college required was as much a part of the contract of employment as if the language had been expressly embodied among its provisions. If that be the case, it is difficult to see how an exercise of the right can give rise to a legal cause of action. It is further urged in the brief of counsel for the plaintiff in error that the Legislature never intended by the statute that the right of removal should be exercised during the term of an employment fixed by contract. We are, however, unable to give any effect to the statute unless it be held to cover that precise situation. If it be assumed that a professor is engaged without contract, and that his tenure is at will, then either party would be at liberty to terminate such a relationship without the aid of the statute. There would be no legal obligation to hold either the board or the professor to a continuance of the employment. To terminate it would constitute no legal wrong. On the other hand, the statute was necessary to give to the board authority to discharge a professor in case his contract was for a fixed period. It was because the Legislature thought it wise that all such contracts should be made subject to this right of revocation that the statute was passed. Any other holding simply nullifies the law.

To accept the second of the above alternatives is no less plainly violative of elementary principles of law. Questions concerning the efficiency of a teacher in an institution of learning, his usefulness, his relations to the student body and to the other members of the faculty, are so complicated and delicate that they are peculiarly for the consideration of the governing authorities of the institution. It may be perfectly apparent to them that the presence of a teacher is prejudicial to the welfare and discipline of the college, although it would be difficult, if not impossible, to make it so appear to a jury by the production of evidence in court. It would certainly be unusual to submit to a jury the question, "Will the interests of an institution of learning be promoted by dispensing with the services of a particular professor?" And yet if we assume that the statute of the state is of any virtue, it is just such a question that the plaintiff in error sought to have determined in the Circuit Court. It is a question which, in our opinion, the Legislature intended to commit to the sound judgment of the regents who are selected because of an especial fitness for the performance of such duties, and who, by their experience and their intimate familiarity with the institution, are qualified to exercise that discretion in a far sounder manner than any court or jury could be qualified by evidence adduced through witnesses. It is elementary that no cause of action can arise from the lawful exercise of a statutory power in the absence of an express provision conferring it. It is also a principle of law as securely founded that an exercise of a power by an administrative board or officer to whose judgment and discretion it is committed is not a proper subject of review by the courts when fraud or conditions equivalent thereto do not exist. Head v. University, 19 Wall. 530, 22 L. Ed. 160; Board of Education v. Stotlar, 95 Ill. App. 250; Gillan v. Board of Regents, 88 Wis. 7, 58 N. W. 1042, 24 L. R. A. 336; Queen v. Darlington School, 6 Q. B. 682; U. S. v.

Arredondo, 6 Pet. 729, 8 L. Ed. 547; In re Hennen, 13 Pet. 230, 10 L. Ed. 138; State v. Hawkins, 44 Ohio St. 98, 5 N. E. 228; Farrelly v. Cole, 60 Kan. 356, 372, 56 Pac. 492, 44 L. R. A. 464; City of Emporia v. Gilchrist, 37 Kan. 532, 15 Pac. 532. The language of the Supreme Court of Wisconsin in the case above cited (Gillan v. Board of Regents, 88 Wis. 7, 58 N. W. 1042, 24 L. R. A. 336) seems to us entirely sound:

"The trial of a teacher in a normal school on charges of misconduct, with its delays and publicity, and the excitement it would produce and the feelings it would engender, would be very injurious to the school, and it would most likely make heated partisans of the other teachers and the scholars in the contest, and the evil consequences would be great, if not endless. There is no other way in which the character of a teacher can be saved except by silent removal. An ill-disposed and perverse teacher might prefer to have charges against him made public, and to rally his forces of teachers and scholars and outside friends, and have a battle with the board, no matter how much the school might be injured by it. Such a hearing, however, would seem to defeat the wise purpose that the Legislature had in view in giving the board this power of removal at pleasure."

Being satisfied, as we are, that the Mudge Case did not present the questions that are controlling in the present case, we feel at liberty to deal with the present case upon general principles of law, giving to the general language in the Mudge Case only such weight as we believe it entitled to as a matter of reason, and not as a matter of authority. Treating it thus, we find no error in the action of the trial court justifying a reversal of its judgment. It is therefore affirmed.

SANBORN, Circuit Judge (dissenting). I agree with the majority of the court that on March 18, 1899, the board of regents of the Kansas State Agricultural College made a lawful agreement. with the plaintiff, Ward, that they would employ him as a professor at a salary of $1,450 per annum until the close of the school year ending June 30, 1901, and that the provision of the statute that "they shall have the power to remove the president and any professor or teacher whenever the interest of the college shall require" entered into and became a part of the contract. But I am unable to bring my mind to the conclusion that this provision authorized the board of regents by their act of removal to violate their contract of employment or to deprive the plaintiff of his salary in the absence of some sound reason for his discharge. The only effect of this provision, in my opinion, was that the board of regents might remove the professor, subject always to his right to enforce his contract and recover damages for its breach in case he was removed without just cause. Any other construction disables the board from making any contract of employment for a term, or for a time certain; for a pretended contract for a time certain, which one of the parties may terminate at will at any time, is no contract for a term. The question has, it seems to me, been decided by the Supreme Court of Kansas, and its decision upon this issue should control in this court. The national courts uniformly follow the construction of the Constitution and statutes of a state given by its

highest judicial tribunal in all cases that involve no question of general or commercial law and no question of right under the federal Constitution or laws. Madden v. Lancaster County, 65 Fed. 188, 192, 12 C. C. A. 566, 570; Illinois Trust & Sav. Bank v. City of Arkansas City, 76 Fed. 271, 279, 22 C. C. A. 171, 179, 34 L. R. A. 518; Detroit v. Osborne, 135 U. S. 492, 499, 10 Sup. Ct. 1012, 34 L. Ed. 260.

In Board of Regents v. Mudge, 21 Kan. 223, 224, 228, 229, this board of regents made a contract on July 16, 1873, for the employment of Mudge for one year. On September 4, 1873, they adopted a resolution that each professor should give and receive three months' notice of resignation or discharge, except in case of gross misconduct. They discharged Mudge on February 6, 1874, without notice, although he was not guilty of misconduct. For three months thereafter he was out of employment, and he sued the board for compensation for these three months. He recovered. The counsel of the board of regents urged two reasons for the reversal of the judgment. The first was stated in these words:

"The plaintiff below was subject to any resolution the board of regents might pass terminating the relation between the parties whenever in the opinion of the board the interest of the college required the passage of such a resolution. The Legislature has vested the government of this college in the plaintiff in error, and made it, and no other tribunal, the judge of what is for the interest of the institution; and the relation existing between the plaintiff and defendant does not result from any contract made and entered into by them, but from the laws existing at the time for the government of the agricultural college, creating professorships, fixing, increasing, and diminishing the regular number of professors and teachers, and providing for the removal of the president, and any professor or teacher, whenever the interest of the college required it. Head v. University, 19 Wall. 526, 22 L. Ed. 160."

The second reason was that the resolution regarding the threemonths notice of resignation or discharge was immaterial and ineffective in any event. The court considered both propositions, and decided that neither of them was tenable. The portion of the opinion pertinent to the first proposition reads in this way:

"(1) The act relating to the agricultural college (Gen. St. 1868, p. 75, c. 3) provides, among other things, as follows:

"Sec. 2. The government of such college is vested in a board of regents,' etc.

"'Sec. 3. The board of regents shall constitute a body corporate, with the right, as such, to sue and be sued, to use a common seal, and to alter the same at pleasure.'

"Sec. 4. The regents shall have power to enact ordinances, by-laws, and regulations for the government of said college; to elect a president; to fix, increase, and diminish the regular number of professors and teachers; and to appoint the same, and to determine the amount of their salaries. They shall have power to remove the president and any professor or teacher whenever the interest of the college shall require.'

"Sec. 12. The board of regents shall have the general supervision of the college and direction and control of all expenditures.'

"It will be seen from the foregoing sections of the statute that the power reposed in the board of regents is very extensive. They are a corporation having the entire control of all departments of the college educational, financial, and administrative. They have the power to appoint and discharge the president, and all the professors and teachers, and to fix and increase

or diminish their several salaries. But with all these powers, they are not supreme, nor irresponsible. They may 'sue and be sued,' just as the managing officers of other public corporations, such as cities, towns, counties, townships, and school districts, may. While their powers are extensive, still they may render their board liable by the wrongful exercise of such power. Thus they have the unquestioned and the continuing power of employing a president and professors and teachers whenever they may choose, and of discharging any of them whenever they may choose; but if they agree to employ a president or professor or teacher for a period of three months, and then wrongfully discharge him before the three months has elapsed, they will leave their board responsible for the whole amount of the salary for such three months, notwithstanding such discharge. While the Legislature unquestionably intended to confer upon the board of regents extensive powers, yet it did not intend to confer upon them the irresponsible power of trifling with other men's rights with impunity. And making the regents responsible for their acts does not in the least abridge their powers. It only tends to make them more cautious and circumspect in the exercise of their powers."

This opinion seems to me to be a plain and authoritative ruling that if the board of regents agreed to employ a professor or teacher for a period of two or three years, and then wrongfully discharged him before this time has elapsed, they left their board responsible for the whole amount of the salary for the length of time for which he was lawfully employed notwithstanding his discharge. And this seems to me to be a just and rational ruling.

This ruling is not less effective or binding upon the federal court because the decision of the case is placed upon two propositions which were pertinent to the issue, to wit, the effect of the statute and the effect of the rule, instead of upon one. Where a court places its decision of the ultimate legal issue before it upon its decision of two legal questions which were pertinent to the issue, were debated at the bar, and were considered and determined in the opinion, the decision of each of the two questions, and of every pertinent legal question decided in reaching either decision, has the binding force of an adjudication, and is not mere obiter dictum. Union Pac. Ry. Co. v. Mason City & Ft. Dodge R. Co., 64 C. C. A. 348, 354, 355, 128 Fed. 230, 236, 237.

In Board of Education of City of Ottawa v. Cook, 45 Pac. 119, the Court of Appeals of Kansas has reached the conclusion announced by the Supreme Court in the Mudge Case in the consideration of a similar issue. In that case the board of education employed a teacher for the term of one year, commencing in September, 1890, under a rule which read in this way:

"At the regular meeting in June or as soon thereafter as practicable the board shall elect the teachers of the public schools to hold their positions for one year unless sooner removed by vote of the board."

On March 18, 1891, the teacher was removed by a vote of the board. She sued to recover her salary for the remainder of the year. The court held that the clause, "unless sooner removed by vote of the board," did not mean that the board might remove her without cause at its pleasure or caprice, and that notwithstanding she was removed by a vote of the board that removal left the board liable for her salary throughout the year, and the court affirmed a judgment in her favor for her compensation.

Both because a construction of the Kansas statute which gives the board of regents the power to remove its employés without cause at any time seems to me to be unreasonable and inconsistent with the existence of any contract for a term, and because the courts of Kansas have so decided this question in construing this statute, I am of the opinion that the judgment below should be reversed, and that the case should be remanded for answer and trial.

TOWNSEND v. BEATRICE CEMETERY ASS'N.

(Circuit Court of Appeals, Eighth Circuit. May 2, 1905.)

No. 2,090.

APPEAL-REVIEW-ABSENCE OF EVIDENCE FROM RECORD.

On appeal in an equity case, recourse cannot be had to an opinion filed by the court below to ascertain the facts, where there is no evidence in the record; and, where the case was decided on issues of fact, it cannot be reviewed.

[Ed. Note. For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 2967.]

Appeal from the Circuit Court of the United States for the District of Nebraska.

Richard S. Horton, for appellant.

Ernest O. Kretsinger, for appellee.

Before SANBORN and VAN DEVANTER, Circuit Judges, and PHILIPS, District Judge.

PHILIPS, District Judge. The appellee, Beatrice Cemetery Association, a corporation of the state of Nebraska, filed its bill in equity against appellant, W. J. Townsend, alleging, in substance, that it owned certain lands described, platted into blocks and lots for the sole purpose of being used as a cemetery, and not with a view to profit; that a large number of bodies had been buried therein; and that it was improving and beautifying the whole premises, to be used for the purpose of the burial of the dead. The bill alleged that in March, 1899, the defendant therein recovered a judgment in the United States Circuit Court at Omaha, Neb., against said association for the sum of $5,082.66, and $64.40 costs; that the defendant had filed a certified transcript of said judgment in the office of the clerk of the district court of Gage county, Neb., in which the cemetery lots are situated; that the defendant claims to have a judgment lien upon the unsold lots and blocks in said cemetery grounds, and was threatening to cause execution to issue upon said judgment against said lots, to sell them to satisfy said judgment. The bill alleges that said property, under the laws of the state of Nebraska, is exempt from sale under execution to collect said judgment, and that the action of the defendant in filing said judgment, and threatening to enforce the same as a lien on said land, casts a cloud upon the title. The bill prays to have said cloud removed,