(dissenting).
The original certificate of public convenience and necessity in this case was issued to Northern Truck Line of Williston on February 7, 1934. Early in 1946 an application for authority to sell the Northern Truck Line to Northern Transportation was filed with the Public Service' Commission. Notice of hearing upon this application wás served upon all railroad carriers in the state. The only issue specified for consideration and determination upon such hearing was whether the sale should be authorizéd. None of the railroad carriers appeared or filed any objections to the transfer and on ■ March 18, 1946, the sale was-authorized by order of the commission. Thereafter on May 24, 1946, without any notice or hearing the commission entered an order which substantially enlarged the territory authorized to be served by virtue of the transferred certificate of public convenience and necessity.
*530Section 28-3208 NDRC 1943 provides in part:
. “Whenever an administrative agency, * *, . * shall hold any hearing or make any independent investigation upon the claim or request ,of any person, no decision shall be made by the agency' until all parties iii interest shall have been furnished with a written specification of the issues which are to be considered and determined * * ⅜ >?
It is clear that the order of the commission enlarging the territory authorized to bé served by the Northern Transportation Company was issued in violation of the provisions of the above statute. .
“A -public utility commission, being unknown to the common law, derives its authority wholly from constitutional or statutory provisions, and it possesses only such powers as are thereby conferred, * *
73 C.J.S., Public Utilities, § 38, p. 1064; Petition of Village Board of Wheatland, 77 N.D. 194, 42 N.W.2d 321; State ex rel. Lemke v. Chicago & N. W. R. Co., 46 N.D. 313, 179 N.W. 378. And "where power is given a commission to do a certain act in a certain manner, the- manner prescribed is the measure of the power given.” 73 C.J.S., Public Utilities, § 39, p. 1076.
In the Wheatland case, supra, 77 N.D. at page 218, 42 N.W,2d at page 335, we quoted with approval from 42 Am.Jur. (Public Administrative Law, Sec. 68) 379 saying;
“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 whidh the legislature has prescribed for the prfrpose of in-. vesting them with power to.act.’”
In my opinion the legal principles above stated are correct and for that reason it is' my conclusion, .that-the order of .the commission enlarging the territory to be served by the Northern Transportation Company was wholly void because the commission had no power to issue it. ■
In November 1950, an application was made- to .the Public Service Commission for authority to transfer the certificate, here in question, from Northern Transportation Company to Balsam and De France. A notice of hearing upon the application was served upon all the railroads doing business in the state. In that notice the only issue specified for consideration and determination w;as whether the transfer should be authorized. Upon the hearing upon such transfer the railroads attempted to inject into the cáse the question of whether public convenience and necessity existed for the authority conferred by the certificate. The commission sustained all objections to the reception of evidence concerning this issue and after the close of the hearing ordered the transfer of the certificate to Balsam and De France. No appeal was taken from this order. It is my view" that ’ the evidence concerning " public convenience and necessity was properly excluded. The sole issue before the commission as specified in. the notice of hearing was whether the certificate as amended in 1946 should be transferred. At that hearing the commission had no power to consider or decide any other issue.
It is the opinion of the majority that because the railroads attempted to raise the question of' public convenience and necessity at this hearing and, after the evidence on this question was excluded and an -order made directing' the transfer of the certificate, failed to* áppeal from the order, they waived any right to attack the validity of the certificate. I cannot agree with this conclusion because, as I see it, a reconsideration of the question of public convenience, and necessity or a consideration and determination of the validity of the certificate could only: bé had<'at a hearing at which those issues' had been specified-as the= issues to be considered and determined. ..Neither an attempt to raise an issue which could' not be considered, nor the failure to *531raise another such issue, can constitute a waiver or create an estoppel. The railroads therefore had the right to challenge the validity of the 1946 certificate directly in this proceeding. That certificate is void and the judgment of the district court to that effect should he affirmed.