
    NATIONAL TRAILER CONVOY, INC., Plaintiff, v. The INTERSTATE COMMERCE COMMISSION and United States of America, Defendants, Home Transportation Company, Inc., Intervenor.
    No. 71-C-407.
    United States District Court, N. D. Oklahoma, Civil Division.
    Dec. 18, 1972.
    
      Leonard A. Jaskiewicz, Washington, D. C., Fred Rahal, Jr., Richard W. Gable, Tulsa, Okl., for plaintiff.
    John H. D. Wigger, H. G. Homme, Washington, D. C., Nathan Graham, Robert Santee, Tulsa, Okl., for defendant.
    Robert E. Born, Atlanta, Ga., Martin E. Wyatt, Tulsa, Okl., for intervenor.
    Before HOLLOWAY, Circuit Judge, and BOHANON and DAUGHERTY, District Judges.
   PER CURIAM.

Upon the Complaint filed herein by the above Plaintiff, this Three-Judge Court has for review the Orders of the Defendant Interstate Commerce Commission (ICC) granting temporary authority under 49 U.S.C. § 310a to the Intervenor Home Transportation Company, Inc. (Home) to transport trailers designed to be drawn by passenger vehicles in initial movements over irregular routes from certain designated points to certain designated points. It appears that such temporary authority has been extended and is now in force by Intervenor having filed an Application for permanent authority embracing such temporary authority, which application has been partially granted by the Defendant ICC and which decision now pends on Motion for reconsideration. The parties have submitted this controversy to the Court on the pleadings and briefs waiving the presentation of any evidence and oral arguments.

The Plaintiff herein contends that this Court in reviewing such Orders of the Defendant ICC should follow the requirements of 5 U.S.C. § 706 as the same has been construed by cases to establish reviewing tests of whether (1) the Orders set forth a rational explanation for the grant, (2) whether they departed from established policies of the ICC and (3) whether the same were based on considerations that Congress could not have intended to make relevant. To the contrary Defendants and Intervenor assert that the reviewing test for this Court is the “some evidence” test under 28 U.S.C. § 1336 as explained and announced in Superior Trucking Company v. United States, 302 F.Supp. 257 (Georgia 1969). Defendants and Intervenor also cite Three “I” Truck Line, Inc. v. I. C. C., 246 F.Supp. 410 (Iowa 1965); Roadway Express Inc. v. United States, 263 F.Supp. 154 (Ohio 1966); Hussey v. United States, 271 F.Supp. 650 (Calif.1965) to the same effect.

We agree with the position of the Defendants and Intervenor. And from our examination of the records before us it is abundantly clear that the Orders of the Defendant ICC were entered upon some evidence as shown by the numerous affidavits of shippers to the effect that there was an immediate and urgent need for service and that they were unable to obtain adequate service from as well as receive the services promised by the Plaintiff and those possessing permanent authority for the transportation of the kind and in the area involved herein.

Accordingly, the Orders of the Defendant ICC should be affirmed and Plaintiff’s action herein dismissed. Defendants and Intervenor will collaborate and present to the Court an appropriate judgment in conformity with the foregoing.  