This is an appeal from a judgment of the Supreme Court at Special Term, entered August 13, 1970 in Albany County in a proceeding under article 78 of the CPLR, . which ordered respondent Ewald B. Nyquist, Commissioner of Education of the State of New York, to grant State building aid to the petitioner school district for construction of its. high school, and for other construction which it may lawfully ■undertake.
On July 22,1969 petitioners, the Board of Education of Union Free School District No. 2 of the Town of Poughkeepsie, also ■known..as the Spackenkill.School District,-.applied.to the.Commissioner- of; Education for building aid-apportionment for a proposed new high school building which application "was, by ' letter dated July 25,196.9, derii'ed On .the .ground that "the district was not. eligible.'for building, aid'-pursuant tó' paragraph e. of ...subdivision ..i of section 2040 of the. Education Law..
:.. In a .prior-proceeding the denial by the Commissioner of Education of Spackenkill’s application for the registration of a high school was ..reversed. (Matter of Carter v. Allen, 25 N Y 2d 7.) "While the Carter- ease dealt with-.the question of registration of -a'high school, this proceeding deals solely with the question of State, building aid for the.proposed new senior high school.and '. the interpretation of paragraph c of subdivision l of section *4772040 of the Education Law. This section which became effective on July 2, 1965, insofar as it is pertinent here, provides: “ any school district which has not maintained a home high school for grades seven through twelve or any school district which employed fewer than eight teachers continuously for a period of five years ending on July first, nineteen hundred sixty-eight shall, as of such date, cease to be eligible to receive any increase in building aid which may be payable and to which such district would otherwise be entitled to receive upon such date, except for such additional amounts as may be computed as due on debt "service already incurred, and the commissioner shall not pay any such additional state building aid to such district commencing with the fiscal year following such date ’ ’.
This subdivision was amended by the Laws of 1969, effective May 12,1970 to afford such aid where a certificate of compliance with the provisions of paragraph a of subdivision 10 of section 3602 had been received by a school district during the school year 1967-68. No such certificate having been issued to the Spaeken-Mll District, the 1969 amendment has no application to this proceeding.
Petitioners have not alleged that the school district has ever maintained a home high school for grades 7 through 12, and apparently it is conceded that grades 10 through 12 have been, and still are educated by the Poughkeepsie City School District. The section in question which became effective July 2, 1965, establishes a category of school districts, as of certain dates, and eliminates such districts from receiving increases in State building aid. The proper interpretation of the section, as it applies here, is that if the school district did not maintain a home high school continuously during the five-year period ending July 1, 1968, it shall as of July 1,1968 cease to be eligible for increases in State building aid.
Admittedly, the Spackenkill District had not maintained a home high school continuously for a period of five years cm July 1, 1968, thus the Commissioner was prohibited by the statute from paying any additional State building aid to the district, although it was on the other hand entitled to registration of a high school.
Upon this proceeding we have not considered the effect of peti- ■ turner’s 1967 application for building aid for'the reason that-the validity of the Commissioner’s reaffirmation order has not been determined and is the subject of a separate proceeding under section 314 of the Education Law. -.
Petitioner’s' argument that- the. Commissioner’s attempt to deny State building aid to the district denies the district equal. *478protection of the laws and due process of law, is without merit. The Commissioner was clearly prohibited by the statute from granting such aid. Further, the petitioners present no Tacts from which it may be discerned that the statute itself unfairly discriminates against them or that there was no reasonable basis for the enactment thereof by the Legislature.
Petitioners’ further argument that the 1969 amendment to paragraph c of subdivision 1 of section 2040 entitles it to additional State aid is equally without merit. That amendment contains a proviso requiring a certificate of compliance with the provisions of paragraph a of subdivision 10 of section 3602 of the Education Law, and it is clear that the district is not entitled to such a certificate. The judgment of Special Term should, therefore, be reversed.
The judgment should be reversed, on the law, with costs, and petition dismissed.