Senator WALSH of Montana. Was there any notice given, pursuant to which the restraining order was issued? Senator GLENN. There was no notice given. Senator WALSH of Montana. That is, the restraining order was purely an ex parte matter. Senator GLENN. Yes; there was no notice given of the application for the restraining order. Senator WALSH on Montana. What kind of a showing was made which prompted the court to make the ex parte restraining order instead of asking an order to show cause returnable 5 days, or 10 days hence, or 20 days hence, or whatever time seemed to be necessary? What was the immediate peril to the public which required that a delay should not be had even of five days? Senator GLENN. I presume that it was, as I read the record, because of this violence, the dynamiting of bridges and the wrecking of trains. Senator WALSH of Montana. Yes; but that had been going on. Senator GLENN. Yes; but it had come to a time when it seemed that it was imperatively necessary that it be at least held in abeyance, and this temporary restraining order was issued for only 10 days, with the provision that it could be extended. I think it was extended a few days. They tell me there was a hearing on the application for a temporary injunction. Senator WALSH of Montana. Will you read the introduction of the temporary restraining order? Senator GLENN (reading): On this 1st day of September, 1922, application was made by the United States of America, through the Attorney General of the United States, Harry M. Daugherty, the United States attorney for the northern district of Illinois, Charles F. Clyne, and Blackburn Esterline, assistant to the Solicitor General, for a temporary restraining order of the nature and tenor hereinafter described. And from the allegations of the original bill, which are made under oath, and from the exhibits attached thereto it appears to the court * * * The CHAIRMAN. Have you got those exhibits there? The CHAIRMAN. Let me have them, will you? Senator GLENN. I think they are here in printed form, too. Senator WALSH of Montana. I make this inquiry, Senator Glenn, because we people who have practiced law in the West, you know, have had abundant experience in the matter of the issuance of injunctions. Doubtless you are familiar with some phases of the mining litigation out in our country with which the chairman and myself, of course, are intimately acquainted. The charge is made by one party that another party, at some great depth underground, has invaded his territory and is taking ore out. Senator GLENN. I understand. Senator WALSH of Montana. Well, under all ordinary circumstances, although he is charged with talking the ore out, we could not get a restraining order. We get an order to show cause returnable five days hence, why the injunction should not issue, but, of course, if we represented that there was some tremendously valuable gold ore down there, and the trespasser was entirely insolvent, irresponsible financially, and that tremendous loss would result to the complainant, unless he was immediately restrained from doing so, why we could then get perhaps a restraining order, but that would be an extraordinary situation of affairs. Now, I am particularly concerned at the outset here, as to what kind of a showing was made pursuant to which this restraining order would issue when the defendant never had an opportunity to be heard on the matter at all. Senator GLENN. My recollection is that the railroads themselves had obtained some 83 injunctions. Senator WALSH of Montana. Prior to the issuance of this? Senator GLENN. All over the United States, practically all over the United States, and that they were being violated. Senator WALSH of Montana. Yes; they got such an injunction in my State. Senator GLENN. The violence continued, people were being killed; 19 people had been killed prior to the filing of this application for the issuing of this restraining order, and in one case alone Senator WALSH (interposing). That is a good reason, perhaps, why the injunction should issue eventually. Senator GLENN. When express trains were starting out, passenger trains, at night, over the railroads of the country, with your family on them, or my family on them, or anybody else's family on them, and the night before that a bridge had been dynamited just before a passenger train was due to run over it, and not in one section of the country, but in others, and things of that kind were going on, then there was some ground for belief at least that it was not a situation which could longer be temporized with. Senator WALSH of Montana. That might be a reason why an application for an injunction should have been made the week before. Senator GLENN. Yes; perhaps it should have been, but it was not not made the week before. Senator WALSH of Montana. They expected perhaps the matter might be adjusted. Senator GLENN. Yes; they expected perhaps it might be adjusted, but it got to a point I do not know the facts except from the record, the record says as I say, I think, it was 19 people that had been killed, bridges had been burned and dynamited, and shops burned, and in one wreck on the Missouri Pacific 37 people were killed in one wreck. I do not attribute it to this strike. Senator WALSH of Montana. What I wanted to call your attention to was this: In my judgment some showing ought to be made for a temporary restraining order without notice, of a slightly different character from what would be expected on an application for an injunction after notice, and an opportunity to reply. Senator GLENN. I quite understand your position, and I am not in disagreement with it. You have asked me to read this. The CHAIRMAN. I do not find anything in here upon which this preliminary injunction was issued, or interlocutory order, or whatever it was, I do not find anything in here supporting that except the complaint which was sworn to. I find that the complaint sets up the situation with respect to the interference with the railways. and the danger to life, and so forth, but I do not find any affidavit supporting, or any proof supporting it, and I am just wondering if this order was issued-in all probability it was issued upon the sworn complaint, and sworn to by the United States attorney, who, of course, could not know anything except what he was told, but aside from the justification for issuing the preliminary injunction then there is one thing which seems to me to be very important, and that is the breadth, width, and depth of the injunction order itself. Senator GLENN. I think there are some exhibits attached to the bill of complaint. Did the chairman examine those? The CHAIRMAN. I have done this hurriedly, but I could not see any. Senator GLENN. That page has been given to me. That is of the bill of complaint, Exhibit 3, attached to the bill of complaint. If you will look at the bill of complaint, you will find it there. The Chairman (reading): Personally appeared before me Julia B. Rishel, a notary public in and for the District of Columbia, Chester J. McGuire, who makes oath that he is an attorney in the Department of Justice and private secretary to Guy D. Goff, assistant to the Attorney General of the United States; that all the reports transmitted to the Attorney General or the Department of Justice by the United States marshals, United States attorneys, and other officials, relating to the situation growing out of the strike of the members of the Federation of Shop Crafts, are handled by him; that he daily prepares a digest therefrom for the inspection of the Attorney General, and that he through this source of information is familiar with the situation which has resulted from said strike; that he has read over the foregoing bill; that he prepared the statement showing the acts of depredation committed by the strikers and those acting in conjunction with them, which is filed as Exhibit No. 3 to said bill; and that the statements contained in said bill and in said Exhibit No. 3 are true to the best of his knowledge, information, and belief. C. J. MCGUIRE. Subscribed and sworn to before me this 30th day of August, 1922, in the city of Washington, District of Columbia. JULIA B. RISHEL. My commission expires March 17, 1923. Senator WALSH of Montana. This is a copy of the report made by the United States marshal. The CHAIRMAN (reading): Alabama, northern district (Birmingham): One negro railroad employee was killed on July 9. A strike picket, L. K. Randall, was arrested in connection with this murder. Arkansas, western district (Fort Smith): One striker was killed and two others were shot but only one seriously injured in the Van Buren shops on August 2. Nevada (Carson City): On August 7 a trainmaster on the Los Angeles & Salt Lake City Railroad was tarred and feathered. The wife of one employee, while carrying meals to her husband, was assaulted. A passenger, mistaken for a strike breaker, was taken from a train. Utah (Salt Lake City): On the night of August 15 workers on the Denver & Rio Grande Railroad were severely beaten at Salt Lake City. On August 16 two workers were badly beaten at Ogden. California, northern district (San Francisco): Four bombs were rolled into the railroad yards at this point during the night of August 13. Two armed men were captured running from the place of the explosion. Five bombs, made of black powder and wrapping paper, were thrown into the railroad yards and roundhouse of the Southern Railroad at Roseville on August 12. Fences were broken down and windows broken by the explosion. Georgia, southern district (Macon): Dynamite explosions occurred at the Atlantic Coast Line Railroad shops at Waycross on the night of August 17 and 18. The CHAIRMAN. What we are looking for is to see the necessity for the refusal of notice to show cause. 102124-32- -3 Senator GLENN. Well, it is the position taken by the Government that the facts as set forth in those affidavits Senator WALSH of Montana (interposing). But, Senator Glenn, take note that this affidavit merely states that this is a summary of what is set forth in reports from United States marshals; no evidence at all of any of these occurrences. Senator GLENN. I understand. Senator WALSH of Montana. The unsworn report of the United States marshal that these things took place. Senator GLENN. It sets forth the situation that the Department of Justice had gathered it from those officials. It was not the testimony of eyewitnesses in various parts of the country. As far as that goes, even if notice should have been given of this temporary restraining order, notice was given a few days later of the application for a temporary injunction, and a hearing had, and notice given of the final hearing on the permanent injunction, and no testimony adduced on behalf of the defendants at all. The testimony of more than 700 witnesses for the Government was introduced. Senator WALSH of Montana. That is quite immaterial on the question because conceivably, you know, when the hearing was had, a case might have been established which would show that the restraining order never ought to have been issued. The contrary would appear, as a matter of fact, but we are just simply considering now the practice of issuing the restraining order without notice. Senator GLENN. Well, there was a great national emergency. There is no question about that. The Federal Government and its officers may have made a mistake, but there was a national emergency. There is not any doubt about that, and upon that this rested. If it was right for these things to go on, all right. The whole country was paralyzed. Wrecks were occurring daily, and injuries from defective equipment had increased more than 100 per cent. In one wreck alone 39 people were killed, and I say these things were going on all over the United States, and whether they should have given notice or not, that is a matter of opinion. Senator WALSH. We are not questioning whether the injunction eventually issued was properly issued or not. We are now considering whether the restraining order should have been issued without notice. Senator GLENN. Well, it seems to me the time for that to have been-that there was an opportunity for appeal from that action if it was wrong. The CHAIRMAN. An appeal from the temporary restraining order? Senator GLENN. That was for 10 days. The CHAIRMAN. The appeal would not be very effective on that. Senator GLENN. But the great principle which was involved, and which was of great importance to everybody's interest could have been settled in the higher courts if this action of the court was wrong. The CHAIRMAN. As I understand it, from the final proceeding, they took no appeal. Senator GLENN. They took no appeal. There were three opportunities for appeal, as I understood the procedure. First, an apportunity of appeal from the temporary restraining order. Secondly, an opportunity of appeal from the order entering the temporary injunction, the injunction pendente lite, and third, from the final order. No appeal was ever taken or prosecuted from any one of those orders. Senator WALSH. Likewise, no showing was made in opposition. Senator GLENN. I think there was a hearing on the temporary injunction and some evidence heard, and affidavits filed by the defendants, but, on the final hearing, as I say, the Government introduced the testimony of over 700 witnesses and no evidence was introduced on behalf of the defendants, and I understand all of the counsel for the defendants, at the conclusion of the final hearing, withdrew their appearances and no appeal was ever prosecuted. Now, if these orders were wrong, it seems to me Senator WALSH (interposing). Who appeared for the defendants? Senator GLENN. Arnold Richberg and a man named Mulholland, of St. Louis, Donald R. Richberg, of Chicago, and Mr. James Ashby Smith, of Washington. On the final hearing they withdrew as I understand it. They withdrew their appearances at the conclusion, as I recall, of the evidence adduced on the final hearing. Now, this is a finding in the temporary restraining order, Senator Walsh. It is on page 5 of the printed copy. [Reading:] and that it is the avowed purpose of the defendants to continue said conspiracy and have the activities thereunder increased in intensity until the railroad companies are unable to perform the functions required of them, to wit, to carry the mails as required by the United States and to transport commerce among the States. Therefore, because of the great and irreparable damage that is daily being inflicted upon the people of the United States, it is, without notice to the defendants, ordered by the court The order follows. In other words, a 10-day or 5-day notice even might have resulted in many deaths in the meantime. Senator WALSH of Montana. The court makes a finding there to the effect that these things have taken place, and it is the purpose to continue these things, so as to interrupt the transfer of the mail, and the transfer of commodities, in interstate commerce, and so on, and makes that finding apparently upon a complaint sworn to upon information and belief. Senator GLENN. Yes; and which was never disputed at any time during all the proceedings. Senator WALSH of Montana. It could not have been disputed so far as that finding is concerned. Senator GLENN. It could have been met finally. Senator WALSH of Montana. You called my attention to the finding in that restraining order by the court. Senator GLENN. Yes; and nobody has ever disputed it. It never has been disputed by anybody at any place as I understand it. Now, perhaps this should have been allowed to go on. Senator WALSH of Montana. The question is, on what proof did the court make that finding? Senator GLENN. The proof of course is a matter of record. Senator WALSH of Montana. I am simply endeavoring to draw out the facts. Senator GLENN. I understand that. The CHAIRMAN. Of course, you understand, Senator Glenn, that we are not maintaining that I am not, and I do not suppose any |