Love, Application of

• Decision Date: 14 June 1956
• Citation: 155 N.Y.S.2d 266
• Parties: Application of Paul T. LOVE for an Order pursuant to Article 78 of the Civil Practice Act, commanding and directing Charles L. Patterson, E. Vincent Curtayne, and Joseph E. O'Grady, as members of the New York City Transit Authority, to charge the same rate of fare for passengers traveling between rapid transit line stations of the New York City Transit System located on the mainland, and Broad Channel station and stations located on the Rockaway Peninsula, as the fare charged all other passengers traveling on the New York City Transit System.
• Court: New York Supreme Court

Page 266

155 N.Y.S.2d 266

Application of Paul T. LOVE for an Order pursuant to Article

78 of the Civil Practice Act, commanding and directing

Charles L. Patterson, E. Vincent Curtayne, and Joseph E.

O'Grady, as members of the New York City Transit Authority,

to charge the same rate of fare for passengers traveling

between rapid transit line stations of the New York City

Transit System located on the mainland, and Broad Channel

station and stations located on the Rockaway Peninsula, as

the fare charged all other passengers traveling on the New

York City Transit System.

Supreme Court, Special Term, Kings County, Part I.

June 14, 1956.

Paul T. Love, New York City, pro se.

Daniel T. Scannell, Gen. Counsel, Brooklyn, for respondents New York City Transit Authority.

SCHWARTZWALD, Justice.

The petitioner seeks an order, pursuant to Article 78, Civil Practice Act, requiring the respondent members of the New York City Transit Authority to fix a fare of fifteen cents for single fare rides on the Rockaway Division of the New York City Rapid Transit System instead of the thirty cent fare which they have promulgated. The Rockaway Line, constructed as a new addition to the City's system, extending it to the Rockaway Peninsula and running it along such Peninsula to Rockaway Park at one end and Far Rockaway at the other, is scheduled to open on June 28th.

Briefly, it is petitioner's argument that the respondents, by the establishment of the thirty cent rate are acting contrary to law and that they are denying 'the petitioner and other residents and taxpayers of Broad Channel and the Rockaway Peninsula * * * the equal protection of the law guaranteed by the Constitution.' This is based on the further premise that respondents are under a duty imposed upon them by law to charge a uniform rate to all passengers on the New York City Rapid Transit System, at least the subways and extensions thereof, and that such rate has been established at fifteen cents.

Reference to the law under which the respondent Authority was set up, Laws of 1953, ch. 200, Title 15, Public Authorities Law, fails to sustain the foregoing claim. If that be so, petitioner's application, considered as one in the nature of mandamus, must fail, for to warrant the issuance of a mandamus it is incumbent on the one who seeks to obtain it to show a clear legal right to the relief sought, Durr v. Paragon Trading Corp., 270 N.Y. 464, 469, 1 N.E.2d 967, 969; Coombs v. Edwards, 280 N.Y. 361, 364, 21 N.E.2d 353, 354; Fahey v. Wright, 256 App.Div. 474, 11 N.Y.S.2d 359. The statute from which the respondent Authority derives its powers imposes no such obligation as petitioner maintains. The Authority is established therein as a public benefit corporation, Section 1801, and it is expressly prescribed that in the exercise of such powers it is to be regarded as 'performing a governmental function', Section 1802. It was set up to acquire and operate the City's transit facilities 'for the convenience and safety of the public on a basis which will enable the operations thereof, exclusive of capital costs, to be self-sustaining', Section 1802. The language quoted is the only standard imposed. Petitioner does not contend that the action now challenged is violative of such standard on an over-all basis, and, in fact, he cannot very well do so since the result he seeks to achieve would necessarily entail a diminution of its revenues which might, as respondents intimate, defeat a self-sustaining operation.

Repeatedly throughout other sections of the statute the Legislature makes use of language which indicates that respondents, other than as above, are not limited to the establishment of a single or uniform rate of fare on the City transit lines considered as a whole or on divisions thereof considered as separate units. The statutory language demonstrates that the power of the Authority to establish varying and multiple rates of fare is given and contemplated.

Under Section 1805 it is prescribed that 'the authority shall have the power to fix or adjust the rate or rates of fare to be charged for the use of any transit facility operated by the authority as may in the judgment of the authority be necessary to produce sufficient revenue to meet the expenses of the operations of the authority and to maintain such operations on a self-sustaining basis.' (Emphasis added.) Other references to the Authority's power to establish, control or adjust 'fares' as contrasted with a single rate of 'fare' are to be found in Laws of 1953, Section 1803, subd. 1, par. d, and Section 1805.

When the Legislature, in appropriate language has expressed its intent, as here, there is no field left for judicial interpretation, People ex rel. Steckler v. Warden of City Prison, 259 N.Y. 430, 432, 433, 182 N.E. 73, 74. The Courts must give effect to statutes as they find them, People v. Friedman, 302 N.Y. 75, 79, 96 N.E.2d 184, 185. Freedom to construe is not freedom to amend, Sexauer & Lemke v. Luke A. Burke & Sons Co., Inc., 228 N.Y. 341, 345, 127 N.E. 329, 331.

Had it been the legislative purpose to require the setting up of a single uniform, or maximum, fare, it could and undoubtedly would have employed words appropriate to that end. It has done so with respect to other authorities and agencies as in the case of the Westchester Cross-County Parkway Authority, Public Authorities Law, § 303, subd. 9; Jones Beach State Parkway Authority, Section 153, subd. 5; New York State Bridge Authority, Section 528, subd. 8, and Section 538, subd. 3.

Conceding that the rates of fare now in effect on differing types of facilities on the New York City System (such as buses, trolleys, subways and combinations of them) are not and have not been governed by a single or uniform rate over-all or even a uniform rate as compared one with another, petitioner urges that they still must be uniform on each of the separate facilities. In support of this he points to no controlling legislative mandate and the language of the statute, as above indicated, is against him. Petitioner refers to Sections 31 and ...