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February 4, 1966

T. I. McCormack Trucking Co., Inc. , Plaintiff,
United States of America and Interstate Commerce Commission , Defendant

The opinion of the court was delivered by: COOLAHAN


Plaintiff, T.I. McCormack Trucking Co., Inc. (McCormack), brings this action to suspend, set aside and annul an Order of the defendant Interstate Commerce Commission, entered March 26, 1962 in Docket MC C-2998, T.I. McCormack Trucking Co., Inc., Investigation and Revocation of Certificate, 89 M.C.C. 5. That order required plaintiff to cease and desist certain operations conducted under its certificate of public convenience and necessity known as the " Sub. 70 Authority." The Commission charged these operations exceeded the territorial authority allowed by the certificate.

 Under Section 1.101 of the Commission's Rules of Practice and Procedure, the order challenged has become final and plaintiff has exhausted its administrative remedies. Federal jurisdiction is invoked under the provisions of Title 49 U.S.C. § 305(g), § 305(h), Title 5 U.S.C. § 1009, and Title 28 U.S.C. §§ 1336, 1398, 2248 and 2321-2325 inclusive. This three-judge District Court has been duly constituted pursuant to Title 28 U.S.C. § 2284, and plaintiff has properly joined the United States as defendant as required by Title 28 U.S.C. § 2322.


 The nub of this dispute is the interpretive question raised by the Commission's construction of the following portion of the Sub. 70 Certificate, which permits transportation of certain commodities:

"Between points in Connecticut, Pennsylvania, New Jersey and New York within 100 miles of Columbus Circle, New York, N.Y., on the one hand, and on the other, points and places in Connecticut, Delaware, Maryland, Massachusetts, Pennsylvania, New Jersey, New York and Rhode Island."

 The specific question at issue is whether the underlined phrase "within 100 miles of Columbus Circle, etc.," modifies only the State of New York, as urged by McCormack, or all of the States in the preceding series, as concluded by the Commission.

 Plaintiff, a New York Corporation having its main office in New Jersey, has operated since 1949 as a common carrier by motor vehicle of liquid commodities in bulk pursuant to various certificates of the Commission, and today operates in approximately 26 states. The Sub. 70 Certificate was issued in 1948 in Docket No. MC 52458 to the T.I. McCormack Trucking Co., Inc., and obtained along with the corporate stock by the present owner who has continuously operated the corporation ever since.

 The authority granted in the certificate was not disputed until 1952. Then, in four proceedings during the next seven years *fn1" in which McCormack protested pending awards to its competitors, various Divisions of the Commission indicated that McCormack's base territory did not include any points in Pennsylvania, New Jersey, New York or Connecticut, which were situated in excess of 100 miles from Columbus Circle.

 The Commission decision and Order which plaintiff now challenges resulted from three further proceedings that were consolidated and heard together on May 23, 1960, 89 M.C.C. 5. Two proceedings dealt with applications by McCormack itself for new certificates. *fn2" The third was an investigatory proceeding instituted by the Commission under Sections 204(a) and 212(a) of the Interstate Commerce Act, (the Act) after McCormack's "fitness" had been challenged in the application proceedings. It had been alleged that McCormack was engaging in for-hire transportation in Interstate Commerce in violation of Sec. 206(a) of the Act. *fn3"

 Following the consolidated hearing, the examiner held McCormack to be in violation of Sec. 206, supra, and recommended that it be ordered to cease using as base points any places in Pennsylvania, New Jersey, New York or Connecticut which were more than 100 miles from Columbus Circle. For reasons discussed below, the Commission agreed with his interpretation and entered such an order.

 From that decision, plaintiff appeals, contending it is so unreasonable, arbitrary, and lacking support in the record evidence and applicable law that this Court should set it aside. Plaintiff further contends that the Commission's erroneous interpretation operates to rescind part of his certificated authority, thereby depriving him of a property right contrary to Section 212 of the Act, 49 U.S.C. § 312. Plaintiff asks us to reverse the decision below and to declare his operations to be within the territorial prescription of the Sub. 70 Certificate. In the alternative, plaintiff asks us to remand this matter to the Commission for further consideration in accordance with our opinion.

 The ultimate question before the Court is a simple one: Namely, to how many States does the restriction, "within 100 miles of Columbus Circle" refer? However, that question is complicated by a threshold dispute over the Commission's procedure. The Commission resorted to matters outside the four corners of the certificate to aid its interpretation. McCormack contends that this resort contravened the Commission's own well-established rule for construing permits and certificates.

 The rule in question arose from the need to protect legitimate expectations based on Commission actions. In order to afford the certainty and continuity essential for both carriers and the shipping public in such an extensively regulated industry, reliance on the language of an operating certificate must not go unrequited. Accordingly, absent a patent ambiguity on the face of the document, the Commission will not permit reference to extraneous matters to show that the service apparently permitted by the terms of the certificate in fact exceeds the authority actually granted. Andrew G. Nelson, Inc. v. United States, et al., 355 U.S. 554, 558, 2 L. Ed. 2d 484, 78 S. Ct. 496 (1958).

 The Commission delineates the extent of this rule in its Report, 89 M.C.C. at 9.

"One cardinal rule is that the certificate must speak for itself. In the absence of patent ambiguity the Commission refuses to consider extraneous matters, including the record which gave birth to the certificate in question. And this rule is followed regardless of whether the practical result is to confer upon the carrier more or less authority than may have been intended to be granted originally. . . . Moreover, the Commission has consistently held that a validly issued certificate may authorize transportation . . . not contemplated at the time (it was granted) Jones, Interpretation of Certificate, 64 M.C.C. 527, and service within a larger territory than intended . . . Wright v. Central Freight, 66 M.C.C. 396. As pointed out by the Commission in Manhattan Coach Lines, Inc. v. Adirondack Transit Lines, Inc., 42 M.C.C. 123, 126. Any other rule would contribute an intolerable uncertainty to the finality of any right granted."

 Our starting point, then, is the propriety of the Commission looking behind this certificate rather than relying solely on its language. The Commission's grounds for adopting the disputed procedure and not following the aforementioned rule were based on its decision that the certificate was ambiguous as set forth in its Report, 89 M.C.C. at pp. 8-16.

 The Commission weighed three possible conclusions: (1) that the certificate is clear and unambiguous in applying the 100 mile limitation to New York State alone. (McCormack's position throughout this litigation); (2) that the certificate is clear and unambiguous in applying the 100 mile limitation to all the named states (the position of the Examiner); and (3) that the certificate is ambiguous since the limitation can reasonably be construed to apply either to New York State alone or to all the named States, 89 M.C.C. at 8.

 The Commission rejected both position (1) and (2) and, choosing alternative (3), found the certificate sufficiently ambiguous to warrant consulting antecedent records.

 McCormack had offered three reasons for finding the certificate unambiguous.

 First, McCormack argued that the Commission should not contradict Commission statements by examiners in earlier litigation to the effect that the Sub. 70 Certificate was free from any ambiguity. *fn4" The Commission dismissed this argument on the grounds that the scope of the Sub. 70 Certificate was only a collateral issue in those cases and that since it was not fully litigated then, their holdings were not controlling.

 Second, McCormack offered expert witnesses including a linguist and several lawyers with long experience before the of its interpretation. The Commission who argued in support of its interpretation. The Commission conceded the competency of their testimony and even spent some time defending it against criticism by the Board of Inquiry. But the Commission still found the certificate ambiguous.

 McCormack's main argument was that proper application of the rules of grammar normally used by the Commission clearly compelled upholding McCormack's interpretation of the certificate and thereby precluded a finding of ambiguity.

 McCormack relied primarily on a grammatical principal of statutory construction known as the "Doctrine of the Last Antecedent". As the Commission explained it at 89 M.C.C. 13: *fn5"

"According to the doctrine of the last antecedent, relative words, phrases, and clauses *fn3" are applied to the words and phrases immediately preceding *fn4" and should not be construed as extending to more remote words or phrases *fn5" unless such extension is clearly required by the context of the language in question. 50 Am. Jur. Statutes, Sec. 269 (1944). Where a comma separates a modifying clause from the word or clause immediately preceding, the presence of the comma is an indication that the modifying clause was intended to modify all the preceding clauses and not merely the last antecedent clause. * * * No such comma separates "within 100 miles of Columbus Circle, N. Y." from the last antecedent, 'New York ' in McCormack's Sub. 70 Certificate."

 The Commission admitted the general applicability of the doctrine to language of the type before it. However, the Commission refrained from using the doctrine in this instance because it concluded from the case law that the doctrine should be employed only after language had already been found ambiguous on the basis of more direct evidence. "[The] ambiguity of the language in question is at least impliedly recognized by resort to legislative history, the probable purpose of the legislature, considerations of public policy, or judicial notions of common sense." 89 M.C.C. at 15.

 The Commission further noted that the doctrine seldom was decisive in construing a statute, and was rebuttable by a very slight indication of contrary intent. Ibid. Therefore, the Commission resorted to the prior record after finding the certificate ambiguous. The Commission admitted that the propriety of thus looking behind the certificate hinged on the soundness of its conclusions about the Doctrine of the Last Antecedent. It then reasoned that if the certificate was ambiguous enough to allow use of the doctrine of the last antecedent, it was also ambiguous enough to warrant resort to the document's "legislative history." Id at 16.

 On the basis of the record in the original certification proceeding, the Commission found that the plaintiff's predecessor-in-interest neither applied for, nor produced evidence for, nor expected, nor believed it ...

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