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March 26, 1969

T. I. McCORMACK TRUCKING CO., Inc., Plaintiff,
UNITED STATES of America and Interstate Commerce Commission, Defendants

The opinion of the court was delivered by: COOLAHAN

This is an action to enjoin and set aside an August 5, 1966 Order of the Interstate Commerce Commission, wherein the Commission required plaintiff to cease and desist from certain operations conducted under its Certificate of Public Convenience and Necessity, known as 'Sub 70 Authority,' which was issued in 1948. The Commission charged that these operations exceeded the territorial authority allowed by the Certificate. This court derives subject matter jurisdiction from 49 U.S.C. § 305(g), (h), and 49 U.S.C. § 17(9).

A similar complaint was first filed in this court by the plaintiff in 1962 Designated as Civil No. 681-62, it sought to enjoin and set aside a Commission Order of March 26, 1962, requiring plaintiff to cease and desist from certain operations. The matter was brought before a three-judge court, which determined, on February 4, 1966, that the Commission had not satisfactorily indicated to the court the basis upon which it had determined that the Sub 70 Certificate was ambiguous, thus permitting it to consider, in resolving the ambiguity, extraneous matters supposedly unfavorable to the plaintiff. *fn1" The case was remanded to the Commission 'for further proceedings consistent with this opinion.' See T. I. McCormack Trucking Co. v. United States, 251 F.Supp. 526, 541 (D.N.J.1966). On remand, it was the opinion of the Commission that there hadn't been any ambiguity after all; instead, it concluded on August 5, 1966 that the disputed language really involved technical terms of art, the interpretation of which was subject to its own peculiar expertise. Applying that expertise, it was the conclusion of the Commission that plaintiff had in fact violated the rights granted to it by the Sub 70 Certificate.

 It would be best at this point to make reference to the specific language of the Sub 70 Certificate which is in question here. That provision indicates that plaintiff could ship

 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. (Emphasis added.)

 As noted in the earlier McCormack decision,

 the specific question at issue is whether the italicized 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.

 251 F.Supp. at 528-529.

 Initially, it must be noted that, as a matter of grammatical construction, there can be no question but that the 100-mile provision in the Sub 70 Certificate applies only to New York. Whether the grammatical rule be designated as the 'Doctrine of the Last Antecedent,' or as a matter of simple common sense, the absence of a comma after the Certificate's first reference to 'New York' indicates most clearly that this is the case. As a result, all that remains for consideration is the Commission's contention that the effect to be given to its own special expertise in construction of technical terms of art compels that this court defer to it in a case of simple grammatical construction such as is presented here. *fn2"

 That contention was dealt with thoroughly in the first McCormack opinion, 251 F.Supp. at 534-536, where strong distinction was made between Commission construction of 'commodity descriptions' and Commission construction of territorial descriptions. In the case of the former, it was pointed out, there is involved 'an area wherein the Commission's great familiarity with customary trade usage and with industry-wide understanding of prior Commission interpretations is critical.' As a result, it was concluded, wide latitude should be given to Commission interpretation of commodity descriptions. However, in the case of Commission construction of territorial descriptions, such as are involved in the McCormack matter, it was pointed out, with citation to the Commission's own statements in its original Order of March 26, 1962:

 'The disputed language in McCormack's certificate is non-technical in nature. There is no apparent reason for example, why a similar territorial description in a statute or contract should be given any different meaning, * * * no policy or presumption favoring a liberal or strict construction for the purpose of granting a larger or smaller quantum of operating authority. (Emphasis supplied). 89 M.C.C. at 10.'

 251 F.Supp. at 536. This court continues to believe that the conclusion reached in the original McCormack decision was a cogent one; as a result, no great deference will be paid to the Commission's rather unusual reading of the Sub 70 Certificate. The court holds that, as a matter of law, the Certificate permits plaintiff to deal in Connecticut, Pennsylvania, and New Jersey, without reference to the 100 mile limitation contained therein, which applies only to operations in New York State.

 The Order of the Interstate Commerce Commission dated August 5, 1966 will be set ...

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