custody in what is known in the text books as a conservation suit in equity. That case, to which I wish to direct your attention, it being the one by which I was guided, contains this language. Briefly, in that case, there was $100,000,000 of bonds maturing, about to mature, in the Metropolitan Railway receivership case, and in that case the defendant appeared and confessed the averments of the bill and joined in the prayer for a receiver. Senator WALSH of Montana. As I understood you yesterday, it was charged there was a collusive suit. Mr. SHEEAN. Yes. Senator WALSH of Montana. But, likewise, it was charged that Judge Wilkerson was nowise involved in the collusion. Mr. SHEEAN. The charge originally was that, but on a hearing that was had under a resolution, I think a subcommittee consisting of Senators Steiwer, Blaine, and I have forgotten the name of the other Senator in any event, the three members of the subcommittee heard the testimony of a lawyer from Chicago, and I understood there was a charge here of such collusion upon the part of Judge Wilkerson. They specifically at that time disclaimed that they intended to impute to him any impropriety. Senator WALSH of Montana. Is any such charge made? The CHAIRMAN. I really do not know what the charges are as yet. The people who have communicated with us have been unable to get here so far. Senator WALSH of Montana. I was going to remark that as to whether or not that was or was not a collusive suit, seemed to me quite immaterial unless it was charged that Judge Wilkerson was involved. Mr. SHEEAN. The charge made here was an excerpt from an intervening petition wherein it was charged that there had been a collusive arrangement whereby certain receivers would be appointed, whereby certain lawyers would be appointed, and that Judge Wilkerson was carrying out a mere plot or conspiracy whereby he would name certain receivers, and would name certain lawyers. Senator WALSH of Montana. Who made that charge? Mr. SHEEAN. That was incorporated in an intervening petition filed in the Federal court by Mr. Henry S. Robbins, where counsel on behalf of, I can not say minority stockholders because the stock is subject to a collateral pledge by which participation certificates are issued against it. That charge was entered. That was tried. There was no evidence offered to support it because Mr. Robbins seemed to be surprised when there was presented a stenographic transcript, which I have here, on what took place in open court at the time that the matter was presented to Judge Wilkerson. Now, the receivers were not appointed in chambers. They were appointed in open court. Senator BLAINE. Who were the receivers appointed? Mr. SHEEAN. John K. Mitchell, who at that time was president of the Illinois Merchants Trust Co., Henry A. Blair, who has been the operating head of the properties since 1920, and Frederick H. Lawson, who was at that time president of the Union Trust Co., of Chicago. I have here the transcript of all that took place in open court. Senator WALSH of Montana. All this evidence about a collusive suit would be immaterial unless in some way or another Judge Wilkerson is involved. Mr. SHEEAN. I think that is quite true. I promised yesterday that I would take but little time, and I wish to make good upon that promise. I know, of course, you are only interested here in ascertaining the qualifications and fitness of Judge Wilkerson, and are not concerned as to whether or not a collusive practice by lawyers has put something over on him, but I still think that we should have the right among fellow lawyers, at least, to call your attention to the facts, and to answer any questions concerning anything that may be intimated or suggested. I am here, and will be delighted, either now or at any future time, to answer, but I did want to call attention to the fact that this identical question as to whether or not what I did is in the nature of a collusive proceeding, was specifically ruled upon by the Supreme Court in this 208 U. S. Senator BLAINE. I understand that that collusion was alleged to have taken place between the litigants, before the court. Mr. SHEEAN. The lawyers. Senator BLAINE. And has no reference to the judge. Mr. SHEEAN. But, Senator, is it not true that it also pertains to his qualifications and fitness as to whether or not a judge is sufficiently alert to prevent and detect collusive practices in court? The CHAIRMAN. It is your contention, in the first place, there was no collusion, and in the second place, that Judge Wilkerson had no knowledge that would have put him Mr. SHEEAN (interposing). Both. The CHAIRMAN. I think we might rest this matter until the gentlemen appear here and give us some facts. Senator WALSH of Montana. I thought possibly Mr. Sheean might take this position, that the bare fact that the complainant and the defendant were united in the application for a receiver was itself evident, constructive or otherwise of the existence of collusion, and if that were the case, of course the judge would take notice of that, so it might be regarded that that would touch his qualifications for the judgeship, but I do not understand that that is really the contention. Mr. SHEEAN. I think, Senator, some things that have been said. here, that there was a suggestion that to have put in the receivership upon a mere claim for $67,000 when we had $1,000,000 in the treasury, but when we had also current liabilities which exceed by $1,400,000 the total current assets of the company, that that was prima facie evidence of collusion, and the one sentence of the court, if you will pardon me Senator, we can not keep in mind the exact language of all these cases. In the Metropolitan Railway receivership case, the Supreme Court of the United States said: In this case we can find no evidence of collusion, and the circuit court found there was none. It does appear that the parties to the suit desired that the administration of the railway affairs should be taken in hand by the circuit court of the United States, and to that end, when the suit was brought, the defendant admitted the averments in the bill and united in the request for the appointment of receivers. This fact is stated by the circuit judge; but there is no claim made that the averments in the bill were untrue, or that the debts, named in the bill as owning to the complainants did not in fact exist; nor is there any question made as to the citizenship of the complainants, and there is not the slightest evidence of any fraud practiced for the purpose of thereby creating a case to give jurisdiction to the Federal court. That the parties preferred to take the subject matter of the litigation into the Federal courts, instead of proceeding in one of the courts of the State, is not wrongful. So long as no improper act was done by which the jurisdiction of the Federal court attached, the motive for bringing the suit there is unimportant. (Dickerman v. Northern Trust Co., 176 U. S. 181, 190; South Dakota v. North Carolina, 192 U. S. 286, 311; Blair v. City of Chicago, 201 U. S. 400, 448; Smithers v. Smith, 204 U. S. 632, 644.) There are cases- -and the one in question seems a very strong instance-where, in order to preserve the property for all interests, it is necessary to resort to such a remedy. A refusal to appoint a receiver would have led in this instance almost inevitably to a very large and useless sacrifice in value of a great property, operated as one system through the various streets of a populous city, and such a refusal would also have led to endless confusion among the various creditors in their efforts to enforce their claims, and to very great inconvenience to the many thousands of people who necessarily use the road every day of their lives. The CHAIRMAN. Are the receivers still operating the road? The CHAIRMAN. Is there any indication that they will ever cease operating it? Mr. SHEEAN. In that connection I may say this, as soon as Judge Wilkerson, in July of 1928, had ascertained and fixed by decree, theorder and priority of all the various liens on the property, he sent for all the parties. He sent for the mayor of the city of Chicago and the chairman of the local transportation committee, and Mr. James, Simpson, and for Colonel Sprague. He stated at that time that he had gone as far as the court could go. He had found the order, the priority of the various liens. The next step was to sell the properties. Manifestly, nobody would bid for the properties unless there was some plan of grant worked out with the municipal authorities by which the grantee bidder could operate the property. In such a situation, he said that he feared that no progress was being made. He had asked Mr. James Simpson and Colonel Sprague whether they would not serve as a disinterested citizens' committee to take up between the parties some effort to work out some plan by which the properties might continue to operate. in the future. Both of those gentlemen had said to him that they would not undertake such a responsibility unless they could be assured of some spirit of friendly cooperation by the municipal authorities. Therefore, the judge had invited to this informal conference in chambers the mayor of the city, the chairman of the local transportation committee, the chairman of the subcommittee which was engaged in the drafting of the ordinance. That committee did work out a plan that they recommended, contemplating enabling legislation substituting a terminable permit for a term grant. They worked out an ordinance that was passed by the municipal authorities of the city of Chicago in 1930 which went to a referendum vote, and was carried by a vote of about 51⁄2 to 1. That ordinance, before it can become effective, the grantee must have free and clear title to all the surplus land and property, plus title to the elevated properties, subject to certain liens that exist upon the elevated properties. Suits were started attacking the validity, the constitutional validity of this enabling legislation. A taxpayer's suit was argued in the supreme court of Illinois on December 10 last. In the regular courts we might expect a decision during the February term of court. The Chicago local transportation committee, the grantee, thus authorized to acquire all these properties, can not proceed that way as long as their organic life is being attacked by these proceedings. That is the status at the present time. The CHAIRMAN. Who are the attorneys for the receivers? Mr. SHEEAN. Mr. Weymouth Kirkland and Mr. James M. Sheean. The CHAIRMAN. At whose suggestion were these attorneys appointed? Mr. SHEEAN. Mr. Weymouth Kirkland had been attorney for the Chicago Railways Co. for many years prior to the appointment. I had been counsel for the Chicago Surface Lines, which was an operating agency or instrumentality of all the properties since 1925. They were selected by the receivers after the receivers were appointed in January of 1927, the selection by the receivers of Sheean and Kirkland as counsel for the receivers, and asked the approval of the court, which approval was then given by the court by a formal order. Senator Walsh, yesterday I offered to get the chronology of this packer litigation that was referred to yesterday, and so that the two cases in which Judge Wilkerson was an active participant may be segregated from the earlier ones, I made a little memoranda which I can simply have read in the record, and furnish you a copy of it. Judge Wilkerson's personal participation was in the packer litigation which was instituted by Judge Kenyon while Judge Kenyon was assistant to the Attorney General and in charge of antitrust cases. The CHAIRMAN. That will be incorporated in the record at this point. (The chronology of proceedings referred to by Mr. Sheean reads as follows:) Chronology of Government proceedings under the Sherman Act, to which reference was made at the hearings of January 21: April 18, 1903: Opinion by Circuit Judge Grosscup, reported as U. S. v. Swift & Co. (122 Fed. 529), overruling defendant's demurrer to Government's petition in equity charging violation of Sherman Act and praying injunction. January 30, 1905: Opinion by Mr. Justice Holmes, reported as Swift & Co. v. U. S. (196 U. S. 375). Injunction issued by Judge Grosscup modified by making injunction more specific, and as modified affirmed. July 1, 1905: Indictment returned by grand jury of northern district of Illinois, and on March 21, 1906 (United States v. Armour & Co., et al., 142 Fed. 808). District Judge Humphrey directed peremptory verdicts in favor of the individual defendants and in favor of the Government as to the corporation defendants. In none of the above proceedings did Judge Wilkerson appear as counsel. District Attorney S. H. Bethea was Government counsel in the equity proceedings and District Attorney C. B. Morrison was Government counsel in the so-called "immunity bath" case. The cases in which Judge Wilkerson had charge of the submission of evidence to the grand jury and subsequent trial arose in 1910. In September, 1910, indictments were returned and decisions by Judge Carpenter on motions to quash this indictment and on demurrer of the defendants are reported in 186 Federal, 1002, and 188 Federal, 92. March 22, 1911 (U. S. v. Swift, 186 Fed. 1002): Judge Carpenter overruled defendant's plea of "immunity,' ""amnesty," or "pardon." May 12, 1911 (U. S. v. Swift, 188 Fed. 92): Demurrers to indictments overruled. Mr. SHEEAN. Thank you very much for your kind indulgence. The CHAIRMAN. I want to ask some one who knows something about Judge Wilkerson's appointment to his present position when Judge Wilkerson was appointed. Mr. SHEEAN. In 1922, I am quite confident. The CHAIRMAN. Well, upon whose recommendation was he appointed at that time? Mr. SHEEAN. I know among the strong recommendations was the Chicago Bar Association, because I was on the board of managers. I know that, but as to who was his sponsor in Washington Senator GLENN. I understand Senator Medill McCormick was active in his behalf. Mr. SHEEAN. There can be no harm in stating the very strong person back of Judge Wilkerson's appointment was the man he succeeded, Kenesaw Mountain Landis, who held on to the job of district judge of the United States, as well as czar of baseball, pending the effort upon his part to do what he could to assure that his sucessor in the Federal bench in Chicago would be James H. Wilkerson. STATEMENT OF WEYMOUTH KIRKLAND, OF CHICAGO Mr. KIRKLAND. There is nothing I can add to what Mr. Sheean has said except to add my denial that there was not any collusion. The CHAIRMAN. I think you need not go further into that at the present time. Now, Senator Glenn, I guess we might go ahead with you. Senator Glenn, there is one matter which undoubtedly the committee will have to consider and that is the injunction which was issued by Judge Wilkerson in the railway case, the breadth and scope of it. Do you wish to say anything about that? Senator GLENN. Mr. Chairman, the facts and the law in that case are set forth in three opinions growing out of that case. I have them all here. I do not think that I can throw any light upon the situation in addition to that which is set forth so fully in the opinion. The facts are there. The undisputed facts are there. The CHAIRMAN. Did you get a record in that case? Senator GLENN. I have the abstract of the record. I have the original files, the abstract and all the orders entered. I have not the transcript. Senator WALSH of Montana. Let me inquire about this, Senator.. Let us start at the beginning. I notice from a memoranda that you handed to me that there was a restraining order and subsequently what is known as a temporary injunction. Senator GLENN. Yes; and then the final injunction. Senator WALSH. What does the record show with respect to the restraining order and just why was there ever a restraining order in the matter at all. Senator GLENN. Well, the record of course shows the restraining order. I do not know just what you mean by asking what it shows other than what is set forth in the order. Senator WALSH of Montana. I will try to make myself clear about it. Senator GLENN. All right. Senator WALSH of Montana. The strike was in progress for a long time before the restraining order was issued. Senator GLENN. About 60 days, I think. Senator WALSH. And, from what I can gather, the charged acts of violence, and unlawful acts likewise covered practically the same period. Senator GLENN. Well, I think that is correct. growing in intensity, perhaps, as time went on. I think they were |