City School District of Corning v. County of Chemung

Kane, J. (dissenting).

Subdivision 2 of section 6305 of the Education Law was amended by chapter 646 of the Laws of 1975 to read, in applicable part, as follows: "together with a further sum of not to exceed three hundred dollars each year to be determined and approved by the state university trustees for each such non-resident student on account of the local sponsor’s share of the capital costs incurred to provide facilities in which such non-resident students can be accommodated”. (Emphasis supplied.)

In relation to payment of the sum so determined, subdivision 4 of that section provides that "The chancellor of the state university, or such officers or employees thereof as shall be designated by the chancellor in the manner authorized by the state university trustees, shall notify the chief fiscal officers of each county of the approved annual operating and capital charge-back rate for each community college.” (Education Law, § 6305, subd 4.)

The procedure to be followed under the new law seems as plain as its intent. The State University Trustees are to determine the appropriate capital charge-back sum for each community college. The president of such a college submits a *236voucher to the county to be charged and its chief fiscal officer is then notified of the approved rate for that college and pays the indicated amount. We fail to see why the defendant should be held responsible for payment of the maximum $150 charge per nonresident student assessed against it merely because the State University Trustees found it difficult or inconvenient to comply with the new law which became effective September 1, 1975. The majority’s suggestion that it was impossible to do so is not founded on any statement in the agreed facts and amounts to speculation. Its emphasis on the 60 days within which the billed county must make payment is misplaced for it appears obvious that the statute did not intend that such a time limit would commence running until the trustees performed their function and notified the county charged of the rate previously approved. While the trustees may undoubtedly determine that the full term limit of $150 should apply for this community college, they have not yet approved any appropriate sum as contemplated by the statute. Any reliance on their old regulation is patently unwarranted inasmuch as it was based upon the former statute which had inflexibly set the annual sum at $300 for each nonresident student.

Accordingly, the present action is premature and we would enter judgment in defendant’s favor dismissing the complaint.

Main and Herlihy, JJ., concur with Greenblott, J. P.; Kane and Reynolds, JJ., dissent and vote to dismiss in an opinion by Kane, J.

Judgment directed to be entered in favor of plaintiff in the amount of $157,340, together with interest from December 29, 1975.