(dissenting). That communism in the United States is a conspiracy against our Government, and that participation in such a conspiracy is entirely inconsistent with the loyalty required from a schoolteacher, are undisputed propositions which do not decide this case. Our duty, on this appeal, as on any other, is to apply the laws of this State as we find them, to communists, noncommunists, and everyone else. No purpose, however high or urgent, suspends the salutary rule not to be stretched to cover situations having no real or reason-that “ statutes, directed against known and stated evils, are *545able relation to those evils (see McKinney’s Cons. Laws of N. Y., Book 1, Statutes [1942 ed.], §§ 95, 141, 146, and cases cited; also Kauffman & Sons Saddlery Co. v. Miller, 298 N. Y. 38, 44, 45, and Matter of Breen v. New York Fire Dept. Pension Fund, 299 N. Y. 8, 19) ” (Metropolitan Life Ins. Co. v. Durkin, 301 N. Y. 376, 381). If more or different statutes are needed to rid the schools of communist teachers, it is for the Legislature to enact them, and the New York State Legislature has shown no reluctance to do so, nor has this court hesitated to enforce them (see the “ Feinberg Law ”, Education Law, § 3022, as construed in Thompson v. Wallin, 301 N. Y. 476; Matter of Adler v. Wilson, 282 App. Div. 418, motion for leave to appeal denied 306 N. Y. 981). Ours is the judicial task, limited by judicial powers, of interpreting and applying section 903 of the New York City Charter as enacted in 1938. We find nothing in that section’s language, history or known purposes to justify using it, as it is being used here, as authority for ousting public schoolteachers, employed by respondent board of education, because of their refusals to answer questions put to them by a subcommittee of the United States Senate, appointed to investigate the administration of the Federal Internal Security Laws, as to the teachers’ past or present membership in the Communist party. All sides concede that, aside from the supposed applicability of section 903, the teachers could not be deprived of their positions, for exercising their Fifth Amendment right (see Matter of Grae, 282 N. Y. 428, 434). We turn then to the Charter provision, and we find it clear, concise and complete: “ § 903. * * * If any councilman or other officer or employee of the city shall, after lawful notice or process, wilfully refuse or fail to appear before any court or judge, any legislative committee, or any officer, board or body authorized to conduct any hearing or inquiry, or having appeared shall refuse to testify or to answer any question regarding the property, government or affairs of the city or of any county included within its territorial limits, or regarding the nomination, election, appointment or official conduct of any officer or employee of the city or of any such county, on the ground that his answer would tend to incriminate him, or shall refuse to waive immunity from prosecution on account of any such matter *546in relation to which he may be asked to testify upon any such hearing or inquiry, his term or tenure of office or employment shall terminate and such office or employment shall be vacant, and he shall not be eligible to election or appointment to any office or employment under the city or any agency.”
Section 903 is inapplicable to these appellants in this situation for at least two separate reasons: first, no appellant is an “ employee of the city ” within the meaning of the law; and, second, the United States Senate group whose questions appellants refused to answer was not authorized to conduct an inquiry into the property, affairs and government of the city or the official conduct of its officers and employees.
First, as to whether these teachers are “ employees of the city ”, section 1 of article XI of our State Constitution makes public education a State function, and the policy of this State for a century “ has been to separate public education from all other municipal functions and intrust it to independent corporate agencies ” such as boards of education (Gunnison v. Board of Educ. of City of N. Y., 176 N. Y. 11, 23). “ The board of education is a corporation separate and distinct from the city of New York ” (Titusville Iron Co. v. City of New York, 207 N. Y. 203, 208). Matters of appointment of teachers and permanency of their employment have been, by the State Education Law, taken away from the municipalities and given to the education boards (Matter of Emerson v. Buck, 230 N. Y. 380, 385). The grants of authority to the boards to administer public education within New York City are exclusive, and negative any authority in the city itself to exercise like powers (People ex rel. Wells & Newton Co. v. Craig, 232 N. Y. 125, 135). The long struggle between the Buffalo board of education and the City of Buffalo, described in Matter of Emerson v. Buck (supra), was ended by this court’s declaration thirty years ago, in Matter of Fuhrmann v. Graves (235 N. Y. 77, 82, 83), that, while the city controls the total amount to be expended for education, it has no control whatever over the manner of its spending (see, also, Matter of Brennan v. Board of Educ. of City of N. Y., 245 N. Y. 8, 14). There followed an impressive train of cases holding that public schoolteachers, in the cities of the State, were employees, not of those cities but of the *547local boards of education as separate corporate bodies (Matter of Gelson v. Berry, 233 App. Div. 20, 21, affd. 257 N. Y. 551; Matter of Ragsdale v. Board of Educ. of City of N. Y., 282 N. Y. 323, 325; Nelson v. Board of Higher Educ. of City of N. Y., 263 App. Div. 144, 148, affd. 288 N. Y. 649).
It is, therefore, indisputable, not only that the State Constitution and judicially declared State policy bar New York City from the role of “ employer ” of teachers, but, also, that, as between the City of New York and these teachers, there are none of the marks of an employer-employee relationship, since it is not the city, but the separate boards of education, which select and hire the teachers, pay them, control their teaching work, and are empowered to remove them for cause after hearing (see Education Law, § 2, subd. 14; and §§ 2550, 2551, 2573, 3012, 3022, 6206). Statutes and decisions (cited in great numbers in respondent’s brief) relating to other than pedagogical matters or pedagogical personnel have nothing to do with the present problem. The question here is as to whether teachers are “ employees of the city ”. Actually, the only ground suggested for an affirmative answer to that question is the definition in section 981-1.0 of the New York City Administrative Code (a statute separate from, but complementary to, the Charter) of “ employee ” as “ any person whose salary in whole or in part is paid out of the city treasury.” The salaries of teachers are “ paid out of the city treasury ” from funds there on deposit to the credit of the board of education, but we refuse to believe that this sixteen-word definition, in a general statute not concerned with education, destroys the whole public policy of this State, worked out in more than a century of struggle, of seeing to it that public schoolteachers are definitely not employees of the cities of this State. Until now, there has never been a decision of this court holding any teacher to be an “ employee ” of a city.
A second, and separate, reason why section 903 has no application to this situation is that this Senate subcommittee was not authorized to, and disclaimed any purpose to, conduct an inquiry into New York City’s governmental affairs or the “ official conduct” of any “ employee ” of the city or of the board of education. It may be possible, grammatically, to *548read the statute’s language: “any legislative committee * * * authorized to conduct any hearing or inquiry ” as unrelated to the later phrases in the same sentence: 1 ‘ regarding the property, government or affairs of the city * * * or regarding the * # * official conduct of any officer or employee of the city But that grammatical possibility is a logical impossibility, and the result would be a statutory monstrosity, whereby an upstate town board or a legislative committee from another State could bring about the firing of a New York City employee because the latter refused to answer the questions of the interlopers, about his official conduct. We do not so construe statutes, especially since we know historically (and as respondents themselves tell us) that section 903 was one of the by-products of the “ Seabury Investigation” of 1932. It is most unlikely that the New York State Legislative Committee, of which Judge Seabury was counsel, or the Legislature itself in setting up the Charter Revision Commission in 1934, or the commission in its 1936 recommendation of a new charter for New York City, or the Legislature or the people of the city in voting for it, intended to deal with a situation where a foreign legislative body might question New York City employees about New York City’s governmental affairs. What section 903 contemplates is an inquiry by a New York State, or New York City, legislative committee or officer or board or body authorized to investigate the city government. This subcommittee of the United States Senate was not and did not on this occasion claim to be such a committee, officer, board or body.
What section 903 means is that a city officer or employee must answer the question of a qualified investigating body concerning the city’s affairs, or concerning the conduct of city business by the questioned city officer or employee, or by any other city officer or employee, or forfeit his employment. When, in 1949, the Legislature determined (see findings attached to L. 1949, ch. 360) that the Communist party had been infiltrating into public employment in the public schools, it passed the appropriate (Feinberg) Act to deal with that situation (Education Law, § 3022). But the 1938 City Charter of New York dealt with something else entirely, that is, with facilitating *549local and State investigations of New York City affairs. Membership of teachers in the Communist party may, under the Feinberg Law, prove the teacher’s unfitness to be a teacher, and Feinberg Law procedures should be used to bring about any removals for that cause. Refusal of a teacher in a properly authorized investigation, to co-operate by answering questions as to membership in subversive organizations may justify dismissal after hearing, under sections 2573 or 6206 of the Education Law, and those procedures are available and lawful.
In each case, the order should be reversed and the petition granted, with costs in all courts.
Lewis, Ch. J., Froessel and Van Voorhis, JJ., concur with Conway, J.; Desmond, J., dissents in opinion in which Dye and Fuld, JJ., concur.
Orders affirmed.