E. H. Colcord v. District Township of Vinton. of some subdistrict. It seems probable that a portion of the territory referred to will naturally fall to subdistrict number nine. The county superintendent appears to have presumed that the subdistrict would ultimately include all the territory to the township line. That the territory does belong to the district township of Spencer, unless it has been attached to the adjoining township in accordance with section 1797, there can be no question. Such being the facts in this case, and the evidence disclosing that the board did not exercise that care in selecting a site which is desirable when so many interests are involved, we are disposed to remand the case to the board, with the suggestion that they adjust the boundaries of the subdistrict, and determine upon some other site than the one chosen by them, with the intention to furnish the best accommodation to all parties. REVERSED AND REMANded. Superintendent of Public Instruction. February 15, 1882. E. H. COLCORD V. INDEPENDENT DISTRICT OF VINTON. Appeal from Benton County. SCHOOL PRIVILEGES. Determined by the residence of the child. The board of the above named district refused Ola Penine, a girl living in the family of Mr. Colcord, admission to school unless tuition was paid, the board regarding her as a non-resident scholar. Mr. Colcord appealed from their order to the county superintendent, who affirmed the action of the board, and Mr. Colcord appeals to the superintendent of public instruction. The leading question to be determined in this case is the residence, for school purposes, of Ola Penine. It appears from the evidence that she has been living in the family of Mr. Colcord for the last seven years, and that she was placed there by her father with the E. H. Colcord v. District Township of Vinton. understanding that she should make that her home and be sent to school. There is nothing to show any understanding as to the time she was to remain, but her father testifies that he had not surrendered control of her, and that she was subject to be called to his home at any time. While her residence within the independent district of Vinton may be, in the meaning of the school law, of such a character as to entitle her to school privileges, this fact has not been clearly established, and we cannot find that the county superintendent erred in affirming the order of the board. It is the presumption of law that every child is entitled to the priv ileges of the public schools in some district, and the first part of section 1794 very clearly makes the actual residence of the pupil the test by which to determine where he may attend school. We are of the opinion that the affidavit of Mr. Colcord, that Ola Penine is a member of his family and a resident of the independent district of Vinton, would entitle her to attend the schools free of tuition. If such an affidavit had been presented, and the board had refused permission, we think the county superintendent would then have erred in sustaining the board. is Under the circumstances the decision of the county superintendent AFFIRMED. J. W. AKERS, Superintendent of Public Instruction. March 31, 1882. J. D. Handersheldt v. District Township of Des Moines. J. D. HANDERSHELDT V. DISTRICT TOWNSHIP OF DES MOINES. Appeal from Jefferson County. 1. DISCRETION: Abuse of. Is not established by evidence showing that a different action on the part of the board would have been preferred by electors. 2. DISTRICT: Validity of Organization. The county superintendent has no jurisdiction to determine the validity of district organization. A petition was presented to the board of the above-named district township, asking that certain territory in Des Moines township be set aside to form, in connection with territory to be obtained from the independent district of Liberty, number eight, a new subdistrict to be known as subdistrict number nine, Des Moines township, Jefferson county, Iowa. The board acted on this petition and made the following order: "In the matter of the petition of John Handersheldt and Silas Pearson, asking for the formation of a new subdistrict to be known as number nine, in the district township of Des Moines, Jefferson county, Iowa. All the territory within the boundary lines therein described, is hereby granted, provided sufficient territory be granted by the independent school district of Liberty, number eight, to make a suitable and convenient subdistrict as to the amount of territory and the number of children of school age; and provided, that in case the territory is not granted by said independent district of Liberty number eight, then said territory hereby granted shall remain and be a part of subdistrict number five, of the district township of Des Moines, Jefferson county, Iowa." On the 28th day of April, 1882, the board of the district township of Des Moines, at a special meeting, adopted the following resolution: "It is hereby ordered that all action heretofore taken by the board of the district township of Des Moines, Jefferson county, Iowa, in the formation and organization of subdistrict number nine, in the above-named township, is hereby rescinded." From this action of the board, Mr. J. D. Handersheldt appealed to J. D. Handersheldt v. District Township of Des Moines. the county superintendent, who upon hearing the case on appeal rendered the following decision: "A resolution passed rescinding an action which has not as yet taken effect, is legal, but so far as it concerns formation and organization which is already completed, it is illegal." From the action or decision of the county superintendent, J. D. Handersheldt appeals to the superintendent of public instruction. It appears from the transcript of the county superintendent that the witnesses were not sworn, as required by law. See note (d) under section 1834, School Laws 1880. According to the uniform holding of this department, a failure to take evidence under oath is fatal to the case, even though from its nature it came properly before the county superintendent on appeal. A brief examination will be sufficient, we think, to show that this action should have been dismissed by the county superintendent for want of jurisdiction. "No appeal will lie when the validity of district organization is involved." See case of N. T. Bowen v. District Township of Lafayette, page 124, School Laws 1876." This appeal was taken from the action of the board to the superintendent, for the purpose of determining whether or not the board erred in rescinding their former action creating subdistrict number nine. There was very little evidence bearing on this, the sole issue in the case. Witnesses simply stated that they were or were not in favor of subdistrict number nine. Such testimony can have no bearing in an action to establish error on the part of the board. Appellants set forth in their affidavit that the county superintendent erred, in that he refused to admit testimoney to show that there never had been any legal organization of subdistrict number nine. We think such evidence was properly excluded, and yet it is necessary, to enable any tribunal to arrive at a decision of the case; for if the district was organized according to law, then the board committed error in making an order which operated to discontinue it, and hence to change the boundaries of subdistricts at a time of year in which, according to our holding, it cannot be done. Upon this presumption, viz.: that the district was legally organized, they committed error by making a change of subdistrict bound George Hansel et al. v. District Township of Mallory. aries without a majority of the whole board. School Laws 1880. Section 1738, note (b), It must therefore be determined whether the conditions upon which the board of Des Moines township granted the territory, were fulfilled, or, in other words, it must be known whether or not the independent district number eight, of Liberty, concurred in the transfer of the territory. But neither the county superintendent nor this department is competent to determine the legality of a district organization, and it is therefore impossible to decide whether or not the board committed error. The remedy is an application to a court of law for mandamus to compel the board to recognize the director of subdistrict number nine, as a school officer and member of the board of the district township of Des Moines, Jefferson county, Iowa. Were the issues involved within our jurisdiction, we would not hesitate to consider them, but as no questions of such nature are connected with the case it is DISMISSED. November 2, 1882. J. W. AKERS, Superintendent of Public Instruction. GEORGE HANSEL et al. v. DISTRICT TOWNSHIP OF Mallory. 1. TAXES. Appeal from Clayton County. Must be certified in accordance with vote of the electors. 2. SCHOOL-HOUSE SITE: Location of. A vote of the electors to select the precise location of a school-house is not mandatory on the board. 3. Must be selected with reference to convenience of the people. By this action it is sought to set aside an order of the board of the above named district township locating a school house in subdistrict No. 5. At their regular meeting on the first Monday of March, 1881, the |