Opinion
August 1, 1961
Present — Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ.
Appeal from an order which dismissed an article 78 proceeding brought to annul a determination of the Acting Commissioner of Education which sustained the results of a school election. It is contended there were triable issues of fact and that the Commissioner's refusal to issue subpoenas and take testimony was arbitrary and illegal. A special school election for Union Free School District No. 1, Towns of Brookhaven and Smithtown, Suffolk County, was held on April 9, 1959 for the purpose of voting to raise the amount of $670,000 for the construction of a new school. The proposition was carried by 362 affirmative votes against 357 negative votes or a majority of 5. Parenthetically, it might be noted that a subsequent proposition was overwhelmingly carried to raise approximately twice the amount of money here involved and which included the amount voted in this election. There were 11 complaints before the Commissioner but the petition in this proceeding, supported in part by an affidavit, alleges only four grounds for reversing, annulling and setting aside the decision. First, that the Board of Education violated certain procedural requirements in that the notice of meeting made no mention with reference to the register being available for inspection at the time of the election. Second, the voting machine was not properly functioning as the result of which seven votes were disenfranchised. Third, that the Chairman of Inspectors of Election gave illegal assistance to seven voters. Fourth, that 14 persons who voted were not eligible because they were not residents of the district. The petition must fail for lack of proof. There is no showing that the failure to have the register available for inspection on election day in any way influenced the outcome of the election. In fact, there is no allegation that there was any request to inspect the book except by the petitioner. As to the failure of the voting machine to properly function, there is an affidavit by one of the inspectors that seven voters complained that they could not vote because of the malfunctioning of the voting machine but the affidavit does not list the names of the voters nor are there any affidavits submitted by any such alleged voters. The mere statement of such mechanical defect in and of itself raises no triable issue and is opposed by an affidavit of the custodian of the voting machines that they were in good repair. As to the third charge that illegal assistance was given to seven voters by someone entering the booth with them, once again there is no proof to substantiate such charge. There are no affidavits of any voters and under the circumstances if we assume that someone did enter the booth with the voter, it may have been at the request of the voter for assistance. It is further evident that there was no compulsion under such circumstances for the Commissioner to issue subpoenas. There is no history of any voters having complained about illegal assistance and we are not here concerned with complaints by registered voters of interference with their rights to a secret ballot. As to the last charge that 14 persons voted who were not eligible to vote because of residence requirements, this contention is based upon votes cast by teachers and members of their families who were employed in a private school within the district. There is no dispute that they were residents of the district, that many of them had lived there for years and their children attended school in the district. This case is typical of many brought to this court on appeals from decisions of the Commissioner of Education. Petitioner sets forth many allegations as to election irregularities but the petition is not supported or substantiated by affidavits sufficient to raise issues which require the issuance of subpoenas and the taking of proof. The issues here were such that the Acting Commissioner, in his discretion, could determine by affidavit and his action was not arbitrary or illegal. Decision and order unanimously affirmed, without costs.