The General Court, under the provisions of the Constitution, may impose and levy an excise upon the use of public ways by motor vehicles, measured in part by the value of such motor vehicles, and subject to a deduction on account of the value locally assessed on such motor vehicles.
The House of Representatives in 1924 presented to the justices of the Supreme Judicial Court a request for an opinion under § 3, art. 2, of the Constitution and adjourned too early for an answer to be transmitted. Before the reassembly of the General Court, a new House of Representatives had been elected. In transmitting an opinion in January, 1925, the justices stated that they had not considered and did not express an opinion upon the question whether an opinion can be required by one branch of the General Court for the use of its successor.
THE following order was passed by the House of Representatives on May 9, 1924, and was transmitted to the Justices of the Supreme Judicial Court on May 14, 1924.
WHEREAS, There is pending before the General Court a bill entitled "An Act to provide an excise on the use of the ways by motor vehicles," being House document No. 1520, a copy of which is herewith submitted; and
WHEREAS, Doubt exists as to the constitutionality of the proposed measure if enacted into law; therefore be it
ORDERED, That the House of Representatives require the opinions of the Honorable the Justices of the Supreme Judicial Court upon the following important questions of law, such opinions to be filed with the Clerk of the House of Representatives at the convenience of the Honorable Justices: —
1. May the General Court, under the provisions of the Constitution empowering it to impose and levy reasonable duties and excises, or under any other provision of the Constitution, impose and levy an excise upon the use of public ways by motor vehicles, measured in part by the value of such motor vehicles, and subject to a deduction on account of the value locally assessed on such motor vehicles?
The proposed legislation, House document No. 1520, was entitled "An Act to provide an excise on the use of the public ways by motor vehicles" and contained the following provisions:
SECTION 1. The General Laws are hereby amended by inserting after chapter fifty-nine, under the title "Excise Tax on Motor Vehicles for use of the Public Ways," the following new chapter: —
CHAPTER 59A. EXCISE TAX ON MOTOR VEHICLES FOR USE OF THE PUBLIC WAYS.
Section 1. Every inhabitant of this Commonwealth, including every partnership and every corporation either domestic or foreign, having a usual place of business therein, owning a motor vehicle or motor vehicles, shall, subject to the provisions of section five, pay annually with respect to each calendar year for the privilege of operating each such motor vehicle upon the public ways an excise as follows: a sum equal to such number of mills per dollar of the maker's current list price as of January first of the year of the excise if available or the maker's list price for the year of manufacture, in either case as determined by the commissioner of corporations and taxation, less the deduction therefrom hereinafter provided, as is set forth in the appended rate schedule, provided, nevertheless that a "dealer" as defined in section one of chapter ninety, shall not be required to obtain the permit hereinafter provided for registration of nor pay excise for the privilege of operating such motor vehicles as are owned solely for purposes of demonstration and sale and which constitute stock in trade.
Succeeding the year of manufacture there shall be deducted from the list price for the first year twenty-five per cent thereof, for the second year fifty per cent, for the third year seventy-five per cent, and for the fourth and ensuing years ninety per cent.
There shall further be deducted the value as determined by the board of assessors of said motor vehicle as of the first day of April of any year if subject to local taxation in this Commonwealth upon such date. The excise under this act, however, shall in no case be less than two dollars for each motor vehicle but a motor vehicle operated and transferred within the year by an inhabitant may be operated for the remainder of the year without the payment of further excise for its use.
Vehicles of less than thirty horse-power twenty mills per dollar,
Vehicles of thirty or more horse-power twenty-five mills per dollar.
Horse-power for the purpose of this chapter shall mean horse-power as determined by the registrar of motor vehicles in the department of public works in determining the registration fee provided in chapter ninety. The commissioner shall as soon as may be in each year report his determination under this section to the assessors.
Section 2. Subject to the general supervision of the commissioner of corporations and taxation, the board of assessors in each city and town shall determine the excise provided in sections one and five, and shall upon application issue a permit for registration or transfer of such motor vehicle, such application and such permit to be in such form as prescribed by the commissioner of corporations and taxation, and the assessors shall keep an accurate account of all such permits issued by them. The board of assessors may designate some other town officer or person to perform this duty. Permit shall be granted and assessment of the excise shall be made in the city or town in which the inhabitant resides at the time of issue of permit, or in the case of a partnership or corporation in the city or town where the motor vehicle is customarily kept if kept within the Commonwealth, otherwise in the city or town where the partnership or corporation has its principal place of business within the Commonwealth. No permit shall issue more than two and one-half months prior to the calendar year for which registration is sought. The provisions of chapters fifty-nine and sixty relative to assessment, commitment, collection, payment, abatement and administration of taxes upon tangible personal property shall so far as pertinent and not inconsistent herewith, be applicable to excise taxes under this chapter.
Section 3. No motor vehicle shall be registered by the registrar of motor vehicles nor shall there be transfer of registration unless at the time of application for such registration or transfer the permit provided for in section two shall be presented and filed with said registrar.
Section 4. The permits issued in accordance with this chapter for any calendar year shall expire at midnight upon the thirty-first day of December of such calendar year.
Section 5. The excise for the privilege of operating a motor vehicle registered during the period beginning with the first day of July and ending with the last day of December in any year shall be two thirds, and for the period beginning the first day of October and ending with the last day of December in any year shall be one third of the sum named in section one, and shall be committed by the board of assessors as soon as may be after the expiration of each of said periods, and shall be due and payable within thirty days of the date of commitment.
Section 6. All money collected under the provisions of this chapter shall be retained by the town in which it is collected.
Section 7. This chapter shall not be construed to alter or amend the provisions of law with respect to the registration of motor vehicles otherwise than to prohibit the registration of motor vehicles coming within the provisions of this chapter until the permit herein provided for has been obtained.
Section 8. Any person wilfully making any false statement to a person charged with the duty of issuing permits under this chapter shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine not exceeding twenty-five dollars.
Section 9. The commissioner of corporations and taxation shall make from time to time such reasonable rules and regulations as he may deem necessary for carrying out the provisions of this chapter.
SECTION 2. This act shall become effective with respect to the use of motor vehicles during the calendar year of nineteen hundred and twenty-five and thereafter.
On January 12, 1925, the Justices returned the following answer:
To the Honorable the House of Representatives of the Commonwealth of Massachusetts:
The Justices of the Supreme Judicial Court respectfully submit this answer to the question set forth in the order of May 9, 1924, and transmitted on May 14, 1924. That question is in these words:
"May the General Court, under the provisions of the Constitution empowering it to impose and levy reasonable duties and excises, or under any other provision of the Constitution, impose and levy an excise upon the use of public ways by motor vehicles, measured in part by the value of such motor vehicles, and subject to a deduction on account of the value locally assessed on such motor vehicles?"
Our opinion is required with reference to a proposed statute, copy of which accompanies the order. It is entitled, "An Act to provide an excise on the use of the public ways by motor vehicles." It is provided by section 1 that every inhabitant of the Commonwealth shall pay annually for each calendar year with respect to each motor vehicle owned by him, twenty mills, if less than thirty horse-power, and twenty-five mills, if thirty or more horse-power, on each dollar of its value as ascertained from the maker's current price list, with specified deductions therefrom according to the age of the motor vehicle and with deduction also of its valuation made for purposes of local taxation, the minimum excise in any event to be not less than two dollars. The sum thus to be paid is termed an excise "for the privilege of operating each such motor vehicle upon the public ways." Provision is made in other sections of the proposed statute for the issuance of a permit as prerequisite to the registration of such motor vehicle, for the enforcement of the terms of the statute by local officers of each city and town, and for the disposition of moneys collected under the act. Its provisions need not be further described.
The manifest design to be accomplished by the proposed act is the collection of a tax for the use of the highways by motor vehicles. There is no constitutional mandate which requires the Commonwealth or any of its territorial subdivisions to establish and maintain highways for public travel. The whole subject of laying out, constructing and repairing highways is vested in the General Court under the power and authority to enact "all manner of wholesome and reasonable orders, laws, statutes, and ordinances" not repugnant to the Constitution "as they shall judge to be for" the common good and general welfare. In the early days of the Commonwealth many, if not most, of the highways were built and maintained by private enterprise through turnpike corporations established by law and dependent for their support upon tolls charged to travellers. Bridges were built and maintained in the same way. Ferries were operated either in the same way or by municipalities, which collected tolls for their use. All highways and bridges, so far as we are aware, and some of the ferries, have been acquired by the Commonwealth or by counties, cities or towns. They thus have become the property of the Commonwealth either directly or through its governmental subdivisions. The free use of all highways has been provided at the expense of the public treasury for many years in this Commonwealth. This has not always been the custom. It is comparatively modern.
The power of government to take, acquire or construct instrumentalities for public travel and to charge toll, rental or other recompense therefor is illustrated in several decisions. Commonwealth v. Wilkinson, 16 Pick. 175. George G. Fox Co. v. Boston Northern Street Railway, 217 Mass. 140, 142. Boston v. Treasurer Receiver General, 237 Mass. 403, 414, and cases there reviewed.
If and so far as such tolls or rentals are based on fair recompense for the public moneys expended for initial construction and for adequate maintenance, they do not involve the power of taxation. They rest on the rights of the Commonwealth as proprietor of the instrumentalities used. As a sovereign power the Commonwealth may do as it will with its own, provided its action can be said to be in the public interest and not violative of constitutional guarantees. Boston Fish Market Corp. v. Boston, 224 Mass. 31. Treasurer Receiver General v. Revere Sugar Refinery, 247 Mass. 483. Carson v. Sewerage Commissioners of Brockton, 175 Mass. 242. A familiar illustration of the exercise of such rights is the establishment and collection of rates for the use of water furnished by government. Ladd v. Boston, 170 Mass. 332. Souther v. Gloucester, 187 Mass. 552. Shaw Stocking Co. v. Lowell, 199 Mass. 118. Merrill v. Revere, 211 Mass. 468. Brand v. Water Commissioners of Billerica, 242 Mass. 223.
The power proposed to be exercised in the present bill is not of that nature. Avowedly an excise tax is established. The declaration to that effect is explicit. Such statutory statement is to be accepted as true unless incompatible with the meaning and effect of the act as a whole. Lajoie v. Milliken, 242 Mass. 508, 521. Moreover, the revenue to be obtained is not to be applied to the maintenance and repair of highways but is to be retained by the several cities and towns without restriction. It thus will become applicable to general public uses. That factor is not decisive but is entitled to weight in determining the nature of the exaction.
The words of the Constitution, c. 1, § 1, art. 4, granting the power to levy an excise are these: "full power and authority are hereby given and granted to the said general court . . . to impose and levy, reasonable duties and excises, upon any produce, goods, wares, merchandise, and commodities, whatsoever, brought into, produced, manufactured, or being within the same." The nature of an excise on "commodities" in this connection has been discussed in several decisions. In Portland Bank v. Apthorp, 12 Mass. 252, 256, it was said, "The term 'excise' is of very general signification, meaning tribute, custom, tax, tollage, or assessment." "Toll" — at that time a word in common use in connection with turnpikes and bridges — thus was mentioned more than one hundred years ago, in the first decision requiring a critical consideration of the meaning of the word "commodities" in the Constitution, as an illustration of an excise. That definition of excise was quoted in an important connection in Minot v. Winthrop, 162 Mass. 113, 119, 120, where it was said that that commodity "will perhaps embrace everything which may be a subject of taxation. . . . It . . . signifies convenience, privilege . . ." All public ways are acquired and maintained for the use of the public. We are not here concerned with attempts by cities or towns to charge a toll for the use of highways, but with the Commonwealth itself acting in its sovereign capacity with reference to a strictly public matter. See Bolster v. Lawrence, 225 Mass. 387, 389. The power of the General Court to enact general and equal laws on such a subject is very broad. "Toll" is the apt word to describe the collection of money for the use of a highway or bridge.
There are appearances of inequality about a toll upon the use of highways by motor vehicles. The fact that no toll is charged for the use of highways by other kinds of vehicles bears a superficial likeness to discrimination against motor vehicles. It is matter of common knowledge that the number of motor vehicles vastly exceeds all others and that a different highway construction as to durability and smoothness is required for their convenience. It is understood generally that the use of motor vehicles is highly destructive of highways and requires large expenditures for original construction or reconstruction and annual maintenance. The use of highways by other vehicles may be found by the General Court to be so small in quantity and so little destructive in quality, compared with that by motor vehicles, as to be negligible. There is no general provision in the proposed bill for charging toll for motor vehicles owned by non-residents when used upon the highways of the Commonwealth. That, too, may be found to be small in comparison with domestic use. The expense of collection and difficulty of enforcement of the law concerning foreign owned motor vehicles may be found to be prohibitive. In any event these apparent inequalities cannot be said to be so great, as matter of law, as to invalidate the classification established by the proposed bill.
A modern instance of the collection of toll by way of excise tax is found in G.L.c. 63, §§ 62-66, for the operation of street railways in public ways. Collector of Taxes of Lakeville v. Bay State Street Railway, 234 Mass. 336. The collection of a tax by way of tollage or license for the use of public ways by motor vehicles has been upheld in other jurisdictions. Kane v. State, 52 Vroom, 594. Kane v. New Jersey, 242 U.S. 160. Pierce Oil Corp. v. Hopkins, 264 U.S. 137. Hendrick v. Maryland, 235 U.S. 610. Opinions of the Justices, end of 81 N.H. Standard Oil Co. of Louisiana v. Brodie, 153 Ark. 114. Harder's Storage Co. v. Chicago, 235 Ill. 58. Ogilvie v. Hailey, 141 Tenn. 392. State v. Lawrence, 108 Miss. 291. Matter of Schuler, 167 Cal. 282. Terre Haute v. Kersey, 159 Ind. 300. Jackson v. Neff, 64 Fla. 326. Park v. Duluth, 134 Minn. 296. Lillard v. Melton, 103 S.C. 10. State v. Becker, 288 Mo. 607. State v. Ingalls, 18 N.M. 211. See Opinion of the Justices, 123 Maine, 573. As matter of abstract principle we are of opinion that it is within the constitutional power of the General Court to levy an excise as a toll for the use of public ways by motor vehicles.
The method of collection and distribution of the excise proposed in the bill is not open to sound objection on constitutional grounds. Duffy v. Treasurer Receiver General, 234 Mass. 42. Knights v. Treasurer Receiver General, 237 Mass. 493.
The proposed bill plainly is a revenue measure. It is not enacted in the exercise of the police power. Cases involving consideration of that power, like Commonwealth v. Slocum, 230 Mass. 180, Burgess v. Mayor Aldermen of Brockton, 235 Mass. 95, and Pawloski v. Hess, 250 Mass. 22, have no relevancy to the present question.
The proposed bill imposes an excise tax based in part upon value of the motor vehicle using the highway. We assume that the "maker's current price list," which by § 1 of the proposed bill is made the basis of the excise, is equivalent to the cost price and that it affords a standard substantially the same in respect to real value with reference to all makes of motor vehicles. If that assumption should turn out to be incorrect difficulties might arise. Excises founded in part upon the value of the property utilized in the exercise of the privilege thereby taxed are common. They involve no infraction of constitutional guarantees provided in other respects they are genuine excise taxes. Farr Alpaca Co. v. Commonwealth, 212 Mass. 156, and cases there reviewed. Judson Freight Forwarding Co. v. Commonwealth, 242 Mass. 47, 53. Alpha Portland Cement Co. v. Commonwealth, 244 Mass. 530, 546.
The deduction of assessed valuation from the list price, provided in § 1 of the proposed act, in principle stands on the same footing as the deduction of tangible property taxed locally under the corporation tax law of St. 1909, c. 490, Part III, § 41, Third, the constitutionality of which was settled by numerous decisions. Commonwealth v. Hamilton Manuf. Co. 12 Allen, 298. Commonwealth v. Carey Improvement Co. 98 Mass. 19, 22, 23. Tremont Suffolk Mills v. Lowell, 178 Mass. 469. United States Trust Co. v. Commonwealth, 245 Mass. 75. An examination of the proposed bill plainly shows that it provides for an excise for the use of highways and not a property tax. So far as value is an element in the ascertainment of the excise, it may perhaps rest upon the inference that, the greater the value of a motor vehicle, the greater may be its weight and the more severe the wear caused to the highways by its use thereon.
A troublesome feature of the question and of the proposed bill arises from other statutes whereby taxes in various forms are levied in respect to ownership of motor vehicles. Motor vehicles are personal property. A property tax therefore is levied on them proportionally and reasonably in common with all other personal property in the Commonwealth. Const. Mass. c. 1, § 1, art. 4. G.L.c. 58, § 2. That circumstance does not prevent the levy of a lawful excise concerning the use by motor vehicles of highways.
Motor vehicles also must be registered in accordance with G. L. c. 90, before they can be operated on ways, §§ 2, 3, 4, 5, 6, 9. There is ground for a contention that no statute requires the registration of a motor vehicle operated exclusively on private property and not on ways as defined in G.L.c. 90, § 1, last paragraph. Compare St. 1909, c. 534, § 9, St. 1919, c. 88 and c. 294, § 3, and G.L.c. 90, § 9. The imperative mandate requiring registration of all motor vehicles found in explicit words in the earlier statutes, St. 1903, c. 473, § 1, St. 1905, c. 311, § 2, St. 1906, c. 412, § 8, St. 1907, c. 580, § 1, and St. 1908, c. 648, § 3, was altered in phrase by St. 1909, c. 534, §§ 2, 31, to the form found in the present provisions of G.L.c. 90, §§ 2, 9. Attention is called to this in passing without undertaking to determine whether it was anything more than a verbal modification not altering the real meaning of the statute. See Main v. County of Plymouth, 223 Mass. 66, 69. The true interpretation of the statute in that particular, whatever it may be, has no decisive bearing on the present question.
It is manifest from the history and the present provisions of G.L.c. 90, that its main purpose was to govern the operation of motor vehicles upon ways. Most of its provisions are specifically to that point. The trend of our decisions hitherto has been directed to those aspects of the statute. It has been said that the registration statute "was enacted, not only as a police regulation to govern the conduct of all persons in the State, but for the particular protection of travellers upon the highways, to guard them against the dangers that might arise from the operation of improper machines to which the State would not grant the privilege of registration, and to afford them means of redress in case of injury by enabling them readily to ascertain the name and address of the owner of an automobile from which they might suffer injury." Holden v. McGillicuddy, 215 Mass. 563, 565, 566. Shufelt v. McCartin, 235 Mass. 122, 125. Fairbanks v. Kemp, 226 Mass. 75, 78. Rolli v. Converse, 227 Mass. 162, 164. The dominant aim of the statute is to regulate the use of motor vehicles upon highways. That is a proper field for the exercise of the police power. The enactment of G.L.c. 90, in its main features is an exercise of the police power.
It was decided when the fee for registration of any motor vehicle was only $2, St. 1903, c. 473, § 1, that such fee was a license and not a tax. Commonwealth v. Boyd, 188 Mass. 79. That registration fee was increased by St. 1907, c. 580, § 1, to $5. Substantially the present schedule of very much larger fees, graduated according to horse-power, contained in G.L.c. 90, § 33, was first established by St. 1909, c. 534, § 29, and has been in force since that statute was enacted. The size of these fees compels the conviction that they are intended chiefly for the production of revenue. That inference is confirmed by the provisions of G.L.c. 90, § 34, as to the distribution and application of such fees. The public records show that a revenue, amounting to several million dollars annually in excess of the cost of administering the motor vehicle law, is now derived from that source. A license fee may be exacted as a part of or incidental to regulations established in the exercise of the police power. Such a fee commonly is commensurate with the reasonable expenses incident to the licensing and all that can rationally be thought to be connected therewith. The amount of the fees in such connection doubtless would not be scrutinized too curiously even if some incidental revenue were obtained. Hendrick v. Maryland, 235 U.S. 610, 622. There is however a clear distinction between a fee which lawfully may be required in the exercise of the police power and a tax which depends for its validity on the constitutional limitations governing taxation. Whatever may be the definition of the police power, it cannot be distended so as to include or be a substitute for taxation. The bounds of legislative power as to taxation are marked by distinct and unmistakable words in the Constitution of this Commonwealth. The history of constitutional government shows that clear definition and explicit restriction of the power of taxation was one purpose if not a chief motive in adopting written constitutions.
The great increase in the fees charged for registration of automobiles as compared with those in force when Commonwealth v. Boyd, 188 Mass. 79, was decided, and the extensive revenue now received from that source have wrought a change in the nature of that exaction from a mere fee to a tax. While the exaction may still partake of some of the characteristics of a license fee, it is in essence a kind of taxation. It rests for its validity upon the power of taxation to be found in the Constitution. The schedule of fees established by G.L.c. 90, § 33, is not a property tax. It is not based on value but on horse-power of the motor vehicles. It is not proportional to the tax on other property. It is an excise tax. It is an excise tax on the privilege of registering for operation upon highways a motor vehicle as to construction, size, horse-power, lights, safety equipment, and otherwise, proper to be used in conformity to standing laws, all as approved by public officers. That is a commodity upon which an excise tax may be levied. It falls within the scope of decisions already cited and quoted in part. It belongs to the kind of excises illustrated by Commonwealth v. Stodder, 2 Cush. 562, 573, and Boston v. Schaffer, 9 Pick. 415.
That excise tax as to its subject is different from the excise outlined in the present question and proposed in the accompanying bill, which is an excise on the use of the highway by automobiles.
We assume that the assessment of two excise taxes, even though each be upon a separate basis and collected by different officers, for the enjoyment or use of one commodity by a single person for the same period of time would be unreasonable. Connecticut Mutual Life Ins. Co. v. Commonwealth, 133 Mass. 161, 163. The principle against double taxation stated in Otis v. Boston, 12 Cush. 44, 48, is assumed to be as applicable to excise as to property taxation. See Commonwealth v. People's Five Cents Savings Bank, 5 Allen, 428, 436. Accepting that principle fully, we are of opinion that while the proposed excise is closely akin to the excise upon the registration of motor vehicles, it nevertheless is sufficiently different as to the commodity upon which it is levied to avoid any constitutional inhibition. It is not obnoxious to the principle against double taxation.
Our conclusion is that the "commodity" of registering a motor vehicle as fit for use upon highways because conforming to all statutory requirements for the public safety is different from the commodity of actually using the highways of the Commonwealth by the driving upon them of a motor vehicle. Each of these commodities may be subjected to an excise, provided the General Court in its wisdom determines that course to be wise.
It is settled by Hendrick v. Maryland, 235 U.S. 610, Kane v. New Jersey, 242 U.S. 160, and Pierce Oil Corp. v. Hopkins, 264 U.S. 137, that the enactment of a statute such as is outlined in the present question would violate no provision of the Constitution of the United States.
No opinion is expressed upon the validity of the proposed bill in all its details. Opinion of the Justices, 239 Mass. 606, 612. It has been examined and references have been made to it for making plain the scope and point of the question.
Therefore we answer the question in the affirmative.
The order requesting this opinion was received too late for answer before the adjournment of the Honorable House of Representatives. This opinion has been prepared and is transmitted before the assembling of the new House of Representatives whose members were elected at the November election of 1924. The question whether an opinion can be required by one branch of the General Court for the use of its successor has not been considered. That question is left open and the answer now made is not to be taken as an expression of opinion on it.
ARTHUR P. RUGG. HENRY K. BRALEY. JOHN C. CROSBY. EDWARD P. PIERCE. JAMES B. CARROLL. WILLIAM C. WAIT. GEORGE A. SANDERSON.
THE HONORABLE CHARLES FRANCIS JENNEY died at Boston on November 29, 1923. He was an associate justice of this court from September 24, 1919, to the date of his death. On January 17, 1925, a special sitting of the full court was held in Boston, at which there were the following proceedings.
The Attorney General moved that the following memorial, prepared in committee and presented by the Bar Association of the City of Boston, be spread upon the records:
CHARLES FRANCIS JENNEY: A MEMORIAL.
Charles Francis Jenney was by birth, education, and experience a Massachusetts man. He was born in Middleboro on September 16, 1860, and died in Boston on November 29, 1923. All his active life was spent in this Commonwealth.
He was of Pilgrim ancestry, the ninth in descent from John Jenney of Norwich, who came to Plymouth in 1623, one of the little band who early left England for conscience' sake and found a temporary refuge in Leyden. The family was thus of colonial stock, and has remained identified with the county of Plymouth. Among the early worthies from whom Judge Jenney could trace descent were Dr. Samuel Fuller and Elder Brewster.
Justice Jenney's early education was obtained in the common schools. He graduated from the Brockton High School in 1878, and from the Law School of Boston University with highest honors in 1883. He was afterwards for a number of years a lecturer there on Massachusetts practice. He was admitted to the Bar in Norfolk County one year before his graduation from the Law School, and had an office for a time in Hyde Park and afterwards in Boston.
On October 12, 1886, he was married to Mary E. Bruce, who, with two daughters, survives him.
He practised law until 1909, when he was appointed a judge of the Superior Court. His practice was a general one, although he gave particular attention to equity practice and procedure, and to real estate law and conveyancing, in which he became a recognized expert.
He was counsel for the town of Hyde Park and for the county of Norfolk, a trustee of the Hyde Park Public Library, and one of the founders of the Hyde Park Historical Society. He was several years a member of the Legislature, first in the House of Representatives and afterwards in the Senate, where he served on several important committees, including the committee on the Judiciary, of which he was chairman, one of his associates being Calvin Coolidge.
In looking back over the career of a man who has attained distinction in any of the professions, a curious relation may sometimes be discovered between the powers or characteristics to which his success in his chosen vocation seems attributable, and the avocations to which that part of his life of which the public knows little is devoted. Such a relation may be discovered in the life of Mr. Justice Jenney. He had three interests outside of his profession — history, ornithology, and botany — and was a member of several well known societies representing those interests, including the New England Historic Genealogical Society, the American Antiquarian Society, the American Academy of Arts and Sciences, the American Ornithologists Union, the American Fern Society, the Appalachian Mountain Club, and the Boston Society of Natural History. He was an occasional contributor to their proceedings.
To estimate truly the significance of present novelties and debates, which are history in the making, he sought guidance in the irrevocable past; and he could view the contentions and futilities to which human laws give rise from the standpoint of one acquainted with the sure and silent operation of the laws of Nature. In other words, his avocations were naturally related to the calmness, fortitude, and detachment which are essential characteristics of a good judge.
And those qualities, together with a powerful logical faculty, he possessed in a marked degree. As a judge of the Superior Court there was something about his attitude and bearing which discouraged violence and vituperation, while his intelligence and smoothly working faculties quietly eliminated irrelevance and confined the evidence and the arguments to the issues logically involved. His manner as presiding magistrate was so devoid of arrogance and self-assertion as to appear unassuming, and to disguise the power of which the effect alone was visible in the concentration of counsel and the jury upon the essential points, in the general justice of the verdicts rendered before him, and in the infrequency of errors in matters of law. His demeanor on the Bench was pleasant but always dignified, and the reason why he rarely had occasion to repress improprieties on the part of counsel or of witnesses was the inherent power of his personality, which cannot easily be analyzed, but could always be felt in his court room. It was a personality which forbade any suspicion of favoritism and inspired absolute confidence and respect. He was one of the presiding judges of his time of whom it could be said that the impression of his fairness was so strong that counsel against whom he ruled in cases, however hotly contested, never felt inclined to indulge in hostile personal criticism of him.
The value of his service to the Commonwealth as a judge of the Superior Court was thus enhanced by certain characteristics difficult to describe, and not easily obtained under any but the appointive system; but which, when by good fortune they are obtained, tend to allay public dissatisfaction with the administration of justice, and to promote a feeling of confidence and security among those who have or may have business before the courts. For it is very largely by the success or failure with which business is conducted in the courts of first instance that the whole judicial system is itself judged. It is there that men of character, intellectual power, and cultivation can render a great service. It is of the impression produced upon the people by a tribunal with which large numbers of them came in contact that Euripides was doubtless thinking when he wrote, "Thou hast seen our ordered life and justice, and the long, still grasp of law not changing with the strong man's pleasure."
Medea — Gilbert Murray's Translation.
Mr. Justice Jenney's service as a member of the Supreme Judicial Court, to which he was appointed by Governor Coolidge on September 24, 1919, was perhaps too short to permit the full development and display of his powers as an appellate judge. Nevertheless, in his work on that court, the cool, critical judgment and the unerring eye for the relevant and the essential which he had displayed as a judge of the Superior Court were apparent. His opinions showed a certain dry detachment which made them attractive to the student and valuable to the practitioner. In the opinion in Bacon v. Onset Bay Grove Association, a case involving questions of equitable easements and the right to injunctive relief, several of Mr. Justice Jenney's striking intellectual characteristics are displayed — his firm grasp and clear understanding of the principles of law involved in such cases, his scrupulous care in dealing with authorities, and his conscientious attention to all the important contentions of both sides. Had he lived longer, there can be no doubt that he would have had a large influence in developing in this Commonwealth the various branches of the law relating to real estate. Nor can it be doubted that his experience as a legislator would have helped him to deal effectively with questions of constitutional law.
Just as his avocations tended to broaden and deepen his intellectual life, so did his natural kindness and sympathy contribute to the attractiveness of his personality. For no one must infer from the emphasis which has been placed upon his characteristics as a magistrate that Justice Jenney lacked the more human qualities. It is true that he had the reserve of a typical New Englander; but it is also true that in times of trouble or distress his generous impulses were disclosed to all who needed his sympathy or his help.
Such was the magistrate and such the man whom the Bar in his lifetime held in respect and honor, and to whose memory it now pays this all too inadequate tribute. In the long roll of distinguished men whose character and attainments have adorned this Bench, his name stands out as one conspicuous for wisdom and an understanding heart.
Fred T. Field, Esquire, then addressed the court as follows:
May it please the Court: I speak to these resolutions, not as an intimate friend of Mr. Justice Jenney, but as one of the great body of the Bar, who, from a distance, saw him at his work as lawyer and as judge. Others, who follow me, must give the nearer, the more personal view.
It is no less true because commonplace that one of the greatest satisfactions of life comes from the consciousness of work well done and it is to be presumed that, generally speaking, the more important the work the greater the satisfaction. I think that I take little risk when I venture the statement that Judge Jenney in a higher degree than most men derived satisfaction from the excellence of his work apart from its importance or the dignity of the position in which it was done, though I do not suggest that he underrated either of these things. This inference I draw from the fact, apparent to all who knew him, that his basic quality was the rare virtue of thoroughness.
Yet in Judge Jenney thoroughness did not dwell alone. With it was the complementary and time saving virtue, a sense of relative values, a power of selection. Mr. Justice Holmes, with his genius for a phrase, has stated the necessity for this quality. "In deciding a point of law one has to consider this element of time. One has to try to strike the jugular and let the rest go." With all his thoroughness Judge Jenney had an eye for the jugular.
Doubtless thoroughness coupled with discrimination characterized all that Judge Jenney did, but it was displayed to a wider public and in more permanent form in his written opinions as a Justice of this Court. His clarity of statement must have come from clear thinking; his clarity of thought from full knowledge and careful analysis. His accuracy of citation must have had a similar derivation. His opinions furnish ample evidence of his dominant mental trait.
Thoroughness, moreover, with Judge Jenney was a moral quality and had moral implications. Common honesty is not easy always but its existence in men of standing is to be assumed. It "goes without saying." Intellectual honesty is far more difficult. To bring together all the factors in a problem, correctly weighing each, including that hardest of all factors to evaluate, the so-called human equation, to follow the argument to its logical conclusion and to accept that conclusion, however unwelcome, makes demands upon conscience as well as upon mind. Judge Jenney seemed to me to meet those demands. He was intellectually honest. This characteristic had its roots in his thoroughness and flowered in that widely recognized impartiality to which the resolutions refer. He was able, but also, as Sir Spencer Walpole said of Mr. Gladstone, he was "transparently true."
Samuel T. Harris, Esquire, then addressed the court as follows:
May it please your Honors: Mr. Justice Charles Francis Jenney was, before his appointment to the Bench, a general practitioner. Of the general law in its many branches he had a knowledge not only comprehensive but, what is more to the point, accurate.
But it is of him as a conveyancer that I would speak, since it was in this branch of the law that I first became acquainted with him and thereafter had most of my professional dealings with him.
Soon after his admission to the Bar he became recognized as an expert in this branch of the profession. And with good reason. He not only studied the law of real property, admittedly a difficult subject, but he practised it wisely and well.
Shortly after his elevation to this Bench he told me that when first admitted to the Bar he entered an office where a good deal of practical conveyancing was done, and to him was assigned the duty of examining titles. In order to qualify himself properly he did what most of us who follow that line ought to do, he read Crocker's Notes on Common Forms through from beginning to end. But he not only did that: he took the pains of reading and reflecting upon all the cases cited in this notable work. I think there are few of us who call ourselves conveyancers who can honestly say we have done this. But he not only studied his text books and cases, he worked with his own hand in the registry of deeds, running chains and abstracting and passing titles. Each title examined brought up its own questions of law to be decided, many of them difficult to answer correctly, and thus day by day he accumulated a vast reservoir of well-reasoned knowledge upon which in after years, especially while on the Bench, he was able to draw so copiously.
His ability in this line was quickly recognized. His expert knowledge both of the law of conveyancing and the actual practice of it led him to be consulted by his brother conveyancers on many matters of difficulty.
Therefore when he took his well earned seat upon this Bench our fraternity rejoiced: for we anticipated that his career would be a distinguished one, worthy of the best traditions of this court. And so it proved. His tenure of office was all too brief. But it served to confirm our belief that his decisions in the law would be well reasoned, sound, able and conclusive and especially helpful in deciding some of the many questions, difficult of solution, but of vital importance to the Massachusetts conveyancers.
James E. Cotter, Esquire, then addressed the court as follows:
May it please your Honors: It is with reluctance that I respond to the request to address the court on this occasion. I am conscious that no words of mine will adequately describe my unremitting regard and affection for Charles F. Jenney for over forty years or, to be more exact, since the early part of 1882, when he became a student in my office at Hyde Park. In September of that year he presented his petition for admission to the Bar to the Superior Court in Norfolk County, which petition was accompanied by my recommendation. He was examined and found qualified for admission by Frederick D. Ely and Ellis Ames, both eminent Norfolk County lawyers. On the fourth of October of that year he took the oath of office before Justice Pitman, then holding the Superior Court at Dedham. He resumed his studies at the Boston University School of Law and received his degree in June of the following year.
After entering upon his professional career, he responded to every call to public duty by his fellow citizens and the Chief Executive of the Commonwealth. He occupied many positions by election and appointment and filled them all with honor to himself and to the satisfaction of his friends and fellow citizens. While he did not claim any special power of oratory and his discourses or opinions were not ornamented with unusual figures of rhetoric, yet, in indomitable industry, fidelity to duty and devotion to principle, he was unsurpassed by anyone of my acquaintance.
I shall leave it to others to describe his eminent services on the Bench. At the time of his appointment to that position and thereafter he was imbued and saturated with law, its principles and philosophy. He was also familiar with the lives and works of the most eminent American and English statesmen and jurists.
It was my privilege during our acquaintance to visit him in his home and to know his home life. He was a faithful son, a loyal brother, a devoted husband, an affectionate father, a true friend, and an ideal citizen.
His kindness and affection were proverbial. After his death, the Boston Post in an editorial stated that these were his dominant traits of character. As was said recently by one who knew, he never spoke of any of his associates on either Bench other than in terms of kindness and affection. This is consistent with the selection by him of his favorite poem, entitled, "What Is Good?" by John Boyle O'Reilly, which he read many times with pleasure and satisfaction during the last years of his life. It is still preserved at his home.
" 'What is the real good?' I asked in musing mood. 'Order,' said the law court; 'Knowledge,' said the school; 'Truth,' said the wise man;. 'Pleasure,' said the fool; 'Love,' said the maiden; 'Beauty,' said the page; 'Freedom,' said the dreamer; 'Home,' said the sage; 'Fame,' said the soldier; 'Equity,' the seer; Spake my heart full sadly: 'The answer is not here.' Then within my bosom Softly this I heard 'Each heart holds the secret — Kindness is the word.' "
In conclusion, let me say Judge Jenney will long be remembered by the Bench and Bar of this Commonwealth for his distinguished judicial services, and by the patriotic public generally for upholding the highest ideals and best traditions of our Country and its Constitution as handed down to us by the Fathers of the Republic.
Frederick H. Chase, Esquire, then addressed the court as follows:
May it please the Court: None of us are likely to forget Judge Jenney. We need no artist's brush to bring his features before us, nor shall we ever require any other reminder of the individual or his achievements. To us he seems to have been in this court room only yesterday. But memory dies with those who remember, and if the living do not speak what they know, the strongest personality fades and is lost. So it is, that we ask to have lie with the records of this court something of history, and something of description, telling of the man whose words have become our law.
Yet, after all has been said, how little have we done of what we would like to do. No man, alone, or group of men, can adequately describe another. We saw Judge Jenney as a lawyer and a judge. But others who knew him as something else and something different can supplement whatever we may have to tell.
How much, for instance, can be added to our picture by his fellow members of the Nuttall Club, with whom he roamed the fields and woods and watched the flight of the birds? At Bartletts, Goodspeeds, and McCance's are there not those who could help with what the bookshops know? Would we not like to hear from the fishermen of Monhegan about what he meant to them, and all that he knew about their island? And could we not learn much of him from the volumes with which his house was filled? I do not know what books Judge Jenney liked best, but I should be surprised to hear that his tastes were not catholic, and that he was not as familiar with the whales of Herman Melville's Moby Dick as with Montesquieu's Spirit of the Laws.
And so, at a time like this, we cannot hope to give anything like a complete account of a personality and mind which had so many sides and interests. The most that each of us can do is to give a few strokes to the composite portrait we are trying to draw for those who will not have lived with him and could not know him.
There are two vivid mental pictures which I have of Judge Jenney, and shall always retain; one outside the Court House, and the other within. In one he is swinging along the street, his green bag stuffed and bulging with material for work, stopping before a bookshop window. In the other I see him, his hands full of papers, coming into the lobby of the Superior Court where his associates are gathered. His attention is distracted from his own problems by an appeal for advice from one of his colleagues, for he rarely crossed the length of that room without hearing a call for help. Many a train for Hyde Park has he lost by being detained while his hand was on the door knob. But he always gladly lingered to open the stores of his knowledge. His lovable friend in Springfield, Robert O. Morris, has said to me, "Judge Jenney knows everything." I didn't tell Mr. Morris that there was one subject which Judge Jenney had not followed through. He once told me that he hoped some day to find time to trace thoroughly the history of the writ of entry in Massachusetts. This expression of dissatisfaction with the incompleteness of his knowledge reveals, I think, the motive force which drove his mind onward. His appetite for research was never satisfied. He constantly sought for the sources and springs of legal principles.
I am grateful for the privilege of being permitted to add to what already has been said the tribute of one who has been guided by Judge Jenney's friendly counsel, instructed by his precept, helped by his example, and honored by his friendship.
T. Hovey Gage, Esquire, then addressed the court as follows:
May it please your Honors: I bring the tribute of the Worcester Bar to the memory of Mr. Justice Jenney.
We did not enjoy the intimacy of a neighborly acquaintance; we did not share in the success and defeats of his active practice at the Bar; only a few of us were privileged to come under his influence as a teacher in the school of law of Boston University. Of his excellencies in these relations others have spoken with personal knowledge.
But we knew him as a magistrate of our two highest courts and in the companionship of a winter's evening. It so happened that his early assignments in the Superior Court brought him to Worcester. His fairness and firmness, his patience and prudence, his courtesy, dignity and learning immediately won for him the esteem and affection of our Bar. This good repute he enjoyed in increasing measure to his untimely death. He told me once that he received more letters of congratulation upon his appointment to this Court from Worcester County than from any other single section.
This is not the occasion to enter upon an analysis of the qualities and characteristics that made him a great judge; but I venture to mention one in which, at least to my observation, he excelled. The common lot of humanity revels in the trivial; a great man focusses his attention on the essential. Judge Jenney had the capacity to sense the real, vital issue in a case; to let the decision of that issue decide the case and not to be distracted or disturbed by the secondary issues which over-zealous lawyers are too apt to inject into every proceeding. In his decisions he not infrequently dismissed these inapt issues with the pertinent remark that, even if error in regard to them had been committed, no party had been prejudiced.
It has been said that the great test of a man's character is the use he makes of his leisure. No one could be with Judge Jenney without discovering at once how he met this test. He had the true scholar's love of books, reading and intellectual pursuits and recreations. He loved the birds, and trees, and flowers, and he loved the simple fisherfolk of a remote island, and the boundless sea. Ever before him were visions of the good and great of all ages, nature's miracles of loveliness, birds and flowers, and the mystery of the sea. Such visions explain the simplicity, serenity and beauty of a life animated by them. There is no room in such a life for anything mean or low. If there be a conscious spirit pervading all nature by land and sea, I am sure it is present here with us honoring his memory.
The Justices of our Courts dedicate themselves to the service of the Commonwealth; their lives are an inspiration to us all. We do well to honor their memory and, following their example, to dedicate our lives to the highest ideals and noblest traditions of our common profession.
The Chief Justice responded as follows:
Mr. Attorney General and Brethren of the Bar: It is altogether appropriate that we assemble to pay tribute to the late Mr. Justice Jenney. It is fitting alike in respect to the memory of the dead and to the sensibilities of the living. The admirable memorial and the feeling tributes spoken at the bar delineate with fullness his outstanding traits as a man, a citizen, a lawyer and a judge. Their composition and utterance reveal both the genuine warmth of friendship and the discerning understanding of accurate judgment.
In moral and mental fibre Charles F. Jenney was a characteristic son of the Plymouth Colony. A Mayflower descendant, he was imbued with the traits of mildness of manner, enlightened and deep personal conviction and firmness of purpose which distinguished those ancestors. Their steadfastness and persistence and industry, adapted to present conditions, found new revelation in him.
There was nothing spectacular or startling about his life. He was in the best sense a product of the educational system of our Commonwealth. He was both a pupil and a teacher in the district school. A graduate of the high school and of the Boston University Law School, he was for many years a teacher of Massachusetts practice in the latter institution. He was thrice a member of the General Court, in 1886 a representative and in 1907 and 1908 a senator. Aside from these political experiences, he practised his profession without interruption. By temperament and endowment he seemed marked for judicial work. His talents were not of an order especially calculated to shine in forensic contests. They were solid rather than brilliant. He was much sought as auditor and master and was often appointed to these important trusts. He argued a considerable number of cases before the full court. He exemplified in his practice at the bar strong common sense, exact learning in the law, practical knowledge of men and affairs. He was the safe counsellor, the helpful neighbor, the good citizen. He was sagacious in advice both as to private interests and the public welfare. He was unsparing in time and energy for the good of the community in which he lived. He had the noble public spirit to which no opportunity to forward the general weal seemed trifling or obscure or unimportant.
It was apparent immediately after his appointment to the Superior Court that judicial service of unusual and steadily increasing excellence was being rendered. He became learned in the law of every litigation tried before him. He manifested extraordinary capacity in unravelling complicated facts and discovering the kernel of obscure cases. His statement of controlling principles was clear. He was lucid and helpful in charges to juries. It is common report that he was exceptionally helpful to his associates. His promotion to this bench was the natural result of a widespread perception of a reputation based upon the firm foundation of tried judicial experience. His achievements here outran the expectations of friends.
He was fifty-nine years of age when appointed by Governor Coolidge an associate justice of the Supreme Judicial Court, and sixty-three at the time of his death. The period of his service upon this court was from September 24, 1919, to November 29, 1923, barely two months more than four years. It was doubtless too brief to enable him to attain in this field the full development of his powers. Since the beginning of the Revolution, ten out of the sixty-two who have ceased to be members of this court have held office for a shorter time. Yet his contribution to the visible fabric of our jurisprudence is important. The full court spoke in one hundred sixty-three opinions written by him. They are to be found in eleven volumes of our Reports. The first is Bombard v. Worcester Consolidated Street Railway, 234 Mass. 1, and the last is Flint Co. v. Dana, 246 Mass. 577. An unusual proportion of these are regarded as leading cases. Their value will be recognized increasingly as the years come and go. He wrote no dissenting opinions and he joined in none.
He was most painstaking and laborious in the performance of his every duty. In the preparation of opinions, his investigation of the pertinent authorities was exhaustive. His discussion of points involved was ample. His grasp of controlling principles was sure; his statement of them comprehensive. His talents were peculiarly helpful in the deliberations of the consultation room. He was thorough in his understanding of the essentials of every case. He saw things in their right perspective. The exposition of his views was full and lucid. His insight was clear as to the ultimate reach of propositions of law, and as to the weight to be attributed to logic and to experience and to prophecy in the life of the law. His intellectual vision was unclouded. His courage was unwavering. He was firm of purpose and sound in judgment. He was true to the ideal that the glory and majesty of the people consist in the proper interpretation of the laws.
He was companionable with his associates. He was appreciative of humor. He was a man among men. He was stout of stature, heavy in weight and of medium height.
He had many interests outside the beaten path of his profession. He possessed a vast fund of accurate knowledge upon a diversity of subjects. Historical study and investigation always had a charm for him. Few were more familiar than he with the annals of the Pilgrim Colony. The appreciation by others of his knowledge of this lore was attested by his election to the American Academy of Arts and Sciences, the American Antiquarian Society, and to other kindred societies of a more local character. He was a valued contributor to their proceedings. His monograph entitled "The Fortunate Island of Monhegan" was recognized at once as the most reliable history of this ocean outpost of New England. He was particularly wise in the value of books treating of the history of America and of the biography of Americans. He was an expert in many branches of nature study.
The highest usefulness is beyond the reach of those lacking in the spirit of reverence. Service in the progress of civilization is denied to the scornful and the ungodly. Our departed associate was not wanting in attention to the conventional forms of worship. But he was most keenly sensitive to overruling omnipotence as manifested in birds and ferns, grasses and flowers, the mountain and the sea. His interest in these matters was disclosed by his membership in numerous societies, to which reference already has been made at the bar. These tastes constantly led him far afield in many a tramp. It was his joy to explore forest and meadow for the earliest and the latest bloom. His ear was attuned to catch in dale and marsh the most elusive notes of feathered friends. His eye was alert to observe their rarest plumage. From his summer home on Monhegan he loved to descry across the intervening tide and countryside the rays of the declining sun shedding roseate glory upon the peaks of the White Mountains. Well might he exclaim out of his own experience
"I waited, nor had need to tarry long When earth broke into universal song. The trees with mute, gesticulating speech Proclaim Thy still-new wonders, each to each. The birds pour forth their blitheful minstrelsy; Known unto them their language — and to Thee! What marvel if I, too, with them awhile, Sharing their secret utterance, nod and smile. The grasses rippling merriment and dance — How could mere voice such utterance enhance? The babbling brooks, entrancéd, sing Thy praise; The mountains listen in enwrapped amaze."
He had many satisfactions. The joy of fine living touched him at many points. His was a rare combination of qualities. Judicial, scientific and historical attributes blended to make a man gentle in the family, attractive to friends, strong for public service.
The motion that the memorial be spread upon the records is granted.
The court will now adjourn.