(dissenting). Petitioner, an assistant professor at Hunter College, was dismissed after a full trial by the board of higher education on charges of conduct unbecoming a member of the staff arising out of membership in the Communist party. He now petitions for a trial de novo before the Supreme Court on part of the charges against him, claiming that he is entitled to such relief under the provisions of subdivision (d) of section 12-a of the Civil Service Law. We are of the opinion that the statute does not warrant a splitting of the charges in this fashion, *193nor does it apply where, as here, a full hearing was had by a teacher having tenure on a charge of conduct unbecoming a member of the staff under section 6206 of the Education Law. Petitioner, it is conceded, had sufficient service to entitle him to tenure under this section.
The relevant provisions of section 6206 are as follows:
“ § 6206. Tenure.
* ‘ 1. The following words and phrases, as used hereinafter, and for the purposes of this section, shall have the following meanings:
“ a. ‘ Board ’ shall mean the board of higher education in the city of New York. * * *
* ‘ d. ‘ Tenure ’ shall mean the right of a person to hold his position during good behavior and efficient and competent service, and not to be removed therefrom except for cause in the manner hereinafter provided. * * *
“ 10. Persons having tenure under the provisions of this section may be removed or suspended from the permanent instructional staffs for one or more of the following reasons: # # #
“ b. neglect of duty; * * *
“ d. conduct unbecoming a member of the staff. This provision shall not be so interpreted as to constitute interference with academic freedom. ’ ’
Proceedings for the removal of such a person shall be conducted in accordance with the by-laws of the board, and shall be initiated by service by the board upon the person involved of a notice setting forth all the charges pending against him. Such a person so charged shall be entitled to a hearing with right of representation by any person or persons of his choice before any committee which the board may appoint to investigate such charges, or, in the event that such a committee is not appointed, before the board. In cases in which such a committee is appointed, such a person shall further be entitled to an appeal on the record with right of representation by any person or persons of his choice before the board prior to its final determination of the question of his removal. No such person shall be removed except at a regular or special meeting of the board, by an affirmative vote of the majority of all the members of the board, except members ex officio. For the purposes of any such proceeding, the board by its chairman or the chairman of any such committee shall have power to subpoena witnesses, paper's and records, and to administer oaths.
*194Pursuant to the foregoing sections, the hoard of higher education adopted by-laws outlining procedure for trials by a duly appointed committee, including the following:
“ § 123. Trial, a. Such Committee shall conduct the trial according to such rules as the Board may from time to time establish for the conduct of such trials. The rules of the Board or in their absence those employed by the Committee shall govern the trial and the Committee shall not be bound by the rules of evidence observed in courts of law.
“ b. Such a person so charged shall be entitled to representation during his trial by any person or persons of his choice. The accused shall be confronted with the witnesses against him, shall be privileged to be present at all sessions of the trial committee when testimony is being heard, shall have the right to examine and cross-examine witnesses and to produce witnesses and relevant documents. Such a person shall further be entitled to an appeal on the record with right of representation by any person or persons of his choice before the Board prior to its final determination of the question of his removal.”
On April 12, 1954, respondent board duly adopted a “ statement of policy ” in connection with a projected investigation of subversive activities as follows: ‘ ‘ Any staff member who is the subject of disciplinary charges shall receive a written statement of such charges. To the extent that any testimony given by a staff member at a private hearing becomes relevant in a disciplinary trial of such staff member, the staff member shall be entitled, upon his request, to a copy of such relevant private testimony. The disciplinary trial will be public and upon such trial he is entitled to be represented by counsel of his own choosing with the right to confront the witnesses, to cross-examine such witnesses, to testify, and to call witnesses in his own behalf. Any finding of guilt must be supported by substantial evidence. The trial will be conducted in full accordance with an observance of the safeguards afforded to staff members under the State Tenure Law. The record of the entire trial is subject to review by way of an appeal to the courts or to the State Commissioner of Education. The method of appeal is at the option of a staff member.”
On April 12, 1954, a special committee of respondent board filed charges against petitioner, reading:
“ Charges
“ Charles W. Hughes, an Associate Professor, having tenure in the Department of Music in Hunter College, under the juris*195diction of the Board of Higher Education of the City of New York, is hereby charged with ‘ neglect of duty ’ and ‘ conduct unbecoming a member of the staff.’ ”
These charges were supported by three lengthy specifications. The present application deals solely with “ Specification I ”. This specification, after detailing the appointment and service of petitioner, alleges, in substance, that Hughes joined the Communist party in 1938 and continued membership thereafter, and that during his membership the party advocated the overthrow of the United States Government by force and violence. It further alleges that the party exacts from its members adherence to doctrines antagonistic to the established standards of conduct of members of the college staff under the jurisdiction of the board of higher education. The specification then sets forth certain provisions of section 12-a of the Civil Service Law, and of section 3022 of the Education Law (commonly known as the Feinberg Law), and of rules adopted by the Board of Regents pursuant to the latter law proscribing communistic activities. Notice was given in the specification that upon the trial certain presumptions created under the rules of the Regents would be invoked to establish continued membership in the party, and that unless Hughes showed that his membership in the Communist party had been terminated by him in good faith, the acts charged in the specification, if proved, would be deemed conduct unbecoming a member of the staff.
The petitioner’s answer denied only the allegations in Specification I suggesting that he had any knowledge that the Communist party was subversive and denied that there was any basis for invoking any presumption to be drawn against him because of the action taken by the Board of Regents.
Specification II charged Hughes with refusal to answer questions as to the connection of other members of the college staff with communistic activities.
Specification IH charged a conspiracy with others, but, as it has been dismissed, we need not consider it further.
The board appointed a trial committee, which, after receiving petitioner’s answer to the charges, placed him on trial. Two other staff members were tried at the same time. The hearings lasted several months. All the requirements in the by-laws of the board and in its statement of policy were fully complied with. Over a thousand pages of testimony were taken. Throughout the hearings petitioner was represented by counsel. He was confronted with the witnesses against him. He was given an *196opportunity and did testify, and called witnesses in Ms own behalf. He admitted former membersMp in the Communist party, but claimed to have left it in 1941. He admitted the party’s subversive objectives, but denied membership required Mm" to adhere to any principles incompatible with his position on the college staff. He refused, however, to divulge whether any other members of the teaching staff were communists.
The committee, after completing its labors, filed a report finding petitioner guilty of the charges of unbecoming conduct on all three specifications. The matter was then referred to the whole board which, in confirming the report and dismissing the petitioner from his position, did so under the first two specifications, and held that the third specification had not been sufficiently established.
It is apparent that Specification I rested only in part on section 12-a of the Civil Service Law to show unbecoming conduct. MembersMp in the Commumst party was proscribed by the Feinberg Law, by the Buies of the Board of Begents adopted pursuant thereto and by several resolutions adopted and published as early as 1941 by the board of Mgher education. Specification II did not rest on section 12-a, but related entirely to the question as to whether the refusal to divulge the names of other communists on the staff would constitute conduct unbecoming a member of the staff.
Petitioner then came into the Supreme Court with tMs proceeding wherein he seeks to review not the finding of guilt on the charges of unbecoming conduct, but only that portion of Specification I resting on section 12-a.
Petitioner at the same time also has an appeal before the State Commissioner of Education, again not from the finding of guilt on the charge of unbecoming conduct, but from certain findings or parts of Specifications I and II.
What is being attempted here is to get a retrial in the Supreme Court of that part of the charge of unbecoming conduct wMch depends upon the specification that membership in the Commumst party constituted a violation of the public policy of this State as declared in section 12-a of the Civil Service Law. It is conceded that this allegation constituted only part of Specification I, and that a complete hearing was had and a disposition made on the several elements supporting the broader charge. The petitioner seeks to split the charge into parts, obtain a new trial on the portion relating to membership in the-Commumst party, and its effect on his fitness, although he *197admitted the fact of membership. He also wants a review by the Commissioner of Education of the order of dismissal insofar as it rests on Specification II, and any presumption applied in his case under certain statutes and resolutions.
The petition seeking removal of part of the proceedings to the Supreme Court enters into a discussion of the nature of the specifications, without even referring to the charge which the specifications amplify, i.e., conduct unbecoming a member of the staff under section 6206 of the Education Law. It states that the trial committee’s report has the effect of disqualifying petitioner from other employment because of a violation of section 12-a of the Civil Service Law as if he had been tried on a charge made under that section. He then proceeds in paragraph 6 of his petition to state that: “ 6. Included in said charges and in the recommendations of the Trial Committee as approved by the Board were matters other than petitioner’s alleged disqualification under Civil Service Law § 12-a, and with respect to these matters petitioner is taking an appeal to the Commissioner of Education of the State of New York requesting said Commissioner to withhold action on that appeal until the question of petitioner’s disqualification under Civil Service Law § 12-a has been determined by this Court upon the hearing provided by law.”
Thus, petitioner not only seeks separate reviews, but is attempting to regulate the order in which they will be heard and decided.
It is only proper to note that the trial committee did report that petitioner had been proved guilty of acts which constitute violation of section 12-a of the Civil Service Law, and it also referred to breach of the Feinberg Law. But these findings were set forth as only part of the several grounds stated in support of an adjudication of conduct unbecoming a member of the college staff, and do not alter the fact that the charge being tried and disposed of was one under the Education Law.
If a charge of unbecoming conduct may be split in this fashion and separate reviews had on various portions of the specification, conflicting decisions might well result. Furthermore, by the procedure attempted a trial de novo would be required in the Supreme Court of the portion of Specification I charging membership in the Communist party, although the petitioner already had a complete trial upon which he admitted the fact of such membership.
The Supreme Court trial, we think, was properly denied, because the charge here was not brought under section 12-a of *198the Civil Service Law, but under section 6206 of the Education Law. We are of the further view that the board of higher education had the right to proceed under section 6206 of the Education Law, and in fact, was required to do so because petitioner was a member of the instructional staff with tenure. Having proceeded under that section, the provisions for review set forth in that section control.
We add, however, that we find that the statutes relating to removal of civil servants for membership in subversive organizations are to some extent overlapping. We also find that the trial committee overestimated the effect of its report, when it stated that it resulted in disqualification from eligibility in any civil service position. That would only be so if the civil servant was tried on a charge based on violation of section 12-a. Here the charge was under section 6206 for conduct unbecoming a member of the staff. It has no direct effect of adjudicating ineligibility.
We may now consider in detail the various statutes that have reference to subversive acts of civil servants.
In 1939, the State Legislature adopted section 12-a of the Civil Service Law. The section relates to ineligibility for the civil service. It provides, in substance, that no person will be appointed to any office in the civil service, or retained therein, who is guilty of various specified subversive acts. Included specifically in the list of servants affected is a member of the teaching staff in a public college. The prohibited acts relate to advocacy of the overthrow of the Government of the United States, or any subdivision thereof, by force or violence. The methods enumerated are (a) teaching of advocacy of such doctrines by word of mouth; (b) printing or distributing any book or paper advocating such doctrines; and (c) organizing or becoming a member of any group which teaches or advocates such doctrines.
Subdivision (d) of the section then provides: “ A person dismissed or declared ineligible may within four months of such dismissal or declaration of ineligibility be entitled to petition for an order to show cause signed by a justice of the supreme court, why a hearing on such charges should not be had. Until the final judgment on said hearing is entered, the order to show cause shall stay the effect of any order of dismissal or ineligibility based on the provisions of this section. The hearing shall consist of the taking of testimony in open court with opportunity for cross-examination. The burden of sustaining the validity of the order of dismissal or ineligibility by a fair *199preponderance of the credible evidence shall be upon the person making such dismissal or order of ineligibility.”
But one having tenure as a member of the instructional staff in a college subject to the jurisdiction of the board of higher education is expressly granted the privilege of a former trial on charges under section 6206 of the Education Law, and of appeal through administrative channels. In this respect such a person was not in the category of th.e ordinary civil service employee, or even a teacher without tenure.
It is to be remembered in construing this law that it applies to civil employees in every branch of the Government, Statewide and local. Under other provisions of the Civil Service Law, as it then existed, a civil service employee, if not a veteran, could be removed merely upon receiving written notice of such proposed removal and the reasons therefor, provided he was furnished with a copy of any charges against him, and that he be allowed a reasonable time for answering the same in writing (Civil Service Law, § 22). The protection of a formal trial, administrative or otherwise, was not afforded to him. Accordingly, the Legislature in adopting section 12-a saw fit, where the dismissal or ineligibility was based on communistic activities, to provide that a trial before the Supreme Court would be assured the employee.
It is difficult to conceive that the Legislature intended that there be a trial de novo of a charge that had already been fully tried. Of course, if the employee had received no hearing, but merely a copy of the charge and a chance to answer, or if ineligibility had been declared as to a candidate who could not have had any formal trial nor even a hearing, it is readily understandable why the Legislature might provide that he have a hearing in court before he was dismissed or declared ineligible. But even if we assume that subdivision (d) of section 12-a because of its broad provisions intended that a second hearing be had as to removal or disqualification, although there had already been one full and complete trial, at least the section should be held to apply only where a direct charge of violation of section 12-a is involved. It should not be extended to cover a case of removal of a permanent member of the instructional staff of a college for unbecoming conduct, where violation of the policy expressed in section 12-a was involved only incidentally. The conduct proscribed as subversive under section 12-a had been likewise proscribed under resolutions of the board of higher education. Such a person under a special statute relating to those in his category was entitled' to and in this case *200did have a trial, and was afforded a right of appeal to the Commissioner of Education. The existence of tenure gave such an employee rights under a particular statute, and the statute as to civil employees generally should not be applied.
As some further indication that subdivision (d) of section 12-a was not intended to authorize removal of part of a charge pending before the board of higher education, we may consider the phraseology that an(t order to show cause ” is to be obtained which shall stay all administrative proceedings until the Supreme Court adjudicates the matter. This would indicate that the statute contemplated a stay of all administrative proceedings based on ineligibility under 12-a. Such a course would hardly seem applicable to charges of conduct unbecoming a member of the instructional staff under section 6206 of the Education Law. In that sort of case the unbecoming conduct might be based on any number of specified acts having no relation to 12-a, and there would seem to be no good reason to stay all the proceedings merely because one phrase of it related to some extent to conduct described in 12-a.
Subdivision (d) of section 12-a neither expressly nor impliedly required that because the acts specified in 12-a are being relied on among other statutes and resolutions to show conduct unbecoming a member of a college staff under section 6206, the single factual issue of whether section 12-a was violated must be tried separately in the Supreme Court. That such procedure was not intended is evidenced not only by the special provisions as to review under section 6206, but by the very inappropriate step of splitting the charges that would result if the petition here should be granted.
Section 6206 of the Education Law was enacted long prior to 1939, when section 12-a went into effect. It has not been repealed expressly or impliedly. The board was required to proceed under it, where the employee had tenure. When it ordered dismissal, section 6206 provided for a complete trial and review by the Commissioner of Education (Matter of Board of Higher Educ. v. Cole, 288 N. Y. 607). The provisions of section 6206 would appear to control not only this trial, but any review of the determination. The Commissioner of Education in a memorandum issued at the time of the adoption of section 254 of the Board of Regents pursuant to the Feinberg Law, stated: “ 3. The preferment of charges. Neither section 12-a of the Civil Service Law nor sections 3021 and 3022 of the Education Law modifies in any way the rights accorded to teachers under the tenure laws,”
*201Another statute relied on by the board to show the public policy violated by the petitioner, which it was charged constituted unbecoming conduct, was the so-called Feinberg Law enacted as chapter 360 of the Laws of 1949. This chapter had two provisions (1) a declaration of policy contained in its preamble, and (2) the statutory text, which became section 3022 of the Education Law. It sets forth its objective of preventing communistic infiltration into the public school system, and to that end directs the Board of Begents to prepare lists of subversive organizations in which membership shall establish prima facie grounds for removal of a teacher. This statute contains no procedural provision to make it operative, and there can be little doubt that it was intended to do no more than state a declaration of policy to be enforced under other procedural sections of the law. It refers in its text to section 12-a of the Civil Service Law and section 3021 of the Education Law. The latter section forbade seditious utterances and acts by teachers in the public schools.
Of course, violation of the policy provided in the Feinberg Law could be charged as conduct unbecoming a member of the staff of a public college. So could violation of the policy expressed in section 12-a of the Civil Service Law, or violation of the policy of the board as declared in its by-laws or published resolutions. And, by analogy, so could violation of any section of the Penal Law of the State. In fact, any immoral or improper act affecting a teacher’s eligibility might be specified to spell out conduct unbecoming a teacher. That section 12-a was relied on in a particular case would not mean that the accused was being charged under section 12-a any more than a specification of misconduct under some section of the Penal Law would mean he was being tried for a crime. Nor would a finding of fact that the teacher’s conduct constituted a violation of section 12-a disqualify him from eligibility as a civil servant any more than a finding that he violated some section of the Penal Law in committing unbecoming conduct brand him as a felon or make him subject to the disqualification which follows conviction for a felony. The result of the adjudication would merely be dismissal because he was found to have committed conduct unbecoming to a member of the college staff.
If the board of higher education had brought a direct proceeding to remove petitioner from office because he violated section 12-a of the Civil Service Law, he might well contend that he was entitled to be charged and tried under section 6206 of the Educa*202tion Law because he had tenure. When he is charged under the latter law, he has no ground for complaint and is confined to the trial and appeal provisions of this statute;
It is contended by petitioner that he will be prejudiced by the finding of the trial committee that he violated section 12-a of the Civil Service Law in that he would not be eligible for other civil service appointment. The short answer to that contention is that there has been no adjudication against him, except conduct unbecoming a member of the staff. Assuming there has been a finding of a constituent fact or a conclusion of law in connection with the adjudication of unbecoming conduct, which might be res judicata against petitioner in any future proceeding, this would not warrant applying a review procedure that would be available only if the charge had been based on the constituent fact referred to. There was no direct proceeding against petitioner under section 12-a of the Civil Service Law and, consequently, he may not have a new trial under subdivision (d) of that section.
We are not required to decide, nor do we decide at this time, whether, if the charges against petitioner were conduct unbecoming a member of the staff specifying solely a violation of section 12-a of the Civil Service Law in support of the charge and he had received a full trial such as was afforded him, he would have the right to a second trial under subdivision (d) of the section. The purpose of the subdivision is not clear in respect to persons already afforded a full trial. Whether' it intended to make a second trial before the Supreme Court an absolute right where the charges rested on section 12-a, or whether it was discretionary with the court to grant a further hearing and recall the witnesses, is not clear. It is enough for the present to hold that upon the present broad charge the right is not afforded to petitioner to have a second trial as to part of the charges under subdivision (d) of section 12-a of the Civil Service Law.
The order appealed from should be affirmed.
Peck, P. J., and Bastow, J., concur with Breitel, J.; Callahan, J., dissents and votes to affirm in opinion in which Babin, J., concurs.
Order reversed, with $20 costs and disbursements to the„ appellant, and the motion for a hearing granted, together with-, a limited stay in accordance with the opinion herein. Settle order on notice.