The opinion
Stevens, J.
(dissenting). I. The opinion of the majority proceeds upon the theory that the questions presented upon this appeal involve only (a) the discretion of the superintendent of public instruction in issuing provisional certificates to the student teachers, and (b) the discretion of the defendant school board in the determination of the number and the selection of the teachers to, be employed to teach in the public schools of Cedar Falls.
That public school officers exercise a large discretion in the performance of their duties is, of course, conceded. Their discretion however, is limited by the statute, and arises out of the express or implied powers conferred thereby. In the view of the writer, no question involving the discretion of either the state superintendent or the school board is involved in the questions presented by this appeal. The decision must turn upon the legality of the action of the defendant board, and not upon a matter of discretion. Whether the superintendent of public instruction acted within his discretion or illegally is not, as I view it, of paramount or controlling importance in this case.
A somewhat more complete statement of the record than appears in the majority opinion is necessary to a clear discussion and understanding of the questions involved. The “critic teacher,” or supervisor of the student teachers, is employed by, serves, and is paid by the State Teachers’ College. The three assistant critic teachers, employed jointly by the board and the Teachers’ College, render separate and independent services in their capacity as teachers and *109 as “critic teachers.” In their capacity as “critic teachers,”, they serve only the Teachers’ College. The number of student teachers doing practice teaching varies somewhat. During the fall term of 1917, there were 39, and, at the time of the trial of this case, 35 students employed. During the school year of 1917-18, 103 students, in all, were thus engaged. The duty of the “critic teacher” is to supervise, confer with, and aid the assistant critic teachers in their work for and on behalf of the college, as instructors of the student teachers. The student teachers have temporary charge of and teach certain of the pupils of the public schools.
Prior to the commencement of this suit, if student teachers were employed at all by the school board, it was by some sort of verbal understanding, and none of them were provided with teachers’ certificates. They are referred to as student teachers, because they are thus identified both as students of the State Teachers’ College and teachers in the public schools. As students of the college, they pursue a course in pedagogy, and are given credit by the college for the work done in the public schools. In addition to the student teachers who perform services in the public schools, a full force of teachers is employed.
The superintendent of the public schools testified that the number of. teachers regularly employed in the schools of Cedar Falls was, for the year 1916-17, 37, and for the year 1917-18, 42; and that he considered same a full corps of teachers for the schools of said city, which has a population of about 6,000. After this suit was instituted, a plan was devised by which provisional certificates were issued by the superintendent of public instruction to each of the student teachers at that time pursuing a course of pedagogy in the Teachers’ College and performing services as student teachers in the public schools. The defendant county superintendent testified, concerning the procurement of said certificates, that:
*110 “On December 8, 1917, there were vacancies in the schools of Black Hawk County. There was one in Cedar Township, and there is a vacancy there still. There is one in Lester Township they have been unable to fill, and I was informed it would be necessary to fill certain positions in the Cedar Falls schools, and that these people would be required to hold certificates, and we had no' teachers for them. President Seerley informed me of that fact. With reference to the work that has been done by student teachers in the Cedar Falls schools, I was informed that, in all probability, it would be required that these teachers should hold certificates. Mr. Seerley gave me information as to vacancies with reference to the positions in the Cedar Falls schools. He did not use the word ‘vacancies.’ These positions had been filled during the fall terms by student teachers, and were now to be filled by other students, and it was necessary for them to hold certificates. I know in a general way what those positions were. * * * The request for these certificates was made by Dr. Hearst. President Seerley, in his interview with me, merely explained that the certificates would be needed. After that, Dr. Hearst made a written request.”
Dr. Hearst was, at the time, a member of the school board.
After the commencement of this suit, written contracts were made with each of the student teachers. As throwing light upon the methods pursued, the following excerpt is taken from the testimony of Miss Murphy, one of the grade teachers:
“There are regular room teachers in four rooms. There is Miss Turner’s room, Miss Sawder’s room, Miss Raymond’s room, and mine. In Miss Turner’s room, no one had charge there except herself and whatever student teacher she may have. Miss Rait is a critic and supervisor over the student teachers in the Miner Building, and teach *111 es occasionally, I think. She has not taught in my room, but has taught in the second grade of my room. The room I am responsible for is both the first and second grades. The teaching in the second grade is done by the student teachers, under Miss Eait’s supervision. To. some extent, I have part in the supervision of them. They are in my room for opening exercises, and for music and penmanship. That is all I have time for; but I keep their grades, and try to keep in touch with them, as much as I can. I have seen some of the outlines for the second grade work. They don’t hand them to me, and I don’t ask for them. What I did toward keeping in touch with the progress and being responsible for the work and advancement of the pupils in this second grade was that I occasionally see the outlines that have been handed to me. The first and second grade teachers meet every month, and in that way we keep in touch with each other, and know what work is being done. I get information at these teachers’ meetings of the progress my room is making. -'We try to cover the same amount of ground in each grade for the month. There is no open doorway between the room where I teach the first grade pupils and where the second grade is being taught. The entrance to each room is from the hallway. I have been in that room when teaching was going on, for the purpose of observing; but I could only stay a few minutes at a time, because there was no one to teach my first grade while I was gone. I could only stay a few moments, but in that time could determine something of the character of the work being done by the teacher, by listening a few moments to recitations. In the first room, we are busy all the time with recitations. I get $4.50 a month from the college for ten months, which is the same as $5.00 per month for the regular nine-month school period. My dirties cover .only nine months. At these different times when I have stepped into the second grade room to observe, critic *112 or supervisor teachers were almost always present. The critic teacher, at times, was doing the teaching there, and in such instances the student teacher was merely observing. During the present year, there were two student teachers in the morning and two in the afternoon. They stayed for the full half day, and conducted different groups of pupils. One group was taken to the basement, and, I think, the other upstairs. The same arrangement was for the afternoon, except they used the kindergarten room, which was vacant in the afternoon. Each group of pupils was under the same student teachers during the entire twelve weeks.”
And, in this connection, attention is also called to the following material provisions of the Supplement to the Code, 1913:
“Sec. 2734-c. On the last Friday, and Wednesday and Thursday preceding, in the months of January, June, July and October, the county superintendent shall meet and, with such assistants as may be necessary, examine all applicants for a teachers’ certificate. Such examinations shall be held at the county seat, in a suitable room which shall be provided for that purpose by the board of supervisors; but the county superintendent may at his discretion cause to be held at the time of any regular examination an additional examination at some other place in the county. The' questions used in such examinations shall be furnished by the educational board of examiners, who shall cause the same to be printed, and the examinations shall be conducted strictly under rales prescribed by the board.
“Sec. 2734-d. The examination for the first grade certificate shall include competency in" and ability to teach orthography, reading, writing, arithmetic, geography, grammar, history of the United States, didactics, elementary civics, elementary algebra, political economy, elementara economics, elementary physics, elements of vocal music, physiology and hygiene, which in each division of the sub *113 ject shall include special reference to the effects of alcohol, stimulants and narcotics upon the human system.
“Sec. 273á-g. Applicants who have taught successfully for at least thirty-six weeks and whose examination entitles them to the first grade certificate, shall receive the same for a term of three years from the date thereof, and such certificates shall be renewable without examination provided the applicants shall show by testimonials from superintendents or principals who- had immediate supervision of their professional study that at least one line of professional inquiry has been successfully conducted during the life of the certificate, it being made the duty of the board to forward with each certificate subject to renewal, outlines setting forth various lines of professional study. It is provided further that each application for renewal shall be accompanied by such proof of successful experience ■and professional spirit as the educational board of examiners may require.
“Sec. 2734-h. Applicants whose examination entitled them to second grade certificates only, shall receive the same for not to exceed two years with the privilege of renewal of the same without further examination under the same conditions as govern the renewal of first grade certificates. The holder of a second grade certificate may at any of the examinations provided for in Section 273'4-c of the Supplement to the Code, 1907, take an examination in any one or more of the additional branches, required for the issue of a first grade certificate, or he may at any such time be re-examined in any branch or branches in which he desires to raise his grade, and in each case the new per cent shall be placed .on his certificate, and when he has thus successfully passed in all the branches required for the issue of a first grade certificate, such certificate shall then be issued to him, provided he has had at least thirty-six weeks’ successful experience in teaching; if not, then at *114 the conclusion of such experience. In like manner third grade certificates may be changed into those of the second or first grade, and in all cases whether the certificate be of the first, second or third grade, credit shall be given for all examinations taken under the auspices of the board, it being the intention of the law that an examination once taken shall be final unless the certificate holder desires to be re-examined in any one or more branches with a view of raising his per cent in such branches or his general average.
“Sec. 2734-i. Applicants whose examination entitles them to third grade certificates only, shall receive the same for one year, at the end of which time upon proof of successful teaching and the payment of a fee of one dollar, one renewal shall be granted.
“Sec. 2734-j. Applicants who have had no experience in teaching, but whose examination entitles them to the first grade, shall receive a second grade certificate for two years, provided that when they have taught successfully under such certificate for not less than thirty-six weeks, they shall be entitled to receive a first grade certificate on the conditions herein provided for a renewal of a certificate.
“Sec. 2734-p. Each applicant for a certificate shall pay a fee of one dollar, one half of which shall be paid into the state treasury on or before the first day of the succeeding month, and one half shall be paid into the county institute fund. Provided, however, that applicants for teachers’ certificates after July 1, 1915, shall have had at least 12 weeks of normal training, and shall at the time of making such application furnish a certificate in writing from the institution where such training was received, showing such fact. It is further provided, that this act shall not apply to the regular graduates of the state university, state college Of agriculture and mechanic arts, state teachers’ college, any accredited college of the state, or of any other college of like character outside of the state.
*115 “Sec. 2734-p2. If there should be schools without teachers and teachers cannot be secured with qualifications as provided in Sections 1 or 2 of this act, then provisional certificates may be issued regardless of qualifications as provided in said sections to so many teachers as shall be required to supply such schools.
. “Sec. 2734-s. When a sufficient number of licensed teachers cannot be secured to fill the -schools of any county, the board of examiners may, upon the request of the county superintendent, appoint a special examination for such county to be conducted in all respects as a regular' examination and the answer papers to be forwarded to the president of the board as required in regular examinations, and thereupon provisional certificates may be issued by the educational board of examiners. * * *
“Sec. 2778-a. That all teachers in the public schools of this state shall be paid for their services a minimum wage of not less than the amounts hereinafter set forth, all fractions in average grades to be figured at the nearest whole number:
“1. Teachers holding a first grade uniform county certificate or higher, shall be paid a daily wage of not less than a sum obtained by multiplying three cents by the general average grade shown on such certificate.
“2. Teachers holding a second grade uniform county certificate shall be paid a daily wage of not less than a sum obtained by multiplying two and three-quarters cents by the general average grade shown on such certificate up to and including a general average grade of eighty-five per cent.
“3. Teachers holding a third grade uniform county certificate shall be paid a daily wage of not less than a sum obtained by multiplying two and one-half cents by the general average [grade] shown on such certificate.
“Provided that a teacher having contracted on a sec *116 ond oi* third grade certificate in conformity with this act, shall fulfill such contract at the wage fixed at the time of signing same, plus any additional credit earned under Section 2 hereof.
“Sec. 2778-e. It shall be unlawful for any school board or any school officer to contract for or pay a less wage to any teachet in the public schools of this state than the minimum amounts herein fixed for the grade certificate held by such public school teacher. But nothing herein shall be construed as limiting the right to make a lawful contract for a higher wage than herein specified as a minimum.
“Sec. 2778-d. Any school officer violating the provisions of this act shall be fined a sum of not less than $25, nor more than $100, in the discretion of the court, and shall be suspended from office.”
The manifest purpose of the enactment of the foregoing statutes was to prescribe the qualifications of teachers, and make it imperative upon the school board to employ no one not thus qualified. It may be conceded that a court of equity cannot control the discretion of a school board in the selection of applicants holding certificates issued by the superintendent, after due- examination, and who have been found efficient, as to what particular applicant shall be employed. The selection of teachers from a number of properly certified applicants is clearly a matter wholly within the discretion of the school board. None of the student teachers referred to held such a certificate from the state superintendent. They held only provisional certificates, issued upon the application of the county superintendent, in furtherance of the so-called co-operative plan, by which a course in pedagogy prescribed by the State Teachers’ College, might, in part, be pursued by students of that institution in the public schools of Cedar Falls.
Section 2734-p2 of the 1913 Supplement, authorizing *117 the issuance of provisional certificates, is too plain to he misunderstood. Analyzed, it authorizes the issuance of provisional certificates (a) when there are schools without teachers, and teachers possessing the qualifications required by statute cannot be secured, and (b) to so many teachers as shall be required to supply such schools only as are unable to procure teachers having the necessary qualifications. It is not claimed by counsel for appellant, nor is there anything in the record tending in any way to show, that any of the students were' employed to fill vacancies in the public schools of Cedar Falls not already filled, or that could not be filled, by teachers possessing the necessary qualifications. Indeed, the record is undisputed that the sole purpose for which the pupils of the Teachers’ College were employed by the defendant school board was to enable them to have the practice teaching required by the college, and that the issuance of provisionál certificates to these students, was a subterfuge, and for-the purpose of evading the provisions of the statutes above. quoted. This is made apparent by the testimony of the county superintendent, quoted above. There was, in fact, no vacancy in the schools of Cedar Falls. A shortage of legally qualified teachers did not exist, and no such claim is made by appellants. Applicants holding provisional certificates, under the above statute, could be legally employed only to teach schools for which no teacher having the qualifications prescribed by statute could be secured. Such are the plain provisions of Section 2734-s, supra. As to this matter, a school board has no discretion. Of two applicants to fill a vacancy, the board must employ the one holding a certificate showing her to possess the statutory qualifications. In other words, the holder of a provisional certificate, legally issued, may be employed only to teach a school for which a properly qualified teacher could not be had, and no right is conferred thereby to teach in schools for which properly certified *118 teachers are available. Further, the compensation paid the student teachers is, of course, inadequate, and does not comply with the statute. The contract employing them for a nominal consideration violates the spirit, if not the letter, of Sections 2778-a, 2778-c, and 2778-d, supra. It is perhaps true that a provisional certificate is not classified as a first, second, or third grade; but certainly, no school board may, under the statutes and public policy of this state, employ a corps of teachers at a salary below that allowed by statute to holders of third grade certificates.
If holders of provisional certificates may legally be employed, under the circumstances shown in the record, at a nominal wage, and no power exists in a court of equity to interfere therewith because of the extraordinary discretion vested in school boards, then the statutes quoted and the efforts of the legislature to provide only thoroughly qualified teachers for our common schools are rendered of no avail. The legislature having prescribed qualifications for teachers in the public schools, patrons, taxed for the support thereof, should not be denied the right to have such teachers employed therein, when they can be secured; nor, having been employed, should they give place to some student, pursuing a course in pedagogy in some other institution. Teachers not so qualified should be employed only when the supply is inadequate, and the need cannot be otherwise met. The letter and spirit of the statute should be observed. Provisional certificates can be legally issued and the holders thereof employed only in case of an emergency, recognized by statute. Pupils attending the public schools of this state have the right to receive instructions from legally qualified teachers, and the school boards are bound by the statutes, and can exercise no discretion in violation of the plain provisions thereof. Manifestly, as the Teachers’ College desires that the co-operative plan adopted be continued, under the holding of the majority vacancies may per *119 manently exist in the schools of Cedar Falls, notwithstanding the fact that the usual number of legally qualified teachers are employed therein, and many possessing like qualifications are seeking employment in such schools. The acts of the board complained of, in the opinion of the writer, clearly and palpably violate the statutes quoted, and, upon the authority of numerous prior holdings of this .court, were properly enjoined. Templer v. School Township, 160 Iowa 398, 401 ; Aananson v. Anderson, 70 Iowa 102 ; Kinzer v. Independent School Dist., 129 Iowa 441, 443 ; Perkins v. Independent School Dist., 56 Iowa 476 ; Burkhead v. Independent School Dist., 107 Iowa 29 ; State v. Thomas, 152 Iowa 500, 503 ; Hinkle v. Saddler, 97 Iowa 526 ; Rodgers v. Independent School Dist., 100 Iowa 317 ; Hume v. Independent School Dist., 180 Iowa 1233 ; Knowlton v. Baumhover, 182 Iowa 691 . The conclusion above announced finds support in Lindblad v. Board of Ed., 221 Ill. 261 ( 77 N. E. 450 ), cited in the majority opinion.
II. It is suggested by the majority that plaintiffs’ remedy was by appeal to the county superintendent, and, if unsuccessful upon such appeal, then to the superintendent of public instruction. Of course, this holding rests upon the assumption that the act of employing the student teachers falls within the discretionary powers of the board. As appears from the extracts quoted above from the testimony of the coqnty superintendent, the application td the state superintendent for provisional certificates for the student teachers was made upon a full understanding of the purpose for which same was desired, and after consultation with the president of the. Teachers’ College, and in collaboration therewith and with the school board. By saying this, I do not mean in any way to impugn the good faith of the superintendent or the other parties.
An appeal, under such circumstances, even admitting the high character of both officers, might not commend it *120 self to practical-minded school patrons. A remedy may be theoretically adequate, but practically unsatisfactory. I would affirm.
Ladd, C. J., and Gaynor, J., join in this dissent.