On Petition for Rehearing
SATHRE, Justice.The railroad respondents have filed a petition for rehearing. It is stated that review of the Supreme Court’s decision of April 18, 1955 indicates that the decision turned upon the fact that the railroad respondents failed to appeal from the order of the Public Service Commission dated March 14, 1951 in case .No. S-1142 and therefore said respondents cannot, now gol-laterally attack that decision in the absence of fraud or bad faith. It is stated:
“The Court states that the railroad respondents appeared in Case No. S-1142 and failed to appeal from an adverse decision. That is correct. It also indicates however, that the issue presented in the instant case was also presented in that case. That is incorrect.”
Case No. S-1142 is the record made in the matter of the application of Northern Transportation Company to. sell Special Certificate No. 175 to. Balsam & De France. This is the . identical certificate sold by Northern Truck Line to Northern Transportation Company and whjch was amended without notice to the railroads by the order of the Commission issued May 24, 1946. The railroads stipulated, however, that after the entry of the amended order dated May 24, 1946, copies -of it were mailed to representatives of all North Dakota railroads. The notice of hearing upon the application for authority by Northern Transportation Company to sell Certificate No. 175 to Balsam & De France described the area of operating authority in the identical language of the amended certificate as follows:
“Notice of Hearing
“Notice is hereby given that the Application of John P. Neadors, Bert Ell-ingson, and A. J. Bartlett, -dba Northern Transportation Company, Willis-ton, North Dakota to sell and Balsam & De France, Miles City, Montana to buy Special Certificate No. 175 authorizing motor freight service for the transportation of general commodities, to, from and within a territory described as follows:
“ ‘Bounded on the east by the Williams-Mountrail-Divide-Burke County Lines; on the north by the International Boundary Line; on the west by the North Dakota-Montana State Line; and on the south by a county road running east of Fairview, Montana, 'to a Jet.” with US Hwy. No. 85 and St. Hwy. No. 23,’
“Except that livestock, heavy setup machinery, -household goods, emigrant movables and petroleum products in bulk may be transported between points and places within the State of of North Dakota, will be considered and public hearing held thereon by the Public Service Commission of'the State of North Dakota, on the 6th day of February, 1951 at 10:30 A.M., Mountain Standard Time, at the courthouse at Dickinson, North Dakota, at which time and place all interested parties may be hear.d and offer evidence for or against the granting of the application: .• -
“Dated at Bismarck, North Dakota, this 15th day of January, 1951.”
The notice was served upon all the railroads in the State, including the respondents herein.
The railroads appeared generally at the hearing and submitted to the jurisdiction of the Commission. They objected to the transfer of the certificate to Balsam & De France. They sought to introduce evidence of convenience and necessity which in*532volved the state-wide operating authority granted by the certificate. The Commission refused to admit such testimony. Counsel for the railroads then made.offers of proof as follows:
“First, we offer to show the nature and extent of the railways’ service furnished in this area which is aífécted in the whole state of North Dakota, by time tables showing the freight trains and freight movements and facilities supplied by the railway companies for the transportation of the commodities described in Special Certificate No. 175.” -
Objection was made to the offer and sustained.
Counsel for the railroads:
“We now offer to show, and ask the reporter to copy into -the record copies of Special freight operators certificates, No. 554, Crosby Transfer Company; No. 47, Culp Truck Lines; No. 639 Kasper Filkowski; No. 286, Reinhart Grishkowsky; 194 Hart Motor .Express; 666 Hart Motor Express; No. 251, J. H. Maas; 507,
“A1 Redmond; No. 260, Lorenz So-witch';
“And then interstate freight operators as follows: Certificate No. 4 Dakota Transfer & Storage Company; No. 52 Hart Motor Express; 273 Houck Transport Company; 252Hvid-sten Transport; 196 H. F. Johnson, Inc.; 291 John H. King, Sidney, Montana ;
“Alsq Class A.. Certificates as follows: 44 and 329, Culp Truck Lines; 313 Dakota Transfer & Stórage Company; 326 Minot-Portal Transfer Service; 90, Stanley Transfer;
“All of which certificates are certificates issued to operators who furnish transportation services for all or part of the general commodities and other sub-. jects of transportation ’ which are referred to in special certificate No. 175; and they, together with the railroad transportation facilities heretofore referred to, are offered for the purpose of showing that the public is adequately served without the issuance, or approval of the transfer of certificate No. 175.”
Ojection was made to the offer and sustained.
Counsel for the railroads:
“And further we offer to show generally that the transportation facilities of the kind and character described-in Certificate No. 175 are adequate and •that no public convenience or necessity exists for the continuance of this certificate or the transfer thereof; that the .effect of the approval of this would simply be to put another competitor in the transportation field who would attempt to take business away from carriers who are now adequately taking care of the public.”
Objection was made as follows:
. “That is obj ected to on the ground and for the reason that the question of convenience and necessity and adequacy of present facilities is not an issue before the Public Service Commission at this time.” “Objection sustained.”
The railroads contend that the Public Service Commission exceeded its statutory authority in amending special Certificate No. 175 ex parte and thereby enlarging the scope of activity permitted under it’so as to provide
“that livestock, heavy set-up machinery, household goods, emigrant movables and petroleum products in bulk may be transported between points and places within the State of North Dakota.”
The railroads are not now in a position to challenge the authority so granted. ’ Certificate No. 175 was originally issued on February 7, 1934, pursuant to the authority provided in Chapter 164 SLND 1933. *533The realities are that although the original certificate was restrictive in form, certificate holders were permitted to operate on a state-wide basis. From, 1942 to 1946 the Northern Truck Liné transported quantities of petroleum products in bulk under the authority of Certificate No. 175. On March 18, 1946, the Commission after notice and hearing authorized the ¡ sale and transfer of the certificate from the Northern Truck Line to Northern Transportation Company. Thereafter the purchaser- ■ asked that the certificate be amended so ■ as to broaden its authority to include state-wide operations. The railroads had been made parties to the proceedings to transfer the-certificate to the Northern Transportation Company but received no notice of any application to amend it. ■ However, copies of the amended certificate were furnished to the attorneys for the railroads shortly after it was issued on May 24, 1946. The only statute dealing with the amendment of a certificate by the Commission is Section 49-1816 NDRC 1943 which provides:
“The commission, at- any time, for good cause, may suspend -and, upon not less than five days’ notice to the grantee of any certificate, and on opportunity to be heard, may revoke or amend any certificate.”
The Commission is clearly vested with general power to amend a certificate and the only party to whom this statute requires notice to be given is the grantee. In this case the grantee was the .applicant .for the amendment. When original Certificate No. 175 was issued the Commission obtained jurisdiction of the subject matter and of the parties, including the railroads. • The only position of the railroads that is at all tenable is that they being parties who might be affected by the extension of competitive service permitted by the amendment were entitled to be heard and that in the absence of notice the amendment was not binding upon them. This contention can only go to the personal jurisdiction of the Commission over the railroads. It does not involve jurisdiction over the subject matter which fell within the general powers of the Commission. See Application of Hvidsten, 78 N.D. 56, 48 N.W.2d 26.
“A failure to comply with- the requirements as to notice and process may result in a failure to acquire jurisdiction, ' but if • a general appearance is entered, jurisdiction of the person is conferred even though it was not acquired by proper service of notice or process. A general appearance without objection waives all irregularities preceding the hearing.” 42 Am.Jur., Public Administrative Law, Section 121.
Our attention has been called to Petition of Village Board of Wheatland, 77 N.D. 194, 42 N.W.2d 321. In that case objection to the jurisdiction of the Commission was made by special appearance and we held that the objection was not waived by participating in the trial on the, merits after the objection had been overrulécl.
In November 1950 the Northern Transportation Company by application -to the Public Service Commission sought authority- to .sell and transfer the-.certificate to Balsam & De France. (Case No. S-1142) The certificate to be so transferred was not the,-.original restricted certificate but th,e amended and enlarged certificate und.er which the Northern Transportation Company had operated at least part of the time since its issuance in 1946. Noticp of hearing on this application for transfer was given to parties concerned, including 'the railroads. The notice of hearing served upon the railroads set forth the amended and the enlarged certificate verbatim. The railroads did not 'appear specially and object to the transfer of the enlarged' certificate on 'the, grouhd that it was issued without jurisdittion but appeared generally and ffes'isted the- transfer. It is clear from the record that the main reason for resisting the transfer was that the certificate permitted competitive transportation of petroleum and petroleum products on a state-wide basis. The railroads sought to challenge the public convenience and necessity of operations that might be conducted *534under the amended, certificate. This went not to jurisdiction but to merits of the operation permitted by the certificate.
The railroads contend that the Northern Transportation Company made little use of its authority under the certificate from 1946 when it obtained it until 1951 when it sold it to-Balsam & De France. This was undoubtedly the basis for the railroads’ attempt to resist the transfer on the ground .of lack of public convenience and necessity but that contention goes to the merits rather than to the jurisdiction of the Public Service Commission. It is also argued that if the Commission had at the hearing in 1951 righted the wrong it had committed by issuing the e5c parte amended and enlarged certificate no hardship would have ensued, an argument which again pertains to the merits and emphasizes the fact that if the railroads had then raised the question of lack of jurisdiction, as they clearly had the right and opportunity to do, no hardship would have ensued to Balsam & De France, who the record shows relied upon transfer to them of the amended certificate and thereafter engaged in the transportation of-petroleum products in bulk out of Fargo and Grand Forks.' It is clear to us that the railroads', having had the opportunity to raise the' qfiestioh of the authority of the Commission to make thé ex parte amended and extended' order when they appeared before the Commissibn and resisted on the merits the transfer.to Balsam & De France, by their general appear^ anee waived their objections to the jurisdiction of the Commission rising out of the issuance of the ex parte order and cannot now be heard to challenge the validity of that, order on the ground that the Commission had no jurisdiction to make it.
In the case of Grubb v. Public Utilities Commission of Ohio, 281 U.S. 470, 50 S.Ct. 374, 378, 74 L.Ed. 972, the Supreme Court of the United States speaking through Justice Van Devanter said’:
“The thing presented for adjudication in the case in the state, court was the validity of the order, and it was incumbent on the appellant to present in support of his asserted right'of attack every available ground of which he had knowledge. He was not at liberty to prosecute that right by piecemeal, as by presenting a part only of 'the available grounds and reserving others for. ^another suit, if failing in that. Werlein v. City of New Orleans, 177 U.S. 390, 398, et seq., 20 S.Ct. 682, 44 L.Ed. 817; United States v. California and Oregon Land Co., 192 U.S. 355, 358, 24 S.Ct. 266, 48 L.Ed. 476.
“As the ground just described was available but not put forward the hppel-lant must abide by the rule that a judgment upon;the merits.in one suit is res judicata in another where the pátties and subject-matter.are-the same, not only as respects matters actually presented to sustain or defeat the right asserted, but also as respects any-other available matter which .might have, been presented to that end. Baltimore S. S. Co. v. Phillips, 274 U.S. 316, 319, 47 S.Ct. 600, 21 L.Ed 1069; United States v. Moser, 266 U.S. 236, 241, 45 S.Ct. 66, 69 L.Ed. 262; Cromwell v. County of Sac, 94 U.S. 351, 352, 24, L.Ed. 195.”
Rehearing denied.
MORRIS and. GRIMSON, JJ., concur;.
JOHÑSON, J., did not participate