*1 doing Application HVIDSTEN, M. Carl Grafton, Transport, business as Hvidsten Moorhead, Transport, Inc., North Dakota Dugan, doing Minnesota, Dan business Dugan Transport Company, Sioux Oil Falls, Wilsey, Dakota; South Lester A. Line, doing business as Truck Indianhead Paul, Minnesota; persons St. other and all affected, similarly adversely situated and relative to setting praying Find aside of the ings Fact, Conclusions, Order and Findings Fact, Conclu Amended S-874, sions, In Case No. and Order Findings and Or Fact Conclusions Cease der in a Case and for S - thereunder. Desist Order NELSON, Cart, E.

Ernest D. Elmer W. Brant, H. as members Serv the Public ice Da kato, Balsam, Balsam, E. W. S and G. L. France, F. De and V. a L. De doing partnership, business as Balsam & France, Appellants, De

v. HVIDSTEN, doing as Hvid

Carl M. business corpo Transport, Inc., Transport; a sten Dugan business, ration, Dugan, doing Dan Transport Company, A. Lester &ilO Wilsey, doing Indianhead business as Railway Truck Great Northern Company, corporation, Pacific a Railway Company, corporation; a Chica go, Milwaukee, St. Pacific Rail Paul & corporation; Company, Min road neapolis, Rail Paul & Sault Ste. Marie St. corporation, Respondents. Company,

No. 7387.

Supreme of North Dakota. Court

April 18, 1955.

Rehearing Denied Oct.

525 presented mination of the issues are sub- February stantially 7,, On 1934 follows: (now Board of Railroad Commissioners Commission) Public the State Service of of North Dakota to the Northern issued Williston, Line Dakota Truck of North Special Certificate authorizing No. 175 transportation property of intra-state Williston, commerce in of vicinity Dakota. This certificate Chapter under the Ses- Laws sion of 1933-.. -assigned

this matter was Case No: S-240. On March Public Service ap- Commission, hearing after notice and proved a sale and transfer Northern said-Special Truck Line No. Transportation Company. to Northern assigned This matter was Case No. this matter Notice S-874. representatives sent of all North railroads, Dakota but none of the railroads hearing. at The commission fact, findings made its conclusions and order as follows: appellants Rausch, Bismarck, for au- “That & No. Johnson transportation of general thorized the De France. Ba lsam commodities load lots of 5000lbs. Counsel, Wheeler, Bis- Commerce R. W. more, and within appellant marck, Service Com- for Public described as follows-: ' mission. Williams, “Bounded on east Foss, respondent Fargo, Hvid- Alan tor line;’ Divide, Mountrail, Burke Transport. sten International the north on Line; Boundary on the west Bismarck, Jansonius, re- Clifford for , State North Dakota-Montana spondent , Transport, Inc. run- county south respond- Whittlesey, for Fargo, S. Fairviéw, John ning Montana, to east of Dugan Transport. ent Dan &Oil Highway No. 85 junction of U. S. except Highway Myron respondent Fargo, for Bright, H. livestock, heavy set- Indianhead Truck Line. products of machinery, agricultural up Nilles-, respond- Fargo, G. brick, Herbert kinds, sand, tile arid gravel, all ‘¡Northern' Ry., ents 'Pac. Great Northern máy transported' emigrant movables Co, Ry., .M., Ry. P. Chicago, St. & P. -in¡both less -truck loads thap Minneapolis, R. St. P.- & S. S. M. -.from distance loads to truck Co.( Williston, op- the base of 25 miles.from (cid:127) and, further, eration; SATHRE, Judge. transported .goods may be to.ancl.from place load lots within the certified record state appeal, ,, or more.” lengthy, necessary,to 3000 lbs facts .of but a.deter- upon request May Thereafter on tion under order of purchaser the' said Certificate Transportation Company, *3 No was taken from this order the findings Commission issued amended the by any railroads or other carriers. fact, and order in said case conclusions S-874, without notice of further May Transport, On' 1951 Hvidsten the matter. This amended order describes Inc., Transport Transport Dugan Oil and certificate No. 175 follows: Co., and Indianhead Truck Line filed with complaint alleging Commission Special “That No. 175 Certificate n Public Service its Commission gener- authorizes the May amended order of in mat- lbs., al commodities of 5000 in load lots Special ter of sale Certificate No. more, territory from and within a ¡Northern by Northern Truck Line to Trans- described as follows: France, portation Company Balsam to & De “ ‘Bounded on the east Wil- by the unlawfully oper- enlarged extended the and liams-Mountrail-Divide-Burke Transporta- ating rights of said Northern Lines; on the north the Interna- Company tion under said vio- Certificate Line; tional Boundary 49-1810, on the Supp.NDRC west of Séction .lation present Dakota-Montana State 1943;’TfeLif assignees of .sard” county south' running No,..-175, Balááni De Certificate Fairview, Montana, east of to a operate permitted were to the France Jet. with U. S. Highway No. 85 'and State authority extent that the of said Certificate Highway 23.’ unlawfully enlarged, opera- hád been such harm, irreparable tion result in in- would except livestock, heavy set-up ma- jury, damage applicants and to the ' chinery, emigrant general public. petroleum movables products transported' bulk points between denying Balsam & De France answered places within the State of North generally allegations application. of the Dakota.” permitted The railroad were In November 1950 the Northern Trans- proceeding to intervene in and joined this portation Company as seller and E. G. Bal- application in the motor four car- sam, Balsam, L. W. F.S. De France and riers. France, V. L. De a partnership doing busi- ness as Balsam & On 1952 the Commission is- January De as buyers, application, application dismissing its order sued Public Service Commission the said motor carriers. Thereafter by the Northern appealed motor carriers the railroads sell and trans- fer to Balsam & De from the decision of the' France Commission said Special County. Burleigh court of Certificate No. 175. district Notice of hearing .on given matter was before heard the Hon. Geo. all of the rail- roads in Jr., Thom they appeared Judge/upon District certified protested transcript the transfer record and said before Balsam & Public Service Commission. De France. Thereafter and on March 1951 the The district court found as a fact that fact, findings issued original and the authorized conclusions, and made said, its order that freight service only vicinity of Wil- certificate No. 175 be reissued and trans- liston and made conclusions of law that the ferred to Balsam transport & De petroleum France. The’cer- petro- tificate thus respects products reissued in all only leum' existed from and to ' identical with the certificate upheld, issued and that' or zone. The court transferred to Transporta- however, the Northern finding Commission’s freight places commod- restricted as to between all not Certificate was State, the motor car- or whether it was concluded limited ities. It also complain, vicinity service to and from the respondents could rier Com- Public Service Williston. amended order May mission case No. S-874 “2. Whether railroad or not cer- their record shows that 1946 since the respondents are now barred from ob issued subse- tificates of jecting to the amended order of the Cer- quent and transfer to the issuance Commission, Public Service dated Transporta- No. 175 to tificate ground 1946 in tase S-874 to the rail- Company. With reference tion of laches. *4 found respondents however the court road given them notice hearing that no “3. Whether or not the amended or order in the amended Case making before by der issued Service Com Public 24, 1946, May concluded that S-874 24, May mission on 1946 in case S-874 unlawfully enlarged and the amended order unlawfully authority extended Special authority of operating extended special beyond the certificate No. 175 the extent it No. 175 to Certificate scope given of the notice to the rail provided: respondents.” livestock, set-up “Except that heavy We shall" first Consider the second emigrant machinery, proposition by appellant. urged petroleum products in movables and transported between may bulk be undisputed facts, by" It is established places within the State of the substance of which has been set out Dakota.” herein, respondents the railroad were n withnotice of the proceed- directed that the The court then hearing served to the Commission for ings remanded Transportation application of Northern (cid:127) portion authority just of that deletion to sell and assign quoted and ordered the Commission to draw to Balsam & De Certificate No. 175 France. Balsam Certificate issued to .De&. hearing before the Public The was had limit the to and France so as to 7, 1951, February Service Commission on at following within .zone: from and Dickinson, The North Dakota. railroads counsel, by at their Williams, “Bounded on east object- participated in the Divide, lines; Mountrail, Burke Special" ed the transfer by the International on the north from Northern Com- Line; on the west Boundary They, De Balsam & France. con- pany State North Dakota-Montana amended order of tended that the by county and on south road run- enlargement an 1946 was Fairview, ning east of Montana to a 175; original that no under certificate No. junction Highway of U. S. No. 85 and any hearing notice of thereon had been Highway No. 23”. railroads, on the served Com- judgment" From this the Public both jurisdiction mission was without to make Service. and Balsam De& . , order. said amended appealed" Supreme France Court. Public Service Commission The issued specifications set of error as forth order, findings fact Ma'rch its appellants, Service Public Commis- 19J1, approving the transfer Cer of. Balsam & De France sion and be sum- Balsam & De tificate No. 175 to France. in three propositions: marized of, complete , copies True order an4 .by registered sent mail “1. or not certifi- attor Whether 175,, neys all the qn cate No. issued originally .for railroad Under, Section authorized the March 28-3215 respondents had NDRC 1943 the railroad four motor carriers for a “Cease and De- ' right appeal from said order. sist” against order Balsam & De France. respondents, interveners, The railroad provides: 28-3215 Said Section joined in the of the motor car- riers and collaterally challenged the order any party proceeding “Any heard Commission made March except agency, an administrative in the matter of transfer of Certificate No. the decision of the admin- cases where to Balsam' & De France. No .agency is final declared istrative was' taken from that statute, order and it had be- may. appeal other order. mission issue such order over the The order of the notice ^[*] such decision within ^[*] *» subject thereof Commission had March matter and had under has Public thirty Section 49-1810 Service Com- days jurisdiction power given. after a final *5 stated: ies is not having determination of an administrative sence come final. In 73 subject jurisdiction C.J.S., Procedure, fraud or bad faith. As a to collateral Public Administrative Bod- general under § authority of law attack rule page 478, an order or body ab- Chapter 1943 as amended by NDRC 277 rule, general “As a or decisions provides: Session Laws of 1945 which are, orders of an administrative body in the absence of evidence con- “Special may common motor carriers trary, presumptively correct valid. transport commodities within their au- presumption there is legal Thus .a that thority, quantity in any only from but statutory requirements duties and were , or zone or to for which complied with, justifying that facts lawfully served, proved they heretofore ruling existence, in were and that there prove,. public or hereafter con- was sufficient evidence on which to necessity. special venience and A com- agency. base decision of the So mon carrier shall have the au- motor also, the action of an administrative thority : officer, board or when done in the duty, pre- course of official generally is transport “1. To good to have been done in faith sumed movables, livestock, emigrant and farm imports Unappealed-from verity. supplies, or other commodities fair, orders must just be assumed to or., general commodities truckloads reasonable, presumption but the commission, from or by as defined favor of an administrative decision is points in such or not -zone between potent respect more with finding to a routes, A the" on Class au- respect than it with .fact is to a and under conditions and thority question of law.” commission; by the rules set volume, *» In the-same * * subject, same § «2 Attack, Collateral 'pages 480 the rule parties were pro- railroads The is stated as follows: in which the ceedings order was issued. “The order or determination of an appeal They from the order did not and it administrative-'body, within acting its. time, appeal final when became had .jurisdiction and under elapsed. law, subject attack, is not to collateral absence present .faith, was taken the Pub- or fraud bad and Balsam De the only' Commission method of attack lic Service available be- judgment by appeal provided of‘the ing district France-from statute. particularly applicable, reverséd the order of the 'is Pub- The rule court January 29, question where' the issue is one that lic' Service requires-'a of' the 'background ‘Specialized in-the matter brief, experience, pages the admiiiistrative so that of its qualified many to deter- agency have been peculiarly is issues eliminated. mine issue of whether not motor it.” carrier were entitled to Application S. Trans- See also M. & notice in the 1951 is Co., 585. port 153 Neb. 44 N.W.2d now out case.” the order March Since In view of our it conclusion herein will appeal having final become and no spec- not be necessary consider the other therefrom, taken the railroads ifications, by appellants. urged position attack challenge collateral subsequent brought After a careful consideration the four motor carriers. It follows there- lengthy agreed record we are the judg- judgment fore that court district ment of the district court should be re- versed, of the Pub- erroneously except held that order to the dismissal complaint lic Service March Commission of of the four motor carrier re- spondents. was void. The case is remanded district court

With motor reference to four car- with riers, Inc., judgment directions .enter Transport, Transport reinstat- Hvidsten ing. findings Dugan Transport Company order of the Public Oil and Service: Line, Commission made March Indianhead Truck record shows that their operating certificates were issued It so ordered. 24, 1946, after the amended order of *6 subsequent Special and of to the reissuance GRIMSON, JJ., MORRIS and Transpor- Certificate No. 175 concur. to .Northern Company., They tation were not at that transportation in

time the business in North JOHNSON, J., participate. did not position Dakota in and attack the May amended order the of BURKE, Chief (dissenting). reissuance thereunder of Justice No. 175. The district court held: original public The conven- necessity ience and in this case was issued petitioners, ap- "That since the now to Northern Truck Line of Williston pellants, were not holders any cer- February 7, Early appli- an tificates and engaged were not the authority for cation to sell Northern the goods North Da- Transportation Truck Line to Northern kota the time the .at amended find- was filed the with Public Service' Commis- ings in they cannot case S-874 upon of hearing appli- sion. Notice complain heard to the orders of the upon cation wás served all railroad carriers Service therein; Public Commission only specified in the The issue state. for are they par- not such interested upon consideration and determination such right ties as to have complain any ” * * * hearing was whether the sale should be thereof, object thereto. None authorizéd. of the railroad carriers The four motor carriers took no cross- objections any or filed n ¿ppeal from the judgment of the district 18, 1946, transfer and on March the sale court and must therefore be deemed to be by order of was-authorized the commission. thereby. bound 24, 1946, any Thereafter on without hearing or the notice commission entered joint In the the briéf.of railroads-and the n substantially enlarged an order the carriers, four motor it is stated: territory authorized to be served virtue “Respondents' public certificate of agree appellant, with transferred necessity. Balsam De& when it states convenience ® co conclusion, com- my provides order of NDRC 1943 Section 28-3208 .that-the .the served enlarging to be mission part: Company Transportation the Northern agen- an administrative . “Whenever wholly the commission was void because * **, . hearing any cy, hold shall n power to issue it. no independent investiga- any or make ,of request upon application claim was In an tion November person, shall be no decision made- Public Service .the certificate, iii interest parties all agency' until here to transfer with writ- furnished question,

shall from have issues which specification no ten Balsam De France. A determined was hearing are to be considered tice of * * n >? upon all doing served railroads busi only ness in state. In that notice of the com- It order is clear specified issue and de for consideration territory authorized enlarging mission w;as termination whether Transporta- by the Northern to bé served Upon should be authorized. violation Company was tion attempted upon such transfer the railroads statute. above provisions question of inject into the cáse the commission, utility being -public “A necessity public whether convenience and law, the common derives unknown existed for conferred wholly constitution- its all certificate. commission sustained provisions, pos- statutory al or objections reception con evidence thereby powers are only sesses such cerning this issue after close of the ** conferred, hearing ordered the transfer of the certifi 1064; Utilities, p. cate to Balsam and De France. No C.J.S., Public § Wheatland, my Village Board of from this view" taken order. It Petition " ’ 321; rel. concerning public State ex evidence con 42 N.W.2d N.D. Co., necessity R. Chicago properly & N. W. venience and exclud Lemke v. And N.W. 378. ed. N.D. "where issue before the commission sole to do cer specified a commission *7 power given hearing is the notice of in. manner, the- manner a certain the certificate as in 1946 tain act in whether power the measure of prescribed hearing is be transferred. At that should Utilities, C.J.S., given.” power Public had 7 commission no to consider or de § p. cide issue. other opinion majority It is the of the that be- case, supra, 77 N.D. In the Wheatland attempted cause the railroads raise the N.W,2d page 335, we at page at public question of' convenience and neces- approval from quoted with Am.Jur. and, at this after sity the evidence Law, 68) Sec. (Public Administrative question on this was excluded and an -order saying; directing' made the transfer of the certifi- upon conferred powers- “The cate, order, áppeal from they failed to* ‘must be exercised in commissioners any right validity waived to attack the of bestowing with statute .accordance agree I certificate. cannot with this they only powers can. act such and because, it, conclusion as I see a ’ reconsider- prescribed by the statute the mode * * convenience, question public ation of the They rightfully *. cannot dis- necessity or a consideration deter- any of pense with forms the-essential validity mination the certificate legislature proceedings whidh the only: could bé had<'at a hearing at which prfrpose prescribed for the has in-. specified-as had issues' those the= is- power vesting with to.act.’” them sues be considered and determined. ..Nei- attempt ther an to raise an my opinion legal issue principles In above considered, not be nor are that is' could' the failure correct reason it stated issue, raise can constitute another such “Notice Hearing rail- estoppel. waiver or create an hereby “Notice is given Ap- challenge right roads therefore plication Neadors, P. Bert Ell- John directly validity of the 1946 certificate ingson, Bartlett, and A. -dba North- J. proceeding. That certificate is void Transportation ern Company, Willis- judgment of the district court ton, North Dakota to sell Balsam that effect he should affirmed. & De City, Miles Montana buy Special No. 175 au- Rehearing On Petition for thorizing freight motor service for the commodities, of general SATHRE, to, Justice. and within a de- scribed as follows: respondents peti- filed a railroad have rehearing. tion for re- It is stated that “ ‘Bounded on the east the Wil- Supreme view of the decision of Court’s liams-Mountrail-Divide-Burke April 1955 indicates that the decision Lines; north the Internation- re- turned the fact that railroad Line; Boundary al on the west spondents appeal failed to from the order North Dakota-Montana State Public dated Service Commission county on the south March case S-1142 and .No. Fairview, Montana, running east cannot, said now therefore gol- Hwy. 'to a with US No. 85 and Jet.” laterally attack that decision the absence 23,’ Hwy. St. or bad faith. fraud It stated: “Except livestock, heavy set- “The the railroad Court states up machinery, -household emi- respondents appeared in No. S- Case petroleum products grant movables and 1142 and from an ad failed transported in bulk between That is correct. It also verse decision. places within the State of however, pre issue indicates Dakota, of North will be considered and instant sented case also public hearing held thereon presented in That is inco that case. Public Service Commission of'the State . ” t rrec Dakota, North day the 6th February, A.M., Case S-1142 is the record 1951at 10:30 Mountain Time, the matter of the of Northern Standard at the courthouse at Dickinson, Dakota, sell to. at which *8 place Certificate parties No. Balsam & De France. time all interested to. . by may This is the identical certificate sold and offer for evidence hear.d against applica- Line to Northern the granting Truck Trans- of the Northern - whjch portation Company and was amend- tion: .(cid:127) ed without notice the railroads the Bismarck, Dakota, “Dated at North order of the Commission issued May day January, 15th 1951.” stipulated, however, The railroads entry the that after of the amended order notice was served all the rail- May 24, copies dated -of were mailed State, including roads in of all representatives North Dakota rail- herein. hearing upon The notice of roads. for generally The railroads at the jurisdiction and submitted sell They 175 to Balsam De objected No. France described of the Commission. operating authority area of of the certificate transfer to Balsam De& language of They identical to introduce sought cer- France. evidence as follows: necessity tificate convenience which in- they, with railroad together operating the state-wide volved transportation re- facilities heretofore certificate. The Commission granted purpose to, are offered for testimony. ferred Counsel such refused to admit public is ade- showing proof then made.offers for the railroads issuance, or quately without served as follows: approval transfer of of the “First, nature we offer to show No. 175.” railways’ service and extent sus- Ojection was made to the offer is aífécted furnished in this area Dakota, tained. state of in the whole freight showing the tables time Counsel for railroads: and facil- movements freight trains and railway com- supplied gen- ities “And further we offer to show transportation of the panies facil- erally described Cer- commodities described- ities of kind and character - 175.” adequate tificate No. are in Certificate No. 175 necessity public no convenience or (cid:127)that offer and was made to the Objection this cer- the continuance of exists for sustained. thereof; that the tificate or the approval of this would .effect for the railroads: Counsel competitor in simply put another be to show, ask offer now “We at- transportation field who would copy copies reporter into -the record away from car- tempt business to take certificates, Special freight operators adequately taking are now riers who Company; Crosby Transfer No. public.” care of the Lines; Culp Truck No. 639 No. Objection as was made follows: Filkowski; 286, Reinhart Kasper No. Grishkowsky; 194 Hart Motor .Ex- obj ground to on the “That ected Express; Hart press; 666 Motor No. question of for the reason that the Maas; 507, 251, H. J. necessity and ade- convenience and present an quacy facilities is not Redmond; 260, Lorenz So- “A1 issue before Public Service Com- witch'; “Objection time.” mission at this sus- freight oper- “And then interstate tained.” No. 4 Da- follows: Certificate ators Company; Storage Transfer & kota The railroads contend Pub Express; 52 Hart Motor Service exceeded its stat lic Transport Company; 252Hvid- Houck utory amending Cer Transport; Johnson, 196 H. F. sten parte en 175 ex and thereby tificate No. Sidney, Inc.; King, Mon- H. scope activity permitted larging the un John ; tana provide der it’so as fol- “Alsq Class A.. Certificates livestock, set-up heavy machin- “that *9 Lines; 329, Culp Truck 44 and lows: ery, emigrant mov- Stórage Transfer & Com- 313 Dakota products petroleum in bulk ables and Minot-Portal Transfer Serv- pany; 326 transported between may be and 90, ice; Stanley Transfer; places within the of North Da- kota.” which “All of certificates are cer- position The railroads are now in a operators to not to who furnish tificates issued ’ challenge the part granted. so transportation for Cer- services all or originally and other tificate No. 175 was general commodities issued on the sub-. ’ February 7, pursuant are which re- to the jects of author- 175; provided Chapter special ity certificate No. 164 SLND ferred to 1933. The tificate nal certificate a state-wide Northern Line to Northern hearing authorized of the certificate Thereafter tions. certificate its petroleum realities holders The railroads of Certificate the Commission Truck be basis. to are that products in were amended so Liné purchaser- asked that include Transportation restrictive permitted to From, the sale transported had been the Northern No. 175. although the ¡ state-wide after notice 1942 to n bulk under n as to made operate on form, On Company. quantities transfer broaden March opera- Truck origi- par- cer- Hvidsten, may is diction, quirements as preceding out is acquired by proper Public Administrative ^[12] the Commission. See “A failure process. conferred entered, jurisdiction objection result in failure to ' 78 N.D. ^[1] but A if a general even to general appearance waives all hearing.” (cid:127) to comply notice and though service N.W.2d of the Law, acquire with- the Application irregularities it was appearance of notice Am.Jur., process Section 26. person juris with not re the-cer- to transfer ties to the to Petition of has been called Our attention Transportation Northern tificate to Wheatland, Village Board of 77 N.D. any no notice Company but received objection In that case 321. N.W.2d n However, copies amend it. application to jurisdiction of the Commission was were furnished certificate the amended appearance and we held shortly attorneys railroads for the par objection was not waived 1946. on it was issued the, after ticipating the trial on merits after dealing with the only statute amendment objection had overrulécl. is Sec- by the Commission a certificate the Northern November 1950 Trans In provides: which NDRC 1943 tion 49-1816 application -to portation time, commission, any at- “The c sought author Publi Service Commission -and, upon cause, suspend good ity- the-.certificate .sell days’ five notice than less not (Case S-1142) De France. Balsam & certificate, op- grantee of to be so transferred was not The certificate heard, may revoke or be portunity to certificate but the,-.original restricted th,e any certificate.” amend enlarged certificate amended and und.er clearly Com gen vested with The Commission pany part at power amend and the least of the a certificate time eral operated requires Noticp statute since its issuance only party whom this hear In this grantee. ing is the for transfer was given be notice to concerned, .applicant parties including was the .for 'the grantee given case the original The notice of hearing Certificate railroads. served amendment. When upon the railroads set forth the issued the Commission obtain No. 175 subject enlarged matter and of verbatim. The jurisdiction ed certificate (cid:127) 'appear parties, including specially the railroads. railroads did and ob only position ject enlarged' to the transfer of the that is at all cer railroads parties grouhd they being is that tificate on that it was might 'the, tenable who competitive but by the without be affected extension of jurisdittion generally permitted by and ffes'istedthe- It is service transfer. clear from amendment main record that the reason for entitled to heard in the ab resist transfer was ing of notice the sence amendment was not competitive transportation permitted binding them. This contention can personal petroleum products only go jurisdiction petroleum on a *10 sought over the railroads. state-wide basis. The railroads Commission It does not public challenge jurisdiction subject over the convenience and neces involve mat powers sity operations might that general which fell within be conducted ter 534 Utilities v. Public In the case of Grubb amended, went This certificate.

under the 470, Ohio, 50 S.Ct. Commission of 281 U.S. merits of but to jurisdiction not to 374, 378, 972, Supreme Court 74 L.Ed. certificate. operation permitted through speaking of the United States Jus Devanter said’: the tice Van railroads contend Company made adjudica thing presented “The cer authority under the use of its little state, was court in the case in tion until obtained it it from 1946 when tificate order, validity and it & De France. it sold to-Balsam 1951when present appellant to incumbent on the for the undoubtedly the basis This support at right'of asserted his on attempt resist the transfer railroads’ every which ground tack available public convenience lack of .of ground knowledge. he had He was not at liber goes necessity that contention but prosecute by piecemeal, ty right jurisdiction than merits rather part only of 'the presenting as It is Commission. Public Service grounds reserving available others if the Commission argued that also suit, failing if in that. for. ^another righted wrong hearing in 1951 at the Orleans, City v. 177 Werlein New parte issuing e5c it had committed 398, 682, 390, seq., et U.S. 20 S.Ct. certificate no hard enlarged 817; L.Ed. United States v. California ensued, argument an which have ship would Co., 355, Oregon Land U.S. emphasizes the merits and pertains to again 6 . 266, 48 L.Ed. 47 24 S.Ct. then railroads had raised if the the fact that just ground “As described was jurisdiction, they lack of question of put hppel- but available not forward opportunity right clearly had the lant must abide the rule that a hardship do, would have ensued to no upon;the judgment merits.in one suit who record shows & De Balsam judicata in is res another where the them of the amend relied pátties same, subject-matter.are-the engaged and thereafter in the ed certificate only respects actually not matters products of-petroleum in bulk presented right to sustain or defeat the Fargo and Grand Forks.' It is clear out of asserted, respects any-oth but also as railroads', having had the to us have, .might er available matter qfiestioh raise the' opportunity to presented to that end Baltimore authority of the to make thé 27 S. S. U.S. v. Phillips, Co. parte amended extended' order when ex 1069; United 47 S.Ct. 21 L.Ed they appeared before the Commissibn and Moser, 236, 241, States v. U.S. the merits the Bal resisted 262; transfer.to 69 L.Ed. S.Ct. v. Cromwell France, by general De their Sac, sam 351, 352, appear^ U.S. . 5 objections juris their anee waived 19 L.Ed. ” rising of the Commission diction out of Rehearing denied. parte the ex order issuance and can challenge validity not now heard concur;. GRIMSON, JJ., MORRIS and. that, ground order Com jurisdiction participate had no to make JOHÑSON, J., mission it. did