elect which to accept. Where a ballot is marked to show a clear intention of voting for the same person for both offices the candidate is entitled to have such ballot counted as cast. Ibid.

§ 4. The president of the board of education so elected shall preside at all meetings of said board, and shall give the casting vote in case of a tie between the members thereof; but otherwise he shall not have a vote. He shall sign all orders for the payment of money ordered by said board, and generally perform such duties as are imposed by law upon presidents of boards of directors, or that may be imposed upon him by said board of education, not in conflict with law: Provided, that in the absence or inability to act as said president, said board may appoint a president pro tempore from their number.

5. The annual election of members of the board of education shall be on the third Saturday in April, when one-third of the members shall be elected for three years and until their successors are elected and qualified.

§ 6. Notice of such election shall be given by the board of education at least ten days previous to such election by posting notices in at least three of the most public places in said district, which shall specify the place where such election is to be held, the time of opening and closing the polls and the purpose for which such election is held, which notice may be in the following form, to-wit:

Public notice is hereby given, that on Saturday, the.. A. D... an election will be held at..

..day of April, between the

hours of. .....and........of said day, for the purpose of electing a president of the board of education of district No.... range No...... district.

township No.... and..........members of the board of education of said

Dated this..........day of

A.
C.

A. D..
B.

,D.

President. Clerk.

1. The law provides the time when the election shall be held, and requires the president and clerk of the board to give ten days' notice of the election, which shall specify the place of holding the election and the time of opening and closing the polls, but the board of education is not required to make an order providing for the election. An order providing for an election passed by less than a quorum does not render an election void, as the law fixes the date of the election. All that seems necessary is for the president and clerk in their official capacity to give proper notice. Ackerman v. Haenck, 147-514. 2. Notice of all elections shall be given, and such notices shall specify the place where such election shall be held and the time of opening and closing the polls. It is within the power of the board, acting through its president and clerk, to prescribe such reasonable time for the opening and closing of the polls as may best suit the convenience of the voters of the district. Ibid. 3. The provisions of the statute as to the manner of conducting the details of an election are not mandatory, but directory, and irregularities in conduct

ing an election and counting the votes, not proceeding from any wrongful intent, and which deprive no legal voter of his vote and do not change the result, will not vitiate the election. Ibid

§ 7. In case of a failure to give the notice above provided for, such election may be held on any Saturday after such notice has been given as aforesaid.

§ 8. Such election shall be conducted in the same manner, and be governed by the provisions of this act relating to the election of boards of directors, except as otherwise provided by law: Provided, however, that boards of education shall have power to establish a suitable number of voting precincts and fix the boundaries thereof for the accommodation of the voters of the district in which such election is held, in each of which voting precincts there shall be one polling place designated by the board. Whenever such board of education shall under the provisions of this act establish more than one voting precinct for such election they shall appoint two judges and one clerk for each polling place, assigning so far as may be at least one member of such board to each polling place. (As amended by an act approved May 12, 1905).

1. Women above the age of twenty-one years are qualified to vote at an election for president and members of a board of education. Ackerman v. Haenck, 147-514.

§ 9. At the first election of directors succeeding the passage of this act, in any district having a population of not less than one thousand (1,000) inhabitants by the census of 1880, and in such other districts as may hereafter be ascertained by any special or general census to have a population of not less than one thousand inhabitants, at the first election of directors occurring after taking such special or general census, there shall be elected a board of education, who shall be the successors of the directors of the district; and all rights of property and all rights or causes of action existing or vested in such directors, shall vest in said board of education, in as full and complete a manner as was vested in the school directors. Such board, at its first meeting, shall fix by lot, the term of office of its members so that one-third of them shall serve for one year, one-third for two years and one-third for three years, and thereafter one-third shall be elected annually on the third Saturday in April, to fill the vacancies occurring, and to serve for the term of three years.

1. This section has no application to the election of a board of education in a newly formed district, but provides only for a change from a board of directors to a board of education. People v. Keechler, 194-235.

§ 10. The board of education shall have all the powers of school directors; and, in addition thereto and inclusive thereof, they shall have the power and it shall be their duty

First-To establish and support free schools not less than six nor more than ten months in each year.

Second-To repair and improve school houses, and furnish them with the necessary fixtures, furniture, apparatus, libraries and fuel. Third-To examine teachers as supplemental to any other examination, to employ teachers and to fix the amount of their salaries. (As amended by act approved June 19, 1893.)

1. The examination herein provided for is as to the qualification of the applicant in respect of ability, competency and character, to take charge of and teach a school in the district, and the board of education has the right to examine and determine whether or not the applicant is qualified. Kuenster v. Board of Education, 31A-386; Kuenster v. Board of Education, 134-165.

Fourth-To establish schools of different grades, and make regulations for the admission of pupils into the same.

2. Under the law, boards of education have the right, power and authority to adopt reasonable rules and regulations in regard to the admission of persons over six years of age, which may operate to prevent such persons from entering school immediately after arriving at the age of six years. Board of Education ▼. Bolton, 85A-92.

3. In the exercise of these powers, the rules and orders made by the board of education must not be unreasonable, or such as to defeat the wise and beneficent purposes of the school law, and if reasonable, necessary, and such as will best afford to all the children in their district, entitled to attend public schools an opportunity to receive the benefits of proper instruction, such reasonable and necessary rules and orders should be sustained by the courts. People v. Board of Education, 26A-476.

Fifth-To buy or lease sites for school houses, with the necessary grounds: Provided, it shall not be lawful for such board of education to purchase or locate a school house site, or to purchase, build or move a school house, unless authorized by a majority of all voters voting at an election called for such purpose in pursuance of a petition signed by not less than five hundred legal voters of such district, or by one-fifth of all the legal voters of such district.

4. It is made unlawful for a board of education to build a school house except upon petition of a majority of the voters of the district. Its power to build being thus limited, it follows, necessarily, that its power to employ others to build school houses is subject to the same limitation. Board of Education v. Roeher, 23A-629.

5. It is a mistake to suppose that the statute, in terms, vests the board of education with all the powers exercised by a board of directors. The powers of both these boards are precisely defined and limited by statute. To hold that a board of education may build a school house upon the authority of a vote of the electors of the district, without any petition, as a board of directors might have done, would be directly in the teeth of the statute which expressly declares that the board of education shall not build a school house without a petition of a majority of the voters of the district. Ibid.

Sixth-To levy a tax, annually, upon the taxable property of the district, in the manner provided in article 8 of this act, for the purpose of supporting and maintaining free schools in accordance with the powers herein conferred: Provided, that it shall not be lawful for such board of education to levy a tax to extend schools beyond a period of ten months in each year, except upon petition of a majority of the voters of the district: And, provided, further, that all taxes shall be levied under the limitations relating to the percentage of the assessment, as provided by section 1, article 8 of this act.

Seventh-To employ, should they deem it expedient, a competent and discreet person or persons as superintendent or superintendents of schools, and fix and pay a proper salary or salaries therefor; and such superintendent may be required to act as principal or teacher in such schools.