Opinion
January 14, 1903.
It is not within the constitutional power of the Legislature to enact a law conferring upon cities and towns authority to establish and maintain municipal fuel or coal yards, or to purchase coal and wood for the purpose of selling it generally to their inhabitants or others at cost, at less than cost or at a profit.
In case of a scarcity of fuel, falling short of a famine, but so great as to create widespread and general distress in the community which cannot be met by private enterprise, if it appears that agencies of government can obtain fuel when citizens generally cannot, a city or town where these conditions exist may be authorized, under proper legislation, to purchase and sell fuel for the relief of the community, so long as these conditions continue. LORING, J. separately stating his opinion, that the conditions contemplated by the other justices as creating an emergency which would justify legislation authorizing temporary relief could not exist, and therefore that the remedy is purely theoretical and should not be considered.
THE following order was passed by the House of Representatives on January 14, 1903, and on January 16 was transmitted to the Justices of the Supreme Judicial Court. On January 28 the Justices returned the answer which is subjoined.
ORDERED, That the opinion of the Justices of the Supreme Judicial Court be required upon the following questions:
First, Is it within the constitutional power of the Legislature to enact a law conferring upon a city or town within this Commonwealth the power to purchase coal and wood as fuel, in excess of its ordinary requirements, for the purpose of selling such excess, so purchased, generally to its inhabitants or others (1) at cost, (2) at less than cost, or (3) at a profit?
Second, Is it within the constitutional power of the Legislature to enact a law conferring upon a city or town within this Commonwealth the power to purchase for the purpose of sale generally and to sell generally to its inhabitants or others (1) at cost, (2) at less than cost, or (3) at a profit, coal and wood as fuel?
Third, Is it within the constitutional power of the Legislature to enact a law conferring upon cities and towns within this Commonwealth authority to establish and maintain municipal fuel or coal yards for the purpose of selling coal, wood or other fuel generally to the inhabitants of such cities and towns or others (1) at cost, (2) at less than cost, or (3) at a profit?
Fourth, If the answer to any of the foregoing questions be in the negative, does the power so declared as non-existent exist in the case of an extraordinary emergency, and may the different cities and towns be constituted judges of said emergency?
These questions are propounded with a view to legislation upon the subjects therein mentioned, and in respect to divers bills and resolves pending before the General Court, copies whereof are hereby ordered to be transmitted herewith to the Justices of the Supreme Judicial Court for their information.
To the Honorable the House of Representatives of the Commonwealth of Massachusetts:
In reply to your order of January 14, 1903, a copy of which is annexed, the Justices of the Supreme Judicial Court respectfully give the following opinion.
The first three questions submitted to us are substantially the same as the three submitted to the justices on April 12, 1892, the answers to which appear in the Massachusetts Reports, volume 155, page 601. We adopt and reaffirm the doctrines stated in the first of the opinions then submitted to the House of Representatives. A separate opinion, then submitted by another of the justices, rests upon the same principles as the first. We do not deem it necessary to restate the reasons and arguments which have led legislatures and courts to nearly, if not quite, uniform conclusions in regard to the attitude which the government should maintain, under existing constitutions, towards the transaction of common kinds of business which can be conducted successfully by individuals, without the use of any governmental function. These can be found in numerous published opinions of the courts, some of which are cited in the opinion first above mentioned.
It is established that under our Constitution private property cannot be taken from its owner except for a public use. This is equally true whether the property is a dwelling house taken by right of eminent domain, or money demanded by the tax collector. The establishment of a business like the buying and selling of fuel requires the expenditure of money. If this is done by an agency of the government there is no way to obtain the money except by taxation. Money cannot be raised by taxation except for a public use.
Until within a few years it generally has been conceded, not only that it would not be a public use of money for the government to expend it in the establishment of stores and shops for the purpose of carrying on a business of manufacturing or selling goods in competition with individuals, but also that it would be a perversion of the function of government for the State to enter as a competitor into the field of industrial enterprise, with a view either to the profit that could be made through the income to be derived from the business, or to the indirect gain that might result to purchasers if prices were reduced by governmental competition. There may be some now who believe it would be well if business was conducted by the people collectively, living as a community, and represented by the government in the management of ordinary industrial affairs. But nobody contends that such a system is possible under our Constitution. It is plain, however, that taxation of the people to establish a city or town in the proprietorship of an ordinary mercantile or manufacturing business would be a long step towards it. If men of property, owning coal and wood yards, should be compelled to pay taxes for the establishment of a rival coal yard by a city or town, to furnish fuel at cost, they would thus be forced to make contributions of money for their own impoverishment; for if the coal yard of the city or town was conducted economically, they would be driven out of business. A similar result would follow if the business of furnishing provisions and clothing, and other necessaries of life, were taken up by the government; and men who now earn a livelihood as proprietors would be forced to work as employees in stores and shops conducted by the public authorities.
Except for the severely onerous conditions from which we are now suffering, the causes of which arose outside of this State beyond the reach of our legislative enactments, there is nothing materially different between the proposed establishment of a governmental agency for the sale of fuel, and the establishment of a like agency for the sale of other articles of daily use. The business of selling fuel can be conducted easily by individuals in competition. It does not require the exercise of any governmental function, as does the distribution of water, gas and electricity, which involves the use of the public streets and the exercise of the right of eminent domain. It is not important that it should be conducted as a single large enterprise with supplies emanating from a single source, as is required for the economical management of the kinds of business last mentioned. It does not even call for the investment of a large capital, but it can be conducted profitably by a single individual of ordinary means. We therefore have no hesitation in answering the first three questions in the negative.
The fourth question presents greater difficulties. Evidently it is suggested by the painful experiences in attempting to procure fuel, from which we have lately been suffering. The questions are accompanied by copies of bills and resolves pending before the General Court, one of which is entitled, "An Act to authorize Cities and Towns to buy and sell Fuel in Certain Emergencies." This question must be interpreted in reference to the conditions to which it refers, and in reference to the remedy which it suggests. The only proposed remedy to which it relates is the establishment by a city or town of fuel or coal yards, or the purchase of coal, wood or other fuel, for the purpose of selling it to the inhabitants of the city or town, or to others. The only condition referred to in the question is "an extraordinary emergency," and the conditions referred to in the accompanying bill are "a scarcity of fuel and a pressing need thereof," and "a reasonable ground of belief that such a condition will occur in the near future."
It hardly can be contended that the remedy suggested by the question can have any effect upon the primary cause of all our troubles in this particular. That cause relates to sources of supply beyond the boundaries of this State. There is no reason to expect that any similar cause will arise within this State to affect such small sources of supply as exist here. If it is possible to conceive of the existence of such a cause arising hereafter in this Commonwealth, it can be dealt with effectually, not by the establishment of municipal yards for the sale of fuel at retail, but by some different kind of legislation which will make it impossible for either of two parties to a controversy like that which lately existed in a neighboring State, to refuse all proposals for an equitable determination of the rights of the parties, and thus to bring both to the verge of ruin, and to imperil the industries, and to some extent the lives and health, of communities far away from the neighborhood of the conflict.
Looking to the possible consequences of the emergency for which a remedy is desired, they can be divided into four classes: First, an increase of the number of those who fall into distress and are in need of relief from the public authorities, because they have no means to buy fuel at a greatly increased price. Secondly, increased expenditure, to their serious detriment, by those who have the means to buy. Thirdly, a possibility of a famine in fuel, such as to make it impossible reasonably to supply the needs of the community for comfortable living. Fourthly, a scarcity falling short of a famine but so great as to create widespread and general distress in the community which cannot be met by private enterprise.
The first of these possible consequences does not call for legislation. Cities and towns now have ample power to provide in any reasonable way for paupers, whether it be by furnishing out-of-door relief or by support in almshouses, and whether their need of relief is permanent or caused by a temporary condition.
It is equally true that the second of these consequences does not justify taxation of those who do not have occasion to buy coal, for the benefit of those who do. The use of the money of taxpayers for such a purpose would not be a public use, but a use for the special pecuniary benefit of those who happen to be affected by the state of the coal market.
The third possibility, that of an absolute famine in fuel because of the lack of a supply and the impossibility of obtaining a sufficient quantity reasonably to satisfy the needs of the community, would be a condition which would warrant the expenditure of the public money under appropriate legislation, if the Legislature could discover a way through public agencies to supply the people. But it is difficult to see how the method referred to in the question could produce this result. If at any time there was an impossibility of obtaining supplies because the supplies were not here and could not be bought elsewhere, the opening of a city coal yard would furnish no relief. Such an establishment could not work a miracle of creation.
In reference to an anticipated possible famine, the procurement and storage of a supply in time of plenty might be a remedy or an alleviation if the dread anticipation should become a reality, but the maintenance of a city fuel yard to conduct the business of buying and selling in a time of plenty, would have no tendency to avert a famine, or to relieve from its consequences if one should come. We are not called upon to consider whether the Legislature would deem it advisable, if it has the power, to authorize cities and towns to build storehouses in which to keep large quantities of fuel in anticipation of a possible famine.
In regard to the fourth of the possible consequences, a condition in which the supply of fuel would be so small, and the difficulty of obtaining it so great, that persons desiring to purchase it would be unable to supply themselves through private enterprise, it is conceivable that agencies of government might be able to obtain fuel when citizens generally could not. Under such circumstances we are of opinion that the government might constitute itself an agent for the relief of the community, and that money expended for the purpose would be expended for a public use.
We do not think that we are expected to determine whether there might be any other conceivable emergency which would call for an affirmative answer to this question. Considering the question only in reference to the accompanying bills and the conditions to which we suppose it relates, our answer is in the negative, except in reference to the fourth of the abovementioned possible consequences. As to that, we are of opinion that if the supposed conditions exist in any city or town, it may be authorized, under proper legislation, to sell fuel with the limitations above stated, so long as these conditions continue.
MARCUS P. KNOWLTON. JAMES M. MORTON. JOHN LATHROP. JAMES M. BARKER. JOHN W. HAMMOND. HENRY K. BRALEY.
January 28, 1903.
To the Honorable the House of Representatives of the Commonwealth of Massachusetts:
I concur with my brethren in the above opinion excepting only in the answer given in case of the fourth possible consequence of a scarcity of fuel therein described.
I have not been able to persuade myself that, under the circumstances there supposed, a city or town could get any fuel to sell, if action were taken in the way in which, in the opinion of my brethren, it is permissible to proceed.
The question is the question of the absence of heat to support life in this latitude without a readjustment of the means of heating now generally in use. Coal in cities and wood or coal in towns may be taken to be a necessity of existence at the present time. Oil, or electricity developed by water power, until time for readjustment has come cannot be taken to be an adequate method of heating.
Were Massachusetts a coal-producing State, it may well be that to prevent such a scarcity of fuel as is described in the supposed case the State could intervene by regulating the business of mining coal, or other similar action, and thereby get coal for its inhabitants.
But where there is such a scarcity of coal that individual enterprise is not able to buy it, with all the powers which are attendant on organizations of individuals and with the foresight in buying before the event which prospective profits and a due consideration for their fellows would dictate, it is inconceivable that any coal could be got by cities or towns, which could be sold by them, if the course of action were taken which my brethren are of opinion is open to the Legislature to take.
I understand that in the opinion of my brethren the authority cannot be given until the scarcity referred to has been found by the Legislature to exist, and that the Legislature cannot authorize a city or town to buy the fuel which it is to sell when the city or town is of opinion that the scarcity referred to exists or is likely to exist. In my opinion, such a remedy is purely theoretical, and for that reason should not be considered in answering the questions which have been submitted to us.
Necessity is the only ground for justifying the government in entering upon the business enterprise of buying and selling coal; it is said that that necessity does not arise until it has been ascertained by the Legislature that the situation is so desperate that individual enterprise has failed to provide coal for the public to buy. Where the situation is so desperate, I cannot conceive how the interference of government, which is not to exercise any governmental function, can hope to be successful.
In answer to the third possibility, my brethren have demonstrated that establishing a coal yard will not meet the necessity produced by a famine. The same argument applies to the remedy of the government's setting up a coal yard in case of the fourth possibility. The only other thing the government can do in that contingency is to pay the difference between the price which has to be paid to the dealers and the reasonable price which is within the means of some members of the public. Such a payment is not, in my opinion, a payment for a public use, unless made in the exercise of the right to care for paupers.
I concur with my brethren that, fuel being a necessity, the State can provide its inhabitants with it in case of a famine, in the exercise of the power which makes it its duty to take care of paupers. I also concur in their opinion that the State cannot authorize its cities or towns to go into the coal business because the price of fuel is likely to be high. Practically, the question must, in my opinion, be one of these two, and there is no middle course open.
The fourth question, like the others, is "propounded with a view to legislation upon the subjects therein mentioned, and in respect of divers bills and resolves pending before the General Court, copies whereof are hereby ordered to be transmitted herewith." The bills and resolves transmitted with the question do not contemplate a famine in fuel or a reasonable apprehension of a famine in fuel. For that reason the fourth question does not call for the expression of an opinion upon what can be done by the State under the power of assisting paupers in case of a famine in fuel or an apprehension thereof. And answering the fourth question as it was put, I answer it in the negative.
WILLIAM CALEB LORING.
THE HONORABLE HORACE GRAY, a Justice of this court from the twenty-third day of August, 1864, to the fifth day of September, 1873, and Chief Justice of the court from the last named day until the ninth day of January, 1882, when he became an Associate Justice of the Supreme Court of the United States, died at Nahant, on the fifteenth day of September, 1902.
A meeting of the members of the bar of this Commonwealth was held at Boston on the seventeenth day of January, 1903, at which a memorial was adopted, which was presented to the full court on the same day.
Before presenting the memorial the Attorney General addressed the court as follows:
The bar has delegated to me the honorable duty of presenting to the court its memorial adopted in memory of the late Mr. Justice Horace Gray, an Associate Justice of the Supreme Court of the United States, and former Chief Justice of this court. Were it possible for me to repeat to your Honors the memorable tribute the gentlemen of the bar have themselves spoken to-day, or to reflect something of the eloquence of their just and discriminating analysis of the qualities of the great jurist, who so long and in so many fields enriched our jurisprudence, then I would be assured that tribute worthy of its subject would be laid before this court to become a part of its own imperishable records.
The commanding form, the strong intellect, the inspiring voice, lived and spoke again to-day, as the men who knew, admired and loved him, told us, of a later day, of his virtues, his attainments, and of his pure life, consecrated through long years to the service of the state and nation. The dignity of his own character, the high office which he exalted, forbade the utterance of any thought save that which was born of the truth itself, which was the breath of his moral and intellectual being. He would have scorned, and would not have permitted in his presence, words of adulation or effusive praise. Stern and inflexible in holding to the justice of the law, he would have judged himself by like standards and would require that others should so judge of him. Mindful of this restraint, speaking in manner and phrase befitting the occasion, the bar of the Commonwealth has to-day recorded the life story of a man and jurist, who was the worthy associate of that great tribunal of judges living and dead, who have created and established the jurisprudence of the civilized world.
Inheriting the qualities of ancestors whose lives gave vitality and energy to the material and intellectual progress of their own times, son of Horace Gray, and grandson of William Gray of Salem, he was born at Boston, March 24, 1828. He was graduated at Harvard in 1845. After extended travel in Europe, reviewing scenes already familiar to his mind from his wide reading and exhaustive study of history and general literature, he returned to the Harvard Law School, and there graduated in 1849.
To the gifts and abilities which were his by inheritance, were added the advantages of thorough education, the enjoyment of associations best calculated to cultivate and develop his mind and character. Knowing that of him who hath, much is to be required, he made ceaseless industry and effort the associates of opportunity. Gravely and conscientiously he set himself to the accomplishment of that which he felt to be demanded of him. The story of his life and its attainments tells to all men how well and fully he made account of the talent intrusted to him.
After his course at the Law School, he devoted himself to further and exacting study with Judge Lowell. Thoroughly trained and equipped, he was admitted to practice in 1851.
At a time when the manifest horrors of human slavery moved to their profoundest depths the minds of our people and menaced the safety, even the existence, of the Republic, he avowed himself (as was to be expected of one of his moral fibre) in active sympathy with the principles and aims of the Free Soil party. He gave the influence and impetus of his unrivalled power of reasoning and forcible statement to the cause that found its ultimate victory in a real union of the States, — slavery, with all its irreconcilable and implacable incidents and conflicts, eradicated from our constitutional and federal law.
In 1854 he was appointed Reporter of Decisions of this court. This exacting work he performed with characteristic ability, leaving in every volume of the reports evidence not alone of his own increasing and accurate knowledge of the law, but illustrations of his power of quick and complete apprehension of the issues of the causes, their reports manifesting always his wonderful lucidity and precision of statement. His notes, appended to many cases, are veritable text-books, containing great store of learning and summarizing the entire record of former adjudicated cases. They have become accepted as having almost the authority of judicial decisions. Among the many, perhaps none have proved of greater value to the profession than that of Commonwealth v. Roxbury, which gave to our law a sure point of departure for the determination of new and complex questions, arising from new developments and new values affecting tidewater titles and proprietary rights in upland and foreshore.
Having become associated in practice in 1857 with the Honorable E. Rockwood Hoar, who later preceded him to a seat on this bench, he retired from the office of Reporter in 1861.
He was appointed by Governor Andrew an Associate Justice of the Supreme Judicial Court, August 23, 1864, and thenceforth throughout his life he administered the law from the bench of those courts which are accepted as the appellate tribunals of highest authority in our country.
This appointment was made because of recognized fitness for the performance of the duties demanded of him. The infinite learning manifest in his decisions, the searching and infallible analysis of his investigations, measured the farthest limits of every question before him. Perceiving always the co-relation of legal principles, he so defined them that there was left no debatable land of doubt, and no conflict to be reconciled by the laborious ingenuity of later jurists. From the first, his decisions had the respect that their intrinsic force and authority commanded. Impregnable against any attack of reason, unshaken by the eager on-rush of the multitude of new issues incident to the impetuous energy of our commercial and industrial life, reflected in the litigation of our courts, the decisions stand proof against the tests of changing conditions and the acquisition of new knowledge that comes with passing years. He sought by his adjudications not only to determine the respective rights of the litigants before him and make an end of their controversy, but he made the apparently petty quarrels of hostile neighbors, or the contests resulting from the selfish pursuit of worldly advantage, the occasion for instructing the people and making it manifest that the law itself is founded upon the immutable principles of good morals and of justice. No storm of passions or popular excitement moved the calm serenity of his just mind. So wise were his judgments, so plainly founded on established principles of right, that even in the heat of controversy they were obediently accepted with the acquiescence of those whose contentions were denied. His words did not have to await the approval of the calm reflection of disinterested reviewers; the light of the truth was revealed and recognized at the moment of their utterance.
To me his learning has seemed so infinite, so far beyond the uttermost striving of my mind, that it becomes hopeless for me to seek to measure it. I read his decisions. They are like the stars set in the firmament, but I know that far beyond those visible to my mind, or within the range of my knowledge, he had set other like lights, moving in their defined orbits and shedding their rays, through a farther ether, as far as the human mind has conception. Himself master of the principles of law, confident in the certain accuracy of his conclusions, he, nevertheless, in his opinions defined the processes of his reasoning and patiently and precisely set forth all the authorities which his study had afforded to confirm and sustain his conclusions. He traced from remotest sources the evolution of the law and proved the origin and development of the principle which he finally declared.
Having scaled the heights himself, he marked the footholds so that others could follow where, without his guidance, they had not dared to pass. Never contenting himself with the mere statement of what the law was or is, he infinitely increased his own labor and our debt to him by making it clear by elaborate reasoning and citation, why it was, and why it ought to be so.
In 1873, he succeeded Mr. Justice Chapman as Chief Justice of this court.
The grandeur of his presence, the grave dignity of bearing, the supreme dominion he exercised over all proceedings before him, make impressive memories which none who knew him can forget. He gave intense and constant attention to the business of the court, and required like attention and devotion of counsel. He deemed the administration of the law too serious to permit of anything approaching levity, yet he suffered restrained manifestations of humor to pass unrebuked, though I think he never avowedly encouraged them.
He left our bench before I came to the bar. I was but once in his presence. That occasion, when I was a law student, is one of the most distinct and one of the happiest recollections of my life. That I was abashed and a little terrified, I am not ashamed to confess. It required all the courage I possessed to face the almost overpowering effect of his grand physique and impressive manner, but instantly I forgot all fear, for he spoke to me with gentlest and most kindly courtesy, and in a few words of generous interest and encouragement, he made me feel that for those who knew him, love surely must be mingled with admiration and respect.
He became an Associate Justice of the Supreme Court of the United States on January 9, 1882, and entered upon those new fields of public service which, after the lapse of twenty years, saw the close of his earthly activity. He soon measured the most distant horizon of his new jurisdiction.
His powerful intellect at once asserted itself, and his grasp of the new issues of federal, constitutional and statutory law was as sure and conclusive as that he had demonstrated while upon this bench. He added distinct strength to the court and was immediately recognized by his associates, the bar and the people of the country, as possessing every quality and attribute required of him who sits in judgment in that court which hears and determines the last appeal of the American people, to whose hand is committed the destiny of the nation itself.
His decisions within the dominion of the federal law were as eagerly awaited and as confidently cited as they had formerly been within the range of the domain of the common law, wherever Saxon institutions, the world over, have supremacy. Strong in his assertion of federal authority, affirming the sovereign rights of the nation in its immunity against suits in its own courts, holding the nation to its full measure of responsibility in its overcharge of its Indian wards, defining with conclusive judgment the limits of jurisdiction and rights where the laws seemed in conflict, from the chaos that overwhelmed the rights of persons and of property through the ravages of war, he brought just order and re-established public confidence. Faltering before no duty however grave, interpreting the law in obedience to the dictates of his reason and his conscience, held in universal honor, he was at last stricken by the mortal weakness that overtakes all men, and died within the borders of the State he loved, on the fifteenth of September, 1902.
His fame is secure and inviolate through the ages to come in the law he has made permanent, and which is the fibre and sinew of our national life. His name and his great work shall be as well known and held in as high respect and gratitude by our children's children as with us who have known him in life. Because we would transmit to them our living memories of the man, and something of the warmth of affection and esteem in which he was held, and that they may know him as he has been known to us, we have met to make this public expression, that so his memory may live not only in his intellectual achievements, but as well through the affections that his heart inspired, and through the broad humanity that made him the type of noblest American citizenship.
The Attorney General then presented the following memorial:
HORACE GRAY was the son of Horace and Harriet Gray. He was born in Boston, March 24, 1828. He attended school in Boston and entered Harvard College in 1841, graduating in 1845. After graduation he travelled in Europe. He had not intended to be a lawyer and on his return from abroad joined his father in business. Events, however, which occurred shortly afterwards, caused him to change his plans and to adopt the law as his profession. He entered the Harvard Law School, where he at once took his place among the best scholars, and graduated from it in 1849. Upon leaving the Law School he entered the office of John Lowell, afterwards United States District Judge for the District of Massachusetts and Judge of the Circuit Court of the United States for the First Judicial Circuit, was admitted to the Suffolk Bar February 14, 1851, and immediately began the practice of his profession in Boston. In 1854 he was appointed Reporter of Decisions of the Supreme Judicial Court of Massachusetts, and held that office until the end of the year 1860. On August 23, 1864, he was appointed by Governor Andrew an Associate Justice of the Supreme Judicial Court of Massachusetts, and served as an Associate Justice of that court until September 5, 1873, when Governor Washburn appointed him Chief Justice of that court to succeed Chief Justice Chapman. This office he held until he resigned it on January 9, 1882, upon taking the oath of office of Associate Justice of the Supreme Court of the United States, to which office he was appointed by President Arthur, December 20, 1881, to succeed Mr. Justice Nathan Clifford. He served in that office until he resigned it on account of illness in the summer of 1902. He received the degree of LL.D. from Harvard University in 1871 and from Brown in 1882. He married on June 4, 1889, Jane Matthews, daughter of the late Mr. Justice Matthews of the Supreme Court of the United States.
His service of seven years as Reporter of Decisions of the Supreme Judicial Court, and his consequent familiarity with the decisions which he reported, together with his experience in preparing cases for publication, were a valuable training for his judicial work. He was an excellent Reporter of Decisions. His head-notes, to which he attached great importance and devoted much labor, are models of brevity and clearness, and his statements of the cases decided are examples of accuracy and condensation. His sixteen volumes of reports are monuments of his ability, and show peculiar fitness for the class of work required of a Reporter of Decisions. Probably his work as reporter was congenial to the natural bent of his mind, and helped him to his wonderful mastery of case law.
He began his career as a judge when he was but thirty-six years of age and ended it at the ripe age of seventy-four years. Few men in the history of this country have had so long and continuous service as a judge and few judges have left behind them a record of more able and important work. His judicial opinions extend over a period of thirty-eight years and are found in forty-three volumes of the Reports of the Supreme Court of this State and in eighty-one volumes of the Reports of the Supreme Court of the United States, making in all one hundred and twenty-four volumes of reports. His work as a judge was of a high order. His familiarity with decided cases was extraordinary, as was the faculty which enabled him to find and exhaust all the important decisions bearing on the subject which he had in hand. When he entered upon a review of the previous decisions on any subject, it seemed as if none of any importance could escape him. His interest in research was untiring. He delighted to go to the fountains of the law and trace its growth from the beginning. He believed that an exhaustive collection of authorities should be the foundation of every judicial opinion on an important question. He has been heard to say that, in every such decision, all the important cases bearing upon the question under consideration should be referred to, in order that there might be there presented a complete review of the history and development of the law involved.
Individual character and personality have so much to do with the impression which a man makes on his generation, that a bare statement of the stepping stones of his life gives but an imperfect impression of the real power of the man himself and of the work which he has accomplished. A judge in his published opinions usually leaves behind him a fuller record of his life's work than most men leave who are not judges, and from this record posterity may reach a fair conclusion of what he has accomplished. No truly adequate conception, however, of the real influence which he has exercised among his fellowmen in his day and generation can be formed without some knowledge of the man himself. Judge Gray was possessed of great physical as well as great mental vigor, and was thus able to endure with apparent ease what to many men would have been exhausting effort. He was an untiring and very rapid worker and he never spared himself in any task which fell to his lot. His memory was extraordinary. Little that he read in the law or in other fields of learning escaped it. He was an exceptionally rapid reader and grasped the subject matter of what he read with unusual quickness and accuracy. He combined with great learning a practical knowledge of the world, had much knowledge of men, and his personal influence was great.
His appearance and conduct upon the bench were in thorough accord with the high standard which he believed should be maintained in all judicial proceedings. He had a high regard for the dignity of the court and the position of judge, and exacted from members of the bar and from all others attending court the same respect, both in conduct and demeanor, for the dignity of the court room which he exhibited himself.
He had a deep sense of responsibility. While any capital case was on trial before him, in the days when such trials were had in the Supreme Judicial Court, he never took part in any social function or entertainment. He was once heard to say that he believed that, when a man's life was at stake, the judge presiding at the trial should give himself entirely to the cause before him and that during the trial, while not in court, he should hold himself aloof from the ordinary distractions of the world and keep his mind in contemplation only of the responsible and serious duty which he was performing.
He was much attached to his work in the State court; he loved his native State and Boston, the city in which he was born. After his resignation from the Supreme Court of the United States, he had made his plans to come back to Boston and to live in the house which he had occupied before he went to Washington. In private life Mr. Justice Gray was a delightful companion. He had a buoyancy of spirits and a cordiality of manner which gave him great attraction. He was a great reader in many fields outside of the law and his wonderful memory enabled him to have at command much diversified and interesting knowledge. He was fond of social life and took such part in it as his engrossing work permitted. His appreciation of the humorous was keen and he had a fund of interesting and amusing anecdote.
In his early youth he was not very robust and was encouraged by his father to take an active part in all out-of-door pursuits. The taste then acquired gave him a great fondness for outdoor life and especially for life in the woods, and in his later days much of his vacations was passed on the salmon rivers in Canada. In his youth he made a profound study of birds and continued to keep his interest in that subject until the time of his death. He was a man of deep religious feeling, an intimate friend of the late Bishop Brooks and always a regular attendant at church.
His life seems to have been a remarkably happy and complete one. In his private relations he possessed the love, respect and admiration of all who were close to him. His lofty aspirations, his high character, his devotion to his work and his untiring industry were a constant example and inspiration to all around him. In his professional career he advanced with increasing distinction through the several grades of promotion until, at the height of his powers, he attained one of the most eminent judicial positions in the gift of the nation and filled it most worthily. He lived in the full enjoyment of all his faculties to complete more than the threescore years and ten allotted to man, leaving behind him a great reputation and a record of a great work well done.
CHIEF JUSTICE KNOWLTON responded as follows:
Brethren of the Bar: It is well that we suspend the business of the court and reflect on the memory of the eminent judge who has lately passed away.
Horace Gray was a man of extraordinary faculties. Physically and mentally he was of heroic size and grand proportions. The love of achievement which made his grandfather, William Gray, the prince of merchants and the owner of ships on every sea, made him a possessor of great accumulations of learning, and a trusted representative of the judicial power in the highest courts of the State and the nation. His energy was irrepressible, and he had a remarkable capacity for continued exertion. Until the last part of his life he was in robust health, with abounding vitality and a delightful flow of animal spirits. Although graduated from college at the early age of seventeen years, he displayed fine scholarship as an undergraduate, and great enthusiasm in studies quite remote from those for which he was afterwards most distinguished. When only twenty-six years of age his keen discernment, recognized scholarship, and industrious methods marked him as the fittest person to represent the Supreme Judicial Court as the reporter of its decisions; and, during the seven years that he served in this place, he produced a series of reports that are unsurpassed for fulness, clearness and accuracy. At the age of thirty-six he was appointed to this court and nine years later he became its Chief Justice. For nine years he held this office with great distinction, until he was made a justice of the Supreme Court of the United States in January, 1882, since which time, until he resigned last August, his great talents have been in constant exercise in the highest judicial tribunal of the nation.
It is not too much to say that, when he left this court and went to Washington, Chief Justice Gray had a reputation for profound scholarship and legal learning equal, if not superior, to that of any other judge in the United States. He was endowed with a wonderful memory which treasured everything valuable that he heard or read. His enthusiasm in the pursuit of knowledge led him onward with great rapidity, and his industry was untiring. His methods, too, were precise and orderly. As Reporter of Decisions, as judge, and especially as Chief Justice, he was not content with any but the best forms of procedure whereby to present the substance of truth in a perfect setting. He did much to banish careless practices in his court, and he was always vigilant to discover and rebuke departures from that decorum which should distinguish the sittings of the highest tribunal in the Commonwealth.
Absolute as was his domination on the bench, his love of justice was always controlling, and if ever the accompanying spirit of kindness was momentarily quiescent, it quickly regained possession of him. No one was more appreciative of merit than he, and no one was more ready to give deserved praise to a young lawyer who had come with trepidation into the august presence of the court and had passed the ordeal triumphantly. Often he went far out of his way to speak a word of encouragement in such cases.
These orderly and laborious methods which were a part of his daily life, not less in his library and in the consultation room than in the sessions of the court, gave precision to his work, completeness to his studies, and correctness to his conclusions. Our reports are richly freighted with opinions from his pen — luminous treatises and great repositories — exhibiting and preserving the best that the ages have produced of profound thought and wise conclusion touching the questions of polity on which he wrote.
His style was clear and affluent, although it shows no effort at ornamentation. Indeed, judicial opinions do not invite literary adornment, unless it be that which is inherent in the proper expression of accurate and original thought.
He was accustomed to study expositions of law most eagerly in the opinions of the English judges, which seemed to him to furnish the best standards for the American courts. He was familiar with the personal peculiarities of many of these judges as if they had been fellow workers with him in the same court, and he used their productions in his own judgments with a perfect understanding of their value.
He enjoyed the study of local enactments and governmental development in the colonial history of New England, although he had less familiarity with life in the rural regions than some of his associates. He was much amused by the wit and humor and droll talk of some of the illiterate residents on the hills and along the shores of his native State, but they came to his attention as peculiar and alien products of intellectual activity, not as a part of the recognized currency of the realm of thought.
With everything pertaining to urban life he had the acquaintance of a keen observer and an interested inquirer. The methods of merchants and financiers had been familiar to him from his early youth. The great charities of Massachusetts, educational, religious and humanitarian, had surrounded him from infancy and had developed under his observation to most generous proportions. He liked to consider them, and to expound the principles by which they are governed in their legal relations.
He was less distinguished for philosophical analysis in his consideration of legal questions, than for the presentation and comparison of the best authorities, having reference to historical information and the growth of the law; but he was not deficient in ability to state principles clearly and to reason cogently.
To those of us who knew him in his social relations, a sketch of his life would seem incomplete if it omitted to mention the kindly, cheerful, almost exuberant vivacity of his companionship with his friends. He was a charming host, giving to the privileged guests at his fireside the full measure of his hospitality in generous entertainment and enlivening conversation. The largeness of his nature was bountiful in bestowal, alike in the quiet of his home and in the stately environment of the court.
On an occasion like this, in the city of his birth, it seems fitting to dwell more at length upon his life in Massachusetts than upon his subsequent distinguished career at Washington; for it is here that foundations were laid and the climax of achievement was almost reached. Afterwards he gave to his associates in the Supreme Court of the United States and to his native country, the benefit of powers and attainments rarely equalled in our judicial history. Almost to the last these were used to the limit of his health and strength. It would add little to our picture to attempt to sketch the leading features of his work at the capitol. They are depicted in clear outlines and glowing colors in the volumes of reports which will preserve them for future generations. We well may feel proud to say, as we read his judgments in the highest court, these contributions to the life and strength of the nation are from the bar and the bench of Massachusetts.
Your memorial will be recorded; and the court will now adjourn.
The court then adjourned.