ritory were before the board has not been questioned.

Our attention is again called to the time in which the organization of the independent district may be completed. No sufficient reason has been presented to warrant us in changing our opinion in regard to this point.

The other question, whether or not the village of Belknap has sufficient population, was not raised at the hearing before the county superintendent nor this department and may not be considered now.

The foregoing review disposes of the material points involved in the motion for rehearing.

This department might have reversed the decision of the county superintendent and remanded the case to the board with instructions to establish the boundaries of the proposed district in accordance with the opinion of the attorneygeneral. Had this been done the only course for the board to pursue would have been to fix the boundaries of the district including all contiguous territory petitioned for. The course adopted appeared to be the more speedy and for that reason was chosen.

As previously stated, our decision is not final. The law wisely leaves the final settlement covering the formation of districts, in such cases as this, to the voters themselves. If those residing upon the outside territory proposed to be included, desire to vote separately on the proposition, they may do so. Should a majority of the votes cast on such outside territory be against the proposed district, it shall not be formed.

The application for rehearing is

DENIED.

RICHARD C. BARRETT, Superintendent of Public Instruction.

Des Moines, Iowa, October 18, 1898.

APPEALS.

O. F. HALE V. SCHOOL TOWNSHIP OF RIVERDALE.

Appeal from Kossuth County.

Should be conducted with fairness and impartiality.

TIME OF HEARING. If the county superintendent can not hear testimony for both parties at the time set for such hearing, he should give the parties ample time later to make a clear and full presentation of their cause.

At a special meeting of the board of directors, held September 30, 1898, it was voted to change the schoolhouse in subdistrict number one, from the present site to a point one mile west. From the decision rendered, O. F. Hale appealed to the county superintendent, who affirmed the board's action.

In appealing to the superintendent of public instruction, appellant alleges errors as follows:

1st. He, the county superintendent, failed to take into consideration the geographical position, number and convenience, of the scholars and residents of the subdistricts, as required by section 2773, Code of 1897.

2d. That the trial being set for 1 P. M. on October 27th, he failed to appear until about 4 P. M., and then conducted the trial in such haste and evident

impatience as to embarrass appellant whose witnesses had returned to their homes before the superintendent's arrival, and thus prevented him from fully presenting his case.

3d. That he refused to allow your appellant to argue his case and adjourned the trial without affording appellant an opportunity to fully present his case. It is due all parties in controversy that appeals be conducted with impartiality. The law expressly declares that notice of the time and place of hearing appeals shall be sent in writing by the county superintendent to all parties adversely interested. It is expected that the utmost fairness will be shown.

A failure on the part of the county superintendent to appear at the appointed hour set for hearing the case is not an error of great consequence, provided ample time is given all parties to make a clear and complete presentation of their cause.

We find no denial of errors charged and are disposed to remand the case to the county superintendent with the suggestion that he fix a time in the near future for hearing the case anew, and give notification to interested parties as provided by statute.

Having heard the testimony, and considered the geographical position, number and convenience of the pupils, he shall then make such decision as may appear just and equitable. REMANDED.

February 3, 1899.

RICHARD C. BARRETT, Superintendent of Public Instruction.

IRVING J. JOHNSTON V. INDEPENDENT DISTRICT OF SANBORN.

Appeal from O'Brien County.

RESTORATION OF TERRITORY. The refusal of a board of directors of an independent district to concur in the restoration of certain territory may not be reversed except when clearly shown that such refusal was an abuse of discretion. COUNTY ATTORNEY. It is not only wise but in conformity with law for the county superintendent to consult the county attorney before deciding an appeal.

The proceedings in this case are founded upon section 2792 of the code of 1897 and is brought to have several sections of land now included in the Independent District of Sanborn restored to the school township of Summit, to which they geographically belong.

The section to which reference is made above provides that territory so situated may be restored by the concurrent action of the boards of directors, and shall be so restored upon petition of two-thirds of the electors residing upon the territory proposed to be set off, provided the school corporation that is to receive back the territory and the county superintendent concur.

The transcript forwarded in this case is very complete. It shows that a petition signed by two-thirds of the electors was presented to the board of directors of the school township of Summit and the territory accepted. For some reason not apparent, it was not then presented to the county superintendent, but was laid before the board of directors of the Independent District of Sanborn. Said

board failing to act, an action was brought at the May term of the district court in 1898 to compel action. In response to the court's order the board met and considered the petition on the eighteenth of June and rejected the same.

From the decision of the board Irving J. Johnston et al. appealed to the county superintendent, who affirmed the order of the board, and said parties now appeal to the superintendent of public instruction.

In all cases of appeal the county superintendent is charged to make such decision as may be just and equitable. It is alleged that the decision rendered is not that of the county superintendent, but one given by the county attorney. We can not concur in the view taken by counsel for appellants. It is not denied, however, that the county attorney did submit to the county superintendent an opinion. In fact, the complete opinion of the county attorney is made a part of the transcript. Having heard the evidence, we think she acted wisely and in conformity with law in requesting the county attorney for the correct interpretation of the law relating to the issues, before deciding the appeal.

It is also alleged that the county superintendent erred in refusing to concur with the board of directors of the school township of Summit as provided in section 2792. A careful reading of the transcript convinces us that the appeal is not, in this instance, from the action of the county superintendent in refusing to concur, but from her decision in affirming the order of the board of directors in rejecting appellant's petition.

The question to be determined then is whether the board of directors of the Independent District of Sanborn in refusing to concur in the restoration of territory abused its discretion or violated law. The latter is not claimed.

It is contended that the restoration of the territory is desired in order that additional school facilities may be provided for the children of the school township of Summit. Such motives are commendable. Doubtless, the refusal to consent to the transfer of territory is, in part, for the reason that better school facilities are provided appellants by the board of directors in the Independent District of Sanborn.

As a part of the Independent District of Sanborn those residing upon the territory in question enjoy several advantages. Among them is that of attending a well graded school in which is taught not only the common school branches, but the advanced studies as well. Again, if territory is detached it becomes necessary for pupils to travel from the town while now not infrequently conveyances in the regular order of business carry children both to and from school. That these advantages are appreciated is evidenced by the remonstrance signed by all but one of the present electors having children of school age, and presented to the board of directors of the Independent School District of Sanborn prior to its action on the eighteenth of June.

If pupils of the school township of Summit are not enjoying school facilities such as are most profitable and the board is desirous of securing increased advantages it may arrange with any person outside the board for their transportation to and from school in the same or in another corporation. Expense incurred for such services may be paid from the contingent fund.

Having carefully considered all of the facts and circumstances entering into

the merits of the case, we can find no reason to warrant us in disturbing the decision of the county superintendent or setting aside the action of the board.

Des Moines, Iowa, February 8, 1899.

AFFIRMED.

RICHARD C. BARRETT, Superintendent of Public Instruction.

E. F. BACON V. THE INDEPENDENT DISTRICT OF WEST DES MOINES.

Appeal from Polk County.

EXPULSION OF PUPILS. Pupils may be expelled by the board for immorality, violation of the regulations and rules estblished by the board, or when their presence is detrimental to the best interests of the school.

JURISDICTION. The board of directors of a school corporation have no jurisdiction over children after the termination of the school year.

EXISTING SCHOOL. The order expelling a scholar must be from an existing school. The scholar's relationship with the school is severed when the school year has closed and vacation has begun.

The facts presented for consideration in this case show that on the third day of June, 1898, the superintendent of the West Des Moines city schools, in accordance with the provisions of section 2782 of the Code, notified the president of the board of directors of the suspension of certain pupils, among them Julius Bacon, son of the appellant, for acts of disorder, insubordination, and for conduct detrimental to the best interests of the school. On the sixth day of June the board of directors met in regular session and was addressed by the appellant in behalf of his son. Several of the suspended pupils present also spoke, acknowledged their wrong and asked for reinstatement. Julius Bacon acknowledged his error, but pleaded extenuating circumstances. The board then adjourned without action until June 13th, a week after the close of the school year, at which time Bacon was expelled for one year from June 3, 1898, and the others from four to seven months. From the action of the board E. F. Bacon appealed to the county superintendent, who heard the case in regular form and affirmed the action of the board. Appellant now appeals to the superintendent of public instruction.

The law provides that the board of directors may expel any scholar from school; first, for immorality; second, for violation of rules; third, when the presence of the scholar is detrimental to the best interests of the school.

To warrant the board in exercising its expulsive power it is not necessary that the scholar be a corrupter of youth, or a flagrant, or a persistent violator of the established rules. It may, if occasion requires, summarily expel a pupil whose presence is considered harmful to the best welfare of the school.

To deprive a pupil of school privileges, however, is an act of so much consequence that it should be decided upon only after all the circumstances entering into the case have been thoughtfully weighed.

The provision authorizing boards to expel when the presence of any scholar is harmful is a recent enactment. Formerly courts held that pupils could be

expelled from school only as a punishment for breach of discipline or for offenses against good morals.

Instances have arisen where pupils intellectually the superior of their associates and possessed of high ideals in many respects have, without displaying a spirit of insubordination themselves or openly disregarding the expressed wishes of those placed over them, become leaders and incited others to open revolt against the school authorities. Recognizing the weakness of the former provisions of law to deal with such cases, the general assembly in revising the code inserted the third division above given in order that boards could protect the interests intrusted to them. While the provision is an excellent one, the power conferred by it should always be exercised with great care and within proper and legal limits.

Several questions are presented to us for consideration by counsel for appellant. In view of the construction we feel obliged to put upon section 2782 it is only necessary to determine the question: Has the board of directors of a school corporation jurisdiction over children after the termination of a school year, as determined by the board of directors?

We are unable to find that this question has ever been determined by the supreme court of our state; hence to a certain extent reliance is placed upon the holdings of the judicial tribunals in other states. In a Nebraska case given in 48 Northwestern Reporter we find that an attempt was made to show that the board was justified in expelling a pupil because of an alleged insubordination. In answer to the allegation the court said: "But the charge even if true relates to her conduct during a former term of school. We need not determine therefore whether the testimony sustains that charge or not." Here the court declined to consider alleged charges of insubordination because they were committed at a term of school having previously closed.

The statute says that the board of directors have power to “expel any scholar from school." This language evidently means that before a board of directors may issue a valid order expelling a scholar from school, there must be an existing school and also a scholar to be expelled therefrom.

The transcript shows that all school exercises for the year had closed, contracts had expired and teachers were released.

While boards of directors are charged with the making of rules for the government of schools, we are not disposed to hold that the law authorizes them to exercise control over teachers and pupils during vacation. Notwithstanding the fact that the board in this case ordered one pupil expelled for four months, three of which are for the vacation months of June, July and August, we are not fully satisfied that the board claims such authority or wishes to be charged with the responsibility. If such is the view taken, however, it can not be sustained.

Julius Bacon had been a scholar the past year, but the relationship was severed at the time of the board's action. There is nothing to indicate that he would present himself and claim school privileges at the opening of the next year.

We are always gratified when we can affirm the decision of a county superintendent who has sustained a discretionary act of a board. A statement of fact such as was in this case presented to the county superintendent for his con