dissenting. — The Code, Sec. 1829, provides as follows: “Any person aggrieved by any decision of or order of the district board of directors, in matter of law or fact, may within thirty days after the rendition of such decision or the making of such order appeal therefrom to the county superintendent.” By Sec. 3376 it is provided “that an order of mandamus shall not be issued in any cause where there is a plain, sj)eedy and adequate remedy in the ordinary course of the law” * * * *. Now if the plaintiff in this case had the right to appeal from the order of the directors prohibiting him from attending the school, and if an appeal was an adequate remedy, the proceedings by mandamus cannot rightfully be maintained.
The board of directors had power to make rules and regulations for the government of the schools. Code, § 1726. The-directors are required to aid the teachers in establishing and enforcing rules for tire government of the schools (Code, §1734); and they may dismiss or suspend any pupils from the school for gross immorality, or for persistent violation of the regulations or rules of the school. § 1735. The rule or *481regulation under which the plaintiff was suspended may have been wrongful, and one which the directors ought not to have made, and it may be that it should not have been enforced against plaintiff. But these questions could have been fully and fairly tested in the ordinary course of the law by an appeal to the county superintendent. It is no answer to this position to say that the remedy by appeal provided by law is inadequate, because the decision of the county superintendent or the state superintendent, if appeal be taken to him, cannot be enforced. The presumption is that if upon appeal the order should be reversed, the directors will obey the decision of - the appellate tribunal. Upon their refusal to'do so it will be time enough to resort to the courts for the writ of mandamus. As is said in Ind. Dist. of Lowell v. Ind. Dist. of Duser, 45 Iowa, 394, “while his action (the county superintendent’s) would not be in the nature of a judgment upon which process for the collection of the amount awarded to the party re-' covering could issue, it would be a decision binding upon the parties.” In Marshall v. Sloan, 35 Iowa, 445, it was squarely held that a party aggrieved by the action of a board of school directors, having an adequate remedy by appeal to the county superintendent, and from him to the state superintendent, is not entitled to a writ of mandamus. And in Kirkpatrick, v. Ind. Dist. of Liberty, 53 Iowa, 585, it was held that the remedy of a teacher who was wrongfully discharged by a board of directors for incompetency was by appeal, and that he could not at once maintain an action for breach of the contract under which he was employed as a teacher.
It appears to me that this is a case where the remedy by appeal is peculiarly appropriate. The controversy is one concerning the proper government of the school, and it should be determined by the tribunal appointed by law to settle such questions. If resort can he had to the courts without first appealing to the county superintendent and from him to the state superintendent the law allowing an appeal becomes a ■ dead letter and wholly useless and inoperative.
*482The cases cited in the majority opinion, it appears to me, have no bearing upon the question as to whether the action1 of mandamus is the proper remedy. No such question was made in the pleadings nor tipon trials below, nor upon appeal ■ in this court. The mere fact that those actions were in form proceedings in mandamus, and the court did n'ot of its own. motion refuse to entertain jurisdiction, cannot be held as determining that mandamus was the proper remedy.
In my opinion the ruling of the court below upon the demurrer was correct, and I am authorized to say that Séevers, J., concurs in the views which I have herein expressed.