The questions presented in the present case are extremely limited. Section 6401 of the Education Law provides for the payment of State funds to institutions ' ‘ of higher education ’ ’ upon application by such an institution which meets certain specified requirements. Among other things the statute requires that the grant of such aid not be in violation of the New York State Constitution.
The statute does not provide for the manner in which an applicant is to demonstrate that it meets the various requirements except possibly insofar as it provides in subdivision 5 thereof that applicants must submit such reports as the appellant (Commissioner) may require. (See 8 NYCRR 150.1, 150.2.) The applicant submitted to the Commissioner a questionnaire — application as required for the purpose of obtaining State aid. The Commissioner denied the request for State aid upon the basis of the application and such information as he then had before him upon the ground that the applicant was prohibited from receiving such aid pursuant to ‘ ‘ the relevant provisions of the New York State Constitution ”. In the process of this article 78 proceeding the basis of the Commissioner’s refusal to pay over State aid to the applicant has been narrowed to the finding by the Commissioner that the applicant falls within the proscription of section 3 of article XI of the New York State Constitution as being an institution 1 ‘ -in which any denominational tenet or doctrine is taught ”.
The limited issue before this court is whether or not the Commissioner could refuse the payment of State aid upon such information as was before him at the time of application. It should be noted that the letter from the Commissioner to the applicant dated December 31, 1969, refers to a meeting ‘ ‘ with key mem*347bers of the Education Department staff ”, and which apparently is some of the “ information ” upon which the Commissioner relies and is not part of the present record.
Ordinarily, the issue of whether or not the Constitution of this State would prohibit the granting of State funds to it would be judicial in nature and would require a full disclosure of all of the relevant facts concerning the institution. Presumptively such an issue could be fully litigated in an action seeking a declaratory judgment. (Cf. Board of Educ. Cent. School Dist. No. 1 v. Allen, 20 N Y 2d 109.) However, the Commissioner must of necessity pass upon the prima facie qualification of applicants based upon such information as is submitted either with the application or in support thereof. The Commissioner in his brief alleges that the “ denial of aid must be sustained as based on the salient statements of petitioner which are before the Court ’ ’. However, the application and the present record are inadequte to support.the determination of the Commissioner that the applicant does not in fact qualify for State aid as was implicitly found by Special Term. Accordingly, it appears that the Commissioner exceeded his power insofar as he denied the application for State aid under the circumstances in the present ease. The Commissioner does not contend that any further proceedings are necessary in regard to this application for State aid and, accordingly, the direction that the appropriate State aid be paid forthwith should be affirmed.
The present proceeding does not raise any issues under the Federal Constitution.
I concur in the affirmance solely on the basis that the grounds invoked by the Commissioner to deny the application for aid are inedaquate and, therefore, arbitrary and capricious and pass on no other issue which might or might not have been raised in an appropriate proceeding.
Reynolds and Greenblott, JJ., concur with Staley, Jr., J.; Herlihy, P. J., concurs in result in a separate opinion, in which Reynolds and Greenblott, JJ., concur. Sweeney, J., concurs in the result.
Judgment affirmed, without costs.