Omaha daily bee., 1899-06-07
In FAVOR OF SCHOOL BOARD
It's Action in Selecting the Oakland Avenue
Site is Affirmed.
SUPERINTENDENT SAWYER DECIDES CASE
Dismisses the Appeal of r. l.. Smith
and Sustains the Directors in
Their nj of the New
High school Building.

What might be aptly termed the first
decisive battle in the High school site war
has been won by the Board of Education.
County Superintendent Sawyer handed
down his decision yesterday in the case in
which T. l.. Smith appealed from the action
Of the board in selecting the Oakland ave-
nue. property as the site for the proposed
new High school building. The decision is
in favor of the school board and afirms it's
action. The attorneys for the appellant
have ~signifed their intention of taking the
case up on appeal to the state superin-
tendent. The ruling of County Superin-
tendent Sawyer in part follows:
The complaint of appellant alleges that
the site selected Is not central, that the
Street site was the only one legally selected
by the board, and that at the meeting of
April II, the president of the board an
nounced that other and more desirable sites
which had been before the board had since
been withdrawn by the owners thereof.
In the examination OF witnesses and in
their argument, counsel for appellant laid
much stress upon the allegation that the
board had designedly so changed their
records as to avoid their obligation to take
the Street tract. This allegation is lot
supported by testimony. The state depart
ment has repeatedly ruled that a board or
secretary may alter or annu any record be-
fore its final approval, and all the members
of the board testified that the words COM
planned of by appellant were added before
the minutes were approved.
Counsel for appellant argued at some
length the suggestion that discrimination
had been made favorable to a certain part of
the city. The very suggestion is repulsive
to the spirit of our free public school sys-
TEN, based as it is upon the axiom OF uni
yprSa1 pOlality and rpcnpnfziDV aa II does
that within its broad domain the sons of
all men are peers.
In support of the proposition that the site
selected by the board Is not centrally To-
Gated counsel for appellant dwelt at great
length upon the contention that the appel
lees were bound by the direction of the peo-
pie to select a site las centrally located as
in it's judgment is possible" The contention
that the electors may indicate to a board the
exact location for a school house is not sup
ported by the state department. Under the
rulings of the state department boards Of
directors, as the chosen servants of the Ieo-
pie, are given very wide discretionary pow
ers. While 1t was incumbent upon the ap-
pellees to select a site central and conven-
lent to as large a number of children as
possible. the law clothes them with an
authority to use their own discretion in de-
termining whether a site is central or not.
From the mass of conflicting testimony and
contradictory tabulations before me l con-
clude that in determining the question of
convenience and centrally the board had no
very narrow field in which to exercise their
discretion. Six of them have reached a
conclusion, and l deem that it would be
sheer presumption on my part, in the alb
| sence of proof of malice or passion, to set
up my judgment in opposition to that of six
men selected by the people to protect and
direct their educational affairs. Such pre-
sumption Is unwarranted by the higher
u. courts of review,
Claim of an Unjust Ruling.
Counsel for appellant likewise laid stress
upon the contention that at the meeting of
the board on April II President Sims made
an unjust ruling against the Fifth avenue
and Seventh street site, in refusing to count
| both conditional and unconditional ballots
for that site. Neither the board nor one OF
Its members can expect this court to correct
the action of that body. If an error was
made it should have been corrected then and
there, but the testimony discloses that no
protest against this ruling was offered at
that meeting or at any subsequent meeting
of the board. On the contrary, a molten az
once followed to proceed TO another ballot,
this motion resulting in the selection of the
Oakland avenue site.
Counsel for appellees were jealous and
persistent in their efforts to prove that a
solid foundation for a building of the
character contemplated could not be secured
S' . 'ANh' VI NNI' WON VI %'''hi
street. This contention was simply based
upon an assumption, unsupported by fact,
that the elevated parts of the city alone af-
ford foundations sufficiently solid for build
ings Of this kind. Testimony showed that
with one or two exceptions all of the large,
heavy buildings in the city stand upon what
are known as the lowlands.
Acting under instructions from the state
department as Indicated in its printed rul-
ings, l permitted the testimony to take a
wide range. Presuming that whatever
might be my conclusion the party ag-
grieved would appeal to the state s%uperin-
tendent, and desiring to withhold from that
tribunal no fact that could have any bearing
upon the case, l have admitted testimony
that may be immateriar.
This brings us to consideration of the one
vital question in the case: Did The board
act, with malice and prejudice. and abuse
their discretion in the selection of the Oak
land avenue site? 1t is not a question of
which of the various sites l consider most
desirable. On the contrary, my opinion
upon that point is of little concern. | may
think the Oakland avenue site he least
suitable, and least desirable of all the sites
considered, and still that opinion would be
no ground upon which to reverse the action
of the board.
The testimony does not disclose that the
members of the board were melted TO action
by malice, prejudice or passion, nor does the
appellant make one or both of these ele-
ments of human conduct the basis of an
allegation. 1t is in evidence that they vls-
tied and inspected the various sites before
them and that they acted deliberately. Five
of the seven members testified that they
considered the Oakland avenue site suf-
iciently convenient and near the center OF
the district to comply with the proposition
voted upon by the people on March 10. Six
members of the board voted for it, live CT
whom subsequently testified that they con-
sidered 1t sufficiently central to comply With
legal requirements. the sixth stating simply
that he did not consider it the exact center
of the city though he voted for 1t. As
will be seen, the decision cited will not per-
nit an appellate tribunal to interfere with
the action of the board, even though, in his
judgment, some other site might be prefer
able.
The right Of a county superintendent tc
assert an opinion as between sites being de-
MED in a long line of decisions, and the
further right to determine the more desir-
able of two sites being forbidden in Hos
kins against Township Of Lincoln, and
there being neither allegation nor proof OF
malice, passion or prejudice on the part OF
the board, / can see no course of action
other than to dismiss the appeal.
Scientific optician, Wollman, 409 Br'dway
See the Herrick refrigerator exhibition
at p. C. DeVol's on Thursday.