This appeal may be made, even after the teacher has been non-suited in the courts. (19 Hun 609)

The appeal may be made in cities, as well as in rural districts. (D 3864, 4195)

Where there is a state board of education there is usually an appeal to it from a decision of the state superintendent. In some states appeals must be made first to the county superintendent (45 N J 100); in Ga. to the county board of education.

In Texas it is held that in case of dismissal unless the teacher avails himself of the right of appeal to the county and state superintendent, but instead asks the court for mandamus he has no cause of action. (38 SW 1110)

In New Jersey a dismissed teacher may not appeal to the courts. He appeals to the county superintendent, from whom appeal may be made to the state superintendent, and from the state superintendent to the state board of education. (48 Atl 556)

It is a rule of the commissioner of education that all acts and proceedings will be regarded as regular unless appealed from. The bringing of appeals for light and trifling causes will be discouraged. If vague or uncertain in statement or illegible and unintelligible, appeals will be disregarded. 3754)

(D

The commissioner will not assume jurisdiction of cases in the nature of a prosecution for the recovery of a fine or penalty; nor will he undertake to settle disputes as to contracts and other matters involving money, where the issue depends upon the truth of diverse statements and should be settled by the courts (D 1978, 27 N E 968); or where the amount involved is indeterminate, as where the contract has not been entered upon (D 3768, 3797, 4744, 4784); or to enforce the payment of money where a decision has been rendered, which should be left to the regular legal authorities.

A teacher who has taught two years and claims reengagement for the third but was not allowed to enter upon it, must

appeal to the courts. His damages, if any, are unliquidated, and it is not for the state superintendent to measure them. (4724)

But a teacher in the State of New York, who promptly and clearly presents to the commissioner of education evidence of unjust treatment by any school officers in the discharge of his duties under the school law, may be assured that the case will be thoroughly and impartially investigated, and a decision rendered with no expense to him, from which no appeal can be taken to any court of law. See pages 146, 7.

After being dismissed the teacher can draw no further pay. If a teacher succeeds in his appeal, he may receive wages for the whole time for which he was employed. (D 4294)

(86 I11 595, 2 Ill A 458, 50 Neb 171, 21 S W 1060, 69 S W 772, 51 Wis 554, But see 6 Cen Rep 923)

But only for the difference between the stipulated wages, and what he earned or might have earned at a similar employment in his own vicinity during the time covered by the contract. Greenleaf on Evidence, ii. Sec. 161 a: Chitty on Contracts, 11th Am. ed., ii, 855, note. (15 Colo 367, 36 Ill A 653, 21 S W 1060)

The burden of proving that the teacher could have secured other employment is upon the trustees. (23 Ill A 367, 36 Ill A 133, 60 Pac 1100)

As in other cases, the damages which can be recovered should be such as follow in the natural course from the wrongful act, and ought to be measured so as to put the plaintiff pecuniarily in the same position as he would have been if he had been dismissed rightly. He is not necessarily entitled, as was once thought, to his full salary for the unexpired time of his service according to the contract; he must not sit still and do nothing, but should use all reasonable exertions to get a new situation, and should accept of such suitable

employment as may offer itself. If he get a new situation without much delay, the damages will be reduced according to its value; but whatever the value of the new situation may be, the plaintiff is always entitled to some damages for the wrong done him by the breach of contract. If a master be engaged for a certain definite time, and he is dismissed wrongfully before the end of that time, he can sue at once, and need not wait until the time has expired. *** If, therefore, an action is brought for wrongful dismissal, and the contract was for service for a fixed time, which has not expired, the jury should estimate the probability of the plaintiff obtaining other employment, and deduct the value of such employment from the salary the plaintiff would have received, if he had continued in the service to the end of the agreed time. (14 L T NS 863)

The rules applicable to ordinary contracts of employment as to measure of damages obtain in cases of breach of contract to teachers in public schools. (117 N W 983)

A celebrated case in New York illustrates this principle. On June 28, 1880, Neil Gilmour, then superintendent of public instruction, demanded the peremptory resignation of James H. Hoose, principal of the Cortland State normal school and on July 12 "withdraw his approval" of his appointment. On July 24 he appointed James M. Cassety principal of the school. The local board refused to recognize the appointment, and on Sept. 1 opened the school under Dr. Hoose, six of the teachers appearing on the platform, while the other six obeyed the state superintendent.

On Oct. 26 Mr. Gilmour applied for a mandamus, which was granted; and on Feb. 15, 1881, the school was opened under Mr. Cassety. On Feb. 22, the local board appealed to the general term, which on Sept. 20, 1881, affirmed the decision of the court below. The local board then carried the case to the court of appeals, which on April 18, 1882, decided in favor of the local board. Whereupon Dr. Hoose once more took charge of the school, his six teachers returning with him. -S. B. viii. 119.

The governor vetoed the item in the supply bill to pay the salaries of Dr. Hoose and his teachers for the time they were kept out of the school, on the ground that the state should not pay twice for the same work; but on Jan. 22, 1884, the court of claims awarded Dr. Hoose for himself, and for his assistants who had assigned their claims to him, the sum of $12,551.25 and interest from April 26, 1882, including $3, 187.50 for his own salary. From this last item $1,493.43 was deducted, being the amount he had received from the city of Binghamton where he had served as superintendent a part of the interim. Dr. Stowell, teacher of sciences, who had not engaged in teaching elsewhere, received the full salary for the time, $2,167.50. On May 24, 1884, Gov. Cleveland affixed his signature to a bill paying this award.

CHAPTER XI

Trustee and Teacher

10. (a) To establish rules for the government and discipline of the schools in their respective districts. (195,229)

(35 Neb 1, 75 Neb 188, 52 N W 710, 77 N W 662, 13 Ill A 520, 17 III A 386, 63 II A 357, 87 Ill 303, 95 Ill 263)

The original authority to make rules and regulations lies in the trustees. The regulations of the school are implicitly a part of the teacher's contract. 119)

(45 Pac

(13 Ab Pr 159, 12 Allen 127, 2 Cush 198, 5 Cush 198, 8 Cush 160, 31 Ia 562, 38 Me 376, 105 Mass 475, 71 Mo 628, 23 Ohio 211, 29 Ohio 89, 23 Pick 224, 48 Vt 444, 473, 35 Wis 59, 45 Wis 150)

For a teacher to refuse to obey official rules would be insubordination, and warrant his discharge. See page

133.

Ky. requires the trustees to meet at the schoolhouse on the day of opening school, and at least one month thereafter during the opening session. Mont. requires every one of the trustees to visit the school at least once in each term, and inquire into its management, condition, and wants.

In Tenn., where a teacher suspended a pupil for using tobacco, in violation of a rule made by the teacher which the trustees objected to, the trustees were upheld in discharging the teacher. (5 Lea 525)

The school commissioner, or county superintendent, is to recommend to trustees and teachers the proper rules and regulations.

(313)