
    City School District of the City of Corning et al., Respondents, v County of Chemung, Appellant.
    Argued November 15, 1977;
    decided December 21, 1977
    
      POINTS OF COUNSEL
    
      Louis J. Mustico, County Attorney for appellant.
    I. The Corning Community College cannot arbitrarily charge back for each nonresident student the sum of $300 where no capital costs have been incurred beyond the amount already provided in the capital budget. II. The capital costs charge-back for nonresidents under the laws as amended applies. III. Effective date of the law passed by the State Legislature concerning nonresidents charge-back was September 1,1975.
    
      Harry Treinin for respondents.
    I. The limitation in the amount of charge-backs, pursuant to the amendment by chapter 646, does not apply to the fall semester of 1975. II. The interpretation given by the agency charged with the implementation of the amendment should be given great weight. (Matter of Union Free School Dist. No. 2 of Town of Cheektowaga v Nyquist, 38 NY2d 137; Matter of Howard v Wyman, 28 NY2d 434.) III. The changes resulting from the amendment were not applicable to the 1975 fall semester. (Matter of Public Serv. Comm, v Peyton Automotive Transp. Serv., 16 Misc 2d 1007; RKO-Keith-Orpheum Theatres v City of New York, 308 NY 493; Board v Hearst Pub., 322 US 111.) IV. The capital fund is an integral part of the financing of a community college.
    
      Walter J. Relihan, Jr., and Joyce Yaple Villa for State University of New York, amicus curiae.
    
    A capital charge of $300 per student was automatically collectible by community college sponsors from counties of residence of nonresident students until December 31, 1976. (Matter of Lockport Union-Sun & Journal v Preisch, 8 NY2d 54; RKO-Keith-Orpheum Theatres v City of New York, 308 NY 493; Matter of Public Serv. Comm, v Peyton Automotive Transp. Serv., 16 Misc 2d 1007; Johanns v Ficke, 224 NY 513.)
   OPINION OF THE COURT

Cooke, J.

Any city, county, intermediate school district, or school district approved by the State University trustees may, alone or in combination with other local sponsors, establish a community college (see, generally, Education Law, §§ 6301, 6302). Each college, in addition to admitting the residents of local sponsors, is required to admit students who live in other counties (§ 6305, subd 1). The college may, however, elect to charge the counties in which its nonresident students reside for an allocable portion of the operating costs of the college and a further sum for capital costs incurred to provide facilities in which such nonresident students can be accommodated (subd 2). This case concerns a dispute over a claim for capital costs.

Formerly, the capital charge-back allowed to community colleges was a flat $300 yearly per nonresident student. However, in 1975 the Legislature amended the Education Law to provide that the capital charge-back should be a sum "hot to exceed three hundred dollars each year to be determined and approved by the State University Trustees” (L 1975, ch 646, § 1; emphasis added). It had been commented that the inflexible $300 charge previously permitted had little relationship to the actual needs of the college which received the charge-back fee. Thus, the law was amended to enable the State University board of trustees to determine what the appropriate charge-back rate should be for each college, and thereby to correct the situation which allowed some institutions to accumulate unnecessarily high capital funds which could only be used for more construction (see NY Legis Ann, 1975, p 165).

The amendment requiring the board of trustees to determine and approve a capital charge-back rate became a law on August 5, 1975, but by its terms the law was not effective until the first day of September next succeeding the date on which it became a law (L 1975, ch 646, § 2), i.e., September 1, 1975. This controversy concerns the. period between the September 1 effective date of the law and the promulgation of regulations, which were filed on December 29, 1975, setting forth guidelines for determining a charge-back rate.

On October 15, 1975, Corning Community College billed the County of Chemung for the sum of $157,340 for Chemung residents who would attend the college for the fall 1975 semester. The county objected to the charge which was based on the flat $300 sum, and sought advice from the State University. The office of the university counsel advised that proposals for capital charge-back rates would be considered at the regularly scheduled November (1975) board of trustees meeting and that the former regulations providing for the $300 amount would control until the new regulations took effect. Further correspondence from the counsel’s office indicated that the new regulation became effective beginning after January 1, 1976, and hence that Chemung County would be liable for a capital charge-back for the fall 1975 semester even though, according to the State University’s data as applied against the new regulation, Corning would not be entitled to a charge-back for the 1976 spring semester.

The county persisted in its refusal to pay the capital cost charge-back and this action ensued in which the college seeks judgment against the county in the sum of $157,340, plus interest. The facts are not in dispute and the action was commenced on submitted facts pursuant to CPLR 3222. The State University, although not a party, has submitted a brief as amicus curiae.

By a divided court, the Appellate Division upheld the college’s claim. The majority concluded that it would be impossible for the trustees to institute the change immediately and reasoned that the Legislature must have intended the old law to remain in effect until the new law could be effectuated. It also rejected the county’s ancillary arguments that the college may only collect capital charge-backs for costs incurred during the academic year and that the existence of a surplus in a capital reserve account precludes the college from recovering any contribution from the defendant. The dissenters in that court urged that the defendant county should not be made to pay the maximum charge permitted merely because the State University trustees found it difficult or inconvenient to comply with the new law. For the reasons that follow, we would reverse the order of the Appellate Division.

The legal analysis of this issue must begin with a recognition that the amendment under consideration was not self-executing in the sense that it did not lower the capital charge-back rate from the set $300 amount to some other flat amount. Rather, the amended law authorized the State University board of trustees to determine and approve a sum not to exceed $300 per year for each nonresident student. As noted by the dissent in the Appellate Division, reliance on the old regulation is unwarranted since it was based on the former statute which simply provided for an unvarying amount. Moreover, a reading of the statute belies any suggestion that the $300 rate was to remain in effect until the trustees determined a lower amount. Thus, the issue to be resolved is what is the consequence of the failure of the trustees to determine and approve a charge-back rate for the period in question.

Considerable dependence has been placed on the impossibility of determining the appropriate rates by the middle of October, 1975. Neither the presumed difficulty nor the suggested date are supported in the record or by the statute. As noted by the Appellate Division dissent, the conclusion concerning the supposed inability to comply amounts to speculation. Moreover, contrary to the suggestion that the trustees had only until October 15, 1975 to determine a charge-back rate, compliance could have been accomplished at least as late as December 15, 1975. The statute as amended requires the State University to notify the county of the capital charge-back rate for each community college (Education Law, § 6305, subd 4). Nothing in the statute suggests that the charge-back rate had to be determined by the date of billing (Oct. 15) rather than the date of payment (Dec. 15), and hence the trustees would have had this further period in which to make their determination. Since the college was well aware that the new law authorized the trustees to limit the amount of the charge-back, it could no longer rely on receiving the full $300 rate and should not have been surprised to receive payment of less than the amount billed.

Significantly, there is no indication from the State University that the regulation, which was filed on December 29, 1975, could not have been filed a mere 14 days earlier, on December 15, 1975, which was the date payment was due from defendant county, and presumably from other counties to other colleges. In fact, the Chancellor sent the trustees a recommendation on October 22, 1975, suggesting that they adopt a regulation which provides the same basic guidelines for determining the charge-back rate contained in the regulation as filed in late December. Moreover, by at least mid-November, 1975, the university counsel was aware of the controversy leading to this litigation. Furthermore, it should not be forgotten that the statute was approved on August 5, 1975, and, according to the amicus curiae brief, the amendment was proposed after consultation with the State University.

There is nothing to suggest that the regulation and effectuation of the law could not have been accomplished sooner. As for the task of computing the resources and anticipated capital expenditures of the community colleges across the State, those supporting the new law contemplated that since the State University staff was already responsible for determining operating charge-backs, the further task of making capital charge-back computations would create only a minor increase in workload (see NY Legis Ann, 1975, p 165). Since a proposed regulation was circulated to the trustees in late October, 1975, it would appear that whatever computations were necéssary had been made prior to that time. With this in mind, it is manifestly unreasonable to speculate or infer that it was impossible to adopt a regulation prior to the December, 1975 payment date for the various colleges.

The question, in essence, is who should suffer the consequences of the fact that the trustees did not determine and approve a capital charge-back rate for the period involved. We conclude that the correct result is that the capital charge-back sought should not be allowed under the old regulation. The statute mandates a determination by an administrative body and, as noted, the old regulation cannot be relied on as a substitute for the required approval. While there may be instances where administrative difficulty may be a permissible basis for delaying implementation of a law, under the circumstances presented here the court should not speculate as to the impossibility of a timely fulfillment of this responsibility. To be sure, no deference should be given to an interpretation of a statute by an administrative agency, if that interpretation authorizes or permits it to act contrary to law so as to delay implementing a new law. It was incumbent on those charged with administration to devise whatever administrative plan was necessary to implement the law in a timely fashion. As a matter of policy, the court should not grant an extended life to a dead law simply to overcome a delay of this sort.

Accordingly, the order of the Appellate Division should be reversed, without costs, and judgment granted in defendant’s favor.

Gabrielli, J. (dissenting).

I respectfully dissent from today’s holding by the majority. It is abundantly clear that subdivision 2 of section 6305 of the Education Law, and the regulations promulgated thereunder prior to the 1975 amendment of the statute, authorized each community college to charge back an amount of $300 for each nonresident student per year against the student’s home county on account of the college’s capital costs. The effect of the 1975 amendment was simply to provide the trustees of the State University system with the authority to limit the amount each community college can charge back against a county, with a maximum of $300. Prior to the amendment the trustees lacked such authority, and each community college in the State was empowered to charge back the full $300 amount regardless of its needs.

The amendment was adopted by the Legislature in the summer of 1975, and was not approved by the Governor until August 5, 1975. Although it had an effective date of September 1, 1975 (a mere 27 days following its adoption), it was obviously impossible for the trustees to promulgate new regulations and create a functioning system for the processing of charge-back rate requests in time for the fall 1975 semester, for such a system would of necessity involve the complex task of initially assessing the resources and anticipated capital expenditures of each of the 30 community colleges within the State. It is inconceivable that the Legislature intended to foreclose all charge-backs until the new system could be made operational, in view of prior legislative recognition of the importance of the charge-backs to community colleges (see Memorandum of State Executive Department, McKinney’s 1971 Session Laws, p 2466). There is no evidence of such a legislative intent to effectively deny all the colleges the charge-back income and the language of the statute itself does not mandate such a result. The 1975 amendment was intended merely to grant the trustees the authority to regulate the charge-back amounts for each community college, so as to limit charge-backs to an amount reasonably related to the projected needs of each community college. To interpret the amendment as the majority does, to invalidate a charge-back on the grounds that it had not received specific trustee approval at a time when the mechanism for obtaining such approval did not, and indeed could not exist, is to reach an unnecessarily harsh result. The legislation was intended to result in a more careful computation of the charge-back amounts, and not in a complete abrogation of the charge-back system for a semester.

It must be emphasized that the amended statute merely gives the trustees the power to decrease the amount of charge-back funding to which each community college is entitled. It does not require the trustees to decrease the amount that can be charged back, and it does not preclude the trustees from simply approving the maximum charge-back for each and every community college via a mechanism such as the regulations existing prior to the 1975 amendment. The amended statute is obviously not self-effectuating in the sense that the charge-back would be automatically reduced upon the effective date of the amendment; it provides the trustees with a great deal of leeway, and leaves implementation of the statutory objectives to the trustees’ discretion. Faced with the impossibility of constructing the mechanism necessary for separate consideration of each community college’s charge-back request for the fall 1975 semester* the trustees embarked upon the only reasonable course of action open to them, and in effect continued the old regulations until new regulations could be promulgated and an appropriate system developed for handling charge-back requests for subsequent semesters. Thus, in December of 1975, the trustees for the first time issued new regulations pertaining to charge-backs commencing with the spring 1976 semester, and providing for individual consideration of each community college’s particularized needs. No attempt has been made by the State University system to apply these regulations retroactively, and, in fact, the State University has appeared in this case as amicus curiae and, as is recognized by the majority, maintains now, as it had previously ruled, that prior to the promulgation of the new regulations, the old regulations were still in force and were applicable to the fall 1975 semester charge-backs. The interpretation given the statute by the agency charged with implementing it is entitled to great deference (see, e.g., Matter of Howard v Wyman, 28 NY2d 434), and should not be disturbed if such an interpretation is reasonable. In the present case the State University’s interpretation of the statute appears quite reasonable, and I see no reason to discard such an interpretation in favor of one which will apparently call into question the validity of the charge-backs imposed by each of the State’s 30 community colleges for the fall 1975 semester. Such a result is extremely unfortunate and, in my opinion, unnecessary.

Accordingly, I would affirm the order appealed from.

Judges Jasen, Jones and Fuchsberg concur with Judge Cooke; Judge Gabrielli dissents and votes to affirm in a separate opinion in which Chief Judge' Breitel and Judge Wachtler concur.

Order reversed, etc. 
      
       The amount sought represents the capital charge-back for the fall 1975 semester at the rate of $150 per student.
     