This is a declaratory judgment suit brought by appellees (several Alabama motor carriers) in the circuit court of Jefferson County, in equity, against appellant, Towns Truck Lines, Inc., seeking an interpretation of an order of the Alabama Public Service Commission granting to appellant certain operating rights. The trial court rendered a decree construing the order in accordance with appellees' insistence. Towns brings this appeal from that decree.
Involved here is certificate of public convenience and necessity number 633 issued to Towns on January 30, 1943. The provision with which we are concerned reads as follows:
As we see it, the determinative questions presented on this appeal are as follows:
I. Should the radii prescribed in the certificate be measured from (a) the centers of the designated cities, or (b) from the city limits of said cities, or (c) the outer limits of their police jurisdictions?
II. If a part of the police jurisdiction or city limits of another city lies within the prescribed radius, however it is measured, does Towns thereby have authority under the certificate to serve all of said city, including that part which lies beyond the prescribed radius?
The answers to these questions must come from ascertainment of the meaning of the phrase "within a radius of" as used in the certificate. The trial court, in rendering its decree, wrote an opinion which seems to us to be a clear statement of the case and which is in accord with our views. We quote the following from that opinion
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"A certificate of public convenience and necessity such as the present one is a kind of public franchise, and the courts have held that such franchises are to be construed in favor of the public. This usually means that the construction is rather strict as against the recipient of the grant. The phrase `within a radius of' has been variously interpreted by the appellate courts of other states in connection with construction of municipal ordinances, covenants restrictive of competition in employment contracts, etc. It may have been that, on the original `grandfather' application, which resulted in the present certificate which has now come to be held by this respondent, the commission might have intended that the applicant be authorized to serve all points and places lying within a peripheral belt, ten miles in width, adjacently surrounding the corporate limits of the municipalities specifically named in the order granting the certificate. But the Court can only construe, it cannot reform, the certificate. Of interest, though not controlling, is the commission's order in Docket 13257 dated April 20, 1953, (Ex. 6) showing that it could find no general commodity authority between Gadsden and Birmingham under its certificate. Theretofore, it had apparently taken a contrary
"In the court's opinion, the language used in this order is expressive of an intention to authorize service within, and only within, a circle having a diameter of twenty miles, in the case of the Birmingham area, and a circle having a diameter of fifty miles in the case of the Oneonta area, the center of each such circle to be found at the point which is the geographical center of each of said cities, ascertained by inward measurement from the corporate boundaries thereof as they existed at the date of the issuance of the certificate. But it would also seem to be a fair construction to say that, when service of a named municipality is authorized, it is contemplated that that city be served as a governmental, economic, and geographical unit, in its entirety, whether or not its boundary should expand, contract, or alter over a period of years subsequent to the grant of the certificate, and even though such boundary should come to exceed the circumference of the surrounding circle originally prescribed.
"However, it cannot be fairly said that it was contemplated that the outermost limits of large territorial authorizations should be susceptible of being thrust further outward and extended by the expansion of the municipal area or extensions of the police jurisdictions of the city lying at the hub thereof. Nor, in the Court's opinion, should such large territorial authorities be construed to be subject to
"In this case, it appears that respondent's predecessor sought specific authority to serve the city of Gadsden, (see par. III B and C of Ex. A to grandfather application) and also sought a radial authority within twenty-five miles of the city of Oneonta (same paragraphs, and also map `B-1(c)-(6)' attached to application.) Apparently, the radial terminal authority was granted without mention of the heavy industrial center of Gadsden, the size and importance of which city would seem to have made it appropriate for inclusion as a designated place, had the intention of the commission been to authorize service to and from that entire city, only a portion of which would be within an arc on the twenty-five mile radius, however measured. Gadsden was specifically authorized for transportation of ice. Also, Bessemer was specifically named additionally to Birmingham for other specific commodities, though lying within ten miles from the western boundary of Birmingham. Applicant's map graphically indicating the circle surrounding Oneonta, appears to exclude from it the cities of Gadsden, Guntersville, Boaz, and Albertville, entirely.
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Supporting the holding that the prescribed radii are to be measured from the respective centers of the designated municipalities, are the following: Mead v. Anton, 33 Wn.2d 741, 207 P.2d 227, 10 A.L.R.2d 588; Cook v. Johnson, 47 Conn. 175, 36 Am.Rep. 64; Skolnick v. Orth, 84 Misc. 71, 145 N.Y.S. 961; Silverman v. Brody, Sup., 65 N.Y.S.2d 803. As supportive of appellant's position, see Saltman v. Smith, 313 Mass. 135, 46 N.E.2d 550.
Supporting the holding that certificate number 633 authorizes appellant to serve "only those points actually within" the prescribed radii and "only those portions or parts of such city or town as are actually within an are measured upon" the prescribed radii, are the following: McCue v. Elsholtz, 51 M.C.C. 794, 799; Transportation Activities of Tornetta, 48 M.C.C. 637, 641.
In Mead v. Anton, supra [33 Wn.2d 741, 207 P.2d 228], a bill of sale of a restaurant business provided that the respondents (vendors) should not enter into competition with the complainants "within a radius of five hundred (500) yards of the present location of the Perkins Building." An assignment of the lease defined the distance as "within a radius of Five Hundred Yards from the existing restaurant". The court held that the starting point of the radius to be drawn should be located either at the center of the building in which the restaurant sold was located or in the center of the restaurant itself. It was found unnecessary to determine which of these positions should be taken inasmuch as the restricted business was within the prohibited area if measured from the center of either.
In Cook v. Johnson, supra, the contract of sale of the defendant's dental practice provided that the vendor should not practice dentistry within a radius of ten miles of the town of Litchfield. This was construed as excluding the practice of dentistry by the vendor within ten miles in every direction from the center of the town, and not within ten miles from the town's extreme boundaries.
In Skolnick v. Orth, supra, and Silverman v. Brody, supra [65 N.Y.S.2d 804], the word "radius", as used in a restrictive covenant, was construed "to mean a straight line drawn from the center to the circumference of a circle and when applied to the limitation of space it means the territory within a circle having all points equally distant in all directions."
Webster's New International Dictionary, 2d Ed., pp. 2052-2053, includes the following in the definition of "radius":
In Transportation Activities of Tornetta, supra, the carrier's territorial authority included "all points within ten miles of Norristown and Newark, respectively". In construing this provision the Interstate Commerce Commission had this to say:
It should be noted that Towns' territorial authority is between the designated municipalities and "points" within prescribed radii. It seems to us that this designation excludes the idea of authorizing Towns to go beyond the actual terminal point of each authorized radius. Had it been intended to extend authority beyond the actual terminal points of the radii it would have been a simple matter to have so provided. We do not think it can reasonably be said that the authority given under certificate number 633 gives to Towns the right to serve the whole of a municipality when a radial line merely crosses the city limits of a municipality and does not reach all points therein. It is only that part of a municipality within the are described by one of the authorized radii which may be served by Towns under certificate number 633.
The decree appealed from is due to be, and is, affirmed.
LIVINGSTON, C. J., and SIMPSON and COLEMAN, JJ., concur.