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in the school laws of at least all of the following States: Arkansas,' Connecticut, Florida, 3 Louisiana, Massachusetts, Michigan, Minnesota, Mississippi, Nebraska, Nevada," New Hampshire," New Jersey,'2 New York,13 North Dakota," Rhode Island,' Vermont,'3 West Virginia'? and Wisconsin.18

Act, April 20, 1895, sec. 2, cf., Sch. law, 1895. · Sch. law, 1896, sec. 13.

s Sch. law, 1895, sec. 33, 3rd. Com. Ed. Rep., 1884-5, pp. 103-4.

5 Sch. law, 1892, ch. 42, secs. 1-3. 6 Sch. law, 1895, ch. 15, secs. 3,4 and 7.

7 Stat. Minn., 1894, sec. 3727. 8 Sch. law, 1894, secs. 4062–63.

9 Sch. law, 1895, p. 52. "Gen. Stat. Nev., 1885, sec. 1291. 11 Sch. Law, 1895, ch. 94, sec. 4. 12 Rule 36, Sch. law, 1895, p. 143. 13 Consol. Sch. law, 1895, title x, sec. I. 14 Sch. law, 1896, pp. 24 and 62.

15 Pub. Stat. R. I., 1882, p. 153. 16 Vermont Stat., 1894, sec, 598.

17 Code W. Va., 1891, p. 378. 18 Sanborn & Berryman, Annot. Stat. Wis., sec. 407.

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CHAPTER X

APPELLATE JURISDICTION OF STATE SUPERINTENDENTS AND

STATE BOARDS OF EDUCATION

QUITE a sharp entering wedge towards centralization has been driven in many States by vesting either in the State superintendent or the State board of education the power of hearing appeals and deciding controversies among local authorities arising under the school laws. This appellate jurisdiction has been expressly conferred by law upon the central educational authorities in at least twenty-eight States." ALthough the extent of this jurisdiction varies somewhat in the different States, it will be fair, I think, to quote the New York law as somewhat typical of at least quite a number of the above States. The provisions of the present New York law on this subject are as follows:

Title XIV. Section 1. Any person conceiving himself aggrieved in consequence of any decision made:

(1) By any school district meeting;

(2) By any school commissioner or school commissioners and other officers, in forming or altering, or refusing to form or alter, any school district, or in refusing to apportion any school moneys in any such district or part of a district;

(3) By a supervisor in refusing to pay any such moneys to any such district;

(4) By the trustees of any district in paying or refusing to pay any teacher, or in refusing to admit any scholar gratuitously into any school;

i Cal., Col., Del., Fla., Ga., ill., Ind., Ia., Kan., Ky., La., Md., Miss., Mont., Neb., Nev., N. J., N. Y., N. D., Or., Pa., R. I., S. D., Tex., Ut., Va., Wash., Wis. 215]

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(5) By any trustees of any school library concerning such library, or the books therein, or the use of such books;

(6) By any district meeting in relation to the library;

(7) By any other official act or decision concerning any other matter under this act, or any other act pertaining to common schools, may appeal to the superintendent of public instruction, who is hereby authorized and required to examine and decide the same; and his decision shall be final and conclusive, and not subject to question or review in any place or court whatever."

The superintendent of public instrection is also empowered to regulate the practice in these appeals, and to make all orders “necessary or proper to give effect to his decision.”

The express statement of the law in quite a few of the States besides New York, and the evident intent of the law in most of the above States, is that the decisions of either the State board or the State superintendent shall be final, although the law of some of these States subjects this appellate jurisdiction of the educational department to the control of the courts.' The absence of contested cases in the courts in most of these States would also seem to indicate that in practice the appellate jurisdiction of the State educational authorities is final.

Although the question of the appellate jurisdiction of the State superintendent and the State board has not often been taken into the courts, there have been a few cases, and these have served to define more clearly the nature and the extent of this jurisdiction. Indeed, we cannot get a correct idea of this appellate jurisdiction without noting some of these cases.

One of the earliest cases bearing on the general question was that of Joint School District No. 7 vs. Wolfe,' rendered by the

Cf., for example, Neb. Sch. law, 1895, p. 48; N. D. Sch. law, 1896, p. 27; Wash. Sch. law, 1893, p. 8.

9 12 Wis., 765.

Wisconsin Supreme Court in 1860. In this case, in connection with a decision that the assistant State superintendent could not hear appeals, the court admitted that the decision of the State superintendent was final concerning the formation and alteration of school districts, " or concerning any other matter under the school law of the State.Eighteen years later (1878), in the case of State ex rel. Burpee vs. Burton,' the same court held that the decisions of the department of public instruction upon questions within its jurisdiction are entitled to great weight, and should not be overruled by the courts unless clearly contrary to law. Closely related with this latter decision was that rendered in the Appeal of Cottrell, (1873), which held that such decisions of the department are of value in construing the school law when it admits of different constructions.

In 1867, the New York Supreme Court, in the case of People vs. Collins,3 held that the decision of the State superintendent was final and conclusive, and not subject to question or review in any place or court whatever,” regarding “all questions relating to the holding of school district meetings, and any

and all official acts of school officers, trustees, commissioners, supervisors, or others, relating to the conduct of common schools, or concerning any matter, act or duty required or performed under the law providing for the organization and maintenance of common schools, or any law relating or pertaining thereto.” In 1880, in the case of People ex rel. Yale vs. Eckler+ the same court held substantially the same opinion. This was a case of a school trustee engaging a teacher and then discharging him before the expiration of the time of the contract and refusing to pay. On appeal the State superintendent decided in favor of the teacher and directed the trustee to pay the amount claimed. The court upheld this decision of the State super

45 Wis., 150. '10 R. I., 615. S 34 How. Pr., 336. * 19 Hun., 609.

intendent, again declaring that his decision was “ final and conclusive, and not subject to question or review in any place or court whatsoever." At the same time the court declared that the trustee waived any right he may have had to a trial of the question by a jury, by answering the appeal and submitting the case without objection to the superintendent. Again in 1892, in the case of People ex rel. Clingan vs. Draper,' the Supreme Court upheld the decision of the State superintendent and declared that the court would not reverse the decision of that official as to a matter where the statute made his decision conclusive. This was

a case of the State superintendent declaring a certain action of a certain district void, and removing a trustee for not closing up the affairs of said district pursuant to a law passed in 1891. On the other hand, this court has decided, in the case of People ex rel. Trustees vs. Town Auditors,(1891), that “the power to hear and determine an appeal from the action of the town auditors is not included in the jurisdiction conferred by the legislature upon the superintendent in the statute relating to schools."

In 1887 the Iowa Supreme Court, in the case of Newby vs. Free,3 held that, as to such questions as are by law within the jurisdiction of the various school officers of the State, “the decision of the superintendent of public instruction must be regarded as final and conclusive, and binding on the parties, and it follows that such decisions must be enforced by the courts.”

The Maryland Court of Appeals, in the case of Wiley, et al., Trustees vs. School Commissioners of Alleghany Co., (1879), held that the power of the State board of education to decide controversies was a "visitorial power of the most comprehensive character, .. and wherever that power exists, and is comprehensive enough to deal with the ques

163 Hun., 389. ? 126 N. Y., 528. * 72 la., 379. 51 Md., 401.

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