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New York State School Bus Operators Ass'n v. County of Nassau

39 N.Y.2d 638 Court N.Y. Decision date 1976-06-03 English

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p. 638
New York State School Bus Operators Association et al., Appellants, v County of Nassau et al., Respondents.
Argued May 3, 1976;
decided June 3, 1976
p. 639
Samuel B. Zinder, P. C., for appellants.
I. County of Nassau property cannot be used in either charter or school bus operations. II. Metropolitan Suburban Bus Authority cannot lawfully engage in school bus or charter operations. (City of Rye v Metropolitan Transp. Auth., 58 Misc 2d 932 , 24 NY2d 627 .)
John F. O’Shaughnessy, County Attorney (William S. Norden, Natale C. Tedone and Charles F. Lynch of counsel), for County of Nassau and another, respondents.
Local Law No. 15 of the Local Laws of 1972 of the County of Nassau is constitutional and valid and the operation of charter bus and school bus transportation by the Nassau County defendants-respondents is proper and legal in all respects. (People v Lewis, 295 NY 42 ; Jewish Consumptives’ Relief Soc. v Town of Woodbury, 230 App Div 228 , 256 NY 619 ; Adler v Deegan, 251 NY 467 ; Metropolitan Transp. Auth. v County of Nassau, 35 AD2d 739 , 28 NY2d 385 ; Matter of Dubbs v Board of Assessment Review of County of Nassau, 81 Misc 2d 591 ; City of Rye v Metropolitan Transp. Auth., 58 Misc 2d 932 , 24 NY2d 627 ; Andrello v Dulan, 49 Misc 2d 17 ; Bush Term. Co. v City of New York, 282 NY 306 ; Courtesy Sandwich Shop v Port of N. Y. Auth., 12 NY2d 379 , 375 US 78 ; Browne v City of New York, 213 App Div 206 .)
Eugene P. Souther, Daniel P. Fitzgerald and Jon Paul Robbins for Metropolitan Transportation Authority and another, respondents.
I. Metropolitan Suburban Bus Authority is authorized by statute to acquire and operate charter and school buses because they are within the definition of transportation facilities. II. The purposes legislatively authorized for MSBA include development of charter and school services
p. 640
because they are related to line service and are part of a unified mass transportation policy. (Matter of Rockland Tr. Corp. v Public Serv. Comm. of State of N. Y., 29 Misc 2d 909 ; Long Is. R. R. Co. v Public Serv. Comm, of State of N. Y., 30 AD2d 409 , 23 NY2d 852 .) III. MSBA’s powers include the operation of incidental charter and school services. (Bush Term. Co. v City of New York, 282 NY 306 ; Courtesy Sandwich Shop v Port of N. Y. Auth., 12 NY2d 379 , 375 US 78 .) IV. MSBA’s incidental charter operations do not threaten appellants. V. MSBA must be permitted to use its omnibus facilities in profitable operations to carry out the public policy that State authorities provide essential line services.

Memorandum. Order of the Appellate Division affirmed, with costs.

By Constitution and statute municipalities are given the power to acquire transit facilities (NY Const, art IX, § 2, subd [c], par 7; Municipal Home Rule Law, § 10, subd 1, par [ii], cl a, subdcl [7]). Neither contains any limiting definition. Absent restrictive language the term "transit facilities” covers any tangible means of moving people and things from place to place. It is incorrect constitutional or statutory interpretation to import from a melange of divers and diverse statutes more restrictive language relating to "mass transportation”, "rapid transit”, "bus lines”, and the like, in other statutes and even bond approval referenda. Words take their meaning from the context in which they are used. Hence, the County of Nassau and the Suburban Bus Authority, implemented by the particular local law and statute applicable to them, have the power to acquire transit facilities including acquisition by eminent domain.

To be sure, a taking in eminent domain or the allocation of tax revenues must be for a public use or purpose. School pupil transportation and charter service available to the public, independently or as an adjunct to public line transportation, is a public use and public purpose (cf. Courtesy Sandwich Shop v Port of N. Y. Auth., 12 NY2d 379 , 388-391; Bush Term. Co. v City of New York, 282 NY 306 , 316-317). Public use or public purpose is not limited to public need, although perhaps desirability, and consequently it is no contradiction of public use or purpose that private enterprise could do as well or even better. In any event, the public need or desirability, without more, is not subject to judicial review (see Matter of City of

p. 641
New York [Ely Ave.], 217 NY 45 , 57; 1 Nichols, Eminent Domain, § 4.11).

Appellants mount plausible economic arguments about the lack of wisdom in the county involving itself in the use of transit facilities, devoted largely to commuter and internal rapid transit movement of passengers, to carry school pupils and provide charter service. But the attack does not go to establish lack of power. To think so is to confuse policy with lack of power.

The ultimate issue on this appeal is as simple as that. On this view, it is unnecessary to repeat or even to agree with the painstaking parsing of the terminology and the statutes engaged in at Special Term or to evaluate the contrary parsing of the terminology and the historical development of public transportation engaged in by the dissenter at the Appellate Division.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum.

Order affirmed.

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