to motor carriers 'known to the applicant, with whose service the operations described in such application are or will be directly competitive'. (Emphasis supplied). Certainly, this order contemplates actual rather than potential competition.
Although this disposes of plaintiff's first contention, there are other reasons which support the same result. Even if we assume that plaintiff was engaged in direct competition to the applicant, which defendants deny, the result will be the same, since another material issue of fact has been raised by the pleadings, namely, whether the plaintiff had actual notice of the proceedings. Plaintiff argues that it was entitled to formal notice; that whether or not it had actual notice or knowledge is immaterial; and therefore plaintiff did not present any evidence tending to show lack of actual notice. However, we cannot accept this proposition. Section 305(e) requires only that 'reasonable' notice shall be afforded interested parties. Therefore, if the efforts to notify summarized in the defendants' answers succeeded in affording actual notice to the plaintiff, then we think this would constitute 'reasonable' notice under the statute, and whether plaintiff had formal notice under.the general order of the Commission would be immaterial. Certainly, plaintiff, if it had actual notice or knowledge, could not be prejudiced by a failure to receive formal notice. It is our conclusion, therefore, that the issue of fact relating to actual notice is a material one and precludes the granting of a motion for summary judgment. Furthermore, it may be noted that plaintiff had actual notice at a date prior to October 19, 1949, when the petition for rehearing was filed.
Finally, this whole matter concerning notice was presented to the Commission by the petition for rehearing, and, in denying that petition, the Commission ruled adversely to the plaintiff. We cannot say on the record before us that this action by the Commission was arbitrary or capricious. Moreover, plaintiff's only effort to show that it was consists of the mere allegation to that effect. On this point- as indeed on every other factual matter involved in this case- plaintiff concededly has not met the burden of proof incumbent upon it.
Plaintiff's second objection, relating to the qualification of the hearing officers remains for disposition. A consideration of the petition for rehearing is important in determining this question. Since this was a petition for rehearing, petitioner was required to comply with the General Rules of Practice of the Commission. Rule 101(b) provides: '(b) Rehearing or further hearing. When in a petition filed under this rule opportunity is sought to introduce evidence, the evidence to be adduced must be stated briefly, such evidence must not appear to be cumulative, and explanation must be given why such evidence was not previously adduced.'
Rule 101(d) provides: '(d) Reconsideration. If relief under this rule other than under subdivisions (b) and (c) is sought, the matters claimed to have been erroneously decided and the alleged errors or relief sought must be specified with the particularity respecting exceptions as outlined in rule 96(a), as should also any substitute finding or other substitute requirement desired by petitioner.'
The petition failed to meet the requirements of these rules, at least with respect to the question of the qualifications of the hearing officers. In fact, it gave no hint of the hearing officer question. This issue was raised for the first time in this Court. Clear judicial expression supports the doctrine that failure to raise objections so as to permit consideration thereof by the Commission, bars review of such objections when raised for the first time in a judicial proceeding of this type. In United States v. Hancock Truck Lines, Inc., 1945, 324 U.S. 774, 65 S. Ct. 1003, 89 L. Ed. 1357, the Supreme Court of the United States held that it was manifestly improper for a reviewing court to reverse the Commission's order in respect to a provision therein as to which the suitor had expressly waived objection. Relying on this case, the District Court for the District of Massachusetts held, in General Transportation Co. v. United States, D.C.D. Mass. 1946, 65 F.Supp. 981, affirmed per curiam 1946, 329 U.S. 668, 67 S. Ct. 75, 91 L. Ed. 590, rehearing denied 1946, 329 U.S. 827, 67 S. Ct. 184, 91 L. Ed. 702, that a point not made before the Commission was not properly before the Court for consideration. In reaching this conclusion, the Court stated 65 F.Supp. at page 984: 'To be sure the plaintiffs here, when appearing as protestants before the Commission, did not expressly waive the point they now make, and in this respect the case at bar differs from the Hancock case. Nevertheless the reasoning of that case is applicable, and furthermore, although strictly speaking we are not an appellate court, we in reality are called upon to exercise appellate functions, and from this we think it follows that we should apply general principles applicable on review.'
This action is a review, not a de novo proceeding, and therefore this Court cannot properly consider matters not raised before the Commission when the plaintiff had a sufficient opportunity to do so.
Although we are not called upon to proceed further, we do note that we have carefully examined the record before the Interstate Commerce Commission to determine whether the order of the Interstate Commerce Commission was void within the meaning of the rule set forth by the Supreme Court of the United States in Interstate Commerce Commission v. Louisville & Nash. R.R., 1913, 227 U.S. 88, at p. 91, 33 S. Ct. 185, 57 L. Ed. 431, and we are satisfied that substantial justice was done on the basis of the record before the Interstate Commerce Commission.
Therefore, the motion for summary judgment will be denied and the orders objected to will be affirmed.