law or abused its discretionary power. Questions concerning the validity of contracts, the right to recover for services performed, and the interpretation of law, belong especially to judicial tribunals. Questions concerning the character and qualifications of the teacher, and his management of the school, are by appeal within the jurisdiction of the county superintendent. The motion to dismiss was properly overruled.

The charges of dereliction were want of promptness in commencing school in the morning, and an occasional refusal to hear the recitation of one or more of her pupils. For this dereliction there appears to have been some extenuating circumstances. Under the contract, it was the subdirector's duty to have fires built. The boy employed to do this work often failed to have the schoolhouse in comfortable condition at nine o'clock. The teacher usually made up lost time by teaching after four o'clock, and there is no evidence that the subdirector or board ever advised her with regard to the performance of her duties. The board convened at the schoolhouse without previous notice to the teacher, and after taking the testimony of pupils, unanimously voted to discharge her.

May 8, 1876.

AFFIRMED.

ALONZO ABERNETHY. Superintendent of Puh Instruction.

S. W. WOODS et al v. DISTRICT TOWNSHIP OF BRIGHTON.

Appeal from Cass County.

BOARD OF DIRECTORS. The acts of the board must be presumed to be regular, and should be affirmed unless positive proof is brought to show the contrary.

SCHOOLHOUSE SITE. The prospective wants of a subdistrict may properly have weight in determining the selection of a site, when such selection becomes necessary, but not in securing the removal of a schoolhouse now conveniently located. SCHOOLHOUSE SITE. To make a distinction between the children of freeholders and those of tenants in determining the proper location for a schoolhouse, is contrary to the spirit and intent of our laws.

The board by a vote of five to two rejected a petition asking the removal of the schoolhouse in subdistrict number eight. On appeal, the county superintendent reversed the action of the board, and ordered the removal of the schoolhouse to the place named in the petition. Wm. F. Altig appeals.

Subdistrict number eight contains sections 27, 28, 33, 34, and sixty acres lying in section 32, and has a good commodious schoolhouse, erected three years ago, one-half mile west of the center, on a public road passing east and west through the center of the subdistrict. There are about thirty children of school age in the subdistrict, twenty-two of whom reside in the western half, and nineteen west of the present site. All those residing east of the present site, except one child, are within one and a half miles of the schoolhouse, while by the proposed removal, a large number would be at a greater distance.

The action of the board in refusing to remove a schoolhouse should not be interferred with on appeal, except upon evidence of violation of law, or abuse of discretionary power. In this case there is no evidence of such abuse. The prospective wants of a subdistrict may properly have weight in determining the selection of a site upon which to build a schoolhouse, when such selection becomes necessary, but not in determining the removal of a house, located conveniently for the present wants of the subdistrict.

It appears that a considerable portion of the school population consists of the children of tenants, and much stress is laid upon the assumed distinction that should be made between the children of tenants and those of freeholders, in determining the proper location of the schoolhouse. Distinctions based upon the ownership of property or permanence of residence are not made in the law, would not well comport with the fundamental principles upon which our public school system is based, and should not have weight in determining the location of schoolhouse sites. It is the duty of the board to provide equal school facilities for the youth of the district as far as practicable, regardless of considerations relating to permanence of residence. The schoolhouse may properly be removed whenever the conditions of the subdistrict require it, but unnecessary expense should not be incurred in such removal in anicipation of possible, or even prob- . able changes of this character. REVERSED.

July 31, 1876.

ALONZO ABERNETHY, Superintendent of Public Instruction.

J. N. ARTHUR, et al v. INDEPENDENT DISTRICT OF FAIRWAY.

Appeal from Adams County.

SCHOOLHOUSE SITES. The necessity of the present must be observed in locating schoolhouse sites, in preference to the probabilities of the future.

TESTIMONY. New testimony can be introduced only when the facts materially affecting the case could not have been known before the trial.

REMANDING OF CASES. When the evidence discloses that the action of the board was unwarranted, and the facts are not sufficiently shown to determine what should be done, the case should be remanded to the board.

In this case the board made an order relocating the schoolhouse site; from this order J. N. Arthur and others, residents of the district, appealed to the county superintendent, and upon his affirming the action of the board, to the superintendent of public instruction.

The district consists of sections one, two, eleven, twelve, thirteen and fourteen, and the old schoolhouse stands near the southwest corner of the southeast quarter of section one. The proposed new site is in the northewest corner of the southwest quarter of the northwest quarter of section twelve, on a public highway and one-quarter of a mile north of the geographical center of said district. The grounds of objection by the appellants to the removal are substantially, that the new site is on low bottom lands and subject to overflow, not accessible

at all times of the year, and that it is not as near the center of the school population as the old site. They also suggest that a location at the cross roads onehalf mile east of the new site is better ground and more convenient to the people. In fixing the schoolhouse site, the geographical position and the convenience of the people of each portion of the district should be considered.

From the large amount of testimony, it is evident that the new site chosen is in a low place, and an affidavit sent to this office, and signed by a number of residents, proves beyond question that the site has been overflowed for several days of the last month. By a close comparison it is found that the number of residents who will have their distance to school increased by choosing the new site, is greater than those who will have their distance diminished. By locating the schoolhouse at the cross roads, one-half mile east of the proposed new site, which location is claimed to be higher, and therefore less liable to overflow, threefourths of the residents will have their distance diminished by forty to one hundred and sixty rods.

Although it may be true, as affirmed in the tesimony, that the western part of the district is as capable of settlement as the eastern part, the necessities of the present must be observed in locating schoolhouse sites, in preference to the probabilities of the future. While it is the rule of this department to sustain discretionary acts of the board, it seems that in this case the true interest of all concerned, and justice to a large portion of the people, demands that the schoolhouse should not be moved to the new site chosen.

To what extent the high waters of last month did affect the other locations under consideration, is not known to this department; it is therefore best to let the matter come up anew before the county superintendent for a rehearing. The decision of the county superintendent is therefore reversed, and the case remanded for a rehearing, with the direction from this department that the proposed new site is an unsuitable one for school purposes.

REVERSED.

October 31, 1876.

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

J. J. WILSON et al v. DISTRICT TOWNSHIP OF MONROE.

Appeal from Mahaska County.

COUNTY SUPERINTENDENT. The county superintendent is not limited to a reversal or affirmance of the action of the board, but he determines the same questions which it had determined.

SCHOOLHOUSE SITE. The location of a schoolhouse can be dependent upon a change of boundaries only when it is shown in evidence that it is the definite and positive intention to make such a change.

HIGHWAY. If possible, every schoolhouse site should be upon a public highway. COUNTY SUPERINTENDENT. May make a conditional ruling, by which his own decision will be governed.

On the fourteenth day of April, 1877, the board located the site for a schoolhouse. From its action, J. J. Wilson and others appealed to the county superintendent, alleging that the board had erred in making the location, in that, by reason of distance owing to the location of the roads, the location as made effectually deprived many of the subdistrict of the privilege of attendance at school. On trial, the county superintendent reversed the action of the board, and located a new site. From his decision the board appeals, claiming that the county suprintendent erred in selecting a site entirely different from those with reference to which testimony was taken; that it is on the extreme east line of said subdistrict, and hence can not be called at all central; that the board took into account in making the location the possibility of a change in the northern boundary of the subdistrict, which would make the situation chosen a suitable one for the remaining subdistrict; that a portion of his decision was conditional and void; and that the board did not abuse its discretion by making the location as it did.

The assumption that the county superintendent did not have the right to locate a schoolhouse site differing in location from the one made by the board, or the one petitioned for by the appellants, is a mistake. See John Clark v. District Township of Wayne, School Law Decisions of 1876, page 47; also the opinion of the attorney-general in Iowa School Journal for April, 1866, in which the following ruling was made: "The county superintendent is not limited to a reversal or affirmance of the action of the board, but he determines the same questions which it had determined."

The nature of the subdistrict is peculiar. It is long and narrow, and its western boundary, the North Skunk river, which also makes nearly all its southern boundary, is a disturbing element when we attempt to locate the site of a schoolhouse to accommodate all the people. While under ordinary circumstances, a site near the boundary of a subdistrict would be unadvisable, in this case it seems necessary, unless additional road facilities can be secured. The site selected by the county superintendent is clearly the one best calculated to accommodate the whole subdistrict as constituted at present.

The location of a schoolhouse site can be dependent upon a change of boundaries only when it is shown in evidence that it is the intention of the board, or boards, to make such change. In this case, it is not claimed that any change is actually intended or expected. The limit, as made provisionally by the county superintendent, of thirty days for such changes of roads as would make a more central location feasible and desirable, was too short a time, under the provisions of law, to effect the result. For that reason we shall extend the time for the establishment of a road to ninety days from the date of his decision, or to such time as the board of directors may show to be necessary to establish the road, provided that immediate steps shall be taken to bring about the result, if desired.

The discretion of the board was evidently abused in not providing equal school facilities for those lying in the northern portion of the subdistrict, by the location of the schoolhouse site.

In case the road contemplated is secured, the board may locate the site thereon, as near the center of the subdistrict as good and suitable ground can be found. If no steps are taken to secure such a road, or in case the road can not

be procured, the location last chosen by the county superintendent is to be regarded as the site, and his decision is hereby AFFIRMED. C. W. VON COELLEN, Superintendent of Public Instruction.

August 7, 1877.

WM. DONALD V. DISTRICT TOWNSHIP OF SOUTH FORK.

Appeal from Wayne County.

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

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

EXPLANATORY NOTES. Notes to the school law, while proper alds to school officers, have not the binding force of law, and a non-compliance with them is not necessarily a violation of law.

SCHOOLS. The wealthier portions of the community should aid their neighbors in sustaining good schools.

On the eighteenth day of March, 1878, the board made an order fixing the salaries of teachers 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 board and presumes that it will deal equitably. Unfortunately, selfishness is a nearly universal characteristic of human kind, and too often the majority, representing weak subdistricts, 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 district 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