331 Mass. 779 (1954)
The Honorable Charles Henry Donahue, an Associate Justice of this court from March 17, 1932, was retired on April 26, 1944, and died on November 4, 1952. On April 29, 1954, a special sitting of the court was held at Boston, at which there were the following proceedings:
The Attorney General addressed the court as follows:
May it please Your Honors: It is an honor and a privilege as Attorney General of the Commonwealth of Massachusetts to present in behalf of the bar of the Commonwealth a memorial in commemoration of Charles Henry Donahue, lately an Associate Justice of the Supreme Judicial Court.
The members of the judiciary and the legal profession gathered here today in honor of the late Justice Donahue do not regard this memorial as an occasion sad in its meaning, but rather as an opportunity to set forth on the records of this court their appreciation of the contribution made by Charles Henry Donahue to the ever increasing body of law governing the activities of the citizens of this Commonwealth.
Charles Henry Donahue was born on December 7, 1877, in Milford, New Hampshire, the son of John F. and Bridget Murphy Donahue. He attended the schools in Milford and was the valedictorian of his graduating class in Milford High School. From there, he went to Dartmouth College and graduated in the class of 1899, demonstrating his high scholastic ability by attaining the third highest average in that class. He then enrolled in Boston University Law School, completed the three-year course in two years and graduated in 1901. He was admitted to practice in the courts of the Commonwealth in the same year. He worked in the law office of John F. Cronan in Boston until 1909 when he formed a partnership with William F. Meehan at 18 Tremont Street. His careful and deliberate preparation of his clients' cases before the courts of the Commonwealth brought to his office clients from all walks of life.
On October 7, 1924, Governor Channing Cox appointed him to the Superior Court, and on March 17, 1932, Governor Ely elevated him to the position of Associate Justice of the Supreme Judicial Court. He served in this command until April 24, 1944, at which time he presented to the Governor in writing a request that he be retired from his judicial office, and on April 26, 1944, the late Justice Charles Henry Donahue, in accordance with such request, was retired by the Governor with the consent of the Executive Council. He died at the age of seventy-five on November 4, 1952.
It has been said by those who knew him well that Charles Henry Donahue had four main interests in life -- his family, Dartmouth College, Boston University Law School, and the law and those who were engaged in the legal profession. First and foremost was his family. In 1909, he married Ellen G. Teevens of Boston, and this marriage, which was a most happy one, was blessed with five children. He counted among his happiest hours those spent with his sons and daughters and his grandchildren. His devotion to Dartmouth College was most unusual and well known. He was secretary of his beloved 1899 class for five years, and he attended the annual dinner of this class from 1900 to 1950 without exception.
His love for Dartmouth College, however, in no way diminished the pride he took in his law school. He served as president of his law school class for every year from 1901 until after his retirement from this court.
Of him it could be said that he indeed "loved the law." His interests in the legal problems of every day litigation led him to analyze all phases of his clients' cases. His approach to a law suit conferred on him the reputation of being a careful, learned, and able attorney.
His interests in his associates in the legal profession and the judiciary aptly demonstrated the warm and human qualities which made him an understanding and considerate member of the bench and a friend and companion to many.
His close associates will readily recall that he was an inveterate pipe smoker, who, when the problem was knotty or the decision difficult, would smoke one pipe after another until a solution had been found. He did not, however, exclude from his activities the knowledge of the world around him. He was a constant reader of all kinds of literature, but his particular interest was in history and biography. He knew no false pride, no pomposity, no rancor, no prejudice. He had an abiding loyalty to his church, to his race, his family, college and associates in the legal profession and in the judiciary.
He was not one who would sacrifice a sound decision for a well-turned phrase. He was a craftsman whose decisions covered the range of all phases of litigation. It was as though he followed the advice given by the late Justice Oliver Wendell Holmes in rendering the best service possible for our country and for ourselves. "To see so far as one may, and to feel the great forces that are behind every detail . . . to hammer out as compact and solid a piece of work as one can, to try to make it first rate, and to leave it unadvertised." These words spoken in 1911 are an apt description of the underlying philosophy of the late justice of this court we honor today.
A memorial which records the esteem and affection that one's associates possess also serves as a challenge to those who remain. Let us here resolve that this occasion will inspire a determined effort on our part to place the legal profession on an increasingly higher pinnacle of public confidence.
I respectfully request and move that this memorial be embodied in the records of this court.
Thomas M. A. Higgins, Esquire, addressed the court as follows:
May it please Your Honors: For and on behalf of the Massachusetts Bar Association I am authorized to support the motion of the Attorney General of the Commonwealth.
Justice Charles Henry Donahue was born to hard working, humble, God fearing, God loving parents, both of whom immigrated from Ireland. His father's occupations were those of a laborer and farmer. He was the third of five children, all of whom were sons.
After his education in the Milford, New Hampshire, schools he entered Dartmouth College, receiving therefrom the degree of Bachelor of Letters.
One of his illustrious, honored contemporaries at college, a former associate of his on the Superior Court and this court stated: "At Dartmouth he was known as Charlie Donahue. Classes were gaining rapidly in numbers when he entered college in the Fall of 1895 but everyone knew Charlie Donahue. It is safe to say that never was there a more popular man in the college and this was not due to athletic prowess or other distinguishing attributes that usually tend to make a man popular. The fact that he made Phi Beta, Kappa, in his day at least, was not especially evaluated in terms of popularity. He was quiet, kindly, possessed of a wit that never stunned but always sparkled. He was the friend of everyone and with that kind of friendship that never asked anything in return except friendship. Seldom, however, could the return quite equal that which he gave. His love for and loyalty to his college and class never dimmed."
This is the evaluation of him during that formative period of his life. He lived up to it during his later years.
He commenced the study of law at Dartmouth in his senior year. He then entered Boston University School of Law and attended the same from October 4, 1899, to June 5, 1901.
He made application for admission to the Bar on June 21,1901. Samuel C. Bennett, the then Dean of Boston University Law School, certified he was of good moral character; that he had pursued the study of law regularly and attentively and that he graduated from the law school with the degree of LL.B. cum laude. He was admitted to the Bar September 17, 1901, at the age of twenty-three years.
Justice Donahue practiced at the Bar of the Courts of this Commonwealth and while at the Bar was considered an excellent lawyer, a man who commanded the respect and admiration of all who knew him. He was an honor to his profession both at the Bar and on the Bench.
As a Judge on the Superior Court he was patient, courteous and eminently fair. His treatment of counsel and witnesses was courteous and generous. His sympathies were broadly humane. He was deeply interested in the preservation of the fundamental principles which constitute our government; protection of the right of every individual to life, liberty, property and character according to standing law and in the proper performance of due process of law. The maintenance of general welfare and common good, religious freedom and the perpetuation of the government of laws were to him living issues never to be lost sight of and never to be in the slightest degree impaired.
Serene and courteous in bearing with a keen sense of humor he was an admirable magistrate possessing a shrewd instinct which enabled him to see through contradictions and prevarications of witnesses to the real bearing of a case. No lawyer with a good case, fairly presented, needed to fear a miscarriage of justice at Judge Donahue's hand.
After serving less than eight years with distinction on the Superior Court he was appointed an Associate Justice of this court. Justice Donahue qualified for this office on March 29, 1932.
He sat for the first time with the Full Court in Boston on April 4, 1932. The first opinion he wrote for the Full Court was the case of Richmond v. Sweeney, 279 Mass. 250. The last opinion which he wrote was Fortier v. Hibernian Building Association of Boston Highlands, 315 Mass. 446.
No man believed more strongly in justice; but, the only justice with which, as a Judge, he dared concern himself, was justice according to law. The logical development of legal principles and their application to ascertained facts, irrespective of the consequences to particular litigants, were the aims apparent in his opinions.
His judicial manners were admirable. The dignity of the Bench ever was maintained in spirit as well as in appearance. He upheld the pride of Massachusetts in the traditions of the highest court. He died as he had lived, a respected, honored and revered citizen.
On April 24, 1944, he presented to the Governor a request, because of physical disability, to retire from his judicial office. This request was granted by the Governor with the consent of the Executive Council.
As was said by the late Honorable Edward F. Hanify, who presided at the memorial exercises held for a classmate of Justice Donahue at Dartmouth, and later an associate of his on the Superior Court, the Honorable Nelson P. Brown, we say about Justice Donahue: "He was a just man. He was just in every human relationship outside of the court room, to every litigant whose cause came before him, and to every defendant on whom he pronounced sentence. His life was a shining pilgrimage from time to eternity and justice was its guiding star." On November 4, 1952, a new suitor appeared, with a summons to the world beyond. He walked into the presence of the merciful and Eternal Judge, a credit to the Bench and Bar of this Commonwealth.
James M. Graham, Esquire, addressed the court as follows:
May it please Your Honors: I have the proud privilege of seconding the motion of the Attorney General in behalf of the Boston Bar Association:
We are assembled here today in what will be recorded in the records of this court as a memorial to the late Charles H. Donahue who served as a justice of this court. The word "memorial" seems to carry with it a feeling of sadness or regret on the passing of one who has gone to his reward, which is the ultimate goal for which we are permitted to enjoy what seems to be, as we mature, only too short a life on this earth. This, nevertheless, is an occasion on which we are permitted and privileged to extol the qualifications and virtues and give evidence of the esteem and affection in which we hold one who spent the best part of his life giving to his fellow men the assistance and benefits of the knowledge, experience, training and education which he possessed. The Bar and those who practiced law with him, in and before the courts over which he presided, now desire to spread upon the records of this court a tribute to him that his work, well done, should not pass unheralded, but should be made a permanent record for posterity. This should, of itself, be of sufficient conviction that we are gathered here with pride to say that Charles H. Donahue was the type of man who so lived and conducted himself, both in his private life and in his chosen profession as to merit the spreading on the records of this court, there to remain forever with memorials to other great justices of this court, a memorial to him which may be an inspiration to the present and future readers thereof.
While my reference to him as "Charlie" may seem to offend the dignity of his office, it was the form in which he was addressed outside of court proceedings by fill with whom he was well acquainted, and carried over from the days when he was a prominent practicing lawyer, indicating the affection in which he was held by his friends.
My first recollection of the man to whom we pay tribute goes back to the days when he was associated as a young lawyer with the Honorable John F. Cronan, who was a keen and astute lawyer, under whose tutelage Charles H. Donahue received his early training, which demonstrated itself during the years in which he was a practicing trial lawyer, and subsequently when he was a member of both the Superior and the Supreme Courts. His office at that time was in one of the old buildings which adjoined the old police head-quarters in Pemberton Square, and while he did a great deal of research of the law for Mr. Cronan, he was quick to absorb the technique with which his associate tried his cases.
In due time he associated himself with William P. Meehan, and became an active trial lawyer. He was of the quiet, careful, accurate, painstaking type, preparing his cases well, both as to the facts and the law, and presenting them clearly, skillfully and effectively, and with no gusto or pomp at trials by jury. He always kept to the issues, avoiding situations which might detract from the main facts, so that he became a formidable opponent.
He never aspired to public or political office. He was a modest man, who devoted his whole life to his chosen profession.
In his practice, he conducted himself with a high degree of dignity toward the court, and with proper respect for his adversary, so that he won the esteem and admiration of both the court and members of the Bar. Despite his quiet and unassuming character, he had a keen sense of humor, and was known for his dry wit.
He never felt that his judicial position should cause him to remain apart from his brethren of the Bar at any social gathering, and his personal charm and the affection in which he was held made him an ever welcome guest. On his death he left a widow who has since passed away, and four children. One of his sons is now a practicing attorney in this city. He had an abiding loyalty to his family. He was a devoted and humble adherent to the precepts of his church and we trust by the omnipotence of the God he worshipped he is today present to hear recorded his virtues and the achievements of his life.
He tried many cases, mostly for the plaintiff, and in the case of Hynes v. Brewer, 194 Mass. 435, which was one of his earliest cases, he successfully established the law as to ice coming upon a public way from private property by way of an artificial channel creating a nuisance, and permitting recovery against the owner of the property by one who was injured by falling on the ice. The decision in that case was one of the earliest by this court, which established the law in a long line of so called nuisance cases.
When he was appointed justice of the Superior Court the appointment was no surprise because his qualifications and reputation at the Bar admirably fitted him for the position. I can recall the day he was appointed. I was trying a case before Judge Lawton in the Superior Court at Salem. The word that he had been appointed was received with favor by all.
As a justice of the Superior Court, counsel, regardless of whether they represented the plaintiff or the defendant, were always happy to try before him because trying before him gave counsel an exceptional feeling of comfort in the trial of their cases. So long as the case was being properly tried lie never interfered with the conduct of the case, and always permitted counsel to go into all the law and evidence which they thought seemed pertinent to the issues, and he always assumed the attitude that all litigants were entitled to have their day in court to the fullest extent of that term. One of his outstanding virtues in his conduct of trials or court proceedings was the patience and calmness with which he heard the evidence and arguments and studied all questions raised before he rendered a decision. He was courteous, patient, truly conscientious and desirous of doing justice. He will be remembered as a sound and learned judge. His kindly personality and his desire to help both those with whom he was associated on the Bench and counsel who came before him made his loss felt in the Superior Court when he was appointed to the Supreme Judicial Court.
He was appointed to the Supreme Judicial Court on a very auspicious day for a "Donahue," -- the seventeenth of March, 1932. He accepted that high office with full realization of its importance and a true conception of the work and responsibilities connected therewith. I leave to those more closely associated with him in this Court the task of reviewing the extent and nature of his judicial service.
In his death the State has lost an outstanding citizen and the courts and Bar a just, conscientious and highly capable judge.
Chief Justice Qua responded as follows:
Mr. Attorney General and Brethren of the Bar:
Charles Henry Donahue was born at Milford, New Hampshire, on December 7, 1877. He grew up in that town and in 1895 was graduated at the local high school as valedictorian of his class. There is reason to believe that his early life in Milford exercised a profound influence throughout the remainder of his life. He never lost interest in the town or in its people. He visited there frequently and was a subscriber to the local paper as long as it continued to refer to persons whom he had known.
He entered Dartmouth College with the class of 1899, in large part worked his way through, and was graduated in due course very close to the head of his class. By reason of his scholastic attainments he was elected to the honorary fraternity of Phi Beta Kappa. After graduation all that pertained to his college and to his college class continued to constitute a second dominating interest in his life. He regularly attended class meetings and reunions and gatherings in Boston of Dartmouth men. He was secretary of his class.
Justice Donahue acquired his professional education at Boston University School of Law from which, after two years of study, he was graduated in 1901. He was president of his class. Then followed more than twenty years of active practice, at first as an employee of other lawyers and later as a partner in a firm of his own. He enjoyed trial work and was proficient in that branch of practice. In 1909 he married Ellen G. Teevens. From this union two sons and two daughters grew to maturity. In 1924 he was appointed to the Superior Court by Governor Cox. He was a popular and highly respected judge of that court until his promotion to the Supreme Judicial Court by Governor Ely on March 17, 1932.
Justice Donahue's first opinion as a member of this court is found in Richmond v. Sweeney, 279 Mass. 250, and his last opinion is in Fortier v. Hibernian Building Association of Boston Highlands, 315 Mass. 446. He wrote two hundred seventy opinions expressing the decision of the court. He wrote dissenting opinions in Long v. George, 290 Mass. 316, 323, and in Commonwealth v. Corbett, 307 Mass. 7, 14. He joined in the dissent in Weiner v. Pictorial Paper Package Corp. 303 Mass. 123, 134.
When Justice Donahue took his seat on this bench he soon proved the truth of the statements of Justice Holmes, "Great places make great men . . . . No man of any loftiness of soul could be long a Justice of this Court without rising to his full height." Justice Donahue possessed much loftiness of soul. He was modest, unpretentious, courteous, patient, tolerant, and firm. He was ready to listen with an open mind to the views of others. Pride in his own opinion was not an obstacle to his pursuit of the truth. He bad a profound respect for the law. Although a somewhat emotional man, he did not carry his emotions into the consultation room or into his cases. He was a keen but kindly judge of the strong and weak points of other men and could foretell with accuracy their probable response to circumstances. He was liberally endowed by nature with that great quality which perhaps more than any other calms the turbulence of controversy and eases the rough path to agreement -- a sense of humor. Often in consultation he would approach a case in a roundabout and perhaps whimsical manner with a quiet facetiousness which might at first cause a listener unfamiliar with his methods to wonder whether the case was being seriously analyzed according to the governing principles of law; but in a few minutes the pertinence of what he had been saying in the light of those principles would begin to appear, and seldom did he finish his discussion without having made some interesting and useful contribution to an understanding of the case, often from an unexpected but practical angle. His knowledge of human nature as it is exhibited in men of all types and occupations was an asset of value to the court, not merely in the decision of cases but also in what may be called the field of public relations where at times and in limited ways even a court of law must take public opinion into account.
Justice Donahue's opinions from the very beginning showed him to be the master of a clear and pleasing style. The reasoning flows smoothly from step to step in logical sequence. There are no rough spots. Careful preparation is evident both in substance and in form. There are sufficient, but not excessive, citations. His opinions well illustrate the truth of the saying that, even if the law is a science, its practical application to the affairs of life is an art. As illustrative of the orderly arrangement of his opinions and of the lucidity of his style mention may be made of the leading cases of Porter v. Sorell, 280 Mass. 457, Mt. Holyoke Realty Corp. v. Holyoke Realty Corp. 284 Mass. 100, and Menici v. Orton Crane & Shovel Co. 285 Mass. 499.
In addition to his work on the court Justice Donahue gave freely of his time in assisting good causes, particularly such as were connected with the law. He frequently accepted invitations to serve as toastmaster or after dinner speaker where his keen sense of humor had full opportunity. No gathering at which he spoke could be a failure.
After twelve years of service on this court it became apparent that Justice Donahue was carrying on his work under difficulty, and on April 24, 1944, he presented to the Governor his request that because of physical disability he be retired under art. 58 of the Amendments to the Constitution. On April 26 he was retired accordingly. He passed away after a long illness on November 4, 1952.
The motion that the memorial be spread upon the records of the court is granted.
The court will now adjourn.