law that "oral evidence cannot be substituted for any instrument which the law requires to be in writing, such as records, public documents," etc. 1 Greenleaf's Evidence, 286. "It is a well settled rule that, where the law requires the evidence of a transaction to be in writing, oral evidence cannot be substituted for that, so long as the writing exists and can be produced; and this rule applies as well to the transactions of public bodies and officers as to those of individuals." The People v. Zeyst, 23 N. Y., 142. In the case of Taylor v. Henry, 2 Pick., 397, the supreme court of Massachusetts held that an omission in the records of a town meeting could not be supplied by parol evidence. Chief Justice Shaw, in discussing the case, said that it would be "dangerous to admit such a proof." Mr Starkie, in his valuable treatise on evidence, says: "Where written instruments are appointed either by the immediate authority of the law or by the compact of the parties, to be the permanent repositories and testimony of truth, it is a matter both of principle and of policy to exclude any inferior evidence from being used either as a substitute for such instruments or to contradict or alter them; of principle, because such instruments are, in their own nature and origin, entitled to a much higher degree of credit than that which appertains to parol evidence; of policy, because it would be attended with great mischief and inconvenience, if those instruments upon which men's rights depend were liable to be impeached and controverted by loose collateral evidence." Starkie, part IV, page 995, volume III, 3d Am. Ed.

The reason of the rule upon which the courts agree with such entire unanimity applies with force in the case now under consideration. The records of the district and board meetings contain a statement of the regulations adopted, and the acts done in the exercise of the powers with which the respective bodies are invested by the law. They present to all the citizens of the district township, in a permanent form, certain and definite information which could be obtained, with equal certainty, in no other way. Memory is defective, but the secretary records the transactions as they occur. The actors change from year to year, but the record is permanent. And though the admission of oral testimony to alter a record or to supply an omission therein might sometimes promote the attainment of justice, the prevalence of such a practice would result in more evil than good It is held, therefore, that in the absence of alleged fraud the county superintendent errs, in admitting parol evidence to contradict or impeach the record of the September meeting of the board.

In regard to the other part of the second point a few words will suffice. The counsel for appellant urges that though the record of the September meeting was imperfect, the lapse of thirty days made the record valid and binding upon the district. It is true that the right to take an appeal to the county superintendent expires after thirty days, but I am unable to see how the lapse of time will validate what was before invalid. The secretary is the proper custodian of the records of the school district, and before the record of the proceedings of the board has been approved or adopted by the board, the secretary may amend them by supplying omissions, or otherwise correcting them. After they have been approved they may be amended and corrected by direction of the board, even after the lapse of thirty days. In Massachusetts a town clerk is permitted to amend the record in order to supply defects, even after a suit involving a question respecting them has been commenced. I am of the opinion that if the secretary or board of directors decline to make necessary corrections in the record, that a party interested may proceed by mandamus to compel the correction. If the record is to be impeached, it must be, in the absence of fraud, by a direct proceeding instituted for that purpose, and not by a collateral or indirect method. The People v. Zeyst, 23 N. Y., 147-8.

The district record in this case is not as full as it might with propriety be. The law provides that the boundaries of subdistricts shall not be changed except

by the vote of a majority of the members of the board. The record fails to show that this requirement of the law was complied with at the September meeting. The secretary says that the motion to redistrict "carried." This is his opinion, but he fails to give the fact upon which it is based. Four of the seven members were present, but he does not say who, or how many voted for the change. Properly this should have been stated. When, however, the district record declares that a motion was "carried," the law will presume that it was carried in accordance with the requirements of the statute; though there is reason to believe that the presumption in this instance is a violent one. It follows that there was no legal evidence that the subdistricts were not established in accordance with law; hence, the conclusion is inevitable that the county superintendent erred in dismissing the appeal for the cause assigned.

At the commencement of the trial and again during its progress, the defendant moved the county superintendent to dismiss the case on account of the insufficiency of the affidavit. The affidavit of Mr. Sipple is not as full as it is usual to make affidavits in such cases, yet it "set forth the errors complained of" with such plainness and conciseness as enabled the county superintendent to obtain the necessary transcripts, and this is all the law really requires. It has not been customary heretofore to enforce any particular form of affidavit, and the superintendent's ruling refusing to dismiss on defendant's motion is sustained.

As the testimony appears not to have been all in when the case was dismissed by the county superintendent, no opinion can be given in regard to the propriety or necessity of establishing the proposed new subdistricts. The case is therefore returned to the county superintendent, who will proceed with the hearing, first allowing a reasonable time for the correction of the district record or for the enforcement of its correction should such correction be deemed necessary by either of the interested parties. Should the district record be amended so as to show conclusively that the said subdistricts were not legally formed at the said meeting in September, it will follow that the said subdistricts never had a legal existence, and that the plaintiff could not be aggrieved by the action of the February meeting, hence the county superintendent will determine the case in favor of the appellee. Should said record not be amended, or should it be amended so as to show clearly that said subdistricts were established in all respects in con'formity with law, the question of establishing the new subdistricts, or more properly retaining their organization, will be determined upon its merits.

July 23, 1868.

REVERSED.

D. FRANKLIN WELLS, Superintendent of Public Instruction.

E. J. MINER V. DISTRICT TOWNSHIP OF CEDAR.

Appeal from Floyd County.

CONTESTED ELECTION. The proper method of determining a contested election for school director is by an action brought in the district court.

ELECTION. The certificate of the officers of the subdistrict meeting is the legal evidence of election as subdirector, and as a general rule a board of directors is justified in declining to recognize a person as a member of the board until he produces such certificate.

EVIDENCE. Where the law requires the evidence of a transaction to be in writing, oral evidence can be substituted only if the writing cannot be produced. QUO WARRANTO. The remedy of a person denied possession of an office to which he has been chosen, is an action in court.

At the regular meeting of the board in March, 1868, E. J. Miner appeared and filed his oath of office as subdirector of subdistrict number three, and claimed recognition as a member of the board. The said Miner failed to present the certificate of the officers of the subdistrict meeting, or any other evidence of his

election except his own verbal statement. It was alleged in the board that he was not legally elected. Under these circumstances, the board refused him a seat and recognized his predecessor as holding over. From this order the said Miner appealed to the county superintendent, who, after a full hearing of the manner in which the election was conducted, reversed the order of the board, and directed that the said Miner should be recognized as subdirector of subdistrict number three, and as a member of the board of directors. From this decision an appeal is taken by A. J. Sweet, president of the board. The above are but a small portion of the facts presented in the well arranged transcript of the county superintendent, but yet all that are material to the issues involved.

The case presented by these facts is similar to that of Ockerman v. District Township of Hamilton, page 77, School Law Decisions of 1868, and must be governed by the same principles. It was there held that the only proper way of determining a contested election or the right of exercising any public office or franchise, is by an action in the nature of quo warranto brought in the district court. It seems unnecessary to repeat the arguments there used. Reference is made to that case as well as to the 19 Iowa, 199; 18 Iowa, 59; 16 Iowa, 369; 17 Iowa, 365; and the other cases there cited. The principle involved in the preceding references was recognized by the county superintendent, when he said in his decision that "the board of directors has no jurisdiction to inquire into the legality of the election of its members." When this just conclusion was reached, the case should have been dismissed, for the county superintendent can do on appeal only what the board itself might legally have done.

The county superintendent held that as the president of the subdistrict meeting refused to sign a certificate of election for the said Miner, that the board might receive other evidence of his election. In this the county superintendent departed from well established legal principles. The school law provides that at the meeting of the electors of the subdistrict on the first Monday in March, "a chairman and secretary shall be appointed, who shall act as judges of the election, and give a certificate of election to the subdirector elect." It is a well settled rule, that where the law requires the evidence of a transaction to be in writing, oral evidence cannot be substituted when the writing can be produced; this rule applies alike to transactions of public bodies, officers, and individuals.

There can be no doubt that the law contemplates that the certificate of the officers of the subdistrict meeting shall be the legal passport to a seat in the board, and that, as a general rule, a board of directors is justified in declining to recognize a person as a member of the board until such certificate is produced. If the certificate has been given and lost, the accident may be remedied by other testimony. If illegally withheld, the officer may be coerced by mandamus to furnish it. If it has been fraudulently given, the law still provides a remedy.

By the light of the previous principles, it is evident that when, under the circumstances, the county superintendent proceeded to investigate the rights of the plaintiff as a school director, he exceeded his jurisdiction, and that his decision must therefore be overruled. The law requires that the plaintiff, Miner, shall seek his remedy in the courts. The decision of the county superintendent is therefore reversed and the case dismissed.

July 29, 1868.

REVERSED.

D. FRANKLIN WELLS, Superintendent of Public Instruction.

N. R. HOOK V. INDEPENDENT DISTRICT OF FREMONT.

Appeal from Mahaska County.

SCHOOL PRIVILEGES. Are not acquired by temporary removal into a district for the purpose of attending school.

At a meeting of the board an order was made excluding one George Check from school. From this order Dr. N. R. Hook, with whom the boy was at the

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time living, appealed to the county superintendent, who affirmed the order of the board, and Hook again appealed.

The ground upon which the boy was debarred from school, was that he was not a bona fide resident of the district, and this is fully sustained by the circumstances of the case as shown by the weight of evidence as adduced before the county superintendent. The apparent primary purpose of George Check in going to live with Dr. Hook, was that he might attend the school at Fremont, and after the term of school should expire, his further continuance at Hook's would be uncertain. He did not go there with the intention of remaining, but the intention to return to his father's house seems to have been manifested in the contract or agreement made with Hook.

Counsel for appellant argues that the law should not be technically construed, but that it should receive a liberal construction, and in this he is correct. It should receive such a construction as that all the youth of the state, without regard to race or condition in life, can, with equal facility, participate in the benefits of our free schools. There is evidence that the schools in Fremont are so crowded that many of the youth of the district are unable to gain admission, and the law gives to them the prior claim. The board should see that the children of the district are first accommodated, and then, if not detrimental to the interests of the school, it may admit, in its discretion, those from outside districts upon such terms as it may agree.

Believing that the county superintendent properly sustained the board of directors, his decision is hereby AFFIRMED.

May 1, 1870.

A. S. KISSELL,

Superintendent of Public Instruction.

Z. W. REMINGTON V. DISTRICT TOWNSHIP OF BOOMER.

Appeal from Pottawattamie County.

JURISDICTION. The county superintendent does not have jurisdiction of cases involving a money demand.

SCHOOL ORDERS. When improperly issued, a proper remedy is injunction.

On the 12th day of October, the board met in special session and made a set ́tlement with one L. S. Axtell, who was the contractor for the erection of certain schoolhouses in said district township. From the action of the board, Z. W. Remington appealed to the county superintendent, who dismissed the appeal upon the ground that the settlement with Axtell was for a money demand, and therefore involved a question over which he could exercise no jurisdiction. Remington again appeals.

If there was anything wrong in the action of the board issuing orders in favor of Axtell for the payment of his claim for building the schoolhouses that would render them invalid, his remedy, if any, would have been by injunction to restrain the payment of such orders, or by some other proper action in the civil courts, and not by appeal to the county superintendent, as the latter tribunal is not clothed by the statute with authority to inquire into or determine the validity of school orders. The county superintendent, therefore, very properly decided to dismiss the appeal, and his order in the case is hereby AFFIRMED.

May 17, 1870.

A. S. KISSELL, Superintendent of Public Instruction.

W. D. PECK et al. v. DISTRICT TOWNSHIP OF POLK.

Appeal from Jefferson County.

SUBDISTRICTS. Should be, if possible, compact and regular in form. In well populated district townships, two miles square is considered a desirable area.

SCHOOLHOUSE SITE. It is important that a schoolhouse site be located on a public road, and as near the center of the subdistrict as practicable.

It appears from the transcript in this case that the board, on the presentation of a petition from the majority of the inhabitants of subdistrict number eight, issued an order attaching a strip on the northeast from subdistrict number seven to number eight, relocating the schoolhouse site, and arranging for the removal of the schoolhouse from the present site to said new location. From this action of the board an appeal was taken to the county superintendent, who sustained the action of the board, and from his decision an appeal is taken to this tribunal.

The trial before the county superintendent developed that the board has in contemplation the redistricting of the entire township into subdistricts two miles square, and that the order providing for the change of boundaries in subdistrict number eight is the initiatory step in that direction. The subdistrict in question, previous to the order, had very irregular boundaries; and except that the district is too large for convenience without further change in the boundaries, there would seem to be every reason for attaching the strip from number seven. That being attached, the change of location and the removal of the schoolhouse to a site occupying the geographical center of the subdistrict with its changed boundaries, must follow of course. Besides this, there seems to be the additional good reason for the change of location for the schoolhouse site: the present site is not on a public road; the one in prospect is, and as all the territory is in a condition to be easily and rapidly settled, the new site will, with the additional change in contemplation, be the exact geographical center of the subdistrict.

The action of the board in this case is manifestly of a discretionary character, and I can see nothing in the testimony that would induce the belief that it has in any way exceeded its prerogative, or abused its discretion. The decision of the county superintendent is therefore AFFIRMED.

February 4, 1871.

A. S. KISSELL, Superintendent of Public Instruction.

W. P. DAVIS V. DISTRICT TOWNSHIP OF MADISON.

Appeal from Fremont County.

CONTRACTS. Made by a committee require the approval of the board in session. SCHOOL FUNDS. The treasurer is the proper custodian of all funds, and may legally pay them out only upon orders specifying the fund upon which they are drawn and the specific use to which they are applied.

SUBDIRECTOR. The subdirector may expend money in his subdistrict only in the manner authorized by the board.

CLAIMS. Just claims against the district can be enforced only in the courts. MANDAMUS. Is a remedy if the board refuses to carry out a vote of the electors. SUBDISTRICT. A subdistrict is not a corporate body, and has no control of any public fund.

The electors on the 11th day of March, 1871, voted a tax of two and onehalf mills on the taxable property of the district township for schoolhouse purposes, and directed that three hundred dollars of the amount thus raised should be used for the erection of a schoolhouse in subdistrict number nine.

March 20, 1871, W. P. Davis, subdirector of subdistrict number nine, was appointed a committee to build a schoolhouse in said subdistrict. The house having been completed, at a special meeting of the board held June 1, 1872, it was moved that the report of the committee be received, and the schoolhouse be accepted; also that the secretary be instructed to draw an order on the treasurer for three hundred dollars, for subdistrict number nine. Both motions were lost, from which action the said W. P. Davis appealed to the county superintendent, who on the 9th day of August, 1872, reversed the action of the board. The district township, through its president, W. H. Gandy, appeals.