dismissed the same on the ground that no action was taken by the board which could furnish the basis of an appeal. The case comes now on appeal before the superintendent of public instruction.

The only point to be decided is whether an appeal may be taken from a vote to lay on the table. The words of the law in section 1829 are that any person aggrieved by any order or decision of the board may appeal. The transcript sent up by the secretary in this case reads: "Moved and carried that the bill (petition) of G. Rogness be laid on the table." It must be held that this constitutes an action on the part of the board. The motion to lay on the table was made, was voted upon, was declared carried, and is so recorded upon the secretary's book. The above conclusion is in accord with the unvarying opinion of this department for a long number of years.

It is to be noted that in the case cited by counsel for the side of the district, in 71 Iowa, page 634, the supreme court does not attempt to decide what constitutes an action. It refers to cases in which the board purposely intend, by neglect or refusal, to avoid taking an action or making an order or decision. In the case we are now deciding the board made an order, which the secretary recorded in the minutes, "that the petition be laid upon the table." The decision of Superintendent Abernethy (see S. L. Dec. 1892, page 62), that the motion to lay on the table "furnishes a convenient method of disposing of the matter," appears to be to the point. The right of the board to make such a disposition of a case can not be questioned, but it must be regarded as an action subject, like any other action, to appeal.

After studying up carefully the precedents as established by the rulings of this department, and reading with equal care the cases cited by counsel, we can arrive at no other conclusion. The case is reversed, with the suggestion to the superintendent that he remand the case, in order that the board may take such further action as may seem fair and just to all concerned.

REVERSED. HENRY SABIN,

January 11, 1895.

Superintendent of Public Instruction.

MARY GREY V. INDEPENDENT DISTRICT OF BOYLE.

Appeal from Iowa County.

BOARD OF DIRECTORS. In locating a site the board acts wisely in taking into consideration the prevailing sentiment of the people.

COUNTY SUPERINTENDENT. Should reverse the action of the board only upon the clearest and most explicit proof of abuse of discretion.

The history of this case is not different from that of many others. The schoolhouse of the district is unfit for use, and the electors voted bonds to build a new one. By a vote very nearly unanimous they directed the board to locate the new house on a site 160 rods east of the present site. While we do not hold that this vote was binding upon the board, it showed at least the prevailing sentiment of the district, and the board acted wisely in taking it into consideration in selecting a new location. See also case on page 75, S. L. Dec.

1892.

As it was not able to purchase a site desired by the electors, the board chose one 30 rods farther west. From this action Mrs. Mary Grey appealed. The county superintendent reversed the order of the board, and appeal is taken to the superintendent of public instruction. The transcript as sent up with the case reveals no new point of law to be considered. The proceedings of the board were regular and in accordance with the law. The evidence nowhere shows any passion, prejudice, or malice on the part of the board. The responsibility of selecting the site rests with the board, that body having original jurisdiction. See also case on page 138, S. L. Dec. 1892. The county superintendent having only appellate jurisdiction, should reverse its action only upon the clearest and most explicit proof of abuse of discretion. Reference is here made to the case of Edwards v. Dist. Twp. of West Point, page 22, S. L. Dec. 1892, as presenting a very conclusive discussion of the principles involved.

While we always regret to be compelled to disturb the decision of a county superintendent, and concede that in this particular case the county superintended was actuated only by the best motives, we can not find any such satisfactory proof that the board erred as would warrant the county superintendent in reversing its action. The decision of the county superintendent is

August 26, 1895.

REVERSED. HENRY SABIN,

Superintendent of Public Instruction.

MARY GREGORY V. W. A. MCCORD, Co. SUPT.

Appeal from Polk County.

COUNTY SUPERINTENDENT. Unless a marked abuse of discretionary power is clearly and conclusively proved, his action in refusing or revoking a certificate will not be interfered with on appeal.

Section 1767 provides that if the county superintendent is satisfied that an applicant possesses the requisite knowledge of the branches specified in section 1766, and a good moral character, together with the essential qualifications for governing and instructing children and youth, then said county superintendent shall grant a certificate to teach in the schools of his county, for a time not to exceed one year. If he is not satisfied that the candidate is adequately qualified in every one of these particulars, then the certificate may be denied.

Section 1771 provides that the county superintendent may revoke a certificate for any reason which would have justified the withholding thereof when. the same was given, provided that there shall be an investigation, of which the teacher shall have personal knowledge and be permitted to be present and make defense.

It must be left entirely to the judgment of the county superintendent to determine what are the essential qualifications for governing and instructing children and youth. No court will attempt to control his discretion in this matter. He may conclude that the teacher fails through laziness, moroseness of temper, want of self-control, or by reason of some marked physical defect concealed at the time of examination, or any one of many other points, without in the least impeaching the moral character of the teacher, or his technical knowledge of the branches to be taught.

We are compelled to hold that the county superintendent had full and complete jurisdiction of the case at bar.

The law provides that the teacher shall have the fullest opportunity to make his defense. The county superintendent was occupied nine days in trying this case. There can be no doubt that this provision of the law was complied with in every particular.

The only other point to be determined concerns the abuse of discretion on the part of the county superintendent. A careful review of all the papers sent up in the transcript fails to show any passion, prejudice or malice on his part. We find that the proceedings were regular and in accordance with the law.

The counsel for Mary Gregory submits a large number of errors on the part of the county superintendent, but we can not find that any one of them is vital to the case. The rulings made by the county superintendent have no material effect on the final decision of the case, and the exceptions of the plaintiff are passed over. Special reference is made to the case of Dougherty v. Tracy, page 17, S. L. Dec. 1892, in which this whole subject is thoroughly and fully discussed by one of the ablest men who ever occupied this office.

The same discretion which the county superintendent has in issuing a certificate he possesses in revoking it. The supreme court has held that it can not control such discretion, or substitute its own judgment for that of the officer. See 52 Iowa, 111. It is not for us to say that Mary Gregory is or is not a fit person to teach in the schools of Polk county. The law vests that right in the discretionary power of the county superintendent, and he must assume the responsibility. Unless a marked abuse of his discretionary power is clearly and conclusively proved, his action in refusing or revoking a certificate will not be interfered with on appeal. See Walker v. Crawford, page 115, S. L. Dec. 1892.

After a careful consideration of all the points involved, we find no reason to warrant reversing the action of the superintendent. AFFIRMED. HENRY SABIN,

September 26, 1895.

Superintendent of Public Instruction.

E. E. AMSDEN V. INDEPENDENT DISTRICT OF MACEDONIA.

Appeal from Pottawattamie County.

AFFIDAVIT. The affidavit may be amended when such action is not prejudicial to the rights of any one interested.

AFFIDAVIT.

Must be accepted, if sufficient to give the appellant a standing. APPEAL. Mere technical objections should not prevent the fullest presentation of the merits of the case in the trial of an appeal.

TESTIMONY. Sufficient latitude should be allowed in the introduction of testimony to permit a full presentation of the issues involved, even if irrelevant testimony is occasionally admitted.

There are certain facts in this case concerning which there is no disagreement. The board of directors contracted on the twenty-sixth day of March, 1895, with E. E. Amsden to teach upon terms clearly set forth in the contract

as signed by both parties. Concerning the validity of this contract there is no doubt expressed.

Upon the fifth day of July the said Amsden had a hearing before the board upon definite and well specified charges. He was duly notified of these charges, was present both himself and by counsel at the time of trial, and was allowed to make his defense. The board took time for deliberation, and finally on the eighth day of July made an order annulling the contract, and in effect discharging the teacher. From this decision Mr. Amsden appealed to the county superintendent, who on the third day of September rendered a decision dismissing the case on account of the legal insufficiency of the affidavit.

There are only two questions involved. Was the original affidavit sufficient to enable the county superintendent to assume jurisdiction of the case? And Icould the affidavit be amended at the time of trial?

It must be held that the lapse of thirty days from the making of the order sought to be appealed from does not affect in any way the right of the appellant to amend his original affidavit. If he offered his amendment at the time of trial he complied with the usual practice. Whether the amendment should be admitted depends upon its nature. If it set up a new and distinct issue, one not involved in any way in the original affidavit, then the county superintendent should refuse to allow the amendment to be made. See case on page 141 in S. L. Dec. 1884. An amendment is, however, admissible when it tends to correct mistakes or to make clearer or more explicit the charges contained in the original affidavit. See case on page 25, S. L. Dec. 1892. In the case at bar the amended affidavit introduces no new issue and does not in any way prejudice the rights of any person. We think the county superintendent committed error in refusing to admit the amendment.

Now as to the original affidavit. We do not understand what is meant by tue term legal insufficiency. It is to be remembered that no very definite rules have been or can be adopted for the trial of cases before the county superintendent. This department has always held that the system of appeals was intended as a speedy and inexpensive method of adjusting school difficulties. See case on page 25, S. L. Dec. 1892. The supreme court has held that it "is abundantly manifest that the legislature designed to afford an inexpensive and summary way of disposing of these cases." See 68 Iowa, 161. Mere technicalities can not be allowed to intervene to defeat the ends for which the system of appeals was instituted.

The appellant sets forth in his affidavit that the board acted through passion and prejudice, and that he did not have the fair and impartial trial guaranteed to him by section 1734. On these as well as on other grievances set forth in the affidavit the appellant has the right to be heard before the county superintendent, to introduce testimony, and to be heard, by himself or his

counsel.

The law makes it obligatory upon the county superintendent to hear such a case, to weigh carefully and without prejudice the evidence and the arguments, and to render his decision in accordance with his judgment. This is the more important in such cases, because the teacher has no other remedy in law of which he can avail himself. Through some informality which does not in any way affect the issues in the case he should not be deprived of his right of appeal.

We say nothing of the merits of this case. We know nothing of them. We believe the affidavit of appeal was sufficient to give the appellant a standing before the county superintendent, and that is the only point upon which we are called to pass.

The case is remanded to the county superintendent, with directions to fix a time of hearing the same within fifteen days from the date of this decision, and to notify all concerned, that they may be present.

November 21, 1895.

REVERSED AND REMANDED.
HENRY SABIN,

Superintendent of Public Instruction.

D. C. MCKEE V. DISTRICT TOWNSHIP OF GROVE.

Appeal from Humboldt County.

SUBDISTRICT BOUNDARIES.

When an action has been reversed by the county superintendent, and that decision affirmed by the superintendent of public instruction, the board can not act again until a material change has taken place. SCHOOLHOUSE SITE. When purchased need not necessarily be upon a highway. DISCRETIONARY ACTS. An appellate tribunal is not to decide mainly whether the action complained of was wise, or the best that might have been taken, but simply whether a reversal is required by the evidence.

In this case the board on September 16, 1895, made two orders. By the first of these it divided subdistrict number seven in said township into two subdistricts, to be known as number seven and number nine, and established the boundary line between them. By the second action it ordered the removal of the schoolhouse, now located on section 34, township 92 north, range 28 west, removed and located on section 33, township 92 north, range 28 west, on the Sherman and Dakota road, and authorized the president to draw an order for the payment of the same on report of the committee.

From these two actions D. C. McKee appealed to the county superintendent, who reversed both actions of the board and relocated the schoolhouse on the old site. From the order removing the schoolhouse D. C. McKee takes an appeal to the superintendent of public instruction. The former action of the board dividing the subdistrict and reversed by the county superintendent is not in the case. This simplifies the matter and leaves as the only point to be considered the discretionary act of the board in ordering the removal of the building to the new site.

The district as at present constituted is four and one-half miles from east to west in extreme length. The two schoolhouses stand within a mile of each other.

There are several points brought in by the county superintendent and in the arguments of the attorneys which need but a brief notice. It appears that at a previous meeting of the board it took action removing the schoolhouse to a site near the present new site, which action was reversed by the county superintendent, and that there has been no material change in the district since that. This does not act as a bar in any sense to the present proceedings. For a full discussion of this point see P. O'Connor, Jr., v. District Township of Badger, page 108, S. L. Dec. 1892.