Lake, Oh. J.
The plaintiff in error was tried and convicted in the district court, under the thirty-fourth section of the criminal code, for an alleged disturbance of a public schooi in district No. 21, in Lancaster county. The case was brought into the district court by an appeal from the judgment of a justice of the peace before whom the case was first tried.
I. When the case was called for trial in the district court, it was discovered that the original complaint sent lip by the justice in pursuance of the statute was lost and could not be found. Thereupon, on motion of the district attorney, but against the defendant’s objection, a new complaint was substituted, upon which the trial and conviction were had. And this presents the first question for our consideration.
It is contended on .the part of the plaintiff in error that the district court had no authority to try him upon any other than the original complaint; that the farthest the court could rightfully go was to permit a copy of the original to be substituted. We are of opinion, however, that there is no error in this particular, but on the contrary, that the course pursued by the court was eminently proper.
The record recites that “ the original complaint having been lost since the last term of this court, the district attorney has leave to file a substituted complaint, covering the offense charged in the original information, as shown by the justices’ transcript.” There is no pretense that the,new complaint is not confined to the identical offense charged in the one certified by the justice of the peace, and it-seems impossible therefore that the defendant could have been prejudiced in the least by the course taken. But we think our statute, although it [171]*171does not in direct terms provide for this particular contingency, clearly recognizes the practice here adopted. Section 325 of the criminal code provides that “ the district court shall hear and determine any cause under this act, brought by appeal from a magistrate upon the original complaint, unless such complaint shall be found insufficient or defective, in which event the court, at any stage of the proceedings, shall order a new complaint to be filed therein, and the case shall proceed thereon the same in all respects as if the original complaint had not been set aside.” It is evident that, under this provision, no matter how utterly deficient the complaint sent up by a magistrate may be, even if totally wanting in the essential requisites to show the offense intended to be charged, the prosecution will not be thwarted, but “ the court shall order a new complaint to be filed,” upon which the trial must proceed.
This section establishes a positive rule of practice by which the courts are , of course bound whenever the original complaint is found to be defective. And it does more than this — it furnishes a safe guide to the courts in matters of practice whenever a contingency shall arise, which, although not within the letter, is clearly within the spirit of the statute. In the practice of the courts contingencies not unfrequently arise which the legislature has not anticipated by any suitable provision. These must be met by some general or special rule of court suited to the exigency, and which shall protect suitors in all their legal rights. It seems to us that there is quite as much necessity and reason for the substitution of a new complaint when the original is lost as there is when found to be merely defective in form or in substance.
It was conceded by counsel for the plaintiff in error that, under the circumstances, the substitution of an exact copy of the first complaint would have been good [172]*172practice, and justifiable. But we are unable to see how it could make any possible difference to the accused whether the complaint upon which he was tried were a copy of the original, or a new one charging tbe same offense and no more. There would be a distinction perhaps, but no real difference.
II. Several objections were taken to the rulings of the court upon the admission of evidence; these may all be considered together. The record shows that a great deal of testimony was offered, both by way of cross-examination of witnesses called on behalf of the state, and by the direct testimony of those called by defendant to show that certain meetings of the district school board, of which the accused was a member, had been held at which certain charges preferred against the prosecuting witness as teacher were considered; that finally-on the morning of the day of the alleged disturbance, before the hour for opening the school had arrived, her discharge as teacher and the closing of the school had been decided upon at a meeting of the board held at the school-house, and that whatever the defendant said or did was in pursuance of the resolution and order of the board.
"We db not see upon what ground this testimony could have been excluded. It may have been upon the theory that the district board was not vested with the authority to discharge the teacher. But even if this were so, it would still be competent evidence, under the issue, for the purpose of showing that the defendant acted under the honest belief that in what he did he was but performing an official duty which the law enjoined upon him. This testimony was clearly admissible on this ground alone.
But we think the testimony was competent, and should have been admitted upon the broader ground, that, if [173]*173true, it would have established for the defendant a complete justification. By section 45, of the general school laws (Gen. St., 968), the members of the district board, or a majority of them, are empowered to hire “ qualified teachers ” in the name of the district. And by section 56, the board is given “ the general corre of the school, and may establish all needful regulations for the ■ management not in conflict with the rules prescribed by the .superintendent. ’ ’
This language is somewhat general, but we think the authority is clearly implied for the board to discharge a teacher who, for any reason, is found to be incompetent. The authority to terminate the employment of a teacher must rest somewhere,-and in the absence of an express provision on this subject it should, we think, be governed by the general rulé of the common law applicable in analogous cases, and be held to reside with those whose duty it is to represent the district in making the contract, and who are also directly responsible for the successful management of the school. By the common law, if a servant neglect the duties of his employment, or is incompetent to perform them with reasonable skill, he may be discharged at once, although hired for a definite time which has not yet elapsed. And when a servant is formally discharged, even although it be without adequate cause, he cannot continue the service against the will of his employer, but must seek redress by an action for damages. But notwithstanding the persistent efforts of the prosecution, supported by the rulings of the court, to keep it from the jury, the fact appears, that the defendant, in all he did, was acting as a member of the school board, and in pursuance of a resolution previously adopted by a majority of its members. It appears also that the three members of the board were all present in the school-room on the arrival of the teacher, and that they at once informed her of the action of the [174]
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Lake, Oh. J.
The plaintiff in error was tried and convicted in the district court, under the thirty-fourth section of the criminal code, for an alleged disturbance of a public schooi in district No. 21, in Lancaster county. The case was brought into the district court by an appeal from the judgment of a justice of the peace before whom the case was first tried.
I. When the case was called for trial in the district court, it was discovered that the original complaint sent lip by the justice in pursuance of the statute was lost and could not be found. Thereupon, on motion of the district attorney, but against the defendant’s objection, a new complaint was substituted, upon which the trial and conviction were had. And this presents the first question for our consideration.
It is contended on .the part of the plaintiff in error that the district court had no authority to try him upon any other than the original complaint; that the farthest the court could rightfully go was to permit a copy of the original to be substituted. We are of opinion, however, that there is no error in this particular, but on the contrary, that the course pursued by the court was eminently proper.
The record recites that “ the original complaint having been lost since the last term of this court, the district attorney has leave to file a substituted complaint, covering the offense charged in the original information, as shown by the justices’ transcript.” There is no pretense that the,new complaint is not confined to the identical offense charged in the one certified by the justice of the peace, and it-seems impossible therefore that the defendant could have been prejudiced in the least by the course taken. But we think our statute, although it [171]*171does not in direct terms provide for this particular contingency, clearly recognizes the practice here adopted. Section 325 of the criminal code provides that “ the district court shall hear and determine any cause under this act, brought by appeal from a magistrate upon the original complaint, unless such complaint shall be found insufficient or defective, in which event the court, at any stage of the proceedings, shall order a new complaint to be filed therein, and the case shall proceed thereon the same in all respects as if the original complaint had not been set aside.” It is evident that, under this provision, no matter how utterly deficient the complaint sent up by a magistrate may be, even if totally wanting in the essential requisites to show the offense intended to be charged, the prosecution will not be thwarted, but “ the court shall order a new complaint to be filed,” upon which the trial must proceed.
This section establishes a positive rule of practice by which the courts are , of course bound whenever the original complaint is found to be defective. And it does more than this — it furnishes a safe guide to the courts in matters of practice whenever a contingency shall arise, which, although not within the letter, is clearly within the spirit of the statute. In the practice of the courts contingencies not unfrequently arise which the legislature has not anticipated by any suitable provision. These must be met by some general or special rule of court suited to the exigency, and which shall protect suitors in all their legal rights. It seems to us that there is quite as much necessity and reason for the substitution of a new complaint when the original is lost as there is when found to be merely defective in form or in substance.
It was conceded by counsel for the plaintiff in error that, under the circumstances, the substitution of an exact copy of the first complaint would have been good [172]*172practice, and justifiable. But we are unable to see how it could make any possible difference to the accused whether the complaint upon which he was tried were a copy of the original, or a new one charging tbe same offense and no more. There would be a distinction perhaps, but no real difference.
II. Several objections were taken to the rulings of the court upon the admission of evidence; these may all be considered together. The record shows that a great deal of testimony was offered, both by way of cross-examination of witnesses called on behalf of the state, and by the direct testimony of those called by defendant to show that certain meetings of the district school board, of which the accused was a member, had been held at which certain charges preferred against the prosecuting witness as teacher were considered; that finally-on the morning of the day of the alleged disturbance, before the hour for opening the school had arrived, her discharge as teacher and the closing of the school had been decided upon at a meeting of the board held at the school-house, and that whatever the defendant said or did was in pursuance of the resolution and order of the board.
"We db not see upon what ground this testimony could have been excluded. It may have been upon the theory that the district board was not vested with the authority to discharge the teacher. But even if this were so, it would still be competent evidence, under the issue, for the purpose of showing that the defendant acted under the honest belief that in what he did he was but performing an official duty which the law enjoined upon him. This testimony was clearly admissible on this ground alone.
But we think the testimony was competent, and should have been admitted upon the broader ground, that, if [173]*173true, it would have established for the defendant a complete justification. By section 45, of the general school laws (Gen. St., 968), the members of the district board, or a majority of them, are empowered to hire “ qualified teachers ” in the name of the district. And by section 56, the board is given “ the general corre of the school, and may establish all needful regulations for the ■ management not in conflict with the rules prescribed by the .superintendent. ’ ’
This language is somewhat general, but we think the authority is clearly implied for the board to discharge a teacher who, for any reason, is found to be incompetent. The authority to terminate the employment of a teacher must rest somewhere,-and in the absence of an express provision on this subject it should, we think, be governed by the general rulé of the common law applicable in analogous cases, and be held to reside with those whose duty it is to represent the district in making the contract, and who are also directly responsible for the successful management of the school. By the common law, if a servant neglect the duties of his employment, or is incompetent to perform them with reasonable skill, he may be discharged at once, although hired for a definite time which has not yet elapsed. And when a servant is formally discharged, even although it be without adequate cause, he cannot continue the service against the will of his employer, but must seek redress by an action for damages. But notwithstanding the persistent efforts of the prosecution, supported by the rulings of the court, to keep it from the jury, the fact appears, that the defendant, in all he did, was acting as a member of the school board, and in pursuance of a resolution previously adopted by a majority of its members. It appears also that the three members of the board were all present in the school-room on the arrival of the teacher, and that they at once informed her of the action of the [174]*174board, and that the school was closed; but she refused to submit to their decision, called the scholars to order, and went on with the school for that day. In view of these facts we see nothing in the conduct of the accused, even in its worst aspect, which would amount to a willful disturbance of the school.
III. As to the alleged errors in the matter of instructing the jury, but little need be said. It is evident that the court labored under the same misapprehension of the law of the case, as it did in the admission of evidence. The judge was evidently impressed with the idea that the district board had no power either to dismiss the teacher or to stop the school. Most of the instructions given were calculated to bring this fact prominently before the jury, and to give them to understand that the. fact of Bays being a member of the school board, and that he was but carrying out its orders in what he did, could have no bearing whatever in the decision of the case. In this there was manifest error.
There were several instructions requested for the defendant, and refused, which stated the law correctly, but as they bear upon the same point, and are really but different forms of statement of the same proposition, we will notice but two of them. These were as follows:
“ 1st. If the jury find from the evidence that the defendant William Bays was one of the board of directors in said school district, and that said local directors had met and decided that Miss Paschal, then teaching said school, should be dismissed, and the school 'closed; and that the complaining witness, Olive Paschal, was teacher of said school, and the acts complained of were done honestly in his official character, as a member of said school board, and in an orderly manner, then you will find the defendant not guilty.”
“ 2d. The jury are instructed, as a matter of law, [175]*175that the directors of school districts have a right to discharge and dismiss a teacher of public schools, hired by them, on account of incompetency of teacher, or for any sufficient cause, at their own will and pleasure, and close the school.”
It is true that the evidence in justification of the defendants’ conduct was not very full or complete. But this was owing, doubtless, to the exclusion of the principal portions of it by the court. There was enough, however, to form a basis for these instructions, and it was error to refuse them. The testimony was ample to have warranted the jury, under proper instructions, in the return of a verdict of not guilty.
Eor these reasons the judgment is reversed, and a new trial awarded.