On October 21, 1954 appellant was suspended, and on November 24, 1954 discharged, by the New York City Transit Authority from his position as a subway conductor. His duties consisted primarily of opening and closing subway doors to permit the entrance and exit of passengers. The ground for the action of the Transit Authority was that appellant held a position in a security agency, and that reasonable grounds existed for belief that, by reason of doubtful trust and reliability, his continued employment would endanger the security or defense of the United States and of New York State. The latter finding was based solely on evidence that appellant had invoked the constitutional privilege against self incrimination when questioned by the New York city department of investigation concerning his past or present membership in the Communist party. The action was taken pursuant to the purported authority of the Security Bisk Law.
In my opinion, appellant’s suspension and discharge were illegal for three reasons: (1) the Security Bisk Law is inapplicable to employees of the New York City Transit Authority because its employees are not in the service of the State or of any civil division thereof; (2) even if the Security Bisk Law is applicable to employees of the Transit Authority, it is inapplicable to appellant because he did not hold a security position therein or a sensitive position affected with the security or defense of the nation or the State, and (3) neither suspension nor discharge is authorized under the Security Bisk Law where the assertion of the constitutional privilege against self incrimination is the only evidence of doubtful trust and reliability endangering the security or defense of the nation and the State.
The New York City Transit Authority was created by the Legislature as a “ body corporate and politic constituting a public benefit corporation.” (Public Authorities Law, § 1801, subd. 1.) It was established as a separate entity because of the administrative and fiscal advantages attained by the separation of its functions from the general administrative machinery of the State and its civil divisions (1929 Atty. Gen. 223) and to insulate the State from liability in the performance of a specific public service. Despite the fact that the Transit Authority is a corporate agent and instrumentality of the State in the discharge of a governmental function (1949 Atty. Gen. 138; Public Authorities Law, § 1802, subd. 2), its employees are not employees of the State or of any of its civil divisions. (1951 Atty. Gen. 152.) The Security Risk Law (L. 1951. ch. 233) applies by its terms only to persons in “ governmental service ” (§§ 1, 4), i.e., in the service of the State or of any *16of its civil divisions (§§ 3, 5). Since appellant, as an employee of the Transit Authority, was not in the service of the State or of any civil division thereof, he was not encompassed by the Security Bisk Law. Therefore, his suspension and subsequent discharge pursuant to that law were illegal.
However, even assuming that the Security Risk Law was applicable to employees of the Transit Authority, it was not applicable to appellant because there is no finding that he held either a security position or a sensitive position affected with the security or defense of the nation or State. The basic language of the State law under consideration was adopted from language used with respect to Federal agencies. (See Public Papers of Gov. Thomas E. Dewey [1951], p. 291.) The Supreme Court has recently held (Cole v. Young, 351 U. S. 536) that the Federal Security Risk Law (U. S. Code, tit. 5, § 22-1) does not apply to all positions in security agencies, but only to security positions therein. The court limited the use of the term ‘ ‘ national security ’ ’, as used in that law, to comprehend only those activities of the government directly concerned with the protection of the nation from internal subversion or foreign aggression, and found that activities which contribute to the strength of the nation only through their impact on the general welfare were not included therein. The court specifically held that the summary procedure for suspension and discharge authorized therein is available only with respect to an employee in a sensitive position or to one situated where he can bring about a discernible effect on the nation’s security, i.e., to employees whose position is affected with, and whose misconduct would adversely affect, the national security. The State law presently under consideration, patterned on the similar Federal law, should be given the same interpretation. In the case at bar, although there is a finding that appellant’s employment in the position of conductor endangers the security or defense of the nation and State, similar to the general finding in Cole v. Young (supra), there is absent the finding which the Supreme Court held a necessary requisite to suspension or discharge under the Federal law, to wit, that appellant’s position as conductor was one in the category to which the Security Risk Law is limited. The opinion indicated that the latter finding might be based on evidence that the position was sensitive because the employee had access to governmental secrets or classified material, or that he was in a position to influence policy against the interests of the government. Without that necessary finding here, the suspension and discharge were invalid.
*17Finally, there was no proof that appellant was a security risk within the provisions of the statute. The essence of the majority opinion is that, accepting as truthful appellant’s statement that answers to questions as to his past or present membership in the Communist party might have tended to incriminate him, such refusal to answer, standing alone, gives reasonable ground to believe that appellant is of doubtful trust and reliability and thereby his continued employment as a subway conductor endangers the security or defense of the United States and New York State. It is precisely that inference of guilt from the truthful assertion of the same privilege in answer to the same questions which was repudiated by the Supreme Court in Slochower v. Board of Educ. (350 U. S. 551, 557) when it said: ‘‘ we must condemn the practice of imputing a sinister meaning to the exercise of a person’s constitutional right under the Fifth Amendment. * * * The privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury.”
The Security Bisk Law does not provide that a refusal to answer questions concerning membership in the Communist party, or the assertion of a constitutional privilege, when asked such questions, is sufficient ground for suspension or discharge. On the contrary, section 7 thereof seems to require affirmative evidence of wrongful conduct on the part of the employee to support a finding under either section 4 or section 5. Section 7 provides that a finding under section 4 or section 5 may be based on membership in a subversive organization. Unless the statute is construed to mean guilty rather than innocent membership, it would be invalid. (Wieman v. Updegraff, 344 U. S. 183; Garner v. Los Angeles Bd., 341 U. S. 716.) Yet, although the constitutional privilege serves to protect persons innocent of any wrongdoing whatever (Slochower v. Board of Educ., 350 U. S. 551, supra), and although no inference of membership in the Communist party may be drawn from the assertion of the privilege (Matter of Daniman v. Board of Educ. of City of N. Y., 306 N. Y. 532, 538), the majority holds that appellant was properly suspended and discharged, whether or not he was a member of the Communist party, and whether he was an innocent or guilty member thereof. The mere exercise of the constitutional privilege has now become the basis for suspension and discharge under the statute, quite apart from an inference of guilt. In my opinion, such a determination not only departs from established authority, but permits the court to set as a criterion that which the Legislature has not done, namely, to *18make the assertion of the privilege a test of endangering the security or defense of the nation and the State. In the Slochower case it was held that a State violates due process when it makes a claim of privilege ground for discharge. Yet here, where the statute does not provide what the statute there expressly provided, the Transit Authority has nevertheless made the claim of privilege ground for suspension and discharge, and the majority has approved that action. I am unable to concur in such a determination.
The order should be reversed and the appellant should be reinstated.
Nolan, P. J., Murphy and Kleinfeld, JJ., concur with Ughetta, J.; Beldock, J., dissents and votes to reverse the order and to reinstate appellant, in opinion.
Order affirmed, with $50 costs and disbursements.