In expressing contrary views to what has been determined, I shall endeavor not to go over ground that has already been covered. There are two issues in the case: Has SCAD jurisdiction over the board and, if so, what is the extent of its powers. There is complete agreement that the board is a State agency and that SCAD has jurisdiction over State agencies. That the board is a State agency has been amply demonstrated in the dissenting opinion. With the second proposition, I am constrained to agree, despite certain pragmatic difficulties that must eventuate from the logical extension of the proposition, as well as certain expressions in the statute itself. As it is necessary for the development of the argument, these difficulties are briefly developed.
The statute makes no exceptions as to what State agencies are to be embraced within the term “ employer ”, so all State agencies which hire personnel are included. SCAD’s jurisdiction thus extends over the office of the Governor, the Legislature and the courts. Conceivably, SCAD could find that the Supreme Court had engaged in discriminatory practices and enter an order to desist. Then it would have to go to that court and seek to have the court enforce the order against itself. Similarly, SCAD could conceivably make a like finding against the State Legislature. And it would have to enforce it against the body which created it and can, at will, abolish it. These are among the pragmatic difficulties referred to. The expressions in the statute itself are the references to State agencies. Of these there are but two, of which only one is significant. In section 294 of the Executive Law, SCAD is empowered to “ make recommendations to agencies and officers of the state ” in aid of its purposes. Why give it the power to recommend when it already has the power to compel?
Despite these difficulties, the legislative history and the reasoning set out in the foregoing opinions compel acceptance of the proposition that State agencies are within SCAD’s orbit. But we are asked, as the majority argues, to find that the Legislature excepted a single State agency from among all of them. That *456exception is the Department of Education (or at least certain of its subdivisions). This is not one of the agencies for which an exception might be expected to be made because enforcement might be difficult or incompatible with our scheme of government. With these not excluded, surely it is to be expected that any exclusion of a State agency would be in such terms that it would be unmistakable. For such a finding the majority relies on three grounds.
First, there is the legislative history. There is no point in characterizing the fairly extensive matter that has been submitted in the form of legislative committee hearings and the like. Some of it does support the view taken by the majority. But it is far from conclusive and, to some minds, not even persuasive. In any event, it is not the abstract intention of the Legislature that governs but what the words they used reasonably mean (Matter of Berson [Corsi], 283 App. Div. 190; Matter of Pierse v. Zimmerman, 255 App. Div. 708).
The second stated reason is that the State Board of Regents and the Commissioner of Education have long had the power to deal with discrimination practiced by any of the bodies subordinate to them, including this petitioner. This is a fact but not a reason. What State agency is not in the same position? What State agency has ever lacked the power to prevent its subordinates from engaging in discriminatory practices in the hiring of its employees 1 It is precisely to require them to exercise that power that SCAD was given jurisdiction over State agencies.
The third stated reason is the language exempting certain employers found in the statute (Executive Law, § 292, subd. 5 quoted in both the majority and dissenting opinions). C'oncededly, this exempts an educational association or corporation not organized for private profit. The kind of institution that this section refers to is amply described in the dissenting opinion. The majority believes that it also includes this petitioner because it is an educational corporation.
The statute delineating the powers and duties of the petitioner Board of Higher Education (Education Law, § 6202) describes it as a “ body corporate ”. This expression, which dates back to Blackstone (see 1 Blackstone, Comm., p. 468) is used by that learned authority interchangeably with the word “ corporation ”. It might be argued that the archaic expression is an indication that the institution created conforms to the original concept of a corporation—a body capable of possessing property but which property did not pass to the holder’s heirs. Thus, the Archbishop of Canterbury, the Lord Mayor of London, etc. were *457bodies corporate. Another interchangeable expression was “ body politic ” (see Blackstone, op. cit.). The argument loses force, however, when it is recalled that the Regents of the University of New York are designated a “ corporation ” (Education Law, § 201). Nevertheless, it is quite clear that in the use of the word “ corporation ” in the Executive Law a corporation such as the petitioner was not intended. It is practically everywhere held that the use of the word corporation in a statute includes only ordinary business corporations and does not apply to governmental entities (Rosenstock v. City of New York, 101 App. Div. 9; Ernes v. Fowler, 43 Misc. 603; 1 Fletcher, Cyclopedia Corporations, p. 203; 43 C. J., Municipal Corporations, p. 72).*
Moreover, several of the various Boards of Education which are part of the Department of Education are not corporations. For example, Boards of Central School Districts (Education Law, § 1802) and of Intermediate School Districts (Education Law, § 1952) are not corporations, while boards in Union Free School Districts are corporations (§ 1701). Is it to be argued that the Executive Law was intended to apply to those bodies in this complex which are designated as corporations and not to those which are trustees? The question is rhetorical and it is quite obvious that the designation “ corporation ” in the Education Law is for administrative convenience, and the happenstance that it was employed in the designation of this petitioner is irrelevant on the question of whether it is to be exempted from the provisions of the Executive Law.
Lastly, the majority points out, in reaching the conclusion that SCAD has the right to follow certain activities in regard to the petitioner board, that SCAD’s unchallenged exercise of jurisdiction over educational bodies should be given great weight. It is somewhat difficult to see why that weight should be so unevenly distributed. Apparently the formal practices of SCAD are of no weight at all in determining whether SCAD may proceed on formal complaint against such bodies. The record shows 74 such complaints processed against State educational institutions, of which seven were against this petitioner. These are given no weight in determining whether SCAD has jurisdiction to entertain formal complaints. If the weight of experience is “ great ” in other respects, how it happens to become weightless in this one connection is not explained.
*458It is therefore concluded that petitioner is subject to SCAD’s jurisdiction and the order should so indicate. Up to this point I am in accord with the views expressed by my brother Stevens, but here I depart. The majority holds that SCAD lacks jurisdiction to initiate or entertain a formal complaint against the petitioner but may conduct other proceedings looking to conciliation or having for their purpose investigation. And in this Judge Stevens agrees. I disagree, not because the petitioner is exempt but because I find in the statute no such powers.
Article. 15 of the Executive Law has two significant sections in this connection: section 295, titled, “ General powers and duties of commission ”, telling what SCAD may do; and section 297, headed “ Procedure ”, telling how it may do it. It is not questioned, nor, I believe, open to question, that the procedure outlined in great detail is applicable only to proceedings initiated by formal complaint. So, if there are other powers, there is no procedure provided for them. My brethren put their reliance on the powers given SCAD in subdivisions 8, 9 and 10 of section 295.
Taking these in reverse order, subdivision 10 merely provides for a written report annually to the Governor and Legislature of SCAD’s activities and recommendations. The duty to report activities cannot increase the scope of the activities to be reported.
Subdivision 9 gives the power to issue “ such publications ” and “ such results of investigations ” as will tend to eliminate discrimination. It is argued that unless it can investigate it is an empty power to permit it to publish the results of investigation. And so it is. But what investigations are referred to? The reference is to the prior subdivisions 6 and 8. The investigation provided for in subdivision 6 is one made in connection with the procedure following a formal complaint and hence does not enlarge the powers of SCAD. Subdivision 8 is quoted, as far as material, in the majority opinion. Concededly, it grants no powers at all to SCAD except to appoint advisory agencies and conciliation councils, to which the section does grant certain powers. The contention is that “ it is fairly inferable ” that if the agencies, being SCAD’s creations, received any powers, SCAD also received them. The inference must be drawn from something and, from the absence of any stated source, leaves only the statute itself as the basis. By definition it is not the words of the statute because, if so, no inference need be invoked. So it must be the general tenor and spirit of the law. While this is a perfectly legitimate source, it is submitted that the only *459fair inference to be drawn from it leads to an exactly opposite conclusion.
The statutory provisions on procedure (§ 297) are among the most detailed that can be found in this State on the subject of trials before administrative bodies. Among its more prominent and unusual features is the following: 1 ‘ After the filing of any complaint, the chairman of the commission shall designate one of the commissioners to make * * * prompt investigation in connection therewith; and if such commissioner shall determine after such investigation that probable cause exists for crediting the allegations of the complaint, he shall immediately endeavor to eliminate the unlawful discriminatory practice complained of by conference, conciliation and persuasion. The members of the commission and its staff shall not disclose what has transpired in the course of such endeavors.”
The reason for and the wisdom of this provision must become obvious on even very slight reflection, and it can be fairly said that it sets the tone for the manner in which the commission is to act. However, it is equally obvious, and all concerned agree, that these restrictions apply only to a procedure on a complaint. Is it a fair inference that SCAD can by-pass these restrictions by some other form of procedure in which the party claimed to be at fault is deprived of these safeguards? A business could easily be ruined and, in the case of a State agency, the officials involved could have their careers destroyed prior to any hearing if this statutory protection is eliminated. Is it even fairly infer-able that a Legislature concerned to provide for protection in a formal hearing intended to dispense with it if SCAD proceeds, in a manner it calls informal, merely to investigate and persuade? Concededly, if it can so proceed there is no safeguard. It is submitted that the only fair inference is that the failure to give SCAD express power to do so was advised and that it has no such power.
Two possible arguments to the contrary require attention, though the length of this writing requires that the treatment be brief. First, why did the Legislature give the power to make informal, unrestricted investigations to organizations designated by SCAD if it did not give that power to SCAD itself? Presumably because any action taken by them would be understood to be without compelling force and would, in addition, lack the weight and prestige that action by the officially designated body would have. Situations might arise which in SCAD’s judgment might be resolved more effectively by a resort to public opinion—as where a certain species of discrimination was a *460phenomenon of a particular locality rather than the practice of any one employer. Incidentally, the record reveals no designations by SCAD pursuant to this section.
Secondly, SCAD does point out that it has proceeded informally in a great number of instances without objection and this indicates practical interpretation of the statute not lightly to be set aside. The fact is established and the conclusion usually follows. But a usurpation of power gains no right to recognition no matter how long it is suffered. Certain practices do not lend themselves to challenge. In an informal procedure there is nothing to resist. The question must be raised, as here, by affirmative action of the party aggrieved. In taking affirmative action, the employer must publish to the world the accusation against him. Most employers would prefer to avoid this necessity and do the best they can short of it. Under these circumstances, the absence of challenge is neither remarkable nor a strong indication that the commission’s interpretation of the powers given it is warranted.
The order should be modified to allow respondent to process any existing or future complaint against petitioner, and, as so modified, affirmed.
Breitel, J. P., McNally and Eager, JJ., concur in Per Curiam opinion; Stevens and Steuer, JJ., dissent in part in separate opinions.
Pinal order, entered on March 28, 1961, modified on the law and the facts, to delete the first, third, fourth and fifth ordering paragraphs thereof, and in lieu thereof to provide that the Commission is further directed to refrain from taking any action in the matter of alleged unlawful discriminatory practices in employment or promotion of faculty members at Queens College or at any other educational unit under the control and jurisdiction of the petitioner, the Board of Higher Education, excepting only such investigations, studies, recommendations, programs, conciliation efforts, reports and proceedings as are provided for by and in conformity with subdivisions 8, 9 and 10 of section 295 of the Executive Law; and, as so modified, affirmed, without costs. Settle order on notice..
In other jurisdictions — U. S.: Township of East Oakland v. Skinner (94 U. S. 255); Colorado: City of Boulder v. Stewardson (67 Col. 582); Florida: City of St. Petersburg v. Carter (39 So. 2d 804 [Fla.] ; Maine: Chase v. Inhabitants of Town of Litchfield (134 Me. 122); Mississippi: Feemster v. City of Tupelo (121 Miss. 733).