TI McCormack Trucking Co. v. United States

• Decision Date: 26 March 1969
• Docket Number: Civ. A. No. 314-67.
• Citation: 298 F. Supp. 39
• Parties: T. I. McCORMACK TRUCKING CO., Inc., Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants.
• Court: U.S. District Court — District of New Jersey

298 F. Supp. 39

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

Civ. A. No. 314-67.

United States District Court D. New Jersey.

March 26, 1969.

Peter E. Reilly, Jr., Jersey City, N. J., for plaintiff, Frank B. Hand, Jr., Washington, D. C., of counsel.

David M. Satz, Jr., Newark, N. J., for United States.

Robert W. Ginnane, Arthur J. Cerra, Steven Kazan, Interstate Commerce Commission, Washington, D. C., for Interstate Commerce Commission.

Before McLAUGHLIN, Circuit Judge, and COOLAHAN and SHAW, District Judges.

COOLAHAN, District Judge:

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.¹ 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.

Challenging the Commission's August 5 Order plaintiff alleges that: 1) the Order was illegal, in that the Commission, 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 to technical terms of art compels that this court defer to it in a case of simple grammatical construction such as is presented here.²

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.

SHAW, District Judge (concurring).

I concur in the conclusion reached by Judge Coolahan that the order of the Interstate Commerce Commission dated August 5, 1966, should be set aside and enforcement enjoined.

GERALD McLAUGHLIN, Circuit Judge (dissenting).

The background of this litigation is of plenary importance to the proper resolving of the problem it presents. That background must not be swept under the rug.

Plaintiff was originally granted a certificate on March 26, 1948, for transportation of noninflammable liquid commodities with some named exceptions over irregular routes. The certificate read "Between points and places in Connecticut, Pennsylvania, New Jersey and New York within 100 miles of Columbus Circle, N. Y. including 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." Plaintiff had no misunderstanding of the territory it received by said certificate. In its letter to the Commission of December 5, 1947, it affirmatively stated that the rights it had been allowed were "between all points in the states of New York, New Jersey, Connecticut and Pennsylvania within 100 miles of New York, N. Y. on the one hand and all points in the states of Massachusetts, Connecticut, Rhode Island, New York, New Jersey, Pennsylvania, Delaware and Maryland on the other." It is vital to note here that this formal acknowledgement by plaintiff carrier of the complete geography of its territorial grant has never been repudiated by plaintiff; it is not mentioned in either of its briefs; nor was a word said about it in oral argument for the plaintiff. On August 1, 1949, plaintiff corporation underwent a change of ownership. Well within a year thereafter, on May 24, 1950, the Commission, obviously with some suspicion that McCormack might be operating in larger territory than allowed by its certificate, through its District Director notified plaintiff by letter that "it is my definite opinion that the words `within 100 miles of Columbus Circle, N. Y.' applies to all four of the above mentioned states and not to New York only." Following that, plaintiff's certificate was collaterally involved in four formal Commission proceedings in which plaintiff sought to be recognized as a "protestant". These were decided in 1952, 1955, 1956 and 1959.¹ In all of them the Commission ruling regarding the extent of plaintiff's certificate, was exactly the same as its original interpretation of the limits of the certificate when it issued the latter. Plaintiff in the 1956 case admitted, as the Commission found, "* * * that it never sought in the applications leading to the questioned certificate, authority to serve all points in Connecticut, New Jersey, and Pennsylvania, * * *." Plaintiff there claimed that the Commission, after allowing the certificate, found a need for more service and granted plaintiff a larger area than given in the said certificate. There was no support for that assertion in any Commission record.

In 1960 there was an investigation by the Commission to determine whether plaintiff had been operating beyond its certificated authority. This resulted in the conceded fact that plaintiff had been engaged in interstate transportation beyond the limits of its certificate, as the Commission had determined said limits, from the date of its issuance. The Commission Examiner who had conducted the Investigation Hearings found that the Commission interpretation was correct and that the broader territory claim advanced on behalf of ...