in promulgating it, went outside of the terms of this court's remand to it of February 4, 1966; 2) the Order, even if permissible under this court's remand, was improper in its determination that the interpretation of the Sub 70 Certificate involved an interpretation of technical terms of art and hence was subject to only the most limited judicial review. It being the court's view that the plaintiff's second contention is meritorious, a decision in this matter will be rendered in favor of the plaintiff.
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.
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 aside and enjoined.
Let an appropriate order be submitted.