I concur in the following paragraph of the majority opinion: "In view of the importance, however, of the questions presented herein, we exercise our discretion and convert this article 78 proceeding into an action for declaratory judgment (Matter of Jerry v Board of Educ. of City School Dist. of City of Syracuse, 35 NY2d 534; CPLR 103, subd [c]). To that end, it is necessary that this court make certain declarations in regard to the meaning and intent of the language of section 202 of the Education Law.”
It appears to me that much of what is said in the other opinions herein, in reality, is part of the legislative "house*239keeping” (i.e., right of the Lieutenant Governor to preside at a joint session; manner of recessing and reconvening the Senate, et cetera) and, therefore, not subject to judicial review, at least in the present instance.
The only issue for this court concerns whether there was a meeting in joint session of the Legislature, pursuant to section 202 of the Education Law, and whether there was a quorum present and voting. There appears to be unanimity as to the quorum present and voting.
Prior to amendment by chapter 5 of the Laws of 1959, section 202 provided that the Legislature would elect Regents "on or before the fourteenth day of [February] * * * on joint ballot of the two houses thereof.” Chapter 5 of the Laws of 1959 provided for election by a concurrent resolution or by a joint session.
The purpose and intent of section 202 of the Education Law, at the time of passage, was explained by its sponsor, the late Senator Brydges, wherein he stated: "It is intended to simplify the procedure requirement in connection with the election by the Assembly and Senate of members of the Board of Regents. Whereas heretofore it has been necessary for us to compare the journals in joint session in the Assembly; this permits the election of Regents by concurrent resolution of both houses. It in no way affects the right of the minority to propose candidates for membership on the Board.” (Transcript of Proceedings in Senate of Jan. 13, 1959; emphasis added.)
With reference to the section, there appears to be no argument but that it is mandatory that "[e]ach regent shall be elected by the legislature by concurrent resolution in the preceding March, on or before the first Tuesday of such month.” It is patent that the quoted proviso for a concurrent resolution is not only mandatory, but also self-executing. The section then provides that upon failure of the Legislature to agree upon "such concurrent resolution”, the two houses shall meet in joint session at noon on the second Tuesday of such month and proceed to elect such Regent by joint ballot.
If the first condition of the statute is mandatory and self-executing, then it follows that the second condition was intended to be likewise mandatory and self-executing unless by agreement of the Legislature, the session is postponed for a reasonable period of time. Here, there was no agreement for postponement. Both houses were aware of the mandate of the statute and as long as there was present a majority of the *240combined vote of both houses, the joint session, as required by section 202, was indeed in session and empowered to act. As the late Senator Brydges observed, section 202 in no way affects the right of the minority to propose candidates for membership on the board.
Accordingly, I would find, pursuant to section 202 of the Education Law, that there was a duly constituted joint session of the Legislature.
Sweeney, J.P., concurs with Larkin, J.; Kane, J., concurs in the result only; Mahoney, J., concurs in part and dissents in part in an opinion; Herlihy, J., concurs in part and dissents in part in a separate opinion.
Judgment modified, on the law, by reversing the first, second, third and fourth decretal paragraphs thereof; by dismissing so much of the petition as requests relief against respondents Black, Batista, Kendall and Yavner; by declaring that a quorum of a joint session of the Legislature under section 202 of the Education Law is a majority of the numbers of the combined houses of the Legislature and that the purported joint session of March 11, 1975 was invalid as not being duly convened, and, as so modified, affirmed, without costs.