Board may have been derelict, as plaintiff insists, in the discharge of its functions, for such dereliction, if it existed, is shown not to have prejudiced its case. The Commission, with the whole of plaintiff's case before it, wrote a new report, finding a lack of showing of necessity, and on this finding, rather than the Board's, denied the certificate.
But we are by no means prepared to say that the Board failed to discharge its duties. Plaintiff's predecessor presented fully and freely its evidence to the examiner and the one Board member who appeared. All of its evidence was later considered by the whole Board, and the recommendation which was concurred in by all three members was, we must assume, made in the light of all the evidence. This, in our opinion, was a sufficient compliance with statutory requirements. See Cupples Co. Manufacturers v. National Labor Relations Board, 8 Cir., 103 F.2d 953, 957; Morgan v. United States, 298 U.S. 468, 478, 56 S. Ct. 906, 80 L. Ed. 1288; Woodruff v. United States, D.C., 40 F. Supp. 949. Nor do we find anything in Holiday v. Johnston, 313 U.S. 342, 550, 61 S. Ct. 1015, 85 L. Ed. 1392, to the contrary. That was a case arising under the habeas corpus statute, and the principles applicable there and here are wholly different. In the present case, the statute empowers the Commission alone to grant the application. The Board, together with the examiner, is only the conduit through which the Commission receives the facts on which to base its action. And, it is perfectly clear, plaintiff's predecessor was accorded opportunity to present its facts and fully availed of the opportunity, for no new facts of consequence were offered on the trial in this court. That a part of the Board heard them as on depositions does not affect the validity of the proceeding, and that is especially true where, as in this case, no objection was made until after the question was finally decided by the Commission.
Second. Was plaintiff's petition for reconsideration wrongfully denied? Plaintiff says it was, because, as it claims, the Commission failed to give consideration to the fact that its service was an essential link in the independent national motorbus system, and also because the Commission gave no effect to the prima facie presumption of public need arising out of successful operation for a period of years. Plaintiff's evidence shows that since it began its service between Columbus and Pittsburgh its schedule has been doubled in response to the public demand and its profit for the period, January 1 to October 31, 1941, or ten months, increased to approximately $4,000. But this proves only that its present operation is being successfully maintained. It does not prove that its continuance is necessary in the public convenience, either on the theory that its service is an essential link in the national system or on the other theory that, having got out of the red into the black in operating income, it has thereby demonstrated a public need for such service. And the Commission rejected both reasons, on the ground that there are now "five common carriers of passengers by motor vehicle conducting through operations between Columbus and Pittsburgh and three additional common carriers of passengers by motor vehicle in operation between various points in this territory whose combined lines make up a through route between these points". All but one of these competing lines were in operation prior to January 1, 1935, and were, therefore, operating with certificates granted under the "grandfather" clause. The total number of round trips between Columbus and Pittsburgh by these companies, the Commission concluded, was all that is required in the public interest. This, it seems to us, is a satisfactory answer -- well supported by evidence -- to plaintiff's application for leave to establish a new service. Virginian R. Co. v. United States, 272 U.S. 658, 47 S. Ct. 222, 71 L. Ed. 463; Interstate Com. Comm. v. Louisville & N.R. Co., 227 U.S. 88, 33 S. Ct. 185, 57 L. Ed. 431; Merchants Warehouse Co. v. United States, 283 U.S. 501, 51 S. Ct. 505, 75 L. Ed. 1227.
In the circumstances, we have no other option than to dismiss the complaint, and an order according will follow.