(dissenting). This decision is, we believe, erroneous for at least three reasons:
First: It refuses to give effect to a majority vote, at a regularly called and conducted school district meeting, on a question as to which the applicable statutes (Education Law, § 402, subd. 1; § 1804, subd. 6) give, to such a majority, full power of choice.
Second: Although one of those statutes (§ 1804, subd. 6, supra) forbids respondent board selling the schoolhouse ‘ ‘ except with the approval of a majority of the qualified voters * * * present and voting ”, and the other statute (§ 402, subd. 1, supra) says that such majority “ shall have power * * * to direct the sale * * * at such price and upon such terms as they shall deem proper ’ ’, this ■ decision restrains respondent board from acting in accordance with the majority vote, and in effect mandates the board to accept a purchase offer which the majority rejected.
*618Third; Although, petitioners chose (they could have taken court proceedings instead) to appeal to respondent State Commissioner of Education and although his decision denying appeal is, by section 310 of the Education Law, “ final and conclusive, and not subject to question or review in any place or court whatever ”, this court gives no effect to the commissioner’s decision.
These things are undisputed: that the majority favored the sale to the church for $2,000, that there was no fraud or misconduct, that this was no “ gift ” but a sale at a price within range of the appraisal obtained by the board, that the applicable statutes (supra) contain no requirement of auction sale or acceptance of the highest bid, and that, in the absence of such a statute, there is no such requirement as to sales or purchases by public bodies (see 10 McQuillin on Municipal Corporations [3d ed.], § 28.44; Simson v. Parker, 190 N. Y. 19; Matter of Dovel Co. v. Village of Lynbrook, 213 App. Div. 570; Admiral Realty Co. v. City of New York, 206 N. Y. 110). That the Legislature, in another statute not here applicable (Education Law, § 1520) specifically required sale “ at public auction ” simply emphasizes the deliberate omission of such requirements from the statutes that apply here.
These statutes, which leave to a decision of a majority of the voters the choice as to price and terms of sale, are old ones, passed by a Legislature which has been concerned with problems of the common schools for many years. The legislators, desiring that the residents themselves, and not the board, should have final say as to whether and how, and for what price and terms, to sell closed schoolhouses, saw no necessity for protecting those residents from themselves by any requirement of auction or highest bid. The reasons why those residents might prefer a more desirable neighbor to a higher price were obvious to the Legislature, and should be obvious to anyone. Since each qualified person had one vote, there was nothing resembling a “ fiduciary relationship ” between them. When, in the traditional and thoroughly democratic fashion of school district meetings (see Education Law, §§ 416,1708, 2021, 2023, 2024), the residents chose the lower of two offers, without fraud or other illegality, the question was settled. The commissioner’s brief tells us that thousands of sales of “ old red schoolhouses ” have been carried out in that fashion. Why should we now interfere?
*619A sampling of rulings in other States shows that there is nothing unusual about selling an abandoned schoolhouse to someone other than the highest bidder (Messick, Discretionary-Powers of School Boards, p. 33; Yearbook of School Law [1937], p. 57 [1940], p. 72 [1953], p. 37).
Of course, the final and complete answer to all of appellants’ arguments is the State commissioner’s decision against appellants. Appellants could have gone to the courts in the first instance (Matter of O’Connor v. Emerson, 196 App. Div. 807, 810, affd. 232 N. Y. 561). But, when the commissioner, on their appeal to him, applied the statutes exactly as they read, appellants denounced his action as “ arbitrary ” (Matter of Levitch v. Board of Educ., 243 N. Y. 373). (The word “ arbitrary ”, meaning a baseless, irrational excuse of naked power, seems an inappropriate label for a determination concurred in by eight appellate court justices.) Of course, if a decision becomes “ arbitrary ” just because someone can be found to dispute it, every decision of the commissioner construing a statute (he has made thousands of such in the past one hundred thirty years) can be fought out, all over again, in the courts. But the statute says that “ his decision in such appeals, petitions or proceedings shall be final and conclusive, and not subject to question or review in any place or court whatever ” (Education Law, § 310, supra). Until now, the courts have consistently obeyed that very old statute and have refused such review (People ex rel. Hill v. Collins, 34 How. Prac. 336 [1867]; People ex rel. Light v. Skinner, 159 N. Y. 162, 166; People ex rel. Board of Educ. v. Finley, 211 N. Y. 51; Barringer v. Powell, 230 N. Y. 37; Matter of O’Connor v. Emerson, supra; Matter of Levitch v. Board of Educ., supra).
There is not, of course, any issue here as to “ Church and State ”, and neither the parties, nor the commissioner, nor the courts below, have discussed any such supposed issue.
The order of the Appellate Division should be affirmed, with costs.
Conway, Ch. J., Fuld and Burke, JJ., concur with Van Voorhis, J.; Desmond, J., dissents in an opinion in which Dye and Froessel, JJ., concur.
Orders reversed, etc.