author: Chief Judge Conway. Bubke, J. (dissenting).

text:
    In the Matter of the Board of Education of the City of New York et al., Appellants, against James E. Allen, Jr., as Commissioner of Education of the State of New York, et al., Respondents. In the Matter of the Board of Higher Education of the City of New York, Appellant, against James E. Allen, Jr., as Commissioner of Education of the State of New York, et al., Respondents.
    Argued March 5, 1959;
    decided May 28, 1959.

      Charles E. Termey, Corporation Counsel (Leo A. Larkin, Saul Moskoff, John F. Kelly and Milton Weinberg of counsel), for appellants in each of the above-entitled proceedings.
    I. The Commissioner’s decision prevents the enforcement of the Feinberg Law and represents an illegal attempt in the guise of an administrative determination to repeal that statute. (Matter of Fabricius v. Graves, 254 App. Div. 19; Matter of Cole v.
      Wilson, 202 Misc. 1090; Matter of Board of Educ. of City of N. Y. v. Cole, 261 App. Div. 1115 ; Matter of Ross v. Wilson, 308 N. Y. 605; Matter of Eaton v. Allen, 1 Misc 2d 496; Matter of Stephan v. Allen, 2 Misc 2d 6; Matter of Picone v. Commissioner of Licenses, 241 N. Y. 157; Matter of Barry v. O’Connell, 303 N. Y. 46; Frost v. Jones, 207 Misc. 1086; People ex rel Hylan v. Finegan, 227 N. Y. 219.) II. The method so successfully employed by the board has been utilized from time immemorial by all experienced and responsible public officials charged with the responsibility of investigating into conspiracies. (People v. Luciano, 277 N. Y. 348, 278 N. Y. 624, 305 U. S. 620; People v. Hines, 258 App. Div. 466, 284 N. Y. 93; People v. Fay, 270 App. Div. 261, 296 N. Y. 510, 332 U. S. 261; People v. Gross, 279 App. Div. 930, 304 N. Y. 789; Dennis v. United States, 341 U. S. 494, 342 U. S. 842; United States v. Hiss, 185 F. 2d 822; United States v. Rosenberg, 195 F. 2d 583, 344 U. S. 838; Matter of Evans v. Monaghan, 306 N. Y. 312.) III. The reasons advanced by the Commissioner for prohibiting an essential and legal method of inquiry are wholly founded upon speculation, have no support or basis in the record, are contrary to fact and law and against public policy. (Ullmann v. United States, 350 U. S. 422;.Garland v. Torre, 259 F. 2d 545; Matter of Commission of Investigation of State of N. Y. v. Lombardozsi, 7 A. D. 2d 48; Matter of Edge Ho Holding Corp., 256 N. Y. 374; Matter of Manning v. Valente, 272 App. Div. 358; Matter of Amato, 204 Misc. 454.) IV. The Commissioner, in his argument at Special Term and at the Appellate Division, has repudiated the reasons set forth in his decision as the basis for his declaration of educational policy and has adopted the ‘ ‘ conscience ’ ’ argument as the basis for his determination. This argument has been held to be legally insufficient. (Matter of Barry v. O’Connell, 303 N. Y. 46; Rogers v. United States, 340 U. S. 367, 341 U. S. 912; Yates v. United States, 355 U. S. 66; Sinclair v. United States, 279 U. S. 263; Barsky v. United States, 167 F. 2d 241, 334 U. S. 843, 339 U. S. 971; People v. Keating, 286 App. Div. 150; Garner v. Los Angeles Bd., 341 U. S. 716; Adler v. Board of Educ., 342 U. S. 485.) V. Assuming the sincerity of the individual defendant’s religious beliefs, the courts have ruled that, where strict adherence to religious doctrines prevents a person from performing his full duties as a public employee or in a profession, he must relinquish the employment. (Matter of McDowell v. Board of Educ., 104 Misc. 564; Board of Educ. v. Barnette, 319 U. S. 624; Matter of Summers, 325 U. S. 561.)

      Charles A. Brind, John P. Jehu, Elizabeth M. Eastman and George B. Farrington for Commissioner of Education, respondent in the first above-entitled proceeding.
    I. The decision of the Commissioner is final and is neither arbitrary nor capricious. (Kabatt v. Board of Educ. of City of Elmira, 52 N. Y. St. Dept. Rep. 59, 246 App. Div. 886, 271 N. Y. 629, 272 N. Y. 508, 300 U. S. 657, 300 U. S. 687; Matter of Daniman v. Board of Educ. of City of N. 7., 202 Misc. 915, 282 App. Div. 717, 306 N. Y. 532, 307 N. Y. 806, 348 U. S. 933, 348 U. S. 935, 351 U. S. 944; Matter of Hughes v. Board of Higher Educ. of City of N. Y.., 286 App. Div. 180, 309 N. Y. 319; Natvig v. United States, 236 F. 2d 694; United States v. Flynn, 130 F. Supp. 412; Jencks v. United States, 226 F. 2d 540, 350 U. S. 980; Matter of-, an Attorney, 86 N. Y. 563; Sweezy v. New Hampshire, 354 U. S. 234; Watkins v. United States, 354 U. S. 178.)

      Victor Babinowitz for Harry Adler and others, respondents in the first above-entitled proceeding.
    I. The decision of the Commissioner of Education is final and conclusive and is not subject to review in this court. (Matter of Bethlehem Union Free School v. Wilson, 303 N. Y. 107; Matter of Levitch v. Board of Educ. of City of N. Y. 243 N. Y. 373, 244 N. Y. 505; People ex rel. Board of Educ. v. Graves, 243 N. Y. 204; Barringer v. Powell, 230 N. Y. 37; Bullock v. Cooley, 225 N. Y. 566; Matter of Hauser v. Wilson, 2 A D 2d 427; Matter of Beam v. Wilson, 279 App. Div. 277; Matter of Craig v. Board of Educ. of City of N. Y., 262 App. Div. 706; Matter of Fabricius v. Graves, 254 App. Div. 19, 254 App. Div. 913; Matter of Cochran v. Levy, 175 Misc. 666, 263 App. Div. 921; Matter of Ross v. Wilson, 308 N. Y. 605.) II. The decision of the Commissioner of Education was not arbitrary. (Matter of-, an Attorney, 86 N. Y. 563.) III. The ruling of the Commissioner does not 1 ‘ repeal ’ ’ the Feinberg Law. IV. The action of the appellants in discharging employees-respondents violated their rights under the Constitution of the United States. (Slochower v. Board of Educ., 350 U. S. 551; Konigsberg v. State Bar, 353 U. S. 252; Indiana ex rel. Anderson v. Brand, 303 U. S. 95.)

      David I. Ashe for Samuel S. Cohen, respondent in the first above-entitled proceeding.
    I. The courts below correctly dismissed the petition, since appellants did not have the legal capacity or authority to institute or maintain an article 78 proceeding against respondent Commissioner of Education. (Bullock v. Cooley, 225 N. Y. 566; Matter of Bethlehem Union Free School v. Wilson, 303 N. Y. 107; People ex rel. Underhill v. Skinner, 74 App. Div. 58; People ex rel. Murphy v. Maxwell, 177 N. Y. 494.) II. The petition was properly dismissed, in any event, since the Commissioner’s decision was not arbitrary or unlawful. (Matter of Levitch v. Board of Educ. of City of N. Y., 243 N. Y. 373, 244 N. Y. 505; Matter of Birmingham v. Graves, 227 App. Div. 262, 255 N. Y. 623, 287 U. S. 669; Matter of Hauser v. Wilson, 2 A D 2d 427; Matter of Fabricius v. Graves, 174 Misc. 130, 260 App. Div. 981, 285 N. Y. 610; Matter of Board of Educ. of City of N. Y. v. Graves, 175 Misc. 205, 261 App. Div. 1115; Matter of Beam v. Wilson, 200 Misc. 183, 279 App. Div. 277; Matter of Cochran v. Levy, 175 Misc. 666, 263 App. Div. 921; Matter of Picone v. Commissioner of Licenses, 241 N. Y. 157; Frost v. Jones, 207 Misc. 1086; People ex rel. Murphy v. Maxwell, 177 N. Y. 494; Watkins v. United States, 354 U. S. 178; United States v. Peck, 154 F. Supp. 603; Singer v. United States, 247 F. 2d 535.)

      Charles A. Brind, John P. Jehu, Elizabeth M. Eastman and George B. Farrington for Commissioner of Education, respondent in the second above-entitled proceeding.
    I. The decision of the Commissioner is final and is neither arbitrary nor capricious. II. The decision of respondent in the case at bar is not inconsistent with his decision in the “ Adler ” case.

      Osmond K. Fraenkel for Charles W. Hughes, respondent in the second above-entitled proceeding.
    The issue involved is one of educational policy over which, under section 310 of the Education Law, the courts have no concern. (Matter of O’Brien v. Commissioner of Educ. of State of N. Y., 3 A D 2d 321, 4 N Y 2d 140; Matter of Board of Educ. of City of N. Y. v. Allen, 7 Misc 2d 680; Matter of Hughes v. Board of Higher Educ. of City of N. Y., 309 N. Y. 319.)

      Jerome B. Heller stein and Will Maslow for American Jewish Congress, amicus curiae, in support of respondents’ position in the first above-entitled proceeding.
    I. The curtailment of liberty of speech, thought and association effected by the board’s asserted power to discharge teachers for failure to testify to Communist party membership of other school employees cannot be justified by the need to ferret out Communists in the school system. (Dennis v. United States, 341 U. S. 494.) II. There is ample precedent in the law for yielding an investigative power, where civil liberties or other societal interests would be endangered by its use. III. The presumption applied by the board that a sine qua non to good faith severance of Communist party membership is a willingness to inform on others is contrary to fact; the application of the presumption would violate the due process clause. (Bailey v. Alabama, 219 U. S. 219; McFarland v. American Sugar Co., 241 U. S. 79; Manley v. Georgia, 279 U. S. 1; Tot v. United States, 319 U. S. 463; Slochower v. Board of Educ., 350 U. S. 551; Speiser v. Randall, 357 U. S. 860; Matter of -, an Attorney, 86 N. Y. 563.)

      Robert M. Benjamin, Frank E. Karelsen and Bethuel M. Webster for Public Education Association, amicus curiae, in support of respondents’ position in the first above-entitled proceeding.
    I. Decisions of the Commissioner of Education under section 310 of the Education Law are to be confirmed by the courts unless they are ‘ ‘ purely arbitrary. ’ ’ (Matter of Levitch v. Board of Educ. of City of N. Y., 243 N. Y. 373; Matter of Ross v. Wilson, 308 N. Y. 605; People ex rel. Board of Educ. of City of N. Y. v. Finley, 211 N. Y. 51.) II. The decision of the Commissioner of Education attacked in this proceeding is not arbitrary but is based on his exercise of reasoned judgment as to the interests of the school system.

      Frank Serri, Harold D. Ko&upsky and Robert Silk for ' National Lawyers Guild, New York City. Chapter, amicus curiae, in support of respondents’ position in the first above-entitled proceeding.
    I. Appellants’ resolution impinges upon First Amendment rights. (Sweezy v. New Hampshire, 354 U. S. 234; Adler v. Board of Educ., 342 U. S. 485; Wieman v. Updegraff, 344 U. S. 183.) II. Compulsion to inform degrades the individual and injures the educational system. (Mesarosh v. United States, 352 U. S. 1; Communist Party v. Control Bd., 351 U. S. 115; Natvig v. United States, 236 F. 2d 694; Jencks v. United States, 226 F. 2d 540; United States v. Flynn, 130 F. Supp. 412.) III. All past civilizations have held the informer in contempt, (John Liburn’s Trial, 3 How. St. Tr. 1315.)

      Benjamin Masen and Jules Kolodny for New York Teachers Guild, amicus curiae, in support of respondents’ position in the first above-entitled proceeding.
    I. The resolution of March 17, 1955 is morally reprehensible. (Matter of Jenks, 6 How. St. Tr. 1189.) II. The resolution is administratively unwise. (Watkins v. United States, 354 U. S. 178.) III. Appellant lacks the legal power to compel its employees to serve as informers. (Garner v. Los Angeles Bd., 341 U. S. 716; Sweezy v. New Hampshire, 354 U. S. 234; Konigsberg v. State Bar, 353 U. S. 252.)
   Chief Judge Conway.

The individual respondents in the first of these eases are three teachers, a school clerk and a principal in the New York City school system who refused, when questioned by petitioner-appellant, Superintendent of Schools of the City of New York, to identify other school personnel as past or present members of the Communist party. All admitted past, but denied present membership in the Communist party themselves. For their refusal to answer the questions the Superintendent suspended them from their employment and instituted disciplinary action designed to terminate their terms.

The individual respondent in the second of these cases is an associate professor at Hunter College whom the petitioner-appellant, Board of Higher Education of the City of New York, dismissed — among other reasons — for similar refusal to answer questions about the “ past or present membership by municipal college staff members in the Communist Party or other subversive organizations.”

In both cases appeals were taken to the Commissioner of Education of the State of New York from the determinations of the respective petitioners. The Commissioner ruled against the petitioners in both appeals. In the first case the Commissioner enjoined the board and Superintendent of Schools from directing the defendant employees of the board to identify other present employees thereof who had been or then were members of the Communist party, except the defendant Cohen, who, as a school principal, was directed to name any person in his particular school whom he knew or believed to be a member of the Communist party. In the second case, the Commissioner of Education annulled the dismissal of the defendant by the Board of Higher Education, requiring simply that Hughes be given an opportunity to answer questions with respect to statistics (as to members) involving Communist party membership of other faculty members.

In essence, the Commissioner determined that the refusal of the defendant employees to submit to the interrogation concerning Communist affiliation, past or present, of other teachers furnishes no basis for disciplinary action by the petitioners.

The petitioners — the two New York City Boards of Education and the Superintendent of Schools of the City of New York— thereupon instituted the present article 78 proceedings to review and annul the Commissioner’s determination. The court at Special Term confirmed the Commissioner’s decision and dismissed the petitions. Pointing out that the Commissioner’s determination is, by section 310 of the Education Law, final and conclusive in matters relating to education “ unless arbitrary ”, the court declared that the “view of the commissioner in the arguable field of judgment and opinion cannot be said, as a matter of law, to lack rational basis ’ ’ and that his determination is not ‘ ‘ illegal, arbitrary or capricious.” The Appellate Division affirmed unanimously.

On this appeal the petitioners argue that the Commissioner’s decision prevents enforcement of the Feinberg Law and represents an illegal attempt in the guise of an administrative determination to nullify and repeal that statute and that the Commissioner’s determination does not involve educational policy affecting the school system but, instead, is concerned solely with upholding the refusal of individuals who, for legally invalid reasons, refuse to answer relevant questions during an inquiry into subversion mandated by the Legislature and that his action is, therefore, arbitrary and illegal.

The Commissioner, on the other hand, asserts that his determination is one of educational policy; that all he determined was that a Board of Education may not suspend or dismiss a teacher who is unwilling to accuse another teacher of being or having been a Communist; that such determination was made in the exercise of judgment and is neither arbitrary nor capricious ; and that his ruling does not repeal or prevent enforcement of the Feinberg Law.

The initial question to be answered is the scope of the court’s review.

The Commissioner of Education is a constitutionally created officer. Section 4 of article V of the Constitution provides that: ‘ ‘ The head of the department of education shall be The Regents of the University of the State of New York, who shall appoint and at pleasure remove a commissioner of education to be the chief administrative officer of the department.” Section 305 of the Education Law, in turn, declares that the Commissioner of Education is the chief executive officer of the state system of education and of the board of regents. ’ ’ Section 310 of the Education Law, which deals with appeals to the Commissioner, reads, in pertinent part:

Any person conceiving himself aggrieved may appeal or petition to the commissioner of education who is hereby authorized and required to examine and decide - the same; and the commissioner of education may also institute such proceedings as are authorized under this article and his decision in such appeals, petitions or proceedings shall be final and conclusive, and not subject to question or review in any place or court whatever. Such appeal or petition may be made in consequence of any action: [emphasis supplied]. [There follows in 6 subdivisions a listing of various officials and bodies whose action may be reviewed and then the statute continues with the omnibus 7th subdivision.]
‘ ‘ 7. By any other official act or decision of any officer, school authorities, or meetings concerning any other matter under this chapter, or any other act pertaining to common schools.”

This court has said that the object of section 310 of the Education Law “is to make all matters pertaining to the general school system of the state within the authority and control of the department of education and to remove the same so far as practicable and possible from controversies in the courts ” (Bullock v. Cooley, 225 N. Y. 566, 576-577; emphasis supplied). The comment has also been made that “ Such a policy assures determinations by a person conversant with school problems ” (Matter of Nestler v. Board of Examiners, 192 Misc. 663, 665).

If the words of section 310 were to be read literally there could be no court review whatever of the Commissioner’s decisions on appeal, for the statute states that his decision “ shall be final and conclusive, and not subject to question or review in any place or court whatever.” However, our court has determined that the Legislature did not intend that the words are to be so read. Thus, we have said that ‘ ‘ decisions by the Commissioner of Education are final unless purely arbitrary ”. (Matter of Ross v. Wilson, 308 N. Y. 605, 608, emphasis supplied; Matter of Levitch v. Board of Educ., 243 N. Y. 373, 375.) The term “arbitrary”, standing by itself, would be quite sufficient to make it plain that only a narrow review of the Commissioner’s decisions is available in the courts. In the above-cited cases we undertook to emphasize the point by employing the phrase ‘‘purely arbitrary ”. With this rule as our guide we turn to a consideration of the issues to be resolved.

In his decision the Commissioner stated, inter alia, that the problem ‘ ‘ affects the administration of our entire education system ”; that there “ is near unanimity on the part of teachers throughout the State that indiscriminate use of this type of interrogation immediately engenders an atmosphere of suspicion and uneasiness in the schools and colleges ’ ’; that “ [t]rust which is necessary to keep morale at a high level is undermined”; that it “is notorious that part of the Communist philosophy encompasses falsehood as a means to an end ”; that the “ allegation by a member or former member of this organization standing alone could well be untrustworthy, yet it levels a deadly suspicion which is most difficult to disprove ”; that the “ literature of Communists who have recanted specifically sets forth allegations that their ilk have deliberately named persons who have had no connection with the organization for party reasons ”; that “ [e]ven if a person so named is exonerated by lack of proof or is able to develop sufficient proof to allay suspicion, he is marked for life ’ ’; that the “ instant a name is uttered the public becomes aware of it ”; that a ‘ ‘ school system which sets one teacher against another in this manner is not conducive toward the strength and cohesion which needs to exist in order to instill character into the student body”; that, as said in The New York Times in an editorial, a fundamental reason for forbidding the interrogation 1 ‘ is that it establishes as an official test of good faith a teacher’s willingness to act as an informer ” and that “ [m]any a man willing to make a clean breast of his own past finds it morally indefensible to tell on others who he has no reason to believe are engaged in any conspiracy now”; that the respondent boards insist 1 that unless they can require any employee to name any person whom he accuses of being a Communist they are ‘ thwarted at a vital stage ’ ”; that “ this is not so ”; that ‘ ‘ the board is most optimistic if it believes that a jury will convict on the flimsy evidence of informers ”; that the 1 ‘ argument that the board needs someone to name names is of no value here because the board in any event can call in any teacher or for that matter all teachers and ask if they are Communists ’ ’; that in ‘ ‘ case of denial the board is still up against the necessity of obtaining proof and the use of an informer is of little value ”; that in the overall administration of the public school system * * * the institution of the policy under consideration here would do more harm than good and that this type of inquisition has no place .in the school system ”; and that, therefore, the Board of Education may not properly utilize it.”

On oral argument, the petitioners-appellants conceded that the respondent employees had a right to appeal to the Commissioner, pursuant to section 310, from the action taken against them by petitioners-appellants, but contended that on such appeal the Commissioner’s sole function was to determine whether the questions put to the respondent employees were relevant to a legal inquiry. We find no authority to support that. On the contrary, our court has indicated—and the language of the statute itself suggests — that section 310 was intended to confer a wide sweep of power upon the Commissioner (see Bullock v. Cooley, 225 N. Y. 566, 576-577, supra).

The Constitution has made the Commissioner of Education the administrative head of the State system of education and he has been given the final authority in passing on the numerous questions bound to arise in the administration of the school system. The question of whether the respondent employees could be suspended or discharged for failing to inform as to particular conduct of fellow teachers was one within his jurisdiction since it is obviously related to the administration of the school system. The petitioners-appellants had determined, in effect, that a teacher unwilling to answer their questions as to such conduct of fellow-teachers was unfit to continue to serve. The Commissioner was certainly empowered to rule that such a conclusion would be detrimental and injurious to the school system. As stated above, he has declared that the type of interrogation conducted by petitioners-appellants was bound to engender an atmosphere of suspicion and uneasiness in the schools and colleges; that it set one teacher against another and as such was not conducive to the strength and cohesion which must exist in order to instill character in the student body; and that a breakdown of moral fibre will result. Undoubtedly, one may differ with the Commissioner’s reasoning. One may, for example, assert with some force the view that a teacher, as a molder of thought and as a citizen of this State and Country, should not have the right to claim a privilege to impede the removal of persons disloyal to their country. But it is quite another matter to pronounce the Commissioner’s view in this arguable field of judgment, which is based on the considerations enumerated above, as lacking rational basis. Such a pronouncement, we believe, could only be the product of temerity—not that of calm judicial deliberation. In the exercise of judicial self-restraint this court must rule that the Commissioner’s conclusion that the desirable objective of ridding the school system of Communists would not be served by the method of inquiry pursued by the petitioners-appellants, and that such method of inquiry would do more harm than good (which conclusion, we are told, was arrived at only after consultation with numerous leaders in the field of education), is not the result of arbitrariness or capriciousness.

Petitioners-appellants contend that the Commissioner’s determination not to allow them to insist that respondent employees “ name names” is inconsistent with his determination to permit petitioners-appellants to require Hughes to give them statistical information concerning the number of persons in the Communist unit of which he was a member; the average attendance at meetings of that unit; the number, if any, of the faculty members of Hunter College who were members of that unit and the number, if any, of that unit who are still on the Hunter faculty. A brief, but it seems to us, satisfactory answer to that argument was given by Special Term: “ The commissioner’s requirement that Hughes divulge certain statistical information not connected with the disclosure of the identity of any of his associates, which compulsive disclosure the commissioner there, as here, specifically forbade, indicates no inconsistency in his determinations.”

The Commissioner also took a different view of the obligation of respondent Cohen, the principal. As to him the Commissioner said: ‘ He has subordinates under him for whom he is responsible. The principles heretofore enumerated are not applicable to him in so far as they relate to those teachers under his jurisdiction in his school. A board would be clearly justified in expecting him, even without a request, to report to it the name of any person in his school whom he knows or believes to be a Communist or otherwise unfit to be an employee of his school. As a matter of fact, the Rules of the Board of Regents (§ 244) promulgated pursuant to Section 3022 of the Education Law (Feinberg Law) require him to do so if the board wishes to assign him that duty. The Board needs no rule or regulation in this respect and his refusal to answer subjects him to discipline for such reason.”

This we consider to be but further evidence of the fact that the Commissioner’s decision was a reasoned one rather than the product of arbitrariness or capriciousness.

Petitioners-appellants ’ major argument is that the Commissioner’s determination prevents enforcement of the Feinberg Law and represents an attempt to nullify and repeal that statute.

Under the provisions of the Feinberg Law (Education Law, § 3022) the Legislature directed the Board of Regents to adopt rules and regulations for the enforcement of all laws prohibiting subversives from obtaining or retaining employment in the public school system. The Legislature also directed local Boards of Education to enforce those laws in a vigorous manner. However, the Legislature has not directed the boards to employ any particular method in ridding the schools of subversives. The petitioners-appellants take the position that the only means available to them to accomplish the object of the Feinberg Law is the one they sought to employ here. In this we think they are in error. It may well be that it is the easiest and the most efficient means. But it can hardly be said to be the only reasonable means at hand. If the enforcement of our laws were to depend upon informers alone, as the board appears to contend is the fact as to the Feinberg Law, we would live in a chaotic state. Those charged with the duty of enforcement know this and, so, resort to other traditional methods for obtaining the desired information. The board must do likewise. For example, the board is free to question as many of its employees as it wishes concerning their own memberships in the Communist party. And, we suppose the board could use investigators to examine into the background and associations of its employees. It is also noteworthy that no other school board, of the several hundred existing in the State of New York, has found it necessary to conduct the type of investigation or interrogation to which the defendant employees have been subjected. No other school board has found it necessary to seek to compel teachers to inform on their fellow faculty members under pain of discipline. The petitioners-appellants can hardly argue that no other Board of Education in the State is making a sincere effort to enforce the law.

The argument has been made that the failure of the Legislature to enumerate in the Feinberg Law the methods to be employed in ferreting out subversives in the educational system compels the conclusion that the usual means of inquiry are authorized; that the petitioners-appellants are free, therefore, to utilize any of those means without interference by the Commissioner of Education; that the Legislature has not empowered the Commissioner to limit the methods of inquiry; and that the power to determine whether a particular type of questioning will do more harm than good is not within the scope of the Commissioner’s power since this power has not been conferred on him by any statute and has not been granted to him by the Constitution of our State. This reasoning, we think, will not withstand analysis.

As stated earlier, the Commissioner of Education has been made the chief administrative officer of the educational system of the State and, as such, has been invested with broad powers of review. He may review any “ official act or decision of any officer, school authorities, or meetings concerning any * * * matter under this chapter, or any * * * • act pertaining to common schools.” (Education Law, § 310, subd. 7.) The courts, in turn, may review the Commissioner’s determinations made on appeals taken to him pursuant to section 310. However, the Commissioner’s determinations may not be stricken down unless they be ‘1 purely arbitrary. ’ ’ The Commissioner on his review has not been so restricted. That is, unlike the courts, the Commissioner is empowered to substitute his judgment for that of the officer whose action he is reviewing. This is the plain import of section 310. All the courts may do is ascertain whether the Commissioner’s decision was purely arbitrary. To illustrate the significance of this in the present case: Several reasonable investigatory methods were available to the petitioners-appellants. They chose one. The Commissioner was free to overrule the use of the selected method without having to find that it was totally unreasonable ; he was at liberty to require the petitioners-appellants to resort to one of the other methods of investigation which he had reason to believe would be less injurious to the educational system. The courts, on the other hand, are not empowered to so substitute their judgment for that of the Commissioner and if Ms decision be not purely arbitrary it may not be overturned.

The question to be answered is not whether the Feinberg Law authorized the Commissioner to limit the methods of inquiry. At the time of the enactment of the Feinberg Law the Commissioner possessed the sweeping power to review action taken by educational officers, which has been described above. The question is whether the Feinberg Law withdrew from the Commissioner any of the power with which he had theretofore been invested. Certainly, the Feinberg Law does not expressly interfere with such power and it is familiar learning that repeals by implication are not favored by the courts. Generally speaking, a statute is not deemed to repeal an earlier one without express words of repeal, unless the two are in such conflict that both cannot be given effect. If by any fair construction a reasonable field of operation can be found for two statutes, that construction should be adopted (see McKinney’s Cons. Laws of N. Y., Book 1, Statutes, § 391, and the numerous cases cited therein). We have already pointed out that the petitioners-appellants can discharge their duty under the Feinberg Law notwithstanding the decision of the Commissioner here under consideration. Accordingly, there is no basis for a holding that the Feinberg Law was intended to take from the Commissioner any part of the power previously granted him by the Education Law.

We would stress the fact that we are not passing upon the correctness of the determination of the Commissioner nor are we holding that members of the teaching profession in this State are exempt from citizenship responsibilities imposed not only on all other public servants, but on individuals in private life as well. We are merely discharging our judicial function of interpreting the legislative will. The lawmakers have the right and power to prescribe the Commissioner’s powers and to circumscribe our scope of review of his determinations.

The orders appealed from should be affirmed, with costs.

Bubke, J. (dissenting).

The Commissioner of Education does not have the power to approve a code of behavior which, by a conspiracy of silence, has frustrated the investigation into subversion in the school system in New York City — a school system which educates almost 1,000,000 children, and has a staff of over 40,000 teachers. The validity of the Commissioner’s decision according to his brief depends entirely on assumptions, inferences, speculations, polls, commentators’ opinions, editorial comment and bare conclusions. Facts and legal precedents are conspicuously absent.

The Commissioner’s ruling, which prevents the New York City Board of Education from discharging or suspending employees with Communist backgrounds who have refused, when questioned, to identify school personnel known by them to have been Communists, seems to have been influenced by arguments made by the respondent teachers and other interested parties. Recognizing the deficiencies of these arguments, however, the Commissioner has attempted to sustain the validity of his determination on his alleged absolute power in matters of “ educational policy ” (Education Law, § 310) when it was subjected to the scrutiny of the courts. Since this court must judge the propriety of administrative action solely on the grounds invoked by the administrative agency (Matter of Barry v. O’Connell, 303 N. Y. 46, 50), they deserve the full consideration of the court.

The respondent teachers rely on Watkins v. United States (354 U. S. 178 [labor leader]), Sweezy v. New Hampshire (354 U. S. 234 [university professor]), and Konigsberg v. State Bar (353 U. S. 252 [law student]) as authorities supporting their right to remain silent when questioned concerning the identity of persons whom they knew to be Communists.

The kind of ‘ ‘ right to silence ’ ’ adverted to in the cases cited by the respondent teachers is not involved in this case. The right to remain silent exists only where there is no corresponding duty to speak. Here the teachers assert not only their right to remain silent, but also assert that, despite their silence, they are to remain in public employment. Their position has been approved by the Commissioner. Administrative fiat has created a subsidy for those who assert the right to silence at the expense of the taxpayers of this State. The People who pay the piper, apparently, are no longer able to call the tune. Indeed, the piper, who refuses to play any tune at all, insists upon being paid nevertheless.

To date, however, the United States Supreme Court has not found that those partaking of the “ right to silence ” in subversion cases must be subsidized by the government or by agencies of the government. On the contrary, the Supreme Court has clearly decided that a teacher has to choose between his job and his proscribed associations. (Adler v. Board of Educ., 342 U. S. 485.) 11 By engaging in teaching in the public schools, petitioner did not give up his right to freedom of belief, speech or association. He did, however, undertake obligations of frankness, candor and cooperation in answering inquiries made of him by his employing Board examining into his fitness to serve it as a public school teacher.” (Beilan v. Board of Educ., 357 U. S. 399, 405; see, also, Matter of Lerner v. Casey, 2 N Y 2d 355, affd. 357 U. S. 468.) A person does not have a constitutional right to governmental employment and, once a position is accepted, he must comply with reasonable, lawful and nondiscriminatory terms laid down by proper authorities. (United Public Workers v. Mitchell, 330 U. S. 75; Oklahoma v. Civil Service Comm., 330 U. S. 127; Adler v. Board of Educ., 342 U. S. 485, supra; Slochower v. Board of Educ., 350 U. S. 551, 555.) A person who persists in his personal convictions does so at the risk of his public employment. (Garner v. Los Angeles Bd., 341 U. S. 716; Adler v. Board of Educ., 342 U. S. 485, supra.)

The right to silence, I have pointed out, does not exist where there is a duty to speak. The teachers here owe to the people of this State the duty to reveal their knowledge and information to duly constituted authorities. In New York, for some years, we have had a public policy that subversives were not to be appointed or retained in positions of public employment (Civil Service Law, § 12-a; Education Law, § 3022; Rules of Board of Regents, § 244, subd. 1, par. a; subd. 2; see Matter of Adler, 73 N. Y. St. Dept. Rep. 134, Commissioner of Educ. 195; Matter of Adler v. Wilson, 282 App. Div. 418, motion for leave to appeal denied 306 N. Y. 981). In New York City the local Board of Education has, by virtue of provisions of section 526 of the New York City Charter, the right to require any and all persons under its jurisdiction to make known to it all information within their knowledge respecting the conduct of any of its members and employees and to impose penalties for failure to disclose this information. The failure to discharge this duty casts serious reflection upon a person’s fitness to hold a position of responsibility as a teacher.

The Commissioner agrees that questions concerning a person’s knowledge of other individuals who had espoused communism are proper in the inquiry undertaken by the Board of Education. But he holds that the failure to answer these questions provides no ground for disciplinary action, and serves no basis for an inquiry into a teacher’s fitness to practice his profession. The issue in this case then is whether the Commissioner of Education can immunize former Communist teachers for penalties for contemptuous conduct in refusing to identify employees of the school system known to them to be or to have been Communists.

In order to resolve the issue, it is necessary to consider the problem which confronted the school board, the authority vested in the local school board by the Legislature and the Board of Regents, and the actual extent of the relief granted to the defendants by the Commissioner.

Prior to the Commissioner’s decision, 186 members of the school system were identified as Communists. One hundred and twenty-five of those persons so identified were separated from the school system. The remaining 61 who admitted former membership were retained in the employ of the board. Ninety-four Communists were removed from the employ of the Board of Higher Education. At the time of the Commissioner’s ruling there were 28 employees, including the 5 defendants here, admitted former Communists, who had refused to disclose the identity of other school employees whom they acknowledge had been members of the Communist party. The contention of the petitioner that these employees could name more than 500 employees of the board who had been members of the Communist party is unchallenged. There are, presently unknown, persons who might have been members of the Communist party, and have knowledge of other employees who had been or still are members. Thus there are and were many employees who were or are members of the Communist party cells in various schools who have not been touched by the board’s investigation. The employment, of course, of all such persons may be contrary to the provisions of the law (Civil Service Law, § 12-a; Education Law, § 3022) and the Rules of the Board of Regents (§ 244, subd. 1, par. a; subd. 2).

The preamble to the Peinberg Law (Education Law, § 3022) indicates legislative dissatisfaction as to the actions on the part of the educational authorities in removing subversives from positions in the educational system. (L. 1949, eh. 360, § 1.) The law itself authorized procedures better to achieve this end. But the Legislature had not indicated the methods to be employed by the local boards in ferreting out subversives from these highly sensitive areas.

By the Rules of the Board of Regents, the petitioner was authorized to “ inquire of prior employees and such other persons as may be in a position to furnish pertinent information ” as to subversion.

By what authority, then, did the Commissioner enjoin the petitioner from enforcing a legal, generally accepted and effective method of inquiry, patently essential for carrying out the legislative mandate and the Rules of the Board of Regents, to expose and rid the school system of subversives ? Certainly, the Legislature and the Board of Regents did not empower the Commissioner of Education to limit the methods of inquiry. This power had not been granted to him by statute; it has not been conferred upon him by the State Constitution. In short, the power to determine whether a particular type of questioning will do more harm than good is not within the scope of the Commissioner’s delegated authority.

No argument is necessary to show that the administrative determination has effectively shielded from exposure a very large number of persons who are or have been Communists. The right to thus thwart a legislative-mandated investigation is derived, the Commissioner claims, from his power to determine educational policy. The institution of the method of inquiry adopted by the petitioner would wreck, he states, the morale of the school system because it would be an “ inquisition ” requiring teachers to be informers ” and would probably result in the defamation of innocent persons. Nevertheless, at Special Term, he stated that his decision authorized the board to conduct unlimited questioning of admitted former Communists concerning the identity of other present employees whom they knew to be party members (inquisition) and allowed those questioned to answer and identify those persons (informers), and permitted the board to use any information gained from the witnesses through such questioning.

It is clear, then, that the Commissioner made no determination in respect to educational or school policy for the protection of the school system, because he concedes, as he must (Education Law, § 3022; Rules of Board of Regents, § 244, subd. 1, par. a; subd. 2), that the board had the right to utilize the method of inquiry, but he forbids its enforcement only to the extent of upholding those who refuse to answer.

The decision, then, was concerned solely with protecting from discipline the individual defendants under investigation who because of their personal convictions refused to identify others. Such a decision is completely unrelated to educational policy of the school system. The ruling consisted exclusively of an illegal attempt to grant a privilege to employees of the board, admitted former Communists, to refuse to answer proper relevant and pertinent questions during a State-mandated investigation into subversion with complete immunity from penalty for such refusal. It should not be necessary to point out that directors of governmental agencies cannot usurp the exclusive power delegated by the People to their legislators to establish privileges and immunities. The Commissioner’s action here is an unwarranted assumption and exercise of legislative power.

As the Commissioner lacks the power which he purports to exercise, we should set aside his action. (Matter of Ross v. Wilson, 308 N. Y. 605; Matter of Eaton v. Allen, 1 Misc 2d 496.)

But even assuming, arguendo, that the Commissioner’s decision thwarting a legislative-mandated inquiry into subversion in our public school system is based upon educational policy, this court should set it aside as purely arbitrary and capricious. (Matter of Levitch v. Board of Educ., 243 N. Y. 373, 375.) We must decide then whether precedent and reason support the Commissioner’s determination.

There can be no doubt that the means utilized by the New York City Board of Education—namely, the requiring a teacher or professor to reveal the names of those persons in the educational system whom he knows to be a member of a subversive organization—is entirely proper. As early in our common-law jurisprudence as 1612, Lord Bacon recognized the obligation of all citizens to facilitate judicial inquiry by disclosure, (Countess of Shrewsbury’s Case, 2 How. St. Tr. 769, 778, cited in Blair v. United States, 250 U. S. 273, 279.) The United States Supreme Court has upheld contempt citations where a person refused to disclose the names of others whom she knew to be Communists (Yates v. United States, 355 U, S. 66; cf. United States v. Costello, 198 F. 2d 200, cert, denied 344 U. S. 874). A newspaper woman was similarly detained under an order of contempt in refusing to disclose in a civil action the name of a person which would have assisted the court in its investigation. (Garland v. Torre, 259 F. 2d 545, cert, denied 358 U. S. 910.) Only recently this court has upheld the incarceration of the Apalachin visitors for their refusal to answer truthfully questions relevant to an official investigation. (Matter of Commission of Investigation v. Lombardozzi, 5 NY 2d 1026.)

These cases clearly indicate that the Commissioner’s determination that the refusal to answer the questions posed can form no basis for disciplinary action is purely arbitrary. There may be, it is true, other and better ways of attaining the information required by the board, but if the board does not exceed the bounds of reasonableness—and clearly here it did not—it is an arbitrary act on the part of the Commissioner to proscribe disciplinary action for refusal to respond to this line of questioning. ‘ ‘ A witness, of course, cannot ‘ pick and choose ' the questions to which an answer will be given.” (Yates v. United States, 355 U. S. 66, 73, supra.)

The identification of several hundred employees in the New York City school system as Communists and former Communists as well as the uncontradicted estimate that there are more than 500 other employees in the system who are or have been members of the Communist party emphasizes the materiality and the importance of the evidence the Board of Education seeks to obtain. There is no evidence or authorization in the decided cases to support the generalization that the testimony of so-called “ informers ” is of little value. There is abundant evidence that such an assumption is contrary to fact. To date 125 school personnel identified as one-time Communists by former party members presently employed in the school system resigned or retired rather than submit to questioning or were removed. No employee so identified has ever contended that he was falsely accused of being a Communist or former Communist. Testimony of so-called ‘1 informers ” in conspiracy cases has been accepted by juries to convict and this court and the United States Supreme Court have repeatedly held that such testimony was an adequate basis for the conviction. (See People v. Luciano, 277 N. Y. 348 [1938], reargument denied 278 N. Y. 624 [1938], cert, denied 305 U. S. 620 [1938]; People v. Hines, 258 App. Div. 466 [1st Dept., 1940], mod. 284 N. Y. 93 [1940]; People v. Fay, 270 App. Div. 261 [1st Dept., 1945], affd. 296 N. Y. 510 [1946], affd. 332 U. S. 261 [1947]; People v. Gross, 279 App. Div. 930 [2d Dept., 1952], affd. 304 N. Y. 789 [1952]; Dennis v. United States, 341 U. S. 494 [1951], rehearing denied 342 U. S. 842 [1951]; United States v. Hiss, 185 F. 2d 822 [C. A. 2d, 1950], cert, denied 340 U. S. 948 [1951]; United States v. Rosenberg, 195 F. 2d 583 [C. A. 2d, 1952], cert. denied 344 U. S. 838 [1952].)

The Commissioner has sustained dismissals of teachers in the past, on the basis of such information, and has recently upheld the dismissal of a professor who was identified by a colleague as a member of the Communist party. (Matter of Board of Higher Educ. v. Austin, Commissioner of Educ., No. 6603, May 13, 1959.)

The disproven speculations of the Commissioner illustrate how he, without any evidence or precedent, attempts to rule on matters far beyond the realm of educational policy.

The appellants’ brief shows that “ The record is also completely devoid of any proof that the Board has been guilty of ‘ indiscriminate ’ use of this method of inquiry.” The investigation and interrogation of these defendants and of all other persons under inquiry have at all times “ been conducted in private without public disclosure as to the substance of the information [furnished] or the identity of alleged subversive persons.” For example, each of the defendants was advised that the interviews were completely confidential and would be in no way publicized.

“All information” obtained during the investigations has at all times “ been carefully considered ” and evaluated “ with respect to credibility, weight and relevancy and no charges and specifications have [ever] been filed or prosecuted * * *

unless and until in the judgment of the Superintendent of Schools such charges and specifications were ” warranted by the facts.

Finally the assertions of alleged damage to the school system are squarely contradicted by the Commissioner’s position in limiting the obligation of the principal to identification of present members of the Communist party employed in his school. This position presents several questions. In the words of the appellant: “Is the report of a former Communist principal worthy of belief merely because it is prepared by a principal rather than a former communist teacher? * * * Why [is] a principal, once tainted %oith communism, * * * credible but a teacher, similarly tainted, untrustworthy\_f\ Is the report reliable with respect to present Communist Party membership of employees in the principal’s school but not reliable in respect to past membership of employees under his jurisdiction or to present and past membership of employees in other schoolsf

The Commissioner’s opinion, as appellant proves, “contains an illogical application of the theory that possible injury to the school system justifies the prohibition of a legal and essential method of inquiry. Thus the Commissioner excuses teachers from their concededly legal duty to answer questions by asserting that damage to the school system might result. However, a principal is excused from only part of this duty and is required to name names within a defined area although the possible alleged injury to the system is the same.

“It is obvious that the duty of the Board to comply with the Legislative mandate could not be dependent upon the fortuitous circumstances and vagaries of school assignments instead of the duty of members of the teaching profession to cooperate with lawfully constituted authority. ’ ’

The distinction made between the teachers and the principal of a school in the Commissioner’s ruling is difficult to understand. The difficulty is compounded when we read the Commissioner’s ruling requiring a college professor to answer questions concerning statistical information on subversive organization—and makes his refusal to answer subject him to disciplinary action—but holds sacrosanct his refusal to answer questions concerning the names of persons whom he knew to be Communists.

Even if we were to assume that the discharge of the statutory duty may have some harmful effect, the Legislature must be deemed to have foreseen all of the consequences and concluded that the benefits outweigh the possible ill effects. This expression of policy is contained in the statement of findings accompanying the enactment of the Feinberg Law wherein it stated in part: ‘ ‘ The legislature further finds and declares that in order to protect the children in our state from such subversive influence it is essential that the laws prohibiting persons who are members of subversive groups, such as the communist Party and its affilated organizations, from obtaining or retaining employment in the public schools, be rigorously enforced. The legislature deplores the failure heretofore to prevent such infiltration which threatens dangerously to become a commonplace in our schools. To this end, the board of regents, which is charged primarily with the responsibility of supervising the public school systems in the state, should be admonished and directed to take affirmative action to meet this grave menace and to report thereon regularly to the state legislature”. (L. 1949, ch. 360, § 1.)

In Matter of Adler v. Wilson (282 App. Div. 418, 425, motion for leave to appeal denied 306 N. Y. 981), the court said in connection with the Board of Begents’ 1951 policy declaration: “ It states a policy but it purports to add nothing to powers of inquiry and investigation already resident in local school authorities.”

It is, therefore, apparent that the board had the right to adopt a legal method used and recognized as essential by all law enforcement agencies, and did not need any specific authorization from the Legislature or the Board of Begents.

Since the alleged reasons of the Commissioner are self-contradictory, purely speculative and contrary to the facts and decisional law, his conclusions lack a rational basis.

The obligation of teachers to co-operate fully with their employer in enforcing a public policy of this State should not be considered less than that of any other citizen but greater. Befusal to co-operate seriously reflects upon their ability and capacity to hold a position of trust and confidence. (See Matter of Lerner v. Casey, supra.)

Accordingly, the orders of the Appellate Division should be reversed, and the determinations of the Commissioner of Education be vacated.

Judges Desmond, Dye, Fuld, Froessel and Van Voorhis concur with Chief Judge Conway; Judge Btjrke dissents in an opinion.

Orders affirmed.

      . Hughes was also dismissed for membership in the Communist party. He petitioned for a hearing on that issue pursuant to section 12-a of the Civil Service Law. Special Term dismissed his petition, but the Appellate Division reversed (Matter of Hughes v. Board of Higher Educ., 286 App. Div. 180) and we affirmed the Appellate Division (309 N. Y. 319), thus holding that Hughes was entitled to a trial in open court pursuant to section 12-a of the Civil Service Law on the question whether he had in fact and in good faith severed his relation or whether he had retained membership in the Communist party after its listing as subversive by the Board of Regents pursuant to the Feinberg Law (Education Law, § 3022). After the ensuing trial in open court judgment was entered in Hughes’ favor.


source: Caselaw Access Project

author: Burke, J. Dye, J. (dissenting).

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Woodrow Miller, Appellant.
    Argued February 24, 1959;
    decided May 29, 1959.

      Solomon A. Klein and Samuel Goldstein for appellant.
    I. The trial court failed to answer questions of law which troubled the jury during their deliberations, and instead offered to reread “ the entire charge on the crime ” if the jury wanted it. Although the foreman replied: “ I don’t think it is necessary ’ ’, the failure to answer the questions constituted reversible error. (People v. Gonzales, 293 N. Y. 259; People v. Gezzo, 307 N. Y. 385.) II. It was prejudicial error to permit the prosecutor to read from a written statement, purportedly made by appellant in 1947, which tended to refute appellant’s denial of committing robbery with a gun of a liquor store owned by one Max Kass. (People v. McCormick, 303 N. Y. 403.) III. It was prejudicial error to permit the prosecutor to prove that the deceased was the father of seven children, the eldest of whom was six years of age.

      Edward S. Silver, District Attorney (William 1. Siegel of counsel), for respondent.
    I. Appellant’s guilt was established beyond a reasonable doubt. (People v. Lewis, 238 N. Y. 1; People v. Meyer, 162 N. Y. 357; People v. White, 176 N. Y. 331; People v. Bandazzio, 194 N. Y. 147; People v. Doran, 246 N. Y. 409; People v. Weiner, 248 N. Y. 118; People v. Pignataro, 263 N. Y. 229; People v. Elmore, 277 N. Y. 397; People v. Murdaugh, 5 N Y 2d 812; People v. Joyce, 233 N. Y. 61.) II. No errors of law were committed during the trial. (People v. Gonzales, 293 N. Y. 259; People v. Gezzo, 307 N. Y. 385; People v. Cooke, 292 N. Y. 185; People v. La Marca, 3 N Y 2d 452; People v. McCormick, 278 App. Div. 410, 303 N. Y. 403; People v. Sorge, 301 N. Y. 198; People v. Hicks, 287 N. Y. 165.)
   Burke, J.

Joseph Graber, an operator of a retail liquor store in Brooklyn, was killed by one blast from a shotgun during an attempted robbery of the liquor store. The defendant and one James A. Jordan were indicted and tried for the crime. At the trial it was established that defendant fired the fatal shot.

The jury returned verdicts of guilty of the crime of murder in the first degree (felony murder) against both defendants. As to Jordan, the jury recommended leniency, and he was subsequently sentenced to life imprisonment. Defendant-appellant, however, received no such recommendation, and was sentenced to death. This appeal is concerned solely with the propriety of this latter verdict and judgment of conviction.

Problems concerning the weight of the evidence, and the sufficiency of the evidence to convict defendant of the crime charged beyond a reasonable doubt are not urged upon us. Although we may review such issues in capital cases even if they are not properly raised, a careful reading of the record indicates that there would be no substance to these objections, if raised.

However, there are errors of law which require a reversal.

The court, at the conclusion of its charge, informed the jury that the possible verdicts which could be returned against this defendant-appellant were: not guilty, guilty of felony murder without a recommendation, guilty of felony murder with a recommendation, guilty of common-law murder in the first degree, guilty of murder in the second degree, and guilty of manslaughter in the first degree.

The court told the jury that the possible verdicts they could return against Jordan were: not guilty, guilty of felony murder without a recommendation; and guilty of felony murder with a recommendation.

At the completion of the charge, the jury retired for deliberation. Later, they returned to the courtroom in order that the Trial Judge might answer the following communications from them: “ Please let us have a listing of the possible verdicts to be arrived at for each defendant, with the exact wording,” and “ What verdicts are there for felony murder? ”

The court once again enumerated the possible verdicts returnable against each of the defendants. Then the following colloquy took place:

“ The Foreman: That’s what I wanted to clarify.
The Court: All right. You may retire.
The Foreman: Your Honor, how about that felony murder?
The Court: That answers that, doesn’t it, Jurors?
The Foreman: Felony murder is without any recommendation of a verdict in the first degree.
The Court: All right, you may retire, if that answers your question.
The Foreman: Your Honor, we have a definition of murder in the second degree. One of the jurors wanted a definition of murder in the second degree.
The Court: If you reach the common law theory in your deliberations,—
The Foreman: Common law theory
The Court: — murder in the second degree is an unlawful killing with an intent to kill, without premeditation and without deliberation, as I defined those terms for you.
The Foreman: How about without robbery, if robbery was intended?
The Court: I will give you the entire charge, if you want it over again.
The Foreman: Well, just a minute, your Honor
The Court: Are you gentlemen satisfied ? Don’t discuss it here, please. You can retire in this little room if you want to discuss it, and ask further questions. But I will give you the entire charge on the crime if you want it again.
The Foreman: I don’t think it is necessary, your Honor.
The Court: All right. You may retire.”

The jury retired. They returned a verdict of guilty of felony murder without a recommendation against defendant-appellant and a verdict of guilty of felony murder with a recommendation against defendant Jordan.

Defendant-appellant strenuously urges that the failure of the court to answer the questions presented by the jury constituted prejudicial error. The District Attorney, on the other hand, argues that the defendant-appellant could not possibly be prejudiced, since these questions were directed solely to the verdicts returnable against Jordan. But defendant-appellant, as well as Jordan, could have been convicted of felony murder. Further, there was some discussion of murder in the second degree, which could only be applicable to defendant-appellant, and then to robbery. Hence, it is clear that the charge and the colloquy concerned the defendant-appellant.

After the jury have retired for deliberation, “ if they desire to be informed of a point of law arising in the cause * * * the information required must be given”. (Code Crim. Pro., § 427.) The statute does not vest the trial court with discretion as to whether or not he should answer a proper question (People v. Gonzalez, 293 N. Y. 259, 262), but “It is not the law * * * that any failure * * * to answer any question propounded by a jury must needs be reversible error. In each case, we must decide whether there was serious prejudice to the defendant’s rights.” (People v. Cooke, 292 N. Y. 185, 188; People v. La Marca, 3 N Y 2d 452, 461.)

The jury in this case, as the excerpt from the record cited above illustrates, was confused as to the elements of felony murder, of murder in the second degree, and the relation of the crimes of robbery and attempted robbery with these other crimes. These are serious questions for defendant’s life depended upon the jury’s proper understanding of the elements of each of these crimes. (People v. Flynn, 290 N. Y. 220.) Hence, it was the court’s duty to answer the questions, although they may have been imperfectly phrased. Indeed, the inartistic expression of these questions indicates an incomplete comprehension in the minds of the jury of the elements of the crimes involved. If the court did not understand the meaning of the questions, it was obliged to direct further inquiries to the jury to ascertain their difficulties. (People v. Gonzalez, supra, 262-263; People v. Gezzo, 307 N. Y. 385, 396-397.) Certainly a mere offer to reread the principal charge—although it was correct—would be of little help to a perplexed jury. If the jurors did not comprehend the original charge—and have asked for further instructions—it is unlikely that they would glean the resolution of their doubts as to the applicable law from a reiteration of that very same charge. (People v. Gonzalez, supra). This is s'o, even though the foreman later stated that it was not necessary to repeat the charge. (People v. Gezzo, supra.)

Since the trial court failed to answer or failed to answer adequately proper questions by the jury which seriously prejudiced defendant-appellant, a reversal must be had.

As this case must go back for another trial, it would be useful to set forth another error which has occurred to prevent its recurrence at the retrial.

This error concerned the testimony of the brother of the deceased. He told of identifying the deceased at the morgue and then followed this series of questions:

“ Q. You knew the family of Joseph G-raber in his lifetime, didn’t you? A. Yes, sir.
Q. You had occasion to visit him in his house? A. Yes.
Q. Did he have a wife ? A. Yes, a wife and seven children.
Mr. Goldstein: I object to that.
The Court: Oh, no, I will permit it.
Mr. Brodsky: Objection.
The Court: I will permit it.
By Mr. Slutzky:
Q. A wife and what? A. Seven children.”

In People v. Caruso (246 N. Y. 437) the deceased’s wife testified that they were married but 18 months, and had one child, and that the deceased used to visit his child’s crib each evening and sing to the child. In reversing a conviction for murder in the first degree, we found that this sequence of testimony, which had no bearing on the materiality of the issues before the jury, was calculated to appeal to the passion and sympathy of the jury and, hence, unduly prejudiced the defendant.

The statements of the deceased’s brother here were also designed to achieve this same effect. This is clear by the insistence of the Assistant District Attorney, after the witness testified that deceased had a wife and seven children, to persist: “ A wife and what? A. Seven children.” There could be no purpose to this line of testimony but to conjure up in the minds of the jurors undue prejudice against the defendant.

The People, conceding that these remarks would be highly improper if the sole issue in the case were common-law murder in the first degree, argue that these remarks were pertinent since, under felony murder, the jury must consider not only the guilt of defendant, but must agree on a recommendation for leniency as well.

The People misconceive the function of a recommendation for leniency in felony murder verdicts under section 1045-a of the Penal Law. The enactment of this legislation, at the behest of the Governor, was to avoid the problem of nullification — the refusal of jurors to convict upon a clear showing of facts, because in their estimation the penalty imposed upon conviction was entirely too severe. Under the statute, the jury now ‘ ‘ may in proper case ‘ fit its verdict to the varying degrees of moral guilt ’ ” by recommending life imprisonment when finding defendant guilty of murder in the first degree. (People v. Hicks, 287 N. Y. 165, 170.) Thus, it is the moral guilt of the defendant, not the moral goodness of the deceased, which governs the jury’s recommendation for leniency. The defendant’s degree of participation in the crime which resulted in the homicide (People v. Hicks, supra), his immaturity and youth (People v. Ray, 172 Misc. 1004, appeal dismissed 282 N. Y. 680, affd. 259 App. Div. 1065), his previous standing of good repute (People v. Smith, 163 Misc. 469) — these are some of the factors which enter into consideration of a recommendation of mercy. The moral goodness and family and personal relations of the deceased are not material considerations. While the crime may be more shocking because of the personal integrity of the victim, this cannot have any bearing on the defendant’s moral culpability.

Although there may be question as to the propriety of the District Attorney’s persistent cross-examination of the defendant on the subject of his involvement in a 1947 “stick-up” after receiving negative responses (cf. People v. Sorge, 301 N. Y. 198, 200-201; People v. McCormick, 303 N. Y. 403), no purpose is to be served by discussing this point in view of the presence of the serious and unquestionable errors of law treated above which require a reversal.

Accordingly, the judgment of conviction should be reversed, and a new trial ordered.

Dye, J. (dissenting).

I dissent and vote to affirm the judgment of conviction on the ground that no errors of law were committed during the trial which prejudiced the substantial right of the appellant. When read as a whole, the main charge to the jury was adequate. The claim that the court thereafter limited the verdict to be rendered in the colloquy that occurred when the jury asked for additional instructions as to the wording of the possible verdicts that might be rendered in respect to the appellant is wholly without substance. When the colloquy is considered in its entirety, it is crystal clear that the matter now complained of was spoken in reference to Jordan. The jury fully understood all that was said in reference, to the appellant for, when asked “Is that clear jurors ” in respect to Miller, the foreman affirmatively answered “Yes sir”. In this state of the record there was in fact no failure or refusal to charge and no violation of section 427 of the Code of Criminal Procedure.

Judges Desmond, Fuld, Froessel and Van Voorhis concur with Judge Burke; Judge Dye dissents in an opinion; Chief Judge Conway taking no part.

Judgment of conviction reversed, etc.


author: Desmond, J. Fboessel, J. (concurring). Btjbke, J. (dissenting).

text:
    In the Matter of the Arbitration between Stanley J. Staklinski, Respondent, and Pyramid Electric Company, Appellant.
    Argued March 3, 1959;
    decided May 29, 1959.

      Marvin E. Frankel, Harold H. Levin, Howard Lichtenstein and Michael L. Matar for appellant.
    I. The decree of reinstatement violates the legislatively declared public policy that corporate management is for the directors. (Long Park v. Trenton-New Brunswick Theatres Co., 297 N. Y. 174; D’Arcangelo v. D’Arcangelo, 137 N. J. Eq. 63; Jackson v. Hooper, 76 N. J. Eq. 592; Clark v. Dodge, 269 N. Y. 410; Ripin v. United States Woven Label Co., 205 N. Y. 442; Matter of Burkin [Katz], 286 App. Div. 740, 1 N Y 2d 570; Rochester v. Bergen, 265 App. Div. 547, 291 N. Y. 656; Christal v. Petry, 275 App. Div. 550, 301 N. Y. 562; Matter of Western Union Tel. Co. [ACA], 299 N. Y. 177.) II. The decree of reinstatement, where damages would be an ample remedy, offends basic principles of equity. (Cuppy v. Ward, 187 App. Div. 625, 227 N. Y. 603; Bleendes v. Fellerman, 264 App. Div. 223; Kerr S. S. Co. v. Kerr Nav. Corp., 113 Misc. 56; Matter of Devery [Daniels & Kennedy], 266 App. Div. 213, 292 N. Y. 596; Matter of United Culinary Bar & Grill Employees [Schiffman], 272 App. Div. 491, 299 N. Y. 577; Goldman v. Cohen, 222 App. Div. 631; United Office & Professional Workers v. Monumental Life Ins. Co., 88 F. Supp. 602; Case Co. v. Labor Bd., 321 U. S. 332; Odom v. Thompson, 85 F. Supp. 477; Matter of Freydberg Bros. v. Corey, 177 Misc. 560, 263 App. Div. 805.) III. The courts in arbitration proceedings follow the commands of public policy and the principles of equity in determining the jurisdiction of arbitrators and the propriety of awards. (Matter of Lipschutz [Gutwirth], 304 N. Y. 58; Matter of Feuer Transp. [Local No. 445], 295 N. Y. 87; Reconstruction Finance Corp. v. Harrisons & Crosfield, 204 F. 2d 366, 346 U. S. 854; Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F. 2d 978; Matter of Western Union Tel. Co. [ACA], 299 N. Y. 177; Matter of Publishers’ Assn. [Newspaper Union], 280 App. Div. 500; Matter of Marchant v. Mead-Morrison Mfg. Co., 252 N. Y. 284, 282 U. S. 808; Matter of Kingswood Management Corp. [Salzman], 272 App. Div. 328;
      Matter of Hill [Hill], 199 Misc. 1035; Matter of Swislocki v. Spiewak, 273 App. Div. 808; Matter of Knickerbocker Agency [Holz], 4 N Y 2d 245; Wilko v. Swan, 346 U. S. 427; Black v. Cutter Laboratories, 43 Cal. 2d 788, 351 U. S. 292; Matter of Ruppert [Egelhofer], 3 N Y 2d 576.) IV. The contract did not authorize the arbitrators to order petitioner’s reinstatement or to compel him to work if he quit. But even if it had, the award would be unenforcible. (Matter of Riverdale Fabrics Corp. [Tillinghast-Stiles Co.], 306 N. Y. 288; Dolman v. United States Trust Co., 2 N Y 2d 110; Curtis v. Gokey, 68 N. Y. 300; Matter of Berkovits v. Arbib & Houlberg, 230 N. Y. 261; Matter of Kingswood Management Corp. [Salzman], 272 App. Div. 328.) V. The decree of reinstatement effects an improper interference with the internal affairs of a foreign corporation. (Langfelder v. Universal Laboratories, 293 N. Y. 200; Bickart v. Kelly-Springfield Tire Co., 243 App. Div. 72; Travis v. Knox Terpezone Co., 215 N. Y. 259; Cohn v. Mishkoff Costello Co., 256 N. Y. 102; Sternfeld v. Toxaway Tanning Co., 290 N. Y. 294; Nothiger v. Corroon & Reynolds Corp., 293 N. Y. 682; Cohen v. American Window Glass Co., 126 F. 2d 111; Long Park v. Trenton-New Brunswick Theatres Co., 297 N. Y. 174; Cuppy v. Ward, 187 App. Div. 625, 227 N. Y. 603; Hallenborg v. Greene, 66 App. Div. 590; Butler v. Standard Milk Flour Co., 146 App. Div. 735; People ex rel. Ruman v. National Slavonic Soc., 144 App. Div. 574; Gregory v. New York, L. E. & W. R. R. Co., 40 N. J. Eq. 38; Guilford v. Western Union Tel. Co., 59 Minn. 332; Edwards v. Schillinger, 245 Ill. 231; Wason v. Buzzell, 181 Mass. 338.) VI. Matter of Ruppert (Egelhofer) (3 N Y 2d 576) neither requires nor justifies the decision below. (Matter of Finsilver, Still & Moss v. Goldberg, Maas & Co., 253 N. Y. 382; Matter of Mencher [Abeles & Kahn], 274 App. Div. 585; Matter of Klein, 261 App. Div. 941; Matter of of Lipschutz [Gutwirth], 304 N. Y. 58; Matter of Feuer Transp. [Local No. 445], 295 N. Y. 87.)

      Philip G. Samuels, Jacob Gruber and Arthur Elfenbein for respondent.
    I. The judgment, confirming the award of reinstatement which gives effect to the clearly manifested contractual intention of the parties, should be affirmed. (Matter of Julliard & Co. [Baitch & Castaldi], 2 Misc 2d 753; Matter of Level Export Corp. [Wolz, Aiken & Co.], 305 N. Y. 82; Matter

      of Marchant v. Mead-Morrison Mfg. Co., 252 N. Y. 284; Matter of River Brand Rice Mills v. Latrobe Brewing Co., 305 N. Y. 36; Matter of Wilkins, 169 N. Y. 494; Matter of Pine St. Realty Co. v. Coutroulas, 233 App. Div. 404, 258 N. Y. 609; Matter of Ruppert [Egelhofer], 3 N Y 2d 576; Matter of Lipman [Haeuser Shellac Co.], 289 N. Y. 76.) II. The arbitrators’ award is final and binding, unless vacated on grounds set forth in section 1462 of the Civil Practice Act and appellant’s contention that the arbitrators exceeded their powers in making the award is untenable. (Matter of Grayson-Robinson Stores [Iris Constr. Corp.], 9 Misc 2d 796; Matter of Publishers’ Assn. [Newspaper Union], 280 App. Div. 500; Matter of Devery [Daniels & Kennedy], 292 N. Y. 596; Matter of Freydberg Bros. v. Corey, 177 Misc. 560, 263 App. Div. 805, 263 App. Div. 858; Matter of Young [Deschler], 202 Misc. 811; Matter of Samuel Adler, Inc., v. Local 584, Int. Brotherhood of Teamsters, 282 App. Div. 142; Cuppy v. Ward, 187 App. Div. 625, 227 N. Y. 603; Kerr S. S. Co. v. Kerr Nav. Corp., 113 Misc 56; Matter of United Culinary Bar & Grill Employees [Schiffman], 299 N. Y. 577; Goldman v. Cohen, 222 App. Div. 631; Matter of Kingswood Management Corp. [Salzman], 272 App. Div. 328; Matter of Western Union Tel. Co. [ACA], 299 N. Y. 177; Matter of Spectrum Fabrics Corp. v. Main St. Fashions, 285 App. Div. 710, 309 N. Y. 709; Matter of Lipschutz [Gutwirth], 304 N. Y. 58.) III. The award creates no interference with the functions of the board of directors; nor does it regulate the affairs of this foreign corporation. (Matter of DeCaro, 261 App. Div. 975; Long Park v. Trenton-New Brunswick Theatres Co., 297 N. Y. 174; Langfelder v. Universal Laboratories, 293 N. Y. 200; Gilbert v. Burnstine, 255 N. Y. 348; Matter of Gantt [Hurtado & Cia.], 297 N. Y. 433, 335 U. S. 843; Westchester Mtge. Co. v. Grand Rapids & I. R. R. Co., 246 N. Y. 194.)
   Desmond, J.

We see nothing illegal about this arbitration award and no reason for vacating it. Petitioner was for years appellant’s president and in charge of its production and engineering and one of its directors and largest stockholders. In 1954 appellant entered into an 11-year contract employing petitioner as manager in charge of production and engineering at a large salary plus a percentage of net profits. Included was a covenant that, if petitioner should be declared permanently disabled, he would receive reduced compensation for the next three years and then the contract would end. The contract provided that any controversy arising out of it should be settled by arbitration in accordance with American Arbitration Association rules and the rules of that Association in so many words authorized an arbitrator to grant equitable relief including “ specific performance of a contract

In June, 1956 the corporation’s directors made a determination that appellant was permanently disabled and that his services should be terminated. Petitioner disputed the finding of permanent disability. The resulting difference of opinion was just such a controversy as the parties had agreed to submit to arbitration and to arbitration it went. The arbitrators held in favor of petitioner on the issue and ordered petitioner’s reinstatement. That, of course, put beyond reach of the courts the question thus conclusively determined by arbitration as to whether petitioner was in fact permanently disabled. It is now asserted, however, that it is against public policy to compel a corporation to continue the services of an officer whose services are unsatisfactory to the directors. But we must remember that this corporation made a valid long-term employment contract with this man and agreed that any disputes would go to arbitrators who would be empowered to order specific performance. Since the contract was indisputably valid, so is the arbitration award. The power of an arbitrator to order specific performance in an appropriate case has been recognized from early times (see Justice Story in McNeil v. Magee, Fed. Cas. No. 8915 [1829]).

In Matter of Ruppert (Egelhofer) (3 N Y 2d 576) we upheld the grant by arbitrators of an injunction against a strike in a labor dispute, and we cited a number of precedents therefor. A supposed “public policy” against such an injunction was urged on us in Buppert since there we had a specific statute (Civ. Prac. Act, § 876-a) which would have made it impossible for a court to grant that same injunction. However, we held in Buppert that the parties had agreed not only to submit their controversies to arbitration but had validly authorized the arbitrators to issue an injunction. The same is true here. Whether a court of equity could issue a specific performance decree in a case like this (see Matter of Buffalo & Erie Ry. Co., 250 N. Y. 275, 280-281) is beside the point. There is no controlling public policy which voids an arbitration agreement like this one and the courts are not licensed to announce a new public policy to fit the supposed necessities of the case (see Matter of Rhinelander, 290 N. Y. 31, 36).

The judgment should be affirmed, with costs.

Fboessel, J. (concurring).

I concur for affirmance. I do not, however, read the arbitrator’s award or the judgment entered thereon as directing ‘ ‘ specific performance ” of a personal service contract.

The only dispute submitted to arbitration was whether petitioner was ‘ permanently disabled ’ ’, so as to entitle the corporation to terminate its liability to him after making specified payments for three years from the date of disability. All the arbitrators decided was that petitioner was not permanently disabled ”, and hence was improperly discharged under the “permanent disability” clause of the contract. In directing the corporation to reinstate him in his position, the arbitrators awarded the natural and logical relief called for by the nature of the dispute submitted to them.

Future performance will depend upon future events which cannot now be foreseen. The board of directors of the corporation may discharge petitioner for good cause, and any discharge without good cause will be at the peril of damages.

Btjbke, J. (dissenting).

An arbitrators’ award of specific performance of a contract for personal services directing the issuance of a mandatory injunction against a foreign employer in behalf of a nonresident employee who has been wrongfully discharged is without precedent and violates settled principles of equity. In such a situation, the courts of this State are not bound to uphold an arbitration award that offends established principles of law and public policy.

"While a public corporation may be liable in damages for a breach of a long-term contract of employment (Douglass v. Merchants’ Ins. Co., 118 N. Y. 484; Cuppy v. Stollwerck Bros., 216 N. Y. 591; 2 Fletcher’s Cyclopedia Corporations [Perm, ed.], § 353, p. 151; § 363, p. 177), we have found no case wherein a court has decreed specific performance of these contracts The reason is that equity has traditionally declined to afford such relief (Cuppy v. Ward, 227 N. Y. 603; 81 C. J. S., Specific Performance, § 82).

While no statute expressly defines the arbitrators’ powers to grant relief, the provisions of section 1448 of the Civil Practice Act, making valid and enforcible arbitration submissions and contracts, suggests the adoption of the common-law concept of remedies. This follows from the fact that an arbitration submission and agreements to arbitrate must be capable of being the subject of an action (Civ. Prac. Act, § 1448; Matter of Burkin [Katz], 1 N Y 2d 570).

Where equitable relief has been granted in an arbitration proceeding, it is the court that fashions the decree based on the determination of the arbitrator (Matter of Ruppert [Egelhofer], 3 N Y 2d 576; Matter of Albert, 160 Misc. 237). Heretofore, we have refused to confirm arbitrators’ awards where such were illegal or violative of some well-defined public policy. (See, e.g., Matter of Western Union Tel. Co. [American Communications Assn.], 299 N. Y. 177; Matter of Publishers’ Assn. [Newspaper Union], 280 App. Div. 500.)

In this case the mandatory injunction- exceeded the powers of the arbitrator and the decree enforcing it violates both the statutory policy confiding to directors the management of public corporations and the principles of equity barring injunctive relief of this nature. We do not believe that, under a general grant of equitable powers, arbitrators may disregard equitable principles and issue an award not possible either at law or equity. As Judge Pound said, dissenting in Matter of Buffalo & Erie Ry. Co. (250 N. Y. 275, 280-281), “ It by no means follows that the findings of the arbitrators may be enforced by the court by the remedy of specific performance. No man may be compelled to work for another or to continue another in his employment. I hold merely that industrial disputes as to future wages may be submitted to arbitration where the parties so agree.” (Emphasis added.)

Cases involving collective bargaining agreements are inapposite here. The reason for this conclusion was stated by the United States Supreme Court in Case Co. v. Labor Bd., (321 U. S. 332, 334-335) wherein the court stated that: “ Collective bargaining between employer and representatives of a unit, usually a union, results in an accord as to terms which will govern hiring and work and pay in that unit. The result is not, however, a contract of employment except in rare cases; no one has a job by reason of it and no obligation to any individual ordinarily comes into existence from it alone. The negotiations between union and management result in what often has been called a trade agreement, rather than a contract of employment.”

Further, it has become clear both under the State and National Labor Relations Acts, as well as in arbitration, that specific performance is frequently essential to maintain and further the collective relationships involved. (See Goldman v. Cohen, 222 App. Div. 631.)

However, the reasons compelling the courts and arbitrators to grant both specific performance and injunctive relief in collective bargaining agreements do not apply to contracts such as the one in question. A decree for the reinstatement of a nonresident manager in a public corporation is subject to all the obstacles and objections equity has always recognized, and is not justified by the special considerations that make this type of relief desirable in the collective bargaining area.

Matter of Ruppert (Egelhofer) (supra), involving a collective bargaining agreement, is cited as upholding an arbitrators ’ award of equitable relief (injunction) where a court, under the same circumstances, would be powerless to act. However, as we view Buppert, it is neither determinative nor controlling of the issues here.

Implicit in the Buppert decision was a finding (p. 581) that net only had the parties authorized the imposition of equitable relief but that nothing short of an injunction would have accomplished the evident intent of these parties that there be a speedy and immediately effective relief against strikes, lockouts and slowdowns.”

Even if the agreement here authorizes specific performance of this contract, we are still of the opinion that the injunctive relief should not have been granted by the arbitrators. (Matter of Publishers’ Assn. [Newspaper Union], supra.) To hold otherwise is to state in effect that under this agreement the corporation itself could seek specific performance of a recalcitrant employee and that arbitrators could award specific performan.ee compelling the employee to work for the corporation. Such a result would be clearly undesirable.

On a motion to confirm an award, the court does not sit as an administrative rubber stamp over an arbitrator’s determination, but rather as a court of equity applying equitable principles and enjoys a certain latitude of discretion. (Cf. Matter of Lipschutz [Gutwirth], 304 N. Y. 58, 63; Matter of Feuer Transp. [Local No. 445], 295 N. Y. 87; Western Union Tel. Co. v. Selly, 295 N. Y. 395.) In Matter of Finsilver, Still & Moss v. Goldberg, Maas & Co. (253 N. Y. 382, 392), this court wrote (per Cardozo, Oh. J.): “ The motion to confirm is equivalent to a suit in equity to carry into effect the terms of the agreement and the arbitration had thereunder.” Proceedings involving arbitration have always been considered as equitable in nature “ and the practice of equity as to relief should be followed.” (Matter of Feuer Transp. [Local No. 445], supra, p. 92.)

We conclude that the confirmation of an award compelling reinstatement of a nonresident official in a foreign corporation in the form of specific performance of a contract for personal services should not be made by this court even though the parties may have provided for it.

Accordingly, the judgment of the Appellate Division and that of Special Term should be reversed and the motion to vacate the award should be granted.

Judges Dye and Fuld concur with Judge Desmond ; Judge Froessel concurs in a separate memorandum; Judge Burke dissents in an opinion in which Judge Van Voorhis concurs; Chief Judge C'onway taking no part.

Judgment affirmed.