salary ought to be paid. There are other considerations. Usually 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 salary. should be given 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 its action, but we suggest that equity would be served if it 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 his decision is therefore AFFIRMED.

June 29, 1878.

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

JAMES JACOBY et al v. INDEPENDENT DISTRICT OF NODAWAY.

Appeal from Adams County.

SCHOOLHOUSE SITE. A schoolhouse site fixed by county or state superintendent affirming the discretionary act of the board, allows the board to exercise its discretion again, especially if material changes have occurred.

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.

SCHOOLHOUSE SITE. 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.

In the summer of 1877, the board located a schoolhouse site, selecting 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 the 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, it relocated the schoolhouse site, choosing the old site in place of the one selected by it last year. From its action, James Jacoby and others appealed to the county superintendent, who affirmed the order of the board. 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 sustained, and the decision of the superintendent AFFIRMED.

August 26, 1878.

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

L. E. CORMACK V. DISTRICT TOWNSHIP OF LINCOLN.

Appeal from Adams County.

JURISDICTION. An appeal will not lie to enforce a contract.

JANITORIAL SERVICES. If a teacher serves as janitor in sweeping the room and building fires, he should be paid from the contingent fund for such services.

Mr. Vandyke, a subdirector, contracted with Mrs. L. E. Cormack as teacher for the winter term of school. The terms of the contract included that the teacher was to receive twenty-five dollars per month for teaching and one dollar and twenty-five cents a month for building the fires and sweeping the schoolhouse. The board refused to audit the full account, which would give the teacher pay for janitor's work, claiming that the said subdirector exceeded his authority in so contracting. Mrs. Cormack appealed to the county superintendent, who reversed the action of the board. W. C. Potter, president of the board, appeals.

This case has evidently for its object the securing of money on contract, and as section 1836 prevents county and state superintendents from rendering a judgment for money, it has been the common custom to refuse to entertain any appeal in which a contract is to be decided by such appeal; for this reason the county superintendent should have dismissed the case for want of jurisdiction.

It may not be out of place here to state that unless a contract with the teacher provides that building fires and sweeping the house is included, the board can not require such service of the teacher. The payment for such services should come from the contingent fund and should be specifically mentioned.

The teachers' fund is not to be used for paying for janitorial

services. Without deciding any question at issue, we are of the opinion that the subdirector did not exceed his authority given him by section 1753 when he agreed to pay a reasonable sum for janitorial services besides the twentyfive dollars paid under instruction from the board for teachers' services.

But since we do not consider the case within our jurisdiction, the decision of the county superintendent is reversed and the case DISMISSED.

March 1, 1879.

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

W. F. RANKIN V. DISTRICT TOWNSHIP OF LODOMILLO.

Appeal from Clayton County.

RECORDS. The record of the secretary shall be considered as evidence, and can not be invalidated by parol evidence unless there is proof of fraud or falsehood. TERRITORY. Where territory is to be transferred by concurrent action of two boards to the district to which it geographically belongs, a majority of the members-elect is not necessary, as required for the change of subdistrict boundaries.

APPEAL. The action of two boards upon a subject over which they have divided control constitutes a concurrent action, and appeal may be taken only from the order of the board taking action last.

This appeal relates to the transfer of territory in the civil township of Cass, which has belonged to the district township of Lodomillo since 1856, to the township to which it geographically belongs.

The board of the district township of Cass appointed a committee to meet a committee chosen by the Lodomillo board, to agree upon terms of transfer. The district township of Lodomilla also appointed a committee. The joint committee agreed upon a report, which the board of Cass adopted September 16, 1878. On the twelfth day of October, 1878, the Lodomillo board, by a vote of four to six members present of a board of ten, also adopted the report and accepted the proposition agreed to by the board of Cass.

From the action of the Lodomillo board W. F. Rankin appealed to the county superintendent, who dismissed the case for want of jurisdiction, and stated that the action of the board was plainly in violation of the law, since section 1738 requires a majority of the board to change the boundaries of subdistricts. From this decision W. F. Rankin appeals.

The secretary's transcript of the transactions of the meeting of the board of Lodomillo, held October 12, 1878, does not show any irregularity in the transaction, does not show the number of members present nor the number of votes cast by which the motion was carried.

According to a well established principle of law, the records of any public or private corporation must be considered regular, and can not be set aside by parol evidence, except under an allegation of fraud. Based upon the evidence of the transcript, the whole transaction was carried on in conformity with law, and we can see no reason to interfere with the action of the board. If we admitted the testimony of M. E. Axtel, showing that only six members of a board of ten were present, and that four of these six voted for the transfer,

*Note-We have since learned that the teacher recovered in a suit in the courts at law.

we would still hold that said transfer was legally made. The action of the board was not a change of boundaries of subdistricts, but a transfer under section 1798. The territory transferred, being part of the districts organized before the law of 1858 took effect, could be transferred by concurrent action of the boards to the district to which it geographically belongs, and the limitation of section 1738, requiring a majority of the board to change subdistrict boundaries, is not applicable to this case.

The appeal is brought from the action of the board which concurred, and is therefore taken in a proper manner. For the reasons set forth, the action of the board is sustained and the decision of the superintendent is

May 28, 1879.

REVERSED.

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

L. B. COLBURN et al. v. DISTRICT TOWNSHIP OF SILVER LAKE.

Appeal from Palo Alto County.

EVIDENCE. To establish malice or prejudice on the part of the board, positive testimony must be introduced, and the evidence must be conclusive.

COUNTY SUPERINTENDENT. A county superintendent should not ask the state superintendent to decide a case on appeal for him, but may ask for an interpretation of law, either by the state superintendent, or through him, by the attorney-general.

On the twenty-fifth day of August, 1879, the board fixed the location of a school house on the old site. From this order L. B. Colburn and others appealed to the county superintendent, who affirmed the action of the board, and from this decision the same parties appeal.

Among the errors enumerated, the appellants urge that the county superintendent erred in holding that the board was not actuated by passion or prejudice. We fail to find any evidence establishing the existence of such malice or prejudice on the part of the board. Appellants also claim that the county superintendent erred in basing his decision on the verbal opinion of the state superintendent, given prior to the hearing of the case.

This affords an opportunity of censuring a practice quite common among county superintendents to ask the superintendent of public instruction for his opinion in an appeal which is pending. We have made it a universal practice to refuse answers upon the questions involved in the particular case, and have given only general principles which should govern county superintendents in determining cases of appeal. These general principles are so well established that an intelligent county superintendent ought to be familiar with them.

We advised the county superintendent in this case not to measure the respective distances of the different locations from the geographical center, before the trial of the appeal.

It is proper for the county superintendent to ascertain the interpretation

of points of law, by securing an opinion from this department, or from the attorney-general through this department.

Without fully determining the merits of the respective locations, we must hold that the board did not abuse its discretion sufficiently to warrant interference. The appellants failing to prove malice or prejudice on the part of the board, its order should stand, and the decision of the county superintendent affirming its action is AFFIRMED.

March 30, 1880.

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

J. D. HANDERSHELDT V. DISTRICT TOWNSHIP OF DES MOINES.

Appeal from Jefferson County.

DISCRETIONARY ACTS. Abuse of discretion is not established by testimony showing that a different action would have been preferred by the electors.

DISTRICT ORGANIZATION. The county superintendent has no jurisdiction to determine the validity of district organization.

TESTIMONY. To be legal must be given under oath.

BOUNDARIES. Of subdistricts, changed between September and March.

MAJORITY VOTE. Of whole board required to change subdistrict boundaries.

A petition was presented to the board asking that certain territory in Des Moines township be set aside to form, in connection with territory to be obtained from the independent district of Liberty, number eight, a new subdistrict to be known as subdistrict number nine, Des Moines township. The board acted on this petition and made the following order: "In the matter of the petition of J. D. Handersheldt and Silas Pearson, asking for the formation of a new subdistrict to be known as number nine, in the district township of Des Moines, all the territory within the boundary lines therein described, is hereby granted, provided sufficient territory be granted by the independent school district of Liberty, number eight, to make a suitable and convenient subdistrict as to the amount of territory and the number of children of school age; and, provided, that in case the territory is not granted by said independent district of Liberty, number eight, then said territory hereby granted shall remain and be a part of subdistrict number five, of the district township of Des Moines."

On the twenty-eighth day of April, 1882, the board of the district township of Des Moines, at a special meeting, adopted the following resolution: "It is hereby ordered that all action heretofore taken by the board of the district township of Des Moines, in the formation and organization of subdistrict number nine, in the above named township, is hereby rescinded.” From this action of the board, J. D. Handersheldt appealed to the county superintendent, who upon hearing the case on appeal rendered the following decision: "A resolution passed rescinding an action which has not yet