Omaha daily bee., 1899-12-13

against the Oakland avenue site stands
! This not only leaves the board in the posi-
! tion that 1t will now have to select some
other location for the proposed new High
school building but 1t will also have to defend
a suit brought by Simon Casady against the
school district to recover the purchase price
of the Oakland avenue property. The de-
cision OF the state superintendent denying
the application for rehearing was received
here Yesterday morning and Immediately
after the attorneys for Simon Casady served
notice of suit.
Text of the Decision.
The decision of the state superintendent is
as follows:
r. L. Smith, appellant, against lnde-
pendent District of Council Bluffs.
Comes now the Independent School DIS
trict of Council Bluffs by its attorneys and
asks a rehearing in this case
The act of the board from which TINS ap-
peal is taken was not wholly discretionary
The vote of the electors. placing S65,VoO IN
the hands of the board of directors OF the
independent District of Council Bluffs Tor
the purpose of erecting high school build
ing, contained a direction to that body to
select the site in as central location as
in its judicial judgment is possible.
While it is true general proposition
that the law confers upon boards of dlrec-
tors the power to locate school house sites
IL has been repeatedly held by this depart
ment. and at least once by the supreme
court of our state, that If the location , OF
mated in the vote to build, the house must
be built in accordance with the vote
AS an inducement to the electors to vote
the necessary sum for the erection of the
High school building in question the board
set out in its notice of election that the
new site should be selected as centrally as
in it's judgment is possible. This proposi-
ton, which in measure limited the dis
cretionary power of the board relative 10
the location of site, having been made
part of the vote authorizing the issuance
of bonds, became inseparable therefrom
when endorsed by the electors, and the
board became bound to select the most CEN
tral location possible both as matter Oh
law and of good faith.
We are unable to conclude that the board
did select the most central site possible:
on the other hand, the action of the
board on April il, when the street site was
selected; the admission of a majority OF
the board at the hearing before the county
superintendent that the Oakland avenue
site chosen April II was not located as
centrally as possible; the virtual holding OF
the county superintendent that the board
was in nowise bound by the expressions of
electors relative to the location OF the
building, for whose erection they voted
money, led us to the conclusion that the
board had not given that consideration cons rat, ,n TO
ton of the school house site, which they
were in law and good conscience bound to
give, and that the site chosen Is not located
centrally, as centrally as in the judg-
ment of the board it is possible to locate 1t.
The action of the board since the decision
was rendered has served only to strengthen
this opinion.
From the transcript of the proceedings
of the board, duly certified to by its secre-
tary 1t appears that on the 18th day of
September five ballots were taken to de-
termine the choice of school house site,
and that upon no one of said ballots did
the site in controversy receive i've more more tnan bi
action on the part of the board indicates
that a majority does not now regard the
Oakland avenue site as the most centrally
located.
This case has been decided upon the evil
dence of the members of the board them
selves and In the light OF the law as 1t re-
lates to the duties of boards of directors.
Considerable stress is laid in the applica-
ton for a rehearing upon the claim that the
owner of the proposed site, as well as the
persons employed by the board to grade the
same may involve the district in litigation.
In our opinion this is matter that 1t is
not our province to consider in determining
the question of a rehearing. Every person
doing business with municipal corpora
tion is presumed to know that he is dealing
with creature of the law whose powers
are limited, and the members of the board
certainly knew that any person ,aggrieved
by their decision in LOCATING the school 2n
such decision within thirty days after its
rendition. .,..
made on the 18th day of september, 1899,
Il copy of the opinion was at once trans
mitted to the board, which body, accord
ing to the transcript of their secretary,
formally considered the same on September
IL
The secretary's transcript shows that not
until October l6 did the board decide to ask
for rehearing, appncation for which was
filed october 81, or thrty-nine days after
the decision was rendered.
While the statute Is silent as to the
method or time of making application for a
rehearing in IN eSe cases, yet, reasoning
hp m " n
NIT applications to oe made. The person
aggreved by decision or order of school
board has only -, IS days in which to
make an appeal to the county superintend-
ent. II the affidavit is not filed within that
time the appeal must be dismissed. Like
wise the person aggrieved by the decision
of the county superintendent has only
thirty days In which to perfect his appeal
TO the superintendent Of public instruction,
lating to rehearing in the supreme court
provides that written notice of intention
to petition for rehearing shall be served
on the opposite party or his attorney and
the clerk of the court within thirty days
after the filing of the opinion or decision,
for rehearing shall not be filed after the
expiration of such thirty days.
While thirty days from the rendition of
he decision would, 1t seems 10 us, be ample
rehearng, and while this department would
be fully justified in refusing to consider
an application filed after the. expiration
derstood that refusal to reopen this case
Is based upon that ground
In the case of y. r. johnson against
District Township of Utica, page 80, S l..
Decisions 1t was held To Justify the
granting of new trial reasonable doubt
must arise in the mind of the officer to
whom application Is made as to the abso-
lutte correctness of his former conclusions.
After carefully considering the evidence
and the law, as we'll as the arguments of
in support of the application, we
are unable to see any reason for reopening
this case.
The application for rehearing l. therefore
denied. r, c. BARRETT.
December II. 1899.
Board Holds Special Session.
special session of the school board
was held yesterday afternoon, at which, after
the ruling of the state superintendent had
been read and ordered laid away among the
archives of the district. it was decided TO
defer action in the selection OF another site
until next Monday night Action in the
matter of the Casady suit was deferred
until the next regular meeting.
Member Cooper was in favor of the board
losing no more time over the selection Of a
site and wanted action taken right there
and then but failed TO secure any sup
port from the other members, who deemed
II best TO wait a few days as the offer OF
other sites might be made the board in the
meantime
During the discussion Member Moore