proposed by the formation of the new subdistrict, number twelve, can possibly be made. The county superintendent, however, provides for this, as his decision does not prevent any changing of the boundaries of subdistrict lines, if necessary to faciliate the school privileges of the township.

A new subdistrict is needed to furnish reasonable school facilities for the children in that neighborhood, and so far as ordering the new subdistrict, to be known as number twelve, is concerned, the decision of the county superintendent is AFFIRMED.

March 15, 1888.

HENRY SABIN, Superintendent of Public Instruction.

JACOR DECK et al. v. DISTRICT TOWNSHIP OF EDEN.

Appeal from Decatur County.

SUBDISTRICT BOUNDARIES. A case involving a change of subdistrict boundaries, having been adjudicated by the county superintendent reversing the action of the board, and being affirmed by the superintendent of public instruction, can not again be brought upon appeal, unless it can be shown that some change materially affecting the conditions of the case has taken place since the date of the former decision.

SUBDISTRICT BOUNDARIES. In changing subdistrict boundaries, both the present and the future welfare of the district township should be considered.

SUBDISTRICT BOUNDARIES. A subdistrict long established, embracing a territory having a sufficient number of scholars to maintain a good school, should not be abolished, unless the general school facilities of the township will be improved thereby.

On the nineteenth day of September, 1887, the board voted to abolish subdistrict number eight. Jacob Deck and others appealed to the county superintendent, who on the fifth day of December rendered a decision reversing the action of the township board, and the board appeals.

The council for the directors urged in their written argument that the county superintendent should be required to send up to this department all the testimony taken in the trial before her. It was certainly the duty of the county superintendent to send up all the testimony upon which she based her decision. In the absence of any proof to the contrary, the presumption is that the transcript furnished by her contains all the testimony on file in her office. There is no proof offered that she has not complied with the law in all respects.

On the twenty-sixth day of December, 1885, the county superintendent rendered a decision reversing the action of the board in abolishing subdistrict number eight. As no material changes have taken place since then, in the condition of the township, does that former decision act as a bar to any further proceedings in this case? We think not.

The principle enunciated here is undoubtedly correct. A case involving a change of subdistrict boundaries, having been adjudicated by the county superintendent reversing the action of the board, and being affirmed by the superintendent of public instruction can not again be brought upon

appeal, unless it can be shown that some change materially affecting the conditions of the case has taken place since the date of the former decision. In this case, however, the decision of the county superintendent can not act as a bar to further proceedings, because the district board did not take an appeal. Such proceedings can not be considered as final in such a sense until they have been affirmed by the superintendent of public instruction.

It is urged that the county superintendent erred in taking into consideration the distance which many of the pupils must travel in order to reach their school, if the action of the township board, abolishing subdistrict number eight, is affirmed. The law does not contemplate that one and onehalf miles is in all cases an unreasonable distance. It depends largely upon the age of the pupil and upon the condition of the roads. In the case before us a natural obstacle, the Little Turkey river, must be taken into consideration. The opening of additional roads and the construction of a bridge would simplify matters somewhat, but no steps have been taken to accomplish this. Until this is done, to abolish the school in number eight would impose an undue hardship upon a large number of pupils.

What are the conditions of the school as at present constituted? The report of the secretary put in evidence, shows that the school in number eight will average with other subdistricts in the number of pupils enrolled; it is above the average in daily attendance, and below the average in cost of tuition. The board fails to show that reduced numbers render it expedient to abolish this subdistrict, nor does it show that the township is excessively taxed to support its schools.

This department has alreay ruled that subdistrict lines, which have been long established, embracing a territory having a sufficient number of pupils to maintain a good school, should not be disturbed, unless it can be proved that the general school facilities of the township will be improved by the change.

The board does not show that there is any general benefit to be expected from the proposed change of boundaries, nor does it prove that any existing necessity makes it desirable. The board undoubtedly intended to act fairly toward all, but we think it failed to properly consider all the circumstances involved in its action. The decision of the county superintendent is therefore

March 16, 1888.

AFFIRMED.

HENRY SABIN,

Superintendent of Public Instruction.

J. S. FOLSOM et al. v. DISTRICT TOWNSHIP OF CENTER.

Appeal from Cedar County.

REHEARING. To warrant a rehearing, some valid reason must be urged.

TESTIMONY. Sufficient latitude should be allowed in the introduction of testimony to permit a full presentation of the issues involved, even if irrelevant testimony is occasionally admitted.

SCHOOLHOUSE SITE. Every dwelling-house must be taken into account, as someone entitled to school advantages may hereafter reside there.

SCHOOLHOUSE SITE. When it is the evident intention of the board to relocate the site as near as possible in the center of the subdistrict, in order to furnish equal school facilities to all the residents, its action should not be materially interfered with.

The transcript in this case shows that on the twenty-first day of March, 1887, at a meeting of the board, a committee was appointed to investigate the needs of subdistrict number two and report at the meeting in September. It further shows that on the nineteenth day of September, 1887, such committee reported, recommending that the new house be built for said subdistrict, to be located in the center of the district. The report was received and the committee discharged. The report was also upon motion, laid upon the table.

On the nineteenth day of March, 1888, at a meeting of the directors, the above report was finally adopted and a building committee was appointed to confer with the county superinendent in regard to plans and specifications. From this decision of the board Folsom et al. appealed to the county superintendent, and the case was heard at Tipton on the ninth day of April, 1888. The records in the county superintendent's office show that the appellee consented to the filing of an amendment to the affidavit by appellant, and that the appellee filed a motion to modify the decision of the board, and the trial then proceeded. On the eleventh day of April the county superintendent filed a decision reversing the action of the board. On the seventeenth day of April, 1888, a motion was filed for a rehearing, within the time given by the county superintendent. On the nineteenth day of April, 1888, the motion for a rehearing was argued before the county superintendent and overruled. From the decision of the county superintendent the board appealed to the superintendent of public instruction, and the whole case came up on a hearing before him on the fifth day of June, 1888.

The first question to be decided is: Did the county superintendent err in overruling the motion for a rehearing? A rehearing of such a case can be granted only when it can be shown that some injustice has been done, or some mistake has been made which can be corrected by a new trial; or when some additional evidence has been discovered which is in favor of the party applying, but which could not have been presented before by reasonable diligence. The affidavit upon which the motion for a rehearing was based failed to show any such reasons. All the main points alleged therein had already been ruled upon by the county superintendent, and we think she did not commit any error in overruling the motion. This also disposes of all the testimony sent up in support of the motion for a rehearing; these affidavits will not be taken into account in the final decision.

It is not necessary here to determine the legal residence of William Busier. His own testimony is that the distance from his residence to the site selected by the board is one and one-fourth miles. The fact that Mrs. Morgan does not desire to send to school is not material. It is not the individual but the residence that is to be considered. Some other person living at the same place may hereafter desire school privileges.

We are now free to approach the main question upon which issue is joined. The testimony shows that the directors desired to relocate the

schoolhouse in subdistrict number two in a more central location; no other reason is assigned for the contemplated removal. There is nothing to show that the present site is unsuitable, except that it does not well accommodate the pupils from the northern part of the district. In this determination to relocate the site near the center, there is no evidence of any abuse of discretion on the part of the board and we think this action should not be interfered with.

There, is, however, evidence which shows that the exact acre which the committee staked out is not a desirable site for a building. The board itself acknowledges this in its amended order by which the site is removed ten rods north.

The county superintendent, in her decision, locates the site upon a piece of ground known as the "grave-yard site." It is urged that the county superintendent has only appellate jurisdiction, and must therefore confine her decision to the two sites upon which the parties joined issue. She seems to have entertained some such idea, as she sustained a motion to rule out all testimony in regard to the unsuitableness of the grave-yard site when such evidence was offered in the original trial. We think that such evidence should have been admitted.

In April, 1866, the Hon. O. Faville, then superintendent of public instruction, obtained this opinion from Hon. F. E. Bissell, then attorney-general: "The case does not come before him (the county superintendent) merely to correct an error of the board of directors, but to hear and decide the same matter that the board had decided. The county superintendent is not limited to an affirmance or reversal of the action of the board, but he determines the same question that the board determined." See also John Clark v. District Township of Wayne, page 47, School Law Decisions of 1876.

To this opinion the decisions of this department have always conformed. The county superintendent, therefore, did not go beyond her jurisdiction in selecting a site different from any which had been considered by the board.

We can not see, however, that the grave-yard site has any advantage over the old site. It is irregular in shape, and is about as far north of the center of the subdistrict as the present site is south. In fact, its selection as a site for the new building defeats the very end which the board had in view in its action locating the site in the center of the subdistrict.

The case is remanded to the board with instructions not to build upon the site selected by the committee, but to select the best site possible within a distance not more than forty rods from the center of the site staked out by the committee; the south corner of said site, however, to be at least fifteen rods north of the south corner of the committee's site; said site also to contain not less than an acre, and to be as nearly square in form as the circumstances will admit. The decision of the county superintendent is REVERSED. HENRY SABIN, Superintendent of Public Instruction.

June 7, 1888.

JURISDICTION.

P. O'CONNOR, JR., v. DISTRICT TOWNSHIP of BadgeR.

Appeal from Webster County.

In most matters with which boards have to do under the law, their authority and responsibility are absolute, and their jurisdiction is complete and exclusive.

JURISDICTION. A former order of the board, or a decision of the county superintendent on appeal, will not operate to prevent the board from exercising its discretion anew, when good reasons exist for such action.

REHEARING. To obtain a rehearing the necessity must be clearly shown.

DISCRETIONARY ACTS. In the exercise of discretion, the benefit of every reasonable doubt must be given in favor of the correctness of official acts.

APPEAL. The hearing is not to be conducted by a rigid adherence to the technical forms and customs which prevail in the courts.

At a special meeting of the board held February 10, 1888, it was voted to remove the schoolhouse in subdistrict number seven, forty rods north from its present site. P. O'Connor, Jr., appealed to the county superintendent, who heard the case on the twenty-third day of April and affirmed the action of the board. P. O'Connor, Jr., appeals.

The proceedings in this case are regular and the facts admitted by both parties. The only point in dispute is this: On the tenth day of November, 1887, the county superintendent heard the same case and rendered his decision reversing the action of the board. As the board did not see fit to appeal, and as no material changes have taken place in the subdistrict, it is claimed that the decision of the county superintendent rendered November 10, 1887, must be considered as final, and that no further proceedings can be had in the case. If this allegation is true, then the county superintendent committed error in not dismissing the case.

Let us examine it a moment, that we may arrive at the intent of the law. It is plain that the law reposes great confidence in the discretionary acts of a board of directors. The instructions from the department of public instruction to county superintendents have always been that such discretionary acts are to be affirmed unless it can be very clearly shown that the board has in some way abused its powers; if there is a doubt, even, the board is to have the benefit of it. It has become a well established principle that the conduct of the schools and the location of schoolhouses should be left with those officers who have the closest relation to the people for whose benefit the schools are maintained. With this principle this department is not willing to interfere.

Is it right, then, that in this present case because the county superintendent reversed the board in November, 1887, it should be left without further remedy? We think not. After its former action was reversed, the board had its choice of three courses of action; it was bound to take the one which it believed to be for the best interests of the subdistrict.

It could ask for a rehearing, but to obtain that it must be able to show that some very grave mistake had been made, or that it had discovered some additional evidence which could not have been presented before by using reasonable diligence.