in his ably prepared argument, that until schools in the rural districts are con-
solidated and pupils transported at public expense, each subdistrict has an ab-
solute right to fair treatment in the distribution of the district funds and in
the maintenance of equal school privileges. However, that subdistrict is for-
tunate indeed where none of its patrons are located at a greater distance from
school than one and one-half miles. Simply because there is a schoolhouse in
a subdistrict, does not give any resident a vested right to demand a school.



114 SCHOOL LAWS OF IOWA

It is clearly within the jurisdiction of the board to designate which school each
child shall attend as long as there is no manifest abuse of discretion. We can
not believe that there is abuse of authority by closing a school and directing
that children shall attend another school when the greatest distance children
will be required to travel does not exceed one and one-half miles.

A recent decision of the supreme court in upholding the opinion of the de-
partment in the case of 'W. C. Afnold, et al., v. The School Township of Rich-
land, Wapello county^ in requiring the board to provide transportation for those
children, only, who live more than one and one-half miles from other schools,
and where the board had failed to take action to replace the building that had
burned in one of the subdistricts, would support the opinion that one and one-
half miles should not be considered an unreasonable distance for children to
walk to school.

The subdistrict does not exist as a school corporation, but merely as a sub-
division of the township unit of organization, and is not formed necessarily to
determine where children shall attend school, but the board may determine
what school in the district the children shall attend, without regard to sub-
district boundaries.

The decision of the county superintendent is Affirmed.

A. M. DEYOE,

February 1, 1912. Superintendent of Public Instruction.



J. H. Beck and S. 0. Andreavs v. School Township of Jefferson.

Appeal from Polk County.

High School. A township high school may not be maintained in a one-room
country school where grade subjects are taught.

Location of Township High School. The location of a township high school

is a little different from locating the site of a grade school.

Distance. Distance is not so important because the children usually drive.

The above entitled cause originated in the action of the school board in
changing the township high school from what is known as the Lincoln school
in Jefferson township to the Herrold schoolhouse. For about two years, a
township high school had been conducted in the Lincoln iDuilding, where there
are two rooms separated by a rolling partition. The high school occupied one
of these rooms. At the regular July, 1912, meeting of the board, action was
taken by a vote of 6 to 3 "to try the high school at the Herrold schoolhouse
for the ensuing year." The Herrold schoolhouse is an ordinary one-room rural
school building. Two teachers are employed, one of whom has charge of the
grades below the high school and the other teacher has charge of the high
school. Both teachers are conducting work in the same room. The high
school occupies one side of the room and the grades the other. There is no
suitable classroom connected with the building. The attendance in both de-
partments is small. The evidence shows that both teachers are doing good
work considering the circumstances.

Jefferson township is very irregular in shape, and it is more difficult to
select a central location for the high school than in the usual form of the con-
gressional township. Taking into consideration those to be accommodated in
the township high school, location of highways, the location of a cream station



SCHOOL LAWS OF IOWA 115

near Herrold school on an interurban railway passing through the township,
where farmers deliver cream, we are of the opinion that so far as mere loca-
tion is concerned the board made no mistake in choosing Herrold in preference
to Lincoln.

If the pupils in the township who want high school privileges and have been
accustomed to attending the township high school at Lincoln were now attend-
ing Herrold, the attendance would be about the same as it was at the Lincoln
school during the two years the high school was conducted at that place. But
for some reason there are pupils in the vicinity of the Lincoln schoolhouse
attending high school in an adjoining district and traveling farther to attend
that school than would be necessary in order to attend their own high school
at the Herrold schoolhouse. We are not questioning the motives of these
families, but the fact should appear in this opinion, in order to show that if
all pupils were now attending the high school at the Herrold location there
would probably be about the same attendance at Herrold as formerly at the
Lincoln school. The evidence shows that at least two pupils would have
farther to go to Lincoln were the high school maintained there than any
pupils would have to travel to the Herrold school. However, the matter of
locating a site for the rural school for the grades below the high school is a
little different from locating a site for a township high school. The usual
size of the rural school district is four sections, with the express provision
that the schoolhouse be located as near the geographical center as possible in
order that it may be possible for all the children to walk to and from school.
In order that no one may be discriminated against and be required to walk an
unreasonable distance to school, the rights of a minority are as carefully
guarded as the rights of a majority of children attending school.

In the matter of the location of a high school, it Is somewhat different; for
it is quite possible that a majority of the children will have to be transported
to school, and there would be some reason to adjust the distance to school on
a little different basis. Justice would not be violated by requiring one child
to drive a little farther, provided several other children would be convenienced
thereby.

The evidence shows that there are two or three barns within a few rods of
the Lincoln school, and that there is no barn nearer than a quarter of a mile
to the Herrold school. Undoubtedly shed room for teams should be provided
near the school. This could be provided for either in private barns or better
in sheds put up by the district on the school grounds. To be compelled to
drive a quarter of a mile beyond the school to put up a horse and then walk
back, is a factor of importance.

However, taking into consideration the center of population in the township
as well as the geographical center, highways, accessibility from all parts of
the township, we believe the board exhibited no abuse of discretionary power
in selecting the Herrold site, as far as conditions just mentioned affect the
selection of the proper location for a township high school.

There is another matter, however, that is determinative in this case. The
rural high school is an institution of recent origin in Iowa. The tendency to
establish rural high schools in the state is growing. The decision in this case
is important in defining conditions that may seriously affect the future organi-
zation of rural high schools in the state. To establish the principle that a
high school may be maintained in a one-room country school, by simply em-



116 SCHOOL LAWS OP IOWA

ploying an additional teacher and conducting the high school in a room where
another teacher is employed teaching the grades, would be unwise. In the
matter of establishing a high school, the Department has advised that a sep-
arate room should be used for high school purposes. In harmony with this
view, see Note 6, under Section 2776, in which graded and higher schools are
defined. This note has appeared in several editions of the school laws.

Two separate schools with two teachers employed and conducting classes
simultaneously in the same room, could not promote the best conditions for
successful work. The opinions of experienced teachers given as witnesses for
appellants and appellees reach the following conclusion: In order to secure
the best work possible, it is reasonable to lay down this rule, that a separate
room or rooms should be provided for the high school department depending
upon the number of teachers employed in the high school department. A sep-
arate room exists at Lincoln building where a high school was maintained
for two years, and we are of the opinion that the board of Jefferson township
did err in changing the high school to the Herrold schoolhouse before a separate
room was provided for the high school department. It is, therefore, ordered
that the high school be transferred to the Lincoln schoolhouse until a suitable,
separate room or building is provided in some other convenient place in the
township, preferably near the Herrold schoolhouse.

We dislike to overrule the county superintendent or to interfere with the
action of the board, but we believe the condition at the Herrold schoolhouse
warrants a reversal, therefore, the decision of the county superintendent is

Reversed.
A. M. DEYOE,
Superintendent of Public Instruction.

Des Moines, Iowa, December 28, 1912.



O. L. Cox, et al. v. Tiie Independent School District of Pabius No. 2.

Appeal from, Davis County.

Government Survey. The government survey will be accepted and a section
even though it be short in acreage will meet the requirements of the law.

Formation of New Rural Independent Districts. It was not the intention of
the legislature to invest school boards with power to form new independent
districts without a vote of the electors.

The independent rural districts of Burr Oak and Pabius No. 2 are adjoining
districts and each comprises about eight sections of land located in the southern
part of Grove township, Davis county. Appellants sought to have about four
sections, according to government survey, of contiguous territory consisting of
equal portions of the above named rural independent districts detached from
each for the purpose of forming a new rural independent district, said new
district to be named The Rural Independent District of McDowell. Appellants
proceeded to have this done by concurrent action of the school boards of Burr
Oak and Pabius No. 2, basing their authority for this plan of procedure upon
Section 2798 of the School Laws of Iowa.

Accordingly a petition was properly prepared and signed by several patrons
living in the central and southern parts of the proposed new district. This



SCHOOL LAWS OF IOWA 117

petition was first presented to the Burr Oak Independent District. The board
of Burr Oak decided in favor of granting the request of the petitioners by a
vote of 2 for and 1 against. The board of Fabius No. 2 was tlien asked to
concur in the action of the board of Burr Oak. The board of Fabius No. 2
rejected the prayer of the petitioners by a unanimous vote. From the action
of the board of Fabius No. 2, the appellants appealed to the county superin-
tendent. The county superintendent sustained the board. Appellants appealed
to the Superintendent of Public Instruction.

A few of the facts and reasons why appellants are asking for the formation
of a new independent district are as follows: That the distances to school are
unreasonable, that the roads are bad, never having been properly graded and
that unbridged streams interfere with the children's ability to travel to school.

The districts of Burr Oak and Fabius No. 2 or Beulah have been in existence
in their present form for many years. From all that can be learned from the
testimony in the case, there are good grounds for the contention of appellants.
It is unreasonable to expect small children to walk from 3 to 3% miles to
school over roads not properly worked as some of them are compelled to do.
Why such a condition concerning roads has been allowed to continue for so
many years is difficult to understand. We cannot help but feel that there has
been a too manifest disposition on the part of these districts to neglect the
matter of establishing proper school roads and to provide adequate school
privileges to all children in the district. We are inclined to the opinion that
the spirit of rigid economy in the maintenance of their schools has been prac-
ticed without proper effort to furnish school privileges to the children of the
district. Why did these districts wait until patrons were driven to appeal for
relief, before taking steps for proper roads and allow transportation for pupils?
Although some testimony was produced to show that some effort is now being
made to open up roads to school and provide transportation since the trial
before the county superintendent, which of course was taken too late to receive
consideration on appeal to the Superintendent of Public Instruction.

The county superintendent sustained the board on the following grounds:
1. The territory proposed to be included does not consist of four full sections
of land. 2. That the tendency is toward consolidation and not division in
order to establish better school facilities, suggesting that transportation be pro-
vided appellants as a better solution of the problem. 3. That two of the
schools, the Burr Oak and the school in the new district, would be very small
and therefore inefficient schools. 4. That, although the new districts be
formed, there would still be a few residents in both of the old districts with
little better facilities than those affecting the appellants. It is also noted in
the testimony that there are residents living in the north part of the proposed
district who are opposed to its formation on the grounds that they would be
farther from school in the new district than they now are from the schools
they attend.

The decision of the county superintendent is well taken except as to the first
reason. While some of the government sections do not contain 640 acres, yet
they are all sections according to government survey, and we believe meet the
requirements of the law in this respect. Had roads been provided and had the
districts offered transportation before this action was taken, we should con-
sider that these appellants had no cause for grievance. But under the present
condition of the law, whereby the provisions for opening roads depends upon



118 SCHOOL LAWS OF IOWA

a vote of the people and where transportation is optional with the boards, what
assurance have the appellants that these matters will be improved? Both of
these improvements are essential.

Let us now consider the legality of the procedure of appellants. The ques-
tion involved is a difficult one. We have given the matter long and earnest
consideration. As before stated, the action was taken under Section 2798 of
the School Laws. Does this Section mean that new rural independent districts
may be formed by concurrent action of school boards? It nowhere says so.
The law simply states that "independent districts may subdivide for the pur-
pose of forming two or more independent districts or have territory detached
to be annexed with other territory in the formation of an independent district
or districts — such new districts to contain not less than four government sec-
tions of land each, etc." The law is silent as to the plan of procedure, unless
it be defined in the latter part of the section which says, "and the proceedings
for such subdivision shall in all respects be like those provided in the section
relating to organizing cities and towns into independent districts, so far as
applicable." We must admit that the law is not clear. However, we cannot
believe it was ever intended that school boards should be empowered to form
entirely new independent districts by concurrent action, in other words, create
new school corporations. Section 2794, which relates to the formation of in-
dependent village, town, and city districts, requires a vote of the electors re-
siding within the proposed new district. Section 2792 provides that before a
township district consisting of subdistricts can be changed into independent
organizations, that the proposition must carry by a majority vote of the electors
in each of the subdistricts. In the formation of the proposed Independent
District of McDowell, there are residents living in the north part especially
who are opposed to its formation because they would be placed at a consider-
ably greater distance from school than they now are from Burr Oak and Fabius
No. 2. Should these people be deprived of their privileges without having any
voice in the matter? It is also true that outside of certain families seeking to
be set off, the people in the remaining portions of Burr Oak and Fabius No. 2
are opposed to the division of the territory. They are not in favor of the
formation of more schools and consequently smaller schools; but some of them
favor providing reasonable transportation for those living at an unreasonable
distance from school.

Again, as to the method of procedure in the subdivision of rural independent
districts for the purpose of forming new independent districts, counsel for
appellee makes the following statement: "We must admit that the meaning
of this Section 2798, is not clear to us, but as we understand it from its origin
up to the present time, we believe it means that no independent district can
be established out of territory comprising two separate, independent districts,
without first a majority of the votes of both districts affected by such change
are cast in favor of such change."

Section 2798, in addition to the provisions already quoted, mentions two
exceptions which permit the formation of independent districts with less than
four sections of land — one where the proposed district includes a village or
town, and the other where a natural obstruction exists, such as an unbridged
stream. The counsel for the appellants claim that the appellants' action is
duly authorized by law, and base their contention on the decision of the su-
preme court in the case of School District No. 10 v. The Independent District



SCHOOL LAWS OP IOWA 119

of Kelley, from which they quote the following language: "Counsel for plaintiff
contends that it is impossible for an independent district to exist consisting
of less than four sections of land save under the contingencies specified in
Code Section 2798, which relates, however, to subdivision of an existing In-
dependent district by concurrent action of the hoard of directors of the two
districts."

We are of the opinion, however, that the court in quoting the contention of
the plaintiff's counsel in the case cited did not intend to rule on the manner
of procedure, under Section 2798, since this point was not an issue in the case
at bar.

In the Kelley case, the formation of a town or village district is involved,
and Section 2794 provides how it may be done. Section 2798 also provides a
method of how town and village districts may be formed which is not in accord
with Section 2794 in all respects, but a vote of the electors is required in
either case. The question of mode of procedure was not involved in the Kelley
case; consequently we do not understand that the court placed any interpreta-
tion upon this matter as involved in Section 2798.

The determination of the plan of procedure in the case of formation of new
school corporations is far reaching, and we therefore submitted the following
question to the attorney general: "May school boards of two rural independent
districts by concurrent action set off contiguous territory for the purpose of
forming a new rural independent district under the provisions of Section 2798
of the Code without a vote of the people?" We simply quote the concluding
paragraph of the opinion prepared by counsel in the office of attorney general:
"One thing is certain, that this section is so uncertain in its meaning that it
should be rewritten and the intended meaning more clearly expressed, and until
this is done a board or officer whose duty it is to construe this section might
well be justified in construing the same either way as in his own judgment
he might think proper."

As stated before, we do not believe it was the intention of the legislature
to invest school boards with power to form new independent districts without
a vote of the electors. Until such time as the legislature shall provide other-
wise, we shall hold that the plan of organization as applied to rural independent
districts, under Section 2798, shall be like that provided for the organization
of town and city districts and can be accomplished only by a vote of the electors;
and that the plan of procedure in this case was not in accordance with the law.

With this conclusion, there is nothing to do but dismiss the case, as should
have been the action of the county superintendent.

Dismissed.
A. M. DEYOE,
Superintendent of Public Instruction.

Des Moines, Iowa, December 31, 1912.



A. L. Beab v. Independent School District No. 3, Johns Township.

Appeal from Appanoose County.

School Site. School boards have power to choose a new schoolhouse site after
bonds have been voted even though the district owns an old site, provided
the bond issue was not voted to expend the money on the old location,
22



120 SCHOOL LAWS OF IOWA

The Independent School District No. 3, Johns Township, Appanoose county,
consists of six sections of land. A railroad crosses the southeastern part of
the district. The village of Piano is located in the southeastern part of the
district on the railroad, the plat of which extends within one-half mile of
the eastern boundary of the district and within a few rods of the southern
boundary. The original village plat was made about thirty years ago and was
located entirely south of the railroad tracks.

A portion of land was later platted north of the tracks, we judge from the
evidence, not many years ago. Two schools have been maintained in this
district for many years, the site of one, known as the "college school," being
located at the four corners at the center of the four sections of land to the
west, and the site of the other, known as the Piano village school, is adjoining
the village on the south.

Bonds were voted to build a new schoolhouse in the village of Piano. The
proposition to sell the old site was voted down by the people. However, the
school board decided to purchase a new site north of the railroad tracks.
A. L. Bear, a resident of the western portion of the district and a patron of
the college school, appealed from the action of the board. The county super-
intendent sustained the board. Appeal was then taken to the Superintendent
of Public Instruction. The only question to be determined in this appeal is,
did the school board abuse its discretionary power in selecting a new site
north of the railroad tracks? The case seems to be a very simple one to
decide.

The principal complaint of appellant seems to be that the greater number of
the children who attend the Piano school live south of the railroad and that
the crossing over the track is dangerous. It is true that there is always danger
connected with crossing railroad tracks, especially in the case of children.
This condition is not peculiar to Piano. Many cities, towns, and villages, and
even rural communities, are intersected by railroads and children are com-
pelled to cross the tracks in order to reach school, but it is no worse for
children crossing railroad tracks in one direction than for those traveling in
the opposite direction. It is the duty of railroad companies and of the town
and township officials as far as possible to properly safeguard the lives of
people at such places.

Counsel for appellant claims that where a district already owns a site that
the school board cannot legally change to a new site without being directed
to do so by a vote of the people. There would be grounds for claiming an
abuse of discretionary power by the school board in the case of the removal
of a schoolhouse of large size and constructed of material that would make it
expensive or difficult to move the building. Had the bonds been voted to
build on a particular site, then the school board could not disregard the vote
of the people. In this case, a new schooUiouse is to be erected. The bonds
were not voted to build on any specified site. We believe that it is within
the jurisdiction of the school board to select a site for the same. Section 2773
of the School Laws of Iowa provides as follows: "The board may fix the site