
    In the Matter of Elsie H. Flanagan et al., Appellants, v. Ewald B. Nyquist, as Commissioner of Education of the State of New York, Respondent, and Board of Education of Union Free School District No. 6 of The Town of Southampton, Intervenor-Respondent.
   Appeal by the petitioners from a judgment of the Supreme Court at Special Term, entered in Albany County on July 7, 1971, which dismissed the petition herein upon the merits. The petitioners contested by way of an appeal to the respondent Commissioner the validity of a school district election at which the voters of the district approved a certain building program and the issuance of bonds to fund the project. The Commissioner refused to set aside the results of the election. The Commissioner specifically found that there was no constitutional infirmity as to the election in question by virtue of the fact that absentee ballots are not provided for in school district elections. Among other things, he noted that it did not appear that there were any qualified voters not present in the district on the day of election, and that finding is supported by the record. Accordingly, the petitioners’ attempt to raise such a constitutional issue in this article 78 proceeding is without merit. The petitioners further contend upon this appeal that a hearing should be directed as to the question of disparity between certain school districts as to the amount of money being spent on a per pupil basis in regard to the equality of education. This question was not properly raised in the prior proceedings and would appear to go to the issue of the constitutionality of a real property tax for the funding of school districts. The issue is not properly before us and we do not decide the same. There is no showing that the Commissioner has erred as a matter of law or that his determination was otherwise purely arbitrary. (Cf. Matter of Board of Educ. of Cent. School Dist. No. 2, Town of Oyster Bay v. Nyquist, 36 A D 2d 199, 201.) Judgment affirmed, without costs. Herlihy, P. J., Reynolds, Greenblott, Sweeney and Simons, JJ., concur.  