On Petition for Rehearing
Christianson, J..The members of the Public Service Commission have petitioned for a rehearing. The first contention is that the appellant railway company by appealing to the district court from the decision of the Public Service Commission invoked the jurisdiction of the court and thereby waived the objections which it had made at the hearing before the commission. In support of this contention the respondents cite Lyons v. Miller, 2 ND 1, 48 NW 514; Miner v. Francis & Southard, 3 ND 549, 58 NW 343; and Deering & Co. v. Venne, 7 ND 576, 75 NW 926. The rule announced in those cases is not applicable here. Those cases involved appeals to the district court by a defendant against whom judgment had been rendered in a justice’s court and wherein the appellant demanded a new trial in the district court. The appeals were taken under a statute which provided that in such cases “the action shall be tried anew in the district court in the same manner as actions originally commenced therein.” CL 1913, Sec 9172. In those cases the controversies were within the original jurisdiction of the district court. That court had authority to entertain and determine those cases within its original jurisdiction and the appeals invoked the original rather than the appellate jurisdiction of the court. The object of appeal in those cases was to have the cases tried and determined in the district court on their merits “in the same manner as actions are originally commenced therein.” In those cases *216the subject-matter of the controversy was within the original jurisdiction of the district court, and the appellant by invoking the power of the court to try the case gave the court jurisdiction over his person as a party, and thereby conferred upon the district court jurisdiction of the case, wholly without regard to what action had been taken in the justice’s court. Upon the trial, the powers of the district court in such cases “in dealing with the pleadings and the evidence, in the application of the law, and in the rendition of judgment according to the right of the case, all independent of the action of the lower court, is no different from what it would have been if the case were begun there originally.” Bryan v. Miller, 73 ND 487, 497, 16 NW2d 275, 281-282.
The subject-matter of the controversy involved on this appeal is not one within the original jurisdiction of the district court. On an appeal from a determination of the Public Service Commission the district court does not exercise the original jurisdiction “of all causes, both at law and equity” vested in it by the constitution, it exercises appellate jurisdiction conferred upon it by statute. ND Const, Sec 103. Although it has been said that where, on an appeal from a determination of an administrative agency, the appellant demands a retrial of the entire case, the case is triable de novo in the district court, “this language, it is apparent, was not used with exact accuracy. The case is not tried anew. There is no new evidence or any evidence adduced in this court. The case must be decided upon a record already prepared” by the administrative agency which rendered the decision appealed from. Christianson v. Farmers Warehouse Ass’n, 5 ND 438, 443, 67 NW 300, 301, 32 LRA 730.
The appellant railway company by its appeal did not seek to have the district court conduct a trial and try the controversy as though no trial had been had. It did not abandon the objections which it had made upon the hearing before the Public Service Commission. It insisted upon such objections and asked the district court to review the action of the Public Service Commission in ignoring such objections and proceeding with the hearing. According to the express provisions of the statute the scope of review on an appeal from the Public Service Commission extends to a review of whether in the proceedings before *217the commission there has been failure to comply with any of the provisions of the law relating to the ordering and conduct of such hearing. NDRC 1943, Sec 28-3219. On the appeal to the district court and again on the appeal to'this court the appellant predicated error upon the failure of the commission to comply with the provisions of NDRC 1943, Sec 28-3205 as amended by SL 1945, c 218, which requires that in any such proceeding the petitioner, or the Public Service Commission when acting upon its own initiative, “shall prepare and file a clear and concise statement or complaint” with the Public Service Commission; that “said complaint shall contain a concise statement of the claims or charges upon which the- petitioner relies and the relief sought,” and that a true copy of such complaint shall be served upon the respondent personally or by registered mail. At the threshold of the hearing the railway company by specific objection called to the attention of the commission the failure to comply with the provisions of the law. These objections were ignored. As pointed out in our opinion the record shows that the railway company did not voluntarily abandon its objections but adhered to them. The statute specifically grants to the respondent in such proceedings, that- is, to the railway company in this case, the right of appeal from the determination of the Public Service Commission and prescribes the procedure on such appeal. If it be true that a party who appeals from a decision of the Public Service Commission by such appeal waives all objections which he has interposed charging noncompliance with the provisions of the statute in the proceedings had before the commission by taking an appeal, then, of course, he would be effectively denied the rights which the statute clearly gives him and for the protection of which it grants him the right of appeal.
The statute specifically provides that on an appeal from a determination of the Public Service Commission the scope, of review shall extend to whether “any of the provisions of this chapter have not been complied with in the proceedings before the agency.” NDRC 1943, Sec 28-3218. In this case there was a failure to comply with material provisions of 'the statute. The railway company-called the attention of the commission to such *218noncompliance'at the earliest opportunity. It made special appearance and objected to the authority of the commission to proceed with the hearing on the ground that the provisions of the law had not been complied with. This it had an unquestioned right to do. It also had the right to appeal from the decision which the commission made in the proceedings and on such appeal to ask for and have reviewed the action of the commission of which it complained. The appellant railway company has-not abandoned or waived the objections which it made.
It is next contended “that the rule that one who had made timely, and proper objection to the jurisdiction of the court over the person of the defendant does not waive the objection by participation in the trial on the merits, should not be applied to administrative proceedings.” The constitution of this state provides that “the powers and duties” of the Public Service Commissioners “shall be prescribed by law.” ND Const, Sec 83. The statutes of this state prescribe the manner in which such powers are to be exercised. The powers conferred upon the commissioners' “must be exercised in accordance with the statute bestowing such powers and they can act only in the mode prescribed by the statute. . . . They cannot rightfully dispense with any of the essential forms of proceedings which the legislature has prescribed for the purpose of investing them with power to act. A commission may not assert the general power given it and at the same time disregard the essential conditions imposed upon its exercise.” 42 Am Juris, Public Administrative Law, Sec 68, p 379. While there are differences in the origin and functions of courts and administrative agencies which preclude “the wholesale transportation to administrative proeeedings of the rules of procedure, trial, and review which have evolved from the history and experience of courts,” and as a general rule such proceedings are not restricted by the same technical and formal rules which govern trials before a court, nevertheless, “in the exercise of judicial or quasi-judicial powers, the elementary and fundamental principles of judicial inquiry should be observed.” 42 Am Juris, p 446; Pigeons Case, 216 Mass 51, 102 NE 932; Ann Cas 1915A 737. See also State ex rel. Wehe v. Frazier, 47 ND 314, 182 NW 545. It is recognized *219that “the general rule that objections to call attention to nonobservanee of applicable rules are necessary in administrative proceedings for the same reasons that they are necessary before a court.”' 42 Am Juris, Public Administrative Law, Sec 143, p 487. And the general' rule that an appellate court will consider only such questions as were raised and reserved in the lower court applies on review by courts of administrative determinations, so as to preclude from consideration questions or issues which were not raised in the administrative-proceedings. 42 Am Juris, Public Administrative Law, Sec 236, p 675.
A party to a proceeding before the Public Service Commission has the right to a hearing conducted conformable to the provisions of the law and has the right by appropriate objection to call attention to the fact that there has been nonobservance of or noncompliance with the provisions of the law in the proceedings, as did the railway company in this case. The reasons stated by this court, by the Supreme Court of the United States, and by courts of other states for holding that a party who has appeared and made timely objection to the authority of a court to hear and determine an action does not lose the benefit of the objection so made by thereafter answering to the merits and participating in the hearing or trial, provided he does not invoke the power of the court by becoming an actor himself and asking for some relief which could be granted only if the court had jurisdiction and authority to hear and determine the controversy, are equally applicable in a proceeding before an administrative agency. We so held in our opinion in this case and we adhere to that holding.
It is next contended that the railway company failed to exhaust available administrative remedies and hence is not entitled to judicial relief. It is said, (1) that the railway company might have applied for a continuance and thus obtained time to enable it to prepare its defense; and (2) that the railway company had the right to request a rehearing after the decision was made; that the railway company failed to move for a continuance and also failed to request a rehearing and hence failed to exhaust available administrative remedies and is not entitled to attack the determination of the commission on this appeal. *220These contentions are devoid of merit. The objection made by the railway company called attention to noncompliance with the law at the very inception of the proceedings and 'challenged the authority of the commission to conduct the hearing at all. It had a right to a hearing as provided by law. It had the right by appropriate objections to call attention to the fact that the commission was conducting a hearing, otherwise than in conformity with the law, and it was not required to waive the objections which it had made and accept the situation that had been created by such noncompliance and ask that as a matter of grace and favor it be granted further time to prepare for a hearing to be held otherwise than in conformity with the law. Obviously a motion for a continuance to obtain further time to participate-in such hearing would not have been an adequate remedy.
In support of the contention that the railway company- should have requested a rehearing and that the failure to do so operates to deprive the railway company of any right to -judicial relief counsel cites a number of decisions of the Supreme Court of the United States wherein equitable relief was sought against the enforcement of orders by administrative agencies and the court denied injunctive relief on the ground that there were available other adequate legal remedies to the plaintiff. In so doing the court merely applied the fundamental principle of equity jurisprudence that lack of adequate and complete remedy at law is a prerequisite for the exercise by equity of its power to grant injunctive relief. 28 Am Juris, Injunctions, Sec 37, p 232; Bismarck Water Supply Co. v. Barnes, 30 ND 555, 153 NW 454. In this case the railway company is not seeking-equitable relief. It did not invoke equitable remedies. It invoked the specific legal remedy which the legislature has provided for a review of the decisions of the Public Service Commission. Furthermore, the statute nowhere either expressly or by necessary implication requires a party to request a rehearing as a condition precedent to the right of appeal from a determination of an administrative agency. It merely provides that any party before an administrative agency who is aggrieved by the decision thereof “may request a rehearing by such agency” and provides the manner in which such request must be *221made. NDEC 1943, Sec 28-3214. The remedy by petition for rehearing is permissive only and the statute clearly warrants the conclusion that the legislature did not intend that a request for a rehearing should constitute a prerequisite to an appeal from a final decision of an administrative agency. 42 Am Juris, Public Administrative Law, p 583; U. S. v. Abilene & Southern Ry. Co., 265 US 274, 68 L ed 1016; Moore v. Ill. Central RR. Co., 312 US 630, 85 L ed 1089. A rehearing is denied.
Nuessle, C. J., Morris, Burke and Crimson, JJ., concur.