a site that shall be permanent, if removed from the present site. The board may then, if it sees fit, take action again on the question of relocation. The decision of the county superintendent is hereby

November 23, 1892.

AFFIRMED.

J. B. KNOEPFLER,

Superintendent of Public Instruction.

OLE THOMPSON et al. v. DISTRICT TOWNSHIP OF BELMOND.

Appeal from Wright County.

TESTIMONY. Opinions unsupported by facts do not become satisfactory evidence.

DISCRETIONARY ACTS. The order complained of is reviewed not to discover the desirability of the action, but to determine whether sound reason and wise discretion were followed.

DISCRETIONARY ACTS. The fact that some other action would have been desirable or preferable does not establish that the board abused its discretion.

BOARD OF DIRECTORS. Its action is presumed to be correct and for the interest of the district, until proved to be otherwise.

DISCRETIONARY ACTS. In the determination of appeals, the weight which properly attached to the discretionary actions of a tribunal vested with original jurisdiction should not be overlooked.

This case comes before the superintendent of public instruction on appeal taken by John L. McAlpine from the decision of the county superintendent reversing the action of the board in refusing to create certain additional subdistricts as prayed for in a petition.

The point at issue is a simple one, being merely a question of discretion on the part of the board as to whether it was best to take or not to take a certain action. The decision of the county superintendent compels the board to do what it did not deem wise or necessary. Doubtless there are instances when such a ruling on the part of the appellant tribunal is needed. But does the evidence warrant such a decision in the present case? The affidavit bringing the case before the county superintendent does not allege violation of law, or prejudice. Neither does such appear in the testimony. The law gives boards very wide latitude in the exercise of their discretionary powers. Not infrequently cases arise in which an appellate tribunal would sustain their discretionary action whether they granted or refused to grant a given petition, there being no manifest abuse of such discretion in either action. In any event, the action of a board is presumed to be correct and for the interest of the district until proved to be otherwise. Mere opinions of witnesses that a different action would have been preferable can not be accepted as evidence. Statements of facts and existing conditions must be given. Even then the fact that some other action would have been desirable or preferable does not establish that the board abused its discretion. It must be shown that the action

complained of is an injury to the district or does gross and needless injustice to the patrons thereof. The decisions in this line by our predecessors are numerous and pointed, and we fully concur in the position taken.

In the present case the evidence does not show that any one is made to suffer injustice by the board's action. Ample provision has been made to accommodate all of the pupils of the territory in question with school privileges. It is not in evidence that the formation of three subdistricts out of the one would improve these facilities, since the subdistrict now has three schoolhouses located for the convenience of the respective portions of said subdistrict.

For the county superintendent, or the state superintendent, to render a decision invariably as he would have voted had he been a member of the board, is not what the law intends when clothing these officers with authority to try and decide appeals. Malice, prejudice, violation of law, is the board guilty of any of these. Or has it gone beyond sound reason and wise discretion in taking or refusing to take a given action? These are the questions for both tribunals to inquire into.

While we believe the county superintendent endeavored conscientiously to hear and decide the present case fairly, yet in the light of the foregoing reasoning we do not find that the evidence discloses grounds sufficient for refusing to affirm the board, and the decision of the superintendent is therefore

March 11, 1893.

REVERSED.

J. B. KNOEPFLER, Superintendent of Public Instruction.

J. O. SEVEREID AND JOHN STENBERG V. IND. DISTRICT OF FIELDBERG.

Appeal from Story County.

SCHOOL PRIVILEGES. Are not guaranteed children elsewhere than in the district of their residence.

SCHOOL PRIVILEGES. To the fullest extent possible, the board should equalize the distance to be traveled to school.

SCHOOL PRIVILEGES. Attendance in another district depends upon the board of that district, and must therefore be regarded as a contingency.

The transcript in this case shows that on March 20, 1893, the board in answer to a petition relocated the school site and made an order to move the schoolhouse on the site selected, the latter being more than three-fourths of a mile north of the present site. John O. Severeid and John Stenberg appealed to the county superintendent, who affirmed the order of the board. The same parties now appeal to the superintendent of public instruction. The essence of affidavit filed by appellants is abuse of discretion by the board because several families will be compelled to go two miles or more to reach the schoolhouse on the new site.

The district consists of four sections in the southwest corner of Palestine township. The schoolhouse as now located is in the geographical center of the district and within a distance of one and three-fourths miles from the most remote patrons. In the northern part of the district, in fact, on the extreme northern boundary, lies the village of Huxley. It is in the edge of this village, and therefore almost in the limits of the district, that the new site has been selected. Two of the directors residing in said village and being the two who voted for the new location. The district has a school enumerating sixty-eight of whom about forty live in Huxley. These pupils have been going to the center of the district, where the schoolhouse now is, a fraction over one and onefourth miles. For the better accommodation of these pupils the removal was ordered. While some attempt is made to show that the site chosen is unfit, that the cost of moving will be excessive, and that there was undue prejudice, we do not find that any of these charges are sustained. We may therefore consider merely the element of distance to the new site. It is in evidence that some of the school patrons will have to travel two and one-fourth miles to reach the new site, while there are five families with nine children whose distance will be over two miles, also that about twenty-nine children at present will be unfavorably affected and about thirty-seven favorably. While the new site will accommodate a majority of the pupils, still it is considerably north of the center of population. The board and the petitioners seemed to realize clearly that the contemplated site would leave several families at a great disadvantage as to school privileges, since they state that these families can be accommodated in other districts. They realized that an injustice would be done if these families should be compelled to travel to the new site for school conveniences. But there is nothing offered in evidence to show how said patrons can be accommodated elsewhere. It is not shown that they will be as near even another school as to their own, provided they might attend such a school. For aught that appears in the evidence, they may be three or more miles from any other school. Even if there be one nearer, there is no positive evidence that the board has made arrangements for the schooling of said pupils in another school, or even that it can make such arrangements. Witnesses say that they think said pupils could attend in some other district, but this belief merely can not be received as satisfactory evidence on this point. What are the probabilities that such provisions can be made for the children of the five families under consideration? The territory on which these families reside can not be set off to another district for the reason that territory can not be detached to districts in a different township, as would be necessary in this case. Neither is it legal to reduce independent districts to less than four sections except in special cases. See chapter 133, laws of 1878, as amended by chapter 131, laws of 1880, page 84, S. L. 1892.

The board is not sure of securing school privileges for said pupils elsewhere without such transfer of territory, because it will require the concurrence of another board which may absolutely refuse. In any event the board of Fieldberg independent district is not able to guarantee school privileges to these families elsewhere than in their own district, since the matter does not rest wholly in its own power. While the law does not, as many suppose, prescribe a maximum distance for school travel, yet by permitting provisions to be made

under given conditions for children to attend other schools than their own when they live more than one and one-half miles from the latter, it is evident that the legislature regarded this distance about as far as a child should travel to reach school.

It is the duty of the board to furnish reasonable facilities in its own district for all the children thereof. Even a minority of only five families has rights and claims which may not be ignored. To give a majority of the district 10cated in a village convenient school privileges by practically cutting off others entirely from any privileges of education, we believe after long and careful study to be an abuse of discretion sufficient to warrant reversing a board taking such action. The distance these families will be compelled to travel to school will be such as largely to deprive them of their just rights in the matter of enjoying school accommodations.

We are aware that this department has ever stood for sustaining the discretionary acts of a board. In this case, however, we believe that abuse of discretion has been fairly proven by the appellants. Doubtless the board had not fully considered the fact that rights of appellants could not be so ignored in the effort to improve the school conveniences of other parts of the district, or did not consider that providing school privileges for appellants in some other district is hedged about with such complications and uncertainties. The case is different from what it would be had theirs been a district township instead of an independent district. In the former case the matter would be much more in its own hands. It could rearrange boundaries to accommodate those at too great a distance from the new site, a matter which the board in the present case can not do. If it was satisfactorily established that said families had been or could and would be permanently provided with better school facilities elsewhere, such accommodations being annually dependent upon conditions in the district in which they might desire to attend, especially in the dispos!-tion of each new board, it would have been a comparatively clear case for affirming the action of both board and county superintendent. Because the distance of five families is to our mind needlessly increased and their school privileges nearly cut off, and because there is no proof that another school is nearer, with provision that they could attend such school, if there is one, and it seeming quite doubtful whether such provision can be made at all, we feel that the interests of said families should be protected. We have no reason to question the intentions of any parties connected herewith. We simply state that in our opinion the board did not consider the difficulties in the matter of providing school facilities for the five most distant families. The decision of the superintendent is

August 14, 1893.

REVERSED.

J. B. KNOEPFLER, Superintendent of Public Instruction.

BRADFORD INGRAHAM V. DISTRICT TOWNSHIP OF HARTFORD.

Appeal from Iowa County.

SCHOOLHOUSE SITE. It is not the province of an appeal to determine which of two sites is the better.

TESTIMONY. If selfish or other improper motives are complained of, the testimony must show such facts conclusively.

The history of this case is brief. March 20, 1893, the new township board having then just organized, on motion appointed a committee of three to relocate the site of schoolhouse in subdistrict number eight, said site to be near the geographical center of said subdistrict. On the twentieth of May, at a special called meeting, it was moved to reconsider the motion to relocate the schoolhouse in subdistrict number eight, which motion was carried. By another motion the committee appointed at the former meeting was discharged. It is from this action of the board on May 20th that Bradford Ingraham appealed to the county superintendent, and from the latter's decision affirming the action of the board to the superintendent of public instruction.

In his affidavit, Mr. Ingraham alleges that the board was influenced by selfish motives and further alleges in effect that the board abused its discretionary powers. The abuse of discretion, if such it is, consisted in the unequal distance of travel from the different parts of the subdistrict to the schoolhouse. A careful reading of the case as filed in the transcript fails to disclose any selfish or improper motives on the part of the board, and we dismiss this charge without further comment.

Counsel for appellant discusses at some length the effect of a vote to reconsider, and then not reconsidering, not voting on the former motion. It is claimed that the board merely voted to reconsider former motion to relocate, and that no further action being then taken, the motion to relocate remained before the board until it should be acted upon one way or the other, or that not being taken up within a month, it was terminated, leaving the previous action thereon in force. Counsel for appellees claims if the first be true, then the case should have been dismissed, as no action had been taken from which to appeal.

Technically the vote to reconsider the former motion placed said motion before the board again, as if it had not been voted on, and left it ready for debate and adoption or rejection. But it is clear that the board intended to rescind its former action and evidently understood the word reconsider in the sense of rescinding. It is quite a common misapplication of the word. That this was the intention is the more conclusive when we note the subsequent vote of the board in discharging its committee.

In providing for appeals before the county and state superintendent, it was the manifest purpose of the lawmakers to afford a speedy, inexpensive remedy, stripped of undue technicalities, for certain classes of grievance. Holding this view, we must recognize the intent of the board, rather than what it did under a technical construction of language. Apparently the board itself made the relocation, and appointed a committee chiefly to arrange the details and see to the removal of the schoolhouse. At the May meeting no action was taken by the board on the report or statement made by the committee. The resolution of the board at the March meeting located the site about eighty rods east of the old site. The rescinding of this amounted to a new location or to undoing the former action, a thing they clearly had a right to do. Members of the board had changed their views.

No evidence is introduced to show that either site is in itself unsuitable. It is merely a question of distance. It is a question of moving the schoolhouse