Bee Line, Inc. v. Nickerson
Decision Date | 04 September 1969 |
Citation | 60 Misc.2d 931,303 N.Y.S.2d 950 |
Parties | BEE LINE, INC., Rockville Centre Bus Corp., Utility Lines, Inc., Stage Coach Lines, Inc., Hempstead Bus Corporation, Branch Bus Corporation and Semke Bus Line, Inc., Plaintiffs, v. Eugene H. NICKERSON, Ralph G. Caso, Francis T. Purcell, Robert Meade, MichaelN. Petito, Andrew DePaola, George B. Costigan, Nassau County, and Russell W.Cunningham, Defendants. |
Court | New York Supreme Court |
James F. Conway, Rockville Centre, for plaintiffs.
Morris H. Schneider, County Atty. of Nassau County, Mineola, for defendants.
Plaintiffs are omnibus corporations organized under the Transportation Corporations Law of New York State, engaged in operating bus routes in Nassau County and in inter-county routes between Nassau and Queens or Nassau and Suffolk counties. Some of the plaintiffs have operated the same routes since 1925, pursuant to order of the Public Service Sommission of the State of New York, granting them a certificate of public convenience and necessity.
Defendants are the County Executive and members of the Board of Supervisors of Nassau County and the County Director of Franchises.
The plaintiffs' operations are subject to the provisions of Article 3--A, Section 63--d, subd. 1 of the Public Service Law, which provides, in part, as follows:
'No omnibus corporation shall operate an omnibus line without first having obtained the permission and approval of the commission and its certificate of public convenience and necessity, after a hearing had upon notice.'
In addition, Article 3--A, Section 63--d, subd. 2 of the Public Service Law provides, in part, as follows:
'Except as otherwise provided in section sixty-three-e, no such certificate of public convenience and necessity shall be issued until there be filed in the office of the commission by the applicant therefor a verified statement showing that the required consent of the proper city or other municipal authorities has been obtained as required by the transportation corporations law or in the county of Nassau by the county government law of Nassau county.'
Section 63--d, subd. 2 specifies the local consent as a condition precedent to filing an application with the Public Service Commission (hereinafter referred to as 'P.S.C.') for a certificate of public convenience and necessity.
To obtain the consent required by Section 63--d, subd. 2, of the Public Service Law (supra), plaintiffs applied to the Nassau County Board of Supervisors, pursuant to Article XIV of the County Government Law of Nassau County, Section 1401, subdivision 2, which provides as follows:
(L.1936, ch. 879, as amd. by L.1950, ch. 755) (Emphasis supplied.)
Prior to the enactment of Chapter 755 of the Laws of 1950, some of the plaintiffs obtained local consents from various municipalities, pursuant to the provisions of Sections 66 and 67 of the Transportation Corporations Law of New York State.
The plaintiffs * received an Omnibus Consent from the County Board of Supervisors, pursuant to Resolution No. 67--1969, adopted March 3, 1969, which became an Ordinance on that date with the approval of the County Executive Eugene H. Nickerson; which consent is effective until December 31, 1970.
Subsequent to the issuance of the aforesaid Omnibus Consent, one of the plaintiffs, Bee Line, Inc., filed a proposed tariff increase with the P.S.C., predicated on losses sustained during the operating period set forth in said proposal. This application by one of the plaintiffs was made Without prior application to the County of Nassau Department of Franchises. The County of Nassau objects to this action based on Article IV of the Omnibus Consent, entitled 'Fares' which reads in Paragraph (1) as follows
Under the Public Service Law, the bus companies have a right to apply directly to the P.S.C., at any time, for a fare increase, by following the procedural requirements of the Public Service Law and the rules and regulations of the P.S.C. There is no requirement in the Public Service Law whereby bus companies are required first to proceed by petition when they seek a fare increase. The company prepares a set of exhibits in support of the proposed tariff and then discusses them with the Tariff Bureau of the P.S.C. When the Tariff Bureau of the P.S.C. indicates it has no objection to the proposed tariff charge based on the information furnished by carrier, this is then an alert to the company that it may then file a new tariff.
The plaintiff Bee Line, Inc. refused to comply with Article IV(1) of the Omnibus Consent entitled 'Fares' (supra), which provides for an application to the County for fare increase as a condition precedent to filing with the P.S.C.
Plaintiffs commenced an action for a declaratory judgment, alleging that Article IV 'Fares' of the Omnibus Consent is an illegal attempt by the County to regulate fares, inasmuch as fare regulation is a matter entirely within the province of the P.S.C.
Plaintiffs have asked the Court to grant judgment declaring that:
(1) The P.S.C. of New York State has Exclusive jurisdiction and control over tariff and the fares which may be charged by plaintiffs.
(2) The Board of Supervisors has no legal authority to include in its Omnibus Consent, issued pursuant to Ordinance #67--1969, the provisions of Article IV (supra).
(3) Article IV(1) infringes on the right of plaintiffs to pursue their rights under subdivisions 5 and 15 of Section 61 of the Public Service Law (quoted hereinafter).
(4) The County Executive has no power under the terms of Ordinance #67--1969 and the Omnibus Consent issued pursuant thereto, or under the law, to direct the County Attorney, or to employ any attorney, to enforce against plaintiffs any claimed right arising out of Article IV(1) of the Omnibus Consent.
The County argues that the condition set forth in Article IV of the Omnibus Consent is a proper exercise of the legislative grant of power. The County relies upon the Public Service Law and the County Charter in support of its position (Public Service Law, § 63--d, subd. 2; Nassau County Government Law, Article XIV).
The County in its Answer, requested a judgment declaring that:
(1) The terms and conditions imposed in consents Are within legal authority of Board of Supervisors.
(2) The terms and conditions included are valid and enforceable.
Two of the plaintiffs, Bee Line, Inc. and Hempstead Bus Corporation, and the defendants moved against each other for an...
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