Petitioner is a farmer. Except for the first two months of his life, he has lived in the towns of Marion and Walworth in western New York for eighty years. He alleges that he has driven an automobile since 1910 and has always been licensed to drive, has always carried liability insurance, and never had an accident until 1948, when a young boy ran into the road and into the rear end of petitioner’s car. He felt the jar, immediately stopped, and thereafter reported the accident to a deputy sheriff. The boy’s injuries were not serious. There is not a scintilla of evidence in the record showing any negligence on petitioner’s part.
On May 17, 1949, appellant Commissioner of Motor Vehicles ordered petitioner to appear for a hearing at Lyons, New York. The notice stated that such hearing would be held “ Pursuant to Section 71 of the Vehicle and Traffic Law * * * to investigate accident on 10/10/48 at Monroe Co. and to determine whether or not your license * * * should be suspended or revoked.” The notice contained the following note: “ The principal purpose of this hearing is to determine if your physical condition is such that you may safely operate a motor vehicle on the highways.”
It appears that the hearing was scheduled under paragraph (b) of subdivision 3 of section 71 of the Vehicle and Traffic Law, dealing with permissive suspensions and revocations “ because of some physical * * * disability of the holder ”. That subdivision also provides: “ Where revocation or suspension is permissive, the holder shall have an opportunity to be heard ”, and in subdivision 6 it is provided: “ Eevocation or suspension hereunder shall be deemed an administrative act reviewable by the supreme court as such.” Provision is also made for notice of hearing and compulsory attendance of witnesses.
*439The hearing was held on June 2,1949, and the original report contained the following: “ Remarks: This man is eighty-two years of age but seems to be in good condition despite his advanced years. However, I feel that it is best for him to take a road test.” After the word “ Decision ” there was typewritten: “ Make arrangements for road test. If he passes case can be closed, otherwise license revoked.” A road test was given, not at Lyons, the place of hearing, but in the city of Rochester in the vicinity of the “ Four Corners ”. The petitioner failed the test, not because of “ Physical Defects ”, “Accident”, or any “Serious Violation ”, but because of “ W T L ” (wrong traffic lane), apparently while making a left turn, denominated as “ Dangerous Action ”, and lesser infractions, adding up to 28 points where only 15 were allowed. Thereupon the original decision above quoted was stricken out and in its place handwritten: “ 7/5/49 — Revoke license — Failed test ”. Petitioner was thereupon notified that he had failed the road test “ pursuant to Section 20-8 of the Vehicle & Traffic Law ”, under which section no proceeding had been instituted. (Italics supplied.) It will be noted that under the latter section lesser penalties might have been imposed, such as suspension or restriction, but the commissioner determined upon “ revocation ” even in advance of the failure of the test.
In petitioner’s first proceeding to review, the determination of revocation was annulled by the Appellate Division and the proceeding remitted “ for a further hearing and with instructions to the commissioner to make findings in support of whatever determination he may reach upon the evidence ” (277 App. Div. 828). His license was thereupon restored to him and reissued. A further exceedingly brief hearing was held on June 1, 1950, under the same Motor Vehicle Bureau case number as the section 71 proceeding, and he was simply directed to take another road test on Main Street in Rochester. Again petitioner is said to have failed as before, chiefly because of his handling of the automobile in making left turns at intersections. Despite the difference in traffic conditions, the examiner “ noted ” that petitioner’s faults “ are not predominantly of the type which would not be apparent at a test post outside Rochester.” On this occasion, two licensed operators accompanied petitioner, and they stated that he “ drove his car perfectly ”. Brief findings *440.were made under the same case number, obviously as part of the section 71 proceeding. Petitioner thereupon received the same notice of revocation, namely, under subdivision 8 of section 20 and not under section 71 of the Vehicle and Traffic Law.
He thereupon instituted the present proceeding to review the second determination, which the Appellate Division again annulled, declaring that petitioner was never “ given an opportunity to test, by cross-examination, the accuracy of the facts and conclusions as reported by the road-test examiner, or to offer any evidence of his own in contradiction or explanation ”. (278 App. Div. 28, 30.) The appeal from this determination is now before us.
Appellant contends that the Appellate Division erred in making its order, in that a hearing under section 71 was concluded and that all subsequent proceedings were taken under subdivision 8 of section 20, which requires no hearing but simply an objective test on the licensee’s qualifications. In this view, it is claimed that petitioner’s remedy in the event of arbitrary or illegal action by the commissioner would rest in a proceeding in the nature of mandamus, and any factual issue therein would be a matter for determination by Special Term under section 1296 of the Civil Practice Act. Accordingly, it is appellant’s position that the Appellate Division erred in law in any event, since the proceeding should not have been remitted for further administrative hearing and findings, but should have been dismissed or at most sent back to Special Term for trial of any issues of fact found to have been raised.
In the view we take of this case, we do not reach the question as to the nature of the right of review where the proceeding is commenced under subdivision 8 of section 20 as distinguished from a section 71 proceeding. A comparison of subdivision 8 of section 20 and section 71 of the Vehicle and Traffic Law shows that they are concerned with separate and distinct methods of procedure. Although they appear to provide alternative procedures for dealing with the same situation, their validity may not for that reason be drawn in question (see Matter of Sacharoff v. Corsi, 294 N. Y. 305, certiorari denied 326 U. S. 744). In this case, however, the commissioner proceeded under paragraph (b) of subdivision 3 of section 71, the purpose of the hearing being *441to determine petitioner’s physical condition, and he was found in good condition despite his advanced years, but his license was revoked under subdivision 8 of section 20.
We are here dealing with the exercise of power by the commissioner in the revocation of a driver’s license, and our decision will apply not only to this petitioner, but may affect any other holder of a driver’s license in the State of New York. A license to operate an automobile is of tremendous value to the individual and may not be taken away except by due process. If in the instant case it may be done loosely and informally and without regard to the statutes in such case made and provided, then it may be done in any case, and every automobile driver in the State will be at the mercy of the commissioner and his assistants. However much we may recognize the need for the rightful exercise by the commissioner of his duties in his laudable effort to prevent unsafe driving on the highways, it would be a dangerous step indeed if we permitted him to follow any loose practice formulated by him, regardless of the law. Due process required that petitioner be duly informed under what statute he was being proceeded against. In the second hearing in the section 71 proceeding, he was simply directed to take another road test. Such direction is not in compliance with the statute.
The danger in commingling these proceedings was recognized in the brief of the Attorney-General when he said: “ Sections 71 and 20, subdivision 8, of the Vehicle and Traffic Law are independent provisions, each dealing with a separate problem. There is no indication of a legislative intent that these two forms of procedure are to be merged.” Yet, that is precisely what was done here.
As before noted, even before the first road test was taken the commissioner decided that in the event of petitioner’s failure the license would be revoked, without taking into consideration the lesser penalties provided by subdivision 8 of section 20. The record before us must be examined in the light of what appellant did, not what might have been done under some other statute (Matter of Hickox v. Griffin, 298 N. Y. 365, 371; Securities Comm. v. Chenery Corp., 318 U. S. 80, 87-88). When the commissioner chose to proceed under section 71, orderly procedure as intended by the Legislature would require that he *442should not make a determination under subdivision 8 of section 20 (see Matter of Sacharoff v. Corsi, supra, p. 311). Moreover, fairness required that due notice be given to the licensee that the commissioner regarded the section 71 proceeding as terminated and had initiated a subdivision 8 of section 20 proceeding.
In this case, petitioner was prepared by the original notice of hearing to meet a specific issue in a proceeding in which he was clearly entitled to an administrative hearing. It is not strange, then, that both parties and the Appellate Division treated the determination as one made in such proceeding. Under these circumstances, we cannot say that the Appellate Division erred as a matter of law.
It also may be noted that such confusion of the two statutes within the Motor Vehicle Bureau as shown here is in itself potentially harmful. Under section 71, suspension or revocation is the only penalty provided; under subdivision 8 of section 20, the commissioner may impose a milder sanction, such as “ restrictions on the use of the license ”, as, for example, limiting this licensee to the vicinity of his village or town. Petitioner stated that he desired to drive only in the locality in which he lived and for the essential purposes of attending at the village stores, taking his invalid wife to church on Sundays, and the like. If so little consideration is given to the form of procedure, it may also happen that little consideration is given to the form of sanction imposed, and indeed in this case the penalty was prematurely prescribed. This practice clearly violates the legislative intention, as evidenced by the provision for separate forms of proceedings.
In our opinion, the Appellate Division was justified in treating the determination as one made in a section 71 proceeding. Since appellant has given a stipulation for order absolute in the event of affirmance, the order should be affirmed and order absolute directed.
The appeal from the first order of the Appellate Division, dated May 2, 1950, should be dismissed, as the second order, dated March 6, 1951 — itself an intermediate order — was obtained in a new and independent proceeding.
*443On the appeal from the second order: The order should be affirmed, and order absolute ordered against the appellant on the stipulation, with costs in all courts.