Opinion
November 14, 1918.
January 6, 1919.
Present: RUGG, C. J., LORING, BRALEY, PIERCE, CARROLL, JJ.
Physicians and Surgeons. Practice, Criminal, Continuing offence, Judge's charge: curing error. Evidence, Relevancy.
Where a complaint under R. L. c. 76, § 8, charges the defendant with unlawfully holding himself out as a practitioner of medicine between two dates named, the complaint is for a continuing offence and the time during which the defendant is charged with having committed a series of acts is a material part of the offence described, and accordingly evidence of acts committed by the defendant before the time specified must be excluded.
The provisions of R. L. c. 218, § 20, in regard to allegations of the time of the commission of a crime are not made applicable to continuing offences where time "is an essential element of the crime."
At the trial on a complaint under R. L. c. 76, § 8, for practising medicine without being lawfully authorized to do so and without being registered as required by law, the judge in his charge made certain remarks in regard to the leniency that the court endeavored to exercise in imposing sentences in such cases, but the judge immediately added the following instructions: "But in regard to the disposition of the case, leave that all aside. That is not something concerning which you have to worry or bear the responsibility; that is upon the court. What you have to decide here is the truth. If, upon the law and the evidence in this case, there should be a verdict of guilty, say so; and if there should be a verdict of not guilty, then say that too; but come into court — whether it be a verdict for the government or for the defendant — with a verdict which in your consciences you believe to be a true verdict, a verdict the rendering of which you and all concerned with the case can feel satisfaction with, a verdict after the rendering of which you can look your fellows in the eye, and say, 'According to my conscience, this verdict is a true verdict.' " Held, that, if the defendant had had any right to complain of the earlier part of the judge's charge referred to above, his ground of complaint had been removed by the further instructions of the judge that immediately followed.
TWO COMPLAINTS under R. L. c. 76, § 8, received and sworn to in the Municipal Court of the City of Boston on February 18 and August 3, 1915, the first charging the defendant with practising medicine on November 18, 1914, and on divers other days between that date and February 18, 1915, not being authorized to do so and not being registered with the board of registration in medicine of the Commonwealth according to law, and the second charging the defendant with holding himself out as a practitioner of medicine between March 3, 1915, and August 3, 1915, without being lawfully authorized to practise medicine within the Commonwealth and without being registered as required by law.
In the Superior Court the defendant was tried on both complaints before Dana, J. The material evidence is described in the opinion. The defendant made a motion upon each of the complaints that the judge should instruct the jury upon all the evidence to return a verdict of not guilty. The judge denied both of these motions, and he also refused to make certain rulings requested by the defendant. The material portion of the judge's charge is described and quoted in the opinion.
"The defendant excepted to that portion of the judge's charge upon the second complaint which instructed the jury to consider and apply evidence outside of the dates alleged in that complaint for the purpose stated by the" judge. He also "excepted to that portion of the judge's charge which referred to the manner of disposing of a case."
The jury returned a verdict of guilty on each of the complaints; and the defendant alleged exceptions.
The appeal referred to in the opinion was taken in each case by the defendant from an order of the judge denying a motion to quash the complaint.
J.F. Barry, for the defendant.
A.C. Webber, Assistant District Attorney, for the Commonwealth.
In this case there were two complaints. The second complaint charged the defendant with having unlawfully held himself out "as a practitioner of medicine" (in violation of R. L. c. 76, § 8), between March 3, 1915, and August 3, 1915. At the trial the government did not put in evidence any such act between the dates named. But it did introduce evidence of one such act on February 21, 1914, and of another on February 12, 1915. The presiding judge instructed the jury that, if the defendant held himself out as a practitioner of medicine upon any occasion preceding the date alleged in the complaint and within a period of six years next before that date they could find the defendant guilty. To this ruling the defendant took the exceptions which are now before us.
The offence created by R. L. c. 76, § 8, may be committed by a single act or by a series of continuous acts. That is to say, it may consist of a single offence or of a continuing offence. In the case at bar the government elected to charge the defendant with a series of acts committed between March 3, 1915, and August 3, 1915, which constituted the continuing offence of illegally holding himself out as a practitioner of medicine. When a defendant is charged with a series of acts as a continuing offence, the offence charged is a single indivisible offence and a part of the description of the offence charged is the duration of time during which it is charged in the indictment the series of acts took place. That was decided in Commonwealth v. Robinson, 126 Mass. 259. In that case the defendant was complained of for keeping a liquor nuisance between January 1 and August 20. He pleaded in bar that he had been acquitted on a complaint charging him with having kept the same illegal liquor nuisance from January 1 to May 28. It was held that the acquittal was a bar. The decision was made on the ground that a continuing offence for a period named is one indivisible offence, and since the defendant in the case then before the court had theretofore been acquitted of the offence for a portion of the time in question on the later charge he had been acquitted of the offence later charged. It follows from this that the duration of time specified in case of a continuing offence is a part of the description of the offence charged. It is for this reason that evidence of acts committed outside the time specified are not admissible in evidence. Commonwealth v. Briggs, 11 Met. 573. Commonwealth v. Purdy, 146 Mass. 138. Commonwealth v. Fuller, 163 Mass. 499, 500.
The learned district attorney has argued that this has been changed by § 10 of the act for the simplification of criminal pleading (St. 1899, c. 409), now R. L. c. 218, § 20. But that section does not apply where "it [time] is an essential element of the crime." He has argued also that Commonwealth v. Peretz, 212 Mass. 253, is authority for his contention that the rule as to continuing offences was changed by the act for the simplification of criminal pleading. But the decision in Commonwealth v. Peretz, was not founded upon § 10 of the original act, now R. L. c. 218, § 20, but upon § 5 of the original act, now R. L. c. 218, § 34. What was decided in Commonwealth v. Peretz was that an indictment charging a defendant with a continuing offence during a time, part of which was before the acts charged constituted an offence, must be construed (at least under R. L. c. 218, § 34) to be a charge that the acts charged began from the time when the statute making them an offence went into effect. The doctrine of Commonwealth v. Robinson, ubi supra, was stated at length in that case at pages 254, 255. The exception to the charge must be sustained and a new trial had on the second complaint.
The only exception argued which has to do with the first complaint is that taken to the following part of the judge's charge to the jury. In his charge to the jury the presiding judge said: "The penalty attaching in a case of this kind is ordinarily not heavy, in one sense of the word. Of course, a person would be reluctant to have a criminal record such as this weigh against him; but those matters should be wholly disregarded. As I have told you before, in imposing sentence, there is a wide discretion left to the court; and the court endeavors, so far as it is able, with justice to the defendant, and with regard to the public weal, to impose a sentence that under all the circumstances of the case is merciful and fair to the government and to the defendant. There are many ways in which a case, even after a verdict, may be disposed of by the court — probation; putting a case on file; putting it on file upon payment of expenses; and also, where that seems to be required, imprisonment, — in this case, for a short period." To this the defendant took an exception. The judge, however, immediately added: "But in regard to the disposition of the case, leave that all aside. That is not something concerning which you have to worry or bear the responsibility; that is upon the court. What you have to decide here is the truth. If, upon the law and the evidence in this case, there should be a verdict of guilty, say so; and if there should be a verdict of not guilty, then say that too; but come into court — whether it be a verdict for the government or for the defendant — with a verdict which in your consciences you believe to be a true verdict, a verdict the rendering of which you and all concerned with the case can feel satisfaction with, a verdict after the rendering of which you can look your fellows in the eye, and say, 'According to my conscience, this verdict is a true verdict.' " If the defendant had a right to complain of the part of the charge to which he took an exception his ground of complaint was taken away by what was said by the judge immediately afterwards.
The result is that the exceptions must be overruled so far as the first and sustained so far as the second complaint is concerned.
The appeal taken has not been argued. We treat it as waived. An entry to that effect may be made. Under these circumstances it is not necessary to consider whether the appeal is properly before us.
Ordered accordingly.
SUPPLEMENT. OPINION OF THE JUSTICES TO THE SENATE.
Spec. St. 1918, c. 159, providing in substance for the leasing to the Commonwealth of the road and property of the Boston Elevated Railway Company to be operated for a limited time by public officers upon the payment of a fair rent, is constitutional.
A statute changing Spec. St. 1918, c. 159, by providing for a maximum fare of five cents upon the lines of the Boston Elevated Railway Company, and by providing that, if the income thus received shall be inadequate to meet the cost of service, the deficiency shall be made up by payments from the treasury of the Commonwealth out of moneys to be borrowed, and that the sums so advanced shall be assessed upon the cities and towns using the service of the company, would be constitutional.
A statute changing Spec. St. 1918, c. 159, by providing for reducing the fares to be charged on the lines of the Boston Elevated Railway Company by the payment by the Commonwealth to that company of an amount equal to the rentals due from the company for the use of subways and for the ultimate assessment of the sums so paid by the Commonwealth upon the cities and towns using the service of the company, would be constitutional.
The General Court has the right to authorize the operation of the lines of the Boston Elevated Railway Company by the Commonwealth through trustees appointed by the Governor, because the transportation of the public thus provided for is a public purpose; and there is no constitutional requirement that the operation of the lines for such a purpose by the public authorities shall be at cost or at a profit.
A statute of the character described would be constitutional only after a legislative determination that the value of the private property thus devoted to a public use required such contribution from the Commonwealth in addition to all other sources of income in order that the owners of the property might receive a fair return. Such a legislative determination was made by Spec. St. 1918, c. 159, §§ 5, 6, in fixing the "dividends" to be paid upon the shares of the Boston Elevated Railway Company.
In making legislative provision for the apportionment of public burdens among different municipalities, although it has been the custom of the General Court usually to submit such legislation to the acceptance of the municipalities to whose taxes resort must be had for the money required, this has not always been done and it is not necessary under the Constitution.
THE following order was passed by the Senate on March 12, 1919, and on March 15, 1919, was transmitted to the Justices of the Supreme Judicial Court. On April 2, 1919, the Justices returned the answer which is subjoined.
WHEREAS, there is now pending in the General Court a bill numbered Senate 54, entitled "An Act establishing a five cent fare on the lines of the Boston Elevated Railway Company and subsidizing the company from the public treasury for any resulting deficiency," a copy of which is herewith submitted; and
WHEREAS, said bill makes reference to chapter 159 of the Special Acts of the year 1918, and proceeds upon the assumption that said chapter 159 is constitutional and wholly operative, the stockholders of the Boston Elevated Railway Company and the West End Street Railway Company having duly accepted the provisions of said chapter 159, and all the conditions prescribed therein having been performed, which under its terms are necessary in order to render it fully effective; and
WHEREAS, there is also now pending in the General Court a bill numbered House 722, entitled "An Act to provide for the assumption of subway rentals by the communities served by the Boston Elevated Railway Company," a copy of which is herewith submitted, and which also refers to said chapter 159, and likewise proceeds upon the assumption that said chapter 159 is constitutional and wholly operative; and
WHEREAS, there are other bills pending before the General Court, — to wit: — Senate bills numbered 52 and 287, and House bills numbered 721, 1351 and 1352, — copies of which are hereto annexed, which cannot be intelligently acted upon unless the General Court is authoritatively advised relative to the constitutionality of said chapter 159; therefore be it
ORDERED, That the Senate require the opinions of the Honorable the Justices of the Supreme Judicial Court upon the following important questions of law:
(1) Would said Senate Bill No. 54 be constitutional if enacted?
(2) Would said House Bill No. 722 be constitutional if enacted?
(3) Is the whole or any part of said chapter 159 unconstitutional?
(4) Is any part, or are any parts, of said chapter 159 which have a direct relation to the validity of said Senate Bill No. 54 or said House Bill No. 722, unconstitutional?
Senate Bill No. 54, referred to above, was as follows:
An Act establishing a Five Cent Fare on the lines of the Boston Elevated Railway Company and subsidizing the Company from the Public Treasury for any Resulting Deficiency.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
SECTION 1. The rate of fare for each single passage over the lines of the Boston Elevated Railway Company that may be fixed by the board of trustees of said company, acting under chapter one hundred and fifty-nine of the Special Acts of nineteen hundred and eighteen, shall not exceed the sum of five cents, and the distance that may be travelled for the sum of five cents shall in no case be less than as established on the day nine-teen hundred and eighteen.
SECTION 2. If the rate of fare chargeable under the provisions of section one is inadequate to meet the cost of the service, less all the items to be deducted as provided in section six of said chapter one hundred and fifty-nine, including dividends as therein specified, the reserve fund established under section five of said chapter one hundred and fifty-nine, shall be used to make up the deficiency as provided in section nine of said chapter one hundred and fifty-nine.
SECTION 3. If at any time said reserved fund be less than seventy per cent of its amount as originally established, the trustees shall thereupon give notice to the Treasurer and Receiver General, and the Commonwealth shall thereupon pay over to the company such amount as may be necessary to restore said fund to an amount equal to said seventy per cent. In order to meet any payment required under this section, the Treasurer and Receiver General may borrow at any time, in anticipation of the assessments to be levied upon the cities and towns, as provided in the following section, such sums of money as may be necessary to make said payment.
SECTION 4. All sums advanced to the company under the provisions of the preceding section shall be assessed upon the cities and towns in which the company operates in the manner provided by section fourteen of said chapter one hundred and fifty-nine.
SECTION 5. So much of said chapter one hundred and fifty-nine as is inconsistent herewith is hereby repealed.
SECTION 6. This act shall not take effect unless it is accepted by the holders of not less than a majority of all the stock of the Boston Elevated Railway Company, not including the preferred stock issued under section five of said chapter one hundred and fifty-nine, and by the holders of not less than a majority of all the stock of the West End Street Railway Company, given at meetings called for the purpose, and the filing with the secretary of a certificate to that effect signed by a majority of the directors of the Boston Elevated Railway Company.
House Bill No. 722, referred to above, was as follows:
An Act to provide for the Assumption of Subway Rentals by the Communities served by the Boston Elevated Railway Company.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
In order to decrease the rates of fares which would otherwise be necessary to meet the cost of service upon the Boston Elevated Railway, the board of trustees of the Boston Elevated Railway Company are hereby directed quarterly on the first of January, April, July and October to certify to the Treasurer and Receiver General the amount paid during the preceding quarter for rentals of subways or other property owned by the Commonwealth, or any city, town, or other subdivision thereof and leased to said company, and the Commonwealth shall thereupon pay over to the company the amount so certified. In order to meet said payments the Treasurer and Receiver General shall borrow any sums necessary therefor, and thereafter repay the same, and any sums so paid to the company together with interest or other charges incurred in borrowing money therefor shall be assessed upon the cities and towns in which the company is operated, in the manner provided by chapter one hundred and fifty-nine of the Special Acts of the year nineteen hundred and eighteen with reference to deficiencies in the reserve fund thereby established.
To the Honorable Senate of the Commonwealth of Massachusetts:
We, the Justices of the Supreme Judicial Court, have considered the questions upon which our opinion is required by the order of March 12, 1919, a copy of which is hereto annexed, and respectfully submit this opinion:
The questions relate primarily to the constitutionality, if enacted, of Senate Bill No. 54 and House Bill No. 722. These bills in form and substance are amendments to Spec. St. 1918, c. 159. Nevertheless the proposed changes are so radical as to make them in substance important new legislation and not mere perfecting of the details of an existing statute. In order to express an intelligent opinion upon the proposed bills, it is necessary to examine the original statute. We are constrained to do this under these circumstances notwithstanding the well settled rule, from which we do not here depart, that we are not required to express to the General Court or either branch thereof opinions as to the constitutionality or construction of statutes already enacted. Commonwealth v. Smith, 9 Mass. 531. Opinion of the Justices, 226 Mass. 607, and references at page 612.
We consider first Spec. St. 1918, c. 159. That act was in substance and effect a taking over of the Boston Elevated Railway by the Commonwealth for operation for a limited period of ten years and possibly for a longer period under some circumstances, upon condition that its terms should be accepted by the holders of not less than a majority of all the stock of the Boston Elevated Railway Company and of the West End Street Railway Company and upon the further condition that the Boston Elevated Railway Company should provide for raising $3,000,000 by the issuance of that amount of new and preferred stock. Two main purposes of that act were (1) to provide for the establishment of rates of fares which should be adequate to pay the cost of performing the service furnished by the Commonwealth through using the property of the Boston Elevated Railway Company as that cost was defined in § 6, and (2) to make an agreement for the payment of the rental for the use of the Boston Elevated Railway Company and its property by the Commonwealth by agreement with the companies interested to be manifested by acceptance by their stockholders. That rental was fixed by §§ 5 and 6 at payment not exceeding seven per cent on the preferred stock and by payment of dividends on the common stock of five per cent for the first two years, five and one half per cent for the succeeding two years, and six per cent for the remainder of the period of public operation. The chief design of that act was to provide by public operation for fares at rates sufficient to meet all costs of furnishing the service.
In § 11 provision was made for the advancement of moneys by the Commonwealth (to be assessed upon the cities and towns enjoying the service) to maintain the reserve fund. But that was rather an incidental provision to tide over the affairs of the company until the fundamental idea of rates adequate to meet the cost of the service could be established and the habits of the travelling public could become adjusted thereto. That act was accepted by the stockholders of the two corporations and the new stock has been subscribed. Thus the act has become operative according to its terms and constitutes a contract between the parties as set forth in § 18.
We are of opinion that that act was constitutional and for these reasons: The means of transportation for people at large is a matter of public interest. In earlier times turnpikes and toll bridges in private ownership and management afforded facilities for travel. Gradually these mostly have been taken over by counties, cities and towns and the tolls abolished. Andover Medford Turnpike Corp. v. County Commissioners, 18 Pick. 486. Murray v. County Commissioners, 12 Met. 455. Central Bridge Corp. v. Lowell, 4 Gray, 474; S.C. 15 Gray, 106. The ownership and operation of a ferry by a municipality contravenes no constitutional limitation. Attorney General v. Boston, 123 Mass. 460. Steam railroads in their last analysis are highways for the use of the public. The Commonwealth has in several instances lent its aid to the construction of such railroads. See Kingman, petitioner, 153 Mass. 566, 570, for references to statutes. Numerous special statutes and finally a general law have been enacted authorizing cities and towns to subscribe for stock of railroads. Kittredge v. North Brookfield, 138 Mass. 286. Commonwealth v. Williamstown, 156 Mass. 70. Such legislation is constitutional. Prince v. Crocker, 166 Mass. 347, 361. The Commonwealth contributed toward the construction of the Hoosac Tunnel and ultimately acquired the ownership and assumed the management of the Troy and Greenfield Railroad. Troy Greenfield Railroad v. Commonwealth, 127 Mass. 43. Amstein v. Gardner, 134 Mass. 4. Nearly forty early statutes incorporating street railways contained a section whereby the municipality within which such railway was constructed might acquire its property. The construction of the Boston subway for street railway purposes was held a public use for which money raised by taxation lawfully might be expended. Prince v. Crocker, 166 Mass. 347. The same is true of the East Boston Tunnel. Browne v. Turner, 176 Mass. 9. Property invested in street railways by private investors has been held to become thereby affected with a public interest. Donham v. Public Service Commission, 232 Mass. 309. It has been decided in other jurisdictions that the construction, acquisition and operation of street railways may be made a municipal function. Sun Printing Publishing Association v. Mayor of New York, 152 N.Y. 257. Walker v. Cincinnati, 21 Ohio St. 14. Platt v. San Francisco, 158 Cal. 74, 81, 82. Barsaloux v. Chicago, 245 Ill. 598. Under modern conditions local transportation by an electric railway may be determined by the Legislature to concern the welfare and convenience of all the inhabitants of a particular district. In essence Spec. St. 1918, c. 159, was a legislative agreement for the lease to the Commonwealth of a public utility to be operated for a limited time by public officers upon the payment of fair rental on an investment made under public supervision and under laws prohibiting stock watering or other means of inflation.
We are led to the conclusion that said c. 159 was within the constitutional power of the Legislature.
A radical change in the scheme embodied in Spec. St. 1918, c. 159, is proposed by Senate Bill No. 54 and House Bill No. 722. Rates of fare large enough to pay the cost of the service are abolished and a fare, which is or may be less than cost, is substituted, the balance of the cost to be made up by taxation. Senate Bill No. 54 provides in substance for a maximum fare of five cents upon the lines of the Boston Elevated Railway Company, and, if the income thus received shall be inadequate to meet the cost of the service, as apparently confessedly it will be, the deficiency is to be made up by payments to the Boston Elevated Railway Company from the treasury of the Commonwealth out of moneys to be borrowed. Sums so advanced are to be assessed upon the cities and towns in which the lines of the company are operated in proportion to the number of persons therein using the railway company. Thus the money paid to the Boston Elevated Railway Company is ultimately to be raised by taxation. In form and substance Senate Bill No. 54 is an amendment of Spec. St. 1918, c. 159. The proposed bill amends that act in effect by striking out § 7, which requires fares as nearly as possible to meet the cost of service, and by substituting therefor its § 1, which establishes a maximum fare of five cents, and by modifying by its §§ 2, 3, 4 and 5, the terms of §§ 9, 10, 11 and 14 of said c. 159. House Bill No. 722 aims at the result of reducing the fares to be charged on lines of the Boston Elevated Railway Company by the payment by the Commonwealth to that company of an amount equal to the rentals due from it for the use of subways and the ultimate assessment of the sums so paid upon the same cities and towns in the same way as in Senate Bill No. 54. This also is a raising by taxation of money for the operation of the Boston Elevated Railway Company. Thus the conception of rates of fare adequate to meet the cost of the service is wholly eliminated and for that plan a fixed maximum rate of fare, which is or may be much less than the cost of service, is put in its place, the difference between the actual cost of the service and the fixed maximum rate to be made up out of moneys to be raised by taxation. The method adopted is to continue the payment of the dividends to the stockholders of the Boston Elevated Railway Company fixed by said c. 159 and treat these dividends as a part of the cost of the service. The proposed legislation provides also that it shall become operative with its burdens of increased taxation in the various cities and towns to be affected without submission to their voters or municipal boards or officers for acceptance.
It is a matter of common knowledge that the expenses of maintenance and operation of street railways in the neighborhood of Boston have increased enormously since the outbreak of the great war. This is due among other causes to the greatly augmented costs of labor, copper, coal and necessary supplies. The adjustment of fares to meet these changed conditions without unusual public inconvenience and interference with settled social conditions of a considerable portion of the people presents a problem of great difficulty. The present appears to be commonly regarded as a period of transition, where prophecy as to the ultimate adjustments to be reached is uncertain.
The fundamental question thus presented is whether the State has the power under the Constitution to take over a public utility such as is the Boston Elevated Railway Company and operate it for so low a rate of fare as to create a deficit and pay that deficit in the only way in which it can be paid, out of moneys raised by taxation. To state the question differently, it is whether the State can carry such persons as desire to ride upon the Boston Elevated Railway at less than cost and assess the rest of that cost upon the public by taxation. This is an entirely novel question so far as we are aware. No decision has been made of such a question to our knowledge. Reference was made to the general principle in Opinion of the Justices, 150 Mass. 592, 593, in these words: "We also assume that the gas or electricity to be furnished to the inhabitants for their private use is to be paid for by them at rates to be established, which shall be deemed sufficient to reimburse to the cities and towns the reasonable cost of what is furnished, and that all the inhabitants of a city or town are to have the same or similar rights to be supplied with gas or electricity, so far as is reasonably practicable, and the capacity and extent of the works, which it is deemed expedient to maintain, will permit. Whether cities and towns can be authorized to give gas or electricity to their inhabitants, or to sell either to them, at varying and disproportionate prices, selecting their customers, selling to some and arbitrarily refusing to sell to others, are questions which it is not necessary to consider." It also was said in Attorney General v. Boston, 123 Mass. 460, at pages 469, 470, that it was not necessary to consider "whether it is within the power of the Legislature, under the Constitution of the Commonwealth, to authorize a city or town to establish and maintain a free ferry at the public expense." It was said in Davies v. Boston, 190 Mass. 194, 197, respecting the same ferry, "The fact that the business, as managed, was not profitable to the city does not change its character."
It is an underlying principle of our government that money raised by taxation can be used only for public purposes and not for the advantage of private individuals. "The power to levy taxes is founded on the right, duty and responsibility to maintain and administer all the governmental functions of the State, and to provide for the public welfare. To justify any exercise of the power requires that the expenditure which it is intended to meet shall be for some public service, or some object which concerns the public welfare. The promotion of the interests of individuals, either in respect of property or business, although it may result incidentally in the advancement of the public welfare, is, in its essential character, a private and not a public object." Lowell v. Boston, 111 Mass. 454, 460, 461.
There are numerous instances where the State has authorized the construction and maintenance of public works which involve the element of benefit to private individuals. Assessments of benefits are authorized but seldom are required to equal in amount the benefit conferred. It is limited sometimes to one half only. See as to highways, R. L. c. 50, § 1, now St. 1917, c. 344, Part III, § 1. There is no such limitation as to the assessment of benefits arising from sewers. R. L. c. 49, § 3. Annual assessments for the use of sewers to aid in their maintenance have been authorized. Some statutes authorize assessments for reconstruction of sidewalks. All these statutes have been upheld. Carson v. Brockton, 175 Mass. 242, and 182 U.S. 398. Sayles v. Public Works of Pittsfield, 222 Mass. 93. Statutes authorizing building of a market-house, Spaulding v. Lowell, 23 Pick. 71, the removal of ashes, Haley v. Boston, 191 Mass. 291, and the maintenance of public baths, Bolster v. Lawrence, 225 Mass. 387, part of the expense to be charged to those benefited, have been upheld. In no instance, so far as we are aware, has it been intimated that the entire expense must be borne by those benefited or that the entire benefit must be assessed. The taking over of toll bridges and roads and the abolition of tolls have already been referred to.
The fundamental question is whether the General Court has the right to authorize the operation of the Boston Elevated Railway Company through trustees appointed by the Governor. It can do so if it is a public purpose. If it is a public purpose, the General Court has the same power respecting that purpose that it has respecting other public purposes. Since transportation of the public such as is furnished by the Boston Elevated Railway is a public purpose, there is no imperative constitutional requirement that it must be operated by the public authorities at cost or at a profit.
The present bills provide in their ultimate analysis for taxation in order that dividends may be paid to the stockholders of a public service corporation. Property invested by private persons in public service corporations becomes affected with a public interest. Statutes authorizing rate regulation of privately owned public utilities rest on this principle. It commonly has been held that stockholders of such corporations who have wisely and honestly invested property actually used for the benefit of the public are entitled to a reasonable return upon their investment. We are unable to discern any distinction in principle between public operation at a loss to be made up by general taxation of a utility owned by the public and a contribution from public money toward the efficient maintenance of the same utility in private ownership but under public operation. A statute to such an end would be constitutional, however, only after a legislative determination that the real value of the private property so devoted to the public use, together with all its other sources of income, required such contribution in order that it might receive fair return. Legislation designed merely to provide a gratuity to private individuals, corporations or stockholders, would of course be unconstitutional. Such a determination was made in essence by the enactment of said c. 159. That act in §§ 5 and 6 substantially determined that the dividends there set forth constituted a fair return on actual investment.
Therefore, we are of opinion that the public as a body has a concern in the continued operation of the Boston Elevated Railway, by the trustees appointed by the Governor, in a safe and practical manner adequate to the needs of those who travel. If the rational way to accomplish this result is an assumption by the public of a part of the expense so that the burden of operation shall not fall alone upon the shareholders but also in part upon the cities and towns using the service in the way provided in the proposed bills, that is a public purpose. It was an inducement to stockholders to continue an otherwise losing and possibly confiscatory investment.
The right to apportion the public burdens among different, separate divisions of the State can hardly be questioned. Hingham Quincy Bridge Turnpike Corp. v. County of Norfolk, 6 Allen, 353. Although it has been the custom of the General Court to submit such legislation to the acceptance of the municipalities to whose taxes resort must be had for the money required, that has not always been done nor is it necessary under the Constitution. The power of the Legislature is paramount in this particular. Kingman, petitioner, 153 Mass. 566.
The questions presented reach into a new field differing fundamentally from any hitherto occupied by legislation. We have given them the best consideration possible in the time at our disposal.
Therefore we answer "Yes" to questions (1) and (2) and "No" to questions (3) and (4).
ARTHUR P. RUGG.
WILLIAM CALEB LORING.
HENRY K. BRALEY.
CHARLES A. De COURCY.
JOHN C. CROSBY.
EDWARD P. PIERCE.
JAMES B. CARROLL.
THE HONORABLE MARCUS PERRIN KNOWLTON, an Associate Justice of this court from September 14, 1887, until December 17, 1902, and the Chief Justice of this court from December 17, 1902, until September 7, 1911, died at Springfield on May 7, 1918. On March 22, 1919, a special sitting of the full court was held, with all of the Justices present, at which there were the following proceedings:
The Attorney General addressed the court as follows:
May it please your Honors: I appear on behalf of the bar of the Commonwealth to present to the court the memorial prepared by a committee of the bar, in which it has been sought to embody the expression of the bar's respect for the character of Marcus Perrin Knowlton, lately Chief Justice of this court, and its appreciation of him as a man and as a magistrate.
In the discharge of this duty it is not fitting that I amplify the memorial. The details of his active life are adequately set forth therein, and there seems little to be added. In the presence of those who knew him intimately during his life, it does not become me to attempt his eulogy. That grateful duty has been appropriately assigned to others.
As an officer of the Commonwealth, however, I desire to express her gratitude for the distinguished service rendered by him, who, not long since, was the chief of her jurists. Over thirty-nine years of his life were devoted to public service. After serving in both our House of Representatives and Senate, he was appointed a Justice of the Superior Court, and from that court was elevated to the Supreme Judicial Court, where he served for twenty-four years, during over eight of which he was Chief Justice. His service was marked by industry, keen and penetrating thought, clarity and conciseness of expression, rare tact and unfailing courtesy. On the seventh day of May, last, by his death, the Commonwealth lost a beloved and distinguished citizen. On that day a life of exceptional and worthy achievement closed, a life devoted for the most part to the public service, a life whose obligations were met with courage, firmness and fidelity. It is, indeed, fitting and appropriate that the bar and the court, representing an appreciative public, should take action to commemorate such a life. Lives like his make for the betterment of the character of our people and strongly influence our civilization. His work is done; its influence lives on. His life and character will serve as an inspiration to the living.
I now have the honor to present the memorial.
The Attorney General then presented the following memorial:
Marcus Perrin Knowlton, the son of Merrick and Fatima (Perrin) Knowlton, was born in Wilbraham, February 3, 1839.
He was fitted for college at Monson and was graduated at Yale in the class of 1860. His standing in scholarship was high and of even excellence in all the courses of the curriculum. In English composition he was unexcelled.
As a student he was grave, modest and reserved in his bearing, yet always kind, courteous, untiringly industrious, self-reliant and independent. He was faithful to every duty and every obligation. He was morally sound. This integrity in all things lasted without abatement to the end.
On September 24, 1862, he was admitted to the bar in Hampden County.
Thereafter his home was in Springfield. In the practice of law his success was immediate. The firm of Stearns and Knowlton and its successor, Knowlton and Long, were among the leaders in western Massachusetts. His intellectual powers matured early and knew no waning to the day of his death at Springfield on May 7, 1918.
He served in the City Council and represented his district both in the House and Senate.
As a lawyer he was an alert, prudent and sagacious counsellor with a wide knowledge of affairs, industrious and, above all, gifted with a rare common sense which gave working efficiency to his natural and acquired powers.
His conservative influence in the Legislature attracted general attention and approval, and in 1881 Governor Long with an instinctive appreciation of his fitness, appointed him a Justice of the Superior Court. He was then, forty-two years of age. To the bar of eastern Massachusetts he was a comparative stranger. Hardly had he taken his seat upon the bench before, as in the case of Chief Justice Bigelow, the bar recognized in him with unqualified satisfaction those qualities that make a successful nisi prius judge. He had deep special learning and wide general scholarship.
On the bench he was amazingly quick of apprehension, patient and attentive. He was transparently impartial. He had good judgment. He was a master of clear and orderly statement. His temper was equable. He had unusual mental and physical endurance. His industry was tireless. He worked without haste and without rest. His voice was well modulated and in it there was never a fretful note. His manner was dignified but gracious, his smile attractive but with no suggestion of levity. He was serious and sincere in all things. He had an intuitive sense of propriety. He had self-reliance without aggressiveness or arrogance. He had tact without cunning. He was a reader of the motives of men. With members of the bar he was cordial and friendly but not familiar.
He learned the time-saving art of stenography and his brief trial notes in shorthand usefully corroborated his retentive memory. In his court there was no wrangling. The supremacy of the bench was self-evident.
The rare combination of all these admirable characteristics made him an ideal trial judge. His was the twenty-second appointment to the bench of that able court.
He was appointed an Associate Justice of the Supreme Judicial Court on the fourteenth day of September, 1887, and was promoted to its Chief Justiceship in 1902 which position he held till his resignation by reason of an accident impairing his eyesight, on September 7, 1911, in the seventy-third year of his age. His resignation was universally regretted.
Thereafter he lived a quiet but not an idle life till the end came on the seventh day of May, 1918, in the eightieth year of his age.
He was honored with the degree of Doctor of Laws by his alma mater Yale and by Harvard and Williams.
By birth, education and environment he was a typical New Englander. He was proud of her history and institutions. He believed in the saving common sense of her people and had an abiding faith in her future. He was a conservative influence in the Commonwealth.
His work on the supreme bench was well and properly done. He was ambitious to excel not others but himself. He strove each day to better the work of yesterday and with the passing years he grew in worth. His fame with those who are to come after us will rest upon his written opinions. They are his monument, more enduring than bronze. They are unimpeachable witnesses to his greatness as a judge. They deservedly sustain the high reputation of a court whose decisions are cited with respect wherever the common law holds its seat.
He was a good son, a good father, a good husband, a good friend, a good neighbor, and a patriotic citizen.
Such a life is worthy of commemoration.
As a deserved tribute to the memory of Honorable Marcus Perrin Knowlton, the bar of the Commonwealth prays that this memorial be made a part of the records of this court.
Honorable Charles L. Long then addressed the court as follows:
There is, in the town of Wilbraham, a range of hills, which cover an area of many square miles, and which, for a long period of time, have been honored with the dignified name of "Wilbraham Mountains." High up among them, in a poor farming section called Glendale, is a small farm, on which is an unpretentious one story house, having but two living rooms on the ground floor, and, above them, immediately beneath the rafters, such meagre sleeping accommodations as the limited area allows. In that humble dwelling, Chief Justice Knowlton was born.
When he was but five years of age, his father sold the farm on which the family had lived, and purchased one in the adjoining town of Monson, on the road leading from the village to Palmer. It was there that he spent his boyhood days; about which little is known, or can be learned, as he was the last survivor of the family.
The period of elementary study having passed, young Knowlton entered the Monson Academy, an educational institution of repute then, and now, existing in the village of Monson, where he fitted for college. His father did not finance his college course. That he accomplished himself; and nothing more forcibly shows his youthful persistency and ability than the industrious manner in which he worked his way through college. For this purpose, he resorted to teaching. He taught in the Westfield Academy one term, during his junior year, without interrupting his studies; and, during his senior year, he was instructor in mathematics in the Hopkins Grammar School in New Haven.
At college his rank was high. In his class at Yale, graduating one hundred and nine, he stood twelfth; in his junior and senior years he took third oration stand; and in his sophomore year received second prize for English composition. He was a member of a freshman society known as Gamma Nu, of the Phi Beta Kappa, and of the Brothers in Unity; and for three years maintained his physical well-being by dining at an eating club called "The Mackerels."
Having for a short time after his graduation performed the duties of principal of an institution then known as the Union School and located at Norwalk, Connecticut, his career as a teacher terminated by the destruction, by fire, of that institution's educational edifice. It was then that he turned his attention to the study of that profession which was to be his life's work, and which, at the bar and on the bench, was to be crowned with abounding success.
The office chosen by him, in which to begin his work as a law student, was, indeed, a modest one. It was located in the village of Palmer, in a little one story office building such as lawyers and doctors were, in those days, apt to occupy in the hamlets of the country; and was presided over by James G. Allen, a highly honorable county lawyer of excellent character, but of limited ability and practice. Evidently, young Knowlton soon realized the advisability of studying under the guiding influence of abler and wiser minds; for he left the office of "Squire" Allen, and entered that of Wells and Soule in Springfield.
It would have been impossible for him to have chosen more wisely; both members of that firm were men of high standing for ability and uprightness; and both subsequently became justices of this court.
Judge Knowlton absorbed a knowledge of the law rapidly, and speedily gained admission to the bar. He was then of a frail constitution, inclined to pulmonary trouble, which continued to threaten him for several years and which demanded of him the most careful attention to his habits of life. To this demand he faithfully responded, with the result, that, in his subsequent years, he became possessed of a constitution and physique which enabled him to accomplish a vast amount of professional and judicial work.
His career at the bar began by opening an office and practising by himself. Within two years the firm of Knowlton and Greene was formed; but this was not of long duration; and, on being terminated, the firm of Stearns and Knowlton was established. Mr. Stearns was a brilliant lawyer, with a large practice, both civil and criminal. In the latter branch of the law he had acquired a great reputation, owing to the large number of cases he had defended, the importance of many of them, and the unusual success which had crowned his efforts. Friends of Judge Knowlton questioned the wisdom of his associating himself with Mr. Stearns by the formation of that firm. The doubt they entertained had for its foundation the radical difference, in habits, temperament and views of life, of the two men.
Notwithstanding these differences, each judged accurately of the value of the other as a business associate. The firm was a great success, professionally and financially; its field of activity was western Massachusetts; its reputation extended throughout the Commonwealth, and it continued, for many years, the leading law firm of western Massachusetts.
In the practice of the law, Judge Knowlton was exceedingly conscientious. Suits were not brought unless he was convinced that they possessed merit. He prepared his cases with great care and thoroughness; he tried them with marked ability, and all questions of law were ably argued. Clients had confidence in his judgment and uprightness, and jurors held him in high esteem.
It cannot be said that politics ever had any attraction to Judge Knowlton; and the services he rendered as a member of the Springfield city government, as a representative, and as a senator in the General Court of Massachusetts, were not the outgrowth of political ambition; but resulted from his willingness to do his share of public service and a desire to familiarize himself with the way in which those branches of government were conducted.
At the time of his appointment as a Judge of the Superior Court, he was unfamiliar with the principles of stenographic writing; indeed, he had never used a stenographer in the transaction of his business; nor had any other lawyer in his section of the State. Realizing the probable usefulness of that art in the position to which he had been appointed, he obtained a treatise thereon, plunged into the study thereof, and so speedily mastered the subject that he was, in a very short time, able to use the same in taking notes of the evidence presented in the trials of cases before him; and, later, while a Justice of this court, he would, he informed me, write his opinions in shorthand and leave them with a typist, who, being able to read his stenographic characters, would transcribe them in typewritten form.
The wisdom of the appointment of Judge Knowlton to the bench of the Superior Court was speedily manifest. His ability to analyze evidence, his mastery of the law, the absolute impartiality and clearness of his charges to the jury, his honorable and courteous treatment of the members of the bar engaged in the trial of causes before him, and his abiding love of justice, soon convinced all who knew him, that his field of judicial activity could not long remain in the Superior Court, but would be found in the highest branch of the judiciary of this Commonwealth. Little surprise was there, therefore, when he was appointed a Justice of this court; and when, later, he became Chief Justice, it was universally recognized that his ability made his appointment to that position eminently wise.
When a man enters upon the duties of a Justice of this court, he becomes famous because of the quality of the work he performs in the hearing and decision of the important cases which come before him and of the opinions he writes which appear in our Massachusetts Reports. He has little time for social matters, and becomes less and less familiar with the faces, and has less and less knowledge of the people of the community in which he lives. Indeed, his high judicial rank seems to have the effect of causing the people to refrain from that freedom of social intercourse which formerly existed, and to treat him with a reserve which they seem to feel better becomes the dignity of his high judicial position.
While a great many recognized Chief Justice Knowlton as they would, from time to time, see him upon the streets, the number whom he knew was much less; and this caused him to say to me that there were few in the city in which he lived whom he knew and to remark to another that he was acquainted with such a limited number that, if he were to die, there would be but few who would attend his funeral. He seemed absolutely to have failed to appreciate the reputation which had resulted from the work he had accomplished and the ability he possessed. Others, however, fully recognized it. The two great universities of New England, as well as Williams College, paid tribute to his greatness; and the Massachusetts Bar Association, representing the entire bar of the Commonwealth, honored his name, by resolutions, by addresses, and by presenting to the county of Hampden his lifesize portrait which now adorns the walls of the Court House in Springfield.
An affliction of the eyes, from which he subsequently recovered, caused Chief Justice Knowlton to resign his judicial position. Thereafter, until his death, he resided in Springfield, surrounded by all those comforts which an abundant property could bring to a man of his advanced years. His mind remained strong until the last; and, to a remarkable degree, he retained his physical strength until his final sickness. True, there was some slight impairment of the latter; but it was only nature's way of calling his attention to the fact that he had entered the domain of old age. This impairment was not so apparent to his friends, but was noticed and referred to by him. For a few weeks prior to his death, his physical strength seemed to be yielding to the attack of time. He grew feeble, became confined to his home, and, finally, in his eightieth year, after a terminal sickness of about two weeks, passed beyond our vision, into the great and mysterious unknown.
To my mind, he was, during all of the many years it was my privilege to know him, a follower of that rule which commands us to do unto others as we would that others should do unto us. The public at large, among whom he lived for so long, will remember him for his honest, upright and useful life; and the bar of the Commonwealth, now existing, and that of generations to follow, will view with admiration, the mind of the man whose clear, logical and convincing legal views appear in the many opinions written by him during his services upon the bench of this court, and which are to be found in sixty-five of the volumes of our Massachusetts Reports.
The Commonwealth loses by the death of such a man. The example of his life, his devotion to duty, the ideals for which he stood, his universal uprightness and his industrious habits should be an inspiration to those of us who survive him and long remain a guide to those who, surviving us, shall take up the burdens of life as we shall lay them down.
Honorable Robert M. Morse then addressed the court as follows:
I made the acquaintance of the late Chief Justice in 1880. At that time we were both members of the Legislature and I had frequent opportunities to observe and admire his diligent and conscientious devotion to his important work, his legal acumen, his good sense and sound judgment and the charm of his personal intercourse. This early acquaintance ripened rapidly into warm friendship which grew still closer as the years went on and lasted throughout his long and honorable judicial career. He was a singularly likable man, modest, genial, interesting in conversation, with a ready smile and sparkling eye which lighted up his countenance and revealed the warmth of his nature. He showed himself at once equal to the serious responsibilities reposed in him as judge. If he was dealing with facts he was quick in analyzing complicated evidence and in reaching accurate conclusions. If he was considering legal propositions and hearing conflicting arguments he listened courteously and questioned intelligently. In the determination of cases he omitted no labor or research in examining not only all the authorities which had been called to his attention but all others which his ample legal learning suggested. His mind was well balanced, his industry was wonderful and his sense of justice profound. When, after weighing carefully opposing arguments in the light of all the study and examination which he had given them, he reached a conclusion, he stated it in an opinion expressed in clear and terse language and which carried with it the voice of authority. But in this presence it is as unnecessary to recount his supreme merits as a judge as it is impossible to express adequately the great sense of loss which his death has occasioned to us all.
William H. Brooks, Esquire, then addressed the court as follows:
I can add nothing of moment or interest to what has been so well expressed in the memorial just presented, the admirable biographical contribution, and the utterances of the distinguished gentlemen who have preceded me.
But, in view of the invitation extended to me by the Massachusetts Bar Association, I cannot forbear a brief individual tribute to the memory of the late former Chief Justice of our Supreme Judicial Court.
We are prone, I think, to speak of the dead, whom living we admired and respected, in terms which might appear to some of exaggerated praise. I shall endeavor to refrain from that error, for I know that Judge Knowlton would have deplored fulsome eulogy.
When I was admitted to the bar — more years ago than I like to contemplate — Judge Knowlton was engaged in the active practice of his profession. He did not participate in the actual trials of many causes, but he had the repute of possessing the capacity and inclination for extended intellectual labor, for research and for common sense and good judgment. He was famed as a safe counsellor. He was then at the zenith of his professional career.
The positions in public life which he then filled or to which soon afterwards he was chosen he regarded as public trusts, to be administered honestly, faithfully and conscientiously.
Before his elevation to the bench he seemed to me cold, calm, collected but courteous and considerate. He always seemed judicial. I never saw him when I thought he was either excited or perturbed. I do not remember his ever perpetrating a witticism or laughing aloud The sense of humor was apparently absent or dormant. He had at times a smile kindly and alluring. His statements of propositions and questions in dispute were felicitous, direct and simple. After he became a judge there appeared no noticeable change in his demeanor except perhaps an additional seriousness.
In the brief time allotted, but little can here be said of the much that might well be said of him, the great magistrate. Much learning, much thought, it is said, has a tendency to cause the possessor to seem austere and unapproachable but, as I have already suggested, there was little, if any, change of characteristics from Mr. Knowlton, the practitioner, to Justice Knowlton, the judge. He was a human judge, a lover of justice and fair play; patient, tactful, helpful but ever firm and earnest.
One of his noble and endearing traits was the endeavor to render so far as was consistent with the proprieties of his position the unfamiliar pathway less arduous for the youthful and slightly experienced lawyer. But to the faults and mistakes of those of larger experience, who should have known better, he was not so complaisant.
His powers of application and concentration were proverbial, his ability for differentiation, discrimination and assimilation was well recognized.
His court opinions found in sixty-five volumes of our reports are of wide range, dealing with many intricate and diverse subjects. They are lucid and certain and of such nature that they are helpful and authoritative in cases other than the then instant case. He used language to express ideas and that did not confuse them. These opinions are treated with the utmost respect in other jurisdictions. He has added honor to our courts and learning to the law.
Mr. Webster, I think, said that he believed that "there is no character on earth more elevated and pure than that of a learned and upright judge and that he exerts an influence like the dews of Heaven falling without observation."
The subject of this memorial then, though dead, will continue to live in the impress he has left upon the law and in the masterly judicial opinions that he has written and in the influence that they do and will yield.
Moorfield Storey, Esquire, then addressed the court as follows:
My recollection of Chief Justice Knowlton goes back to the time when I first met him as a judge of the Superior Court presiding at the trial of a case in which I was counsel, and by that first experience of his quality were planted the seeds of a respect which grew with every year of his life. He was one of the best nisi prius judges that ever sat on the Massachusetts bench. His control of a trial was remarkable. He held counsel to their work, and discouraged most effectively those passages between them which take time, create ill-feeling, cloud the issue and awaken a feeling of partisanship in the jury. To him the court room was a chamber devoted to the ascertainment of truth, not "an arena for the exhibition of champions," much less a place for unseemly quarrels between officers of the court. His rulings on questions of evidence were prompt and, once made, were not changed, his instructions to the jury were clear, his manner was calm and dignified, his courtesy unvarying, his work as a judge in all respects well done.
His record in the Superior Court made his promotion to the supreme bench inevitable, but when it came the pleasure with which we all regard the recognition of great merit and distinguished service was tempered by sorrow at the great loss which the trial court had sustained.
In the Supreme Judicial Court, both as an associate and as Chief Justice, he added to his reputation and to the reputation of the court, and on his knowledge of law, his strong common sense and his keen appreciation of justice the citizens of the Commonwealth pinned their faith for years. When an affection of his eyes, fortunately less serious than was feared, led him to resign his seat, the news was received with universal regret that we had lost a judge of such character, such ability and such ripe experience.
After he had left the bench and at an age when he was well entitled to enjoy the repose which he had so richly earned, he recognized the call of duty when he was asked to undertake the tedious and thankless task of trying to reorganize the bankrupt system of the Boston and Maine Railroad. He applied himself to the work with characteristic ability and patience and with an energy and industry surprising in a man of his years, and we may well hope that the result to which he contributed so much may prove of lasting benefit to all the States which are so largely dependent on that great railroad.
A man of the best New England type, simple, sincere, direct in his methods, free from any taint of self-seeking or self-advertisement, with a high sense of duty and great public spirit, he was a model citizen as well as a great magistrate.
While he lived he enjoyed in a high degree the respect and regard of Massachusetts, and when he died he left behind him a record of distinguished public service which the Commonwealth must ever be proud to remember.
Chief Justice Rugg responded as follows:
Mr. Attorney General and brethren of the bar: It is well for the bench and bar on appropriate occasions to pause in the midst of labors and say, with the sage of old, "Let us now praise famous men, . . . men renowned for their power, giving counsel by their understanding, . . . Leaders of the people by their counsels, and by their knowledge."
There is singular fitness in paying tribute to the memory of the late Chief Justice Knowlton. For thirty years, in high judicial position upon two courts he served the public weal. The character of his work has given distinction to his name and has added lustre to the reputation of the Commonwealth. He was fortunate in his ancestry, birth and early life. The traditions of generations of strong New England forbears were his. He was born among the hills, in the valley of the Connecticut. He had the priceless patrimony of the farmer lad in the training in self-reliance, resourcefulness, manual toil, and close touch with nature. His physical and intellectual fibre were strengthened by the free life which the farm offers to the healthy boy. Fitted for Yale College at Monson Academy, he was during many of his later years a member of the board of trustees of that institution. He maintained a high rank in his college class and was among the first dozen of its members in general excellence as a student throughout his course. His professional activity and association in Springfield brought him in close contact with the able men of an exceptional bar. He came to maturity familiar with the common concerns of life and enjoying a wide knowledge of men and affairs.
After six years upon the bench of the great trial court of the Commonwealth, he was appointed at the age of forty-eight an Associate Justice of this court, on the fourteenth of September, 1887. He became Chief Justice in December, 1902, and resigned on the seventh of September, 1911. The period of his service on the Supreme Judicial Court fell seven days short of twenty-four years.
Only five members of this court under the State government have performed such duties for a longer time. It is more than fifty years since the last of these passed from the scene of his earthly labors. They are: Samuel S. Wilde, 35 years, from 1815 to 1850; Lemuel Shaw, 30 years, from 1830 to 1860; Charles A. Dewey, 29 years, from 1837 to 1866; Samuel Putnam, 28 years, from 1814 to 1842; and Isaac Parker, 24 years, from January 28, 1806, to July 26, 1830.
A mere statement of the details of Chief Justice Knowlton's labors upon this court is impressive. His written opinions are to be found in sixty-five volumes of the reports, the first being O'Keefe v. Northampton, reported in 145 Mass. 115, and the last, Ryan v. Boston Elevated Railway, 209 Mass. 292. The number of opinions written by him expressing the judgment of the court in decided cases was eight hundred and thirty-seven as Associate Justice and seven hundred and thirty-three as Chief Justice, making a total of fifteen hundred and seventy. The number of his dissenting opinions was twenty-nine, only four of which were delivered while he was Chief Justice. It is interesting to note that the opinions of Chief Justice Shaw, serving six years longer, are to be found in fifty-five volumes of our reports, beginning with 9 Pick. and ending with 15 Gray, and that the number bearing his name was twenty-one hundred and sixty-one. No other member of the court has approached very near to either of these in number of opinions written. No other magistrate in the history of Massachusetts has contributed so much to the visible fabric of our jurisprudence as did the late Chief Justice, with the single exception of Chief Justice Shaw.
Number of opinions written by itself alone is a slender measure of judicial accomplishment. It may be simply evidence of industry and ease of composition. Quality of work is the real test of achievement. Gauged by the most exacting standard the late Chief Justice was in the first rank of great judges. His knowledge of law was extensive and profound, his discernment of legal analogies was quick and accurate, his reasoning powers were of the highest order. His vision was broad, his poise unperturbed, his perception keen, and his apprehension of the ultimate reach of principles unclouded. While his memory of decided cases was not extraordinary, his grasp of fundamental doctrines was wide and sure. He saw them plainly. He appreciated to an exceptional degree their bearings in application to shifting facts and changing conditions. The motions of his mind were rapid and his intellectual processes accurate; but he was patient and painstaking. His written judgments combined in rare degree clearness of thought, lucidity of expression, and insight as to governing principles. A remarkable brevity was his: it excluded everything superfluous and omitted nothing essential. The style of his composition was a near approach to the ideal. His vocabulary was made up of plain words in common use. His sentences were not protracted and were never involved. His language was unobtrusive. His diction was pure. In reading what he has written one thinks only of the ideas expressed and never of the medium through which they are conveyed. He seldom wrote long opinions. His thought was clear and concise. He was able to express it in such luminous phrase that it could not easily be misunderstood. He compressed into narrow compass the controlling rules of law with sufficient completeness of definition for, the decision of the case at hand. His statement was comprehensive in its sweep. He dealt ordinarily with main propositions and did not undertake to cover subsidiary ramifications. He realized that a short opinion is more inviting to the eye than a long one and therefore more likely to be read and to influence the currents of legal thought and action. He understood that the power of plain and terse expression of important legal doctrines is an attribute of no mean value. There was no redundancy either in his thought, his speech or his writing.
He possessed attainments in scholarship. But he was thoroughly grounded in the practical. He tested every argument by its effect upon the affairs of everyday life. The wisdom of the market-place was his. He had insight into human nature and intuition of the secret springs which move men to action. He read the newspapers constantly and kept in touch with all that was passing in the world. Great common sense was his and it never deserted him. However much he may have enjoyed philosophical speculations or the beauties of logic, he never lost sight of the fact that the law is a practical science designed to promote the general welfare, to conserve the common happiness, to preserve public and private safety, and to protect all the people in the enjoyment of life, liberty and property. The sense of justice was instinctive with him. Of course he was no respecter of persons. Each litigant stood before him alike indifferent. He did "everything for justice, nothing for fear or favor." He recognized the necessity that the courts in performing their duties look to the present and to the future and not exclusively to the past. In a published article he expressed his own conception of the judicial function in these words: "With all the conservatism that is necessary in adapting new laws to existing conditions and the customs of the people, the courts have gone forward hand in hand with the law-making power to create a system of jurisprudence that shall be worthy of a people of the highest intelligence. While statutes have been enacted for the simplification of procedure, the courts of their own motion have often disregarded precedents in non-essentials and have sanctioned the omission of unnecessary verbiage and have encouraged the statement of facts without formality, in clear and simple terms. . . . The distinctive feature of the common law is that it is a growth, which has always adapted itself to new discoveries and changed conditions and which is still capable of boundless expansion and adaptation to meet the requirements of a changing world."
As Chief Justice his administration of the business of the court was efficient. Its work went forward with due deliberation, without friction, without haste and without delay. He had a faculty of harmonizing divergent views and of convincing differing minds.
He approached the consideration of every question of constitutional law with the comprehension of a statesman. He examined it from every point of view. His numerous opinions upon this branch of the law in general have been confirmed in their soundness by the test of experience and by analytical criticism and review.
In consultation with associates the scope of his reasoning and his elucidation of the underlying foundations of the law revealed a powerful intellect, of marvelous range and incisiveness, of great quickness and precision and of wide vision and sound judgment. His attitude was that of mutual conference and helpfulness. Under his guidance discussion never degenerated into controversy. When the likelihood of further enlightenment had closed, the time for final decision had come. His impulses were generous. So far as lay in his power, everybody was accorded kindness as well as justice.
After retirement from the bench his business sagacity received signal recognition in his selection by the federal court as chairman of the board of trustees whose duty involved for several years in part the management and reorganization of the Boston and Maine Railroad.
He was a man of firm conviction and steadfast adherence to his matured conclusions. But he was open minded so long as any new arguments were available. He was of dauntless courage and never hesitated to stand alone, if need be, on what seemed to him to be the sound ground. His manner both upon the bench and elsewhere combined graciousness with dignity. His deportment toward the bar was unexceptional.
The performance of judicial work was the absorbing element of his life. He was not much given to the making of public addresses, although whenever he spoke, it was with the strength of elevated thought. The papers prepared by him for The Club in Springfield, of which he was long an interested member, manifest breadth of literary taste and intimate familiarity with the best of English literature.
The history of British and American political institutions was to him an attractive field for study. He was imbued with the spirit of Massachusetts. He knew thoroughly the annals of her colonial and provincial periods and her legal, social and industrial growth and development under the State government. When he declared her law, he spoke as one skilled in all her lore.
His sympathies were deep and broad. He enjoyed the activities of out of doors. For many years he was an habitual horseback rider. Latterly he recruited his strength on the golf links. He was of medium height, erect in carriage, of alert and elastic step. His raven hair and slightly silvered beard gave him the appearance in later life of one much younger than he was.
The great historian of European morals has said that "no character can attain a supreme degree of excellence in which a reverential spirit is wanting." The late Chief Justice was constant in his attendance upon public worship. He manifested thereby not only a firm belief in the eternal verities of religion, but an abiding reverence for whatever things are holy and of good report. His blameless character, his lofty ideals of personal, civic and official duty, and the simplicity of his life, commanded the respect of the public and endeared him to those who were privileged to have an intimate acquaintance with him.
A few years ago a justice of this court, since retired, said to a leader of our bar, whose reputation was also national, "I think the time will come when the bar will regard Chief Justice Knowlton as the equal of Chief Justice Shaw." The reply was, "That time has already come." In different generations, under widely changed conditions, each of these great chief justices in his own way with talents adapted to the times contributed in signal degree to the development of our jurisprudence.
It is with consciousness of deep veneration and profound personal obligation that I have been the voice of the court in speaking of Chief Justice Knowlton. Possibly this feeling has colored what has been said; but it seems an inadequate characterization of a mighty man and an eminent judge. He was vastly more than our words declare. Fortunate indeed is the State whose life has been enriched by the prolonged services of such a judge.
The motion of the Attorney General that the memorial be extended upon the records of the court is granted.
The court will now adjourn.