                                 No. 86-511
                 IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     1987


FRAZIER SCHOOL DISTRICT NO. 2,
                  Appellant and Respondent,
          -vs-
LAYNE A. FORSNESS; ED ARGENBRIGHT,
Superintendent of Public Instruction;
ALFREDA DRABBS, Valley County Super-
intendent of Schools; and DELORES
HUGHES, Substitute Hearings Officer,
                   Respondents and Appellants.


APPEAL FROM:      District Court of the Fourteenth Judicial District,
                  In and for the County of Valley,
                  The Honorable LeRoy McKinnon, Judge presiding.
COUNSEL OF RECORD:
          For Appellant:
                  John W. Larson, Office of Public Instruction, Helena,
                  Montana
                  Gallagher, Archambeault & Knierim; G. T. Archambeault,
                  Glasgow, Montana
          For Respondent:
                   James D. Rector, Glasgow, Montana



                                     Submitted on Briefs: Feb. 13, 1987
                                       Decided: March 31, 1987

Filed :   MAR 3 11981
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.

     This is an appeal from the September 29, 1986, order of
the Seventeenth Judicial District Court reversing a decision
of the State Superintendent of Public Instruction which
allowed a tuition transfer for appellant Layne Forsness. We
affirm.
     Appellant is the father of an elementary student,
Brandon Forsness.    The Forsness family resides within the
Frazer school district, but Mr. Forsness desires to have
Brandon attend school in Wolf Point.       Brandon' s tuition
application was granted by the Frazer School Board for
1983-84 permitting his attendance in Wolf Point.          The
following year, the School Board denied Brandon's tuition
transfer request.
     Mr. Forsness appealed the Board's decision to the Valley
County Superintendent of Schools.     Following hearing, the
decision was affirmed by presiding hearings officer, Dolores
Hughes, the Phillips County Superintendent of Schools.     On
appeal to the State Superintendent of Public Instruction, the
decision was reversed. The Frazer School Board appealed the
order of the State Superintendent to the District Court. The
District Court reversed and reinstated the decision of the
Frazer School Board denying a tuition transfer. Mr. Forsness
appeals the District Court order and raises the following
issues:
     1. Whether the District Court complied with 55 2-4-623
and 704, MCA?
     2. Whether the decision of the County Superintendent
violated the Montana Administrative Procedures Act and is
contrary to law?
     The case before us is a companion case to Frazer School
District No. 2 v. Flynn (Mont. 19871, - P.2d I             44
St.Rep. 248.   The issues are identical, and our holding in
Flynn, supra, is dispositive of this appeal.
     In Flynn, supra, we found that pursuant to Rule
10.6.125,  Administrative Rules of Montana, the State
Superintendent may not substitute his judgment for that of
the County Superintendent as to the weight of the evidence on
questions of fact.   In the present case, we find the State
Superintendent violated this provision and the District Court
was correct in reinstating the decision of the County
Superintendent.
     The Frazer School Board has broad discretionary
authority under       20-5-302, MCA, to permit a tuition
transfer.   The Board denied Brandon Forsness' application.
The County Superintendent considered all the evidence and
found the Board properly exercised its discretion under
S 20-5-302, MCA, in denying the Forsness application.     The
State Superintendent reversed, finding the Board's reasons
for denying the application to be a change in the composition
of the Frazer School Board and a change in the bus route. As
in Flynn, supra, we find the State Superintendent exceeded
his authority by substituting his opinion for that of the
Frazer School Board and the County Superintendent.
     The District Court is affirmed.



We Concur:
                I
Justices
Mr. Justice John C. Sheehy, dissenting:


     Again I dissent, as I did in the companion case, Frazier
School District No. 2 v. Flynn (Nont. 1987), 732 P.2d 409, 44
St.Rep. 248, and for the same reasons.        Both of these
decisions severely limit the statutory discretionary power
lodged in the Superintendent of Public Instruction on matters
of controversy appealed to the Superintendent under Section
20-3-107, MCA.
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                                                Justice
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I concur in the foregoing dissent.



                                Justice William E. Hunt, Sr.
