Opinion
November 3, 1971.
Appeal from the Supreme Court, Sullivan County, RUSSELL G. HUNT, J.
Scheinman Kalter ( Louis B. Scheinman of counsel), for appellants. Rothblatt, Hanofee Friedman ( Tabner Carlson, by C. Theodore Carlson, of counsel), for respondent.
This is an appeal from an order of the Supreme Court, Sullivan County, dismissing appellants' complaint for failure to state a cause of action.
Appellant district, one of the school districts included within the area served by respondent and which provides part of the financial support for respondent, seeks to obtain a declaration that section 1958 Educ. of the Education Law is invalid respecting the power delegated to respondent to change the method of apportioning its administrative expenses amongst the component school districts and that the method of selection of members of respondent prescribed in subdivision o of section 1958 contravenes the "one-man one-vote" rule in that, having the power to tax, respondent is therefore a legislative body whose members should be elected either by popular vote or by giving each district a proportionate share of members on its board. We find no merit in appellant's contentions. It is clear as to the first contention that respondent may under section 1958 only exercise the power to allocate expenses among the various entities which provide it financial support and has not itself the power to tax ( People v. Brooklyn Garden Apts., 283 N.Y. 373). Gautier v. Ditmar ( 204 N.Y. 20), rather than upholding appellant's contentions, in fact instead supports respondent's contention that the power to tax is not vested in it but remains in the Legislature. As to appellant's second contention, since respondent has no power to tax, it is not subject to the one-man one-vote rule and appellant's assertion that it is an unrepresentative body must fail ( Sailors v. Board of Educ., 387 U.S. 105, 108, 109-111; see, also, Hadley v. Junior Coll. Dist., 397 U.S. 50).
The order should be affirmed.
HERLIHY, P.J., STALEY, JR., GREENBLOTT and COOKE, JJ., concur.
Order affirmed, with costs.