344 Mass. 791 (1962)
The Honorable Edward Augustine Counihan, Junior, an Associate Justice of this court from September 6, 1949, until his resignation on November 23, 1960, died on February 1, 1961. On May 18, 1962, 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: As Attorney General of the Commonwealth it is my honor and proud privilege to present in behalf of the Bar of the Commonwealth a memorial in commemoration of Edward Augustine Counihan, Junior, lately an Associate Justice of the Supreme Judicial Court.
Edward Augustine Counihan, Junior, served as an Associate Justice of the Supreme Judicial Court for more than 11 years. At the time of his appointment to this court on September 6, 1949, he had served for twenty-eight years as a special justice of the Third District Court of Eastern Middlesex in Cambridge. He resigned as an Associate Justice of the Supreme Judicial Court on November 23, 1960. He died on February 1, 1961, at the age of 78.
Justice Counihan met and overcame difficulties which would have over-burdened a lesser man. He met them with unflinching fortitude and an unconquerable courage. He was blessed with an uncomplaining, and in fact joyful, disposition and temperament which made him beloved of all who knew him. His career from school days, through college and law school, in the practice of the law, in civic and judicial public service, is an object lesson that courage, intelligence, application and good humor will win the heights no matter how great the obstacles to be faced.
Justice Counihan was born in East Cambridge on August 1882. He was the son of Edward Augustine and Mary (Long) Counihan. His father served for fifty years as clerk in the Mayor's office in the City of Cambridge. Justice Counihan was very proud of his father, who was spared for a long life, and often spoke of him and of the respect and regard with which he was held. The Justice was a worthy son to fine parents.
Justice Counihan attended the Cambridge schools and graduated from the Cambridge High and Latin School in 1900. He received the degree of A.B. from Harvard College with the class of 1904, but completed his course in three years. He graduated from the Harvard Law School in 1906, receiving the degree of Bachelor of Laws. He passed his bar examinations while still a student.
After graduating from the Harvard Law School he became associated with Hugh Bancroft, who was then one of the great trial lawyers in Massachusetts, and later they became associated with Herbert Parker, who served as Attorney General of Massachusetts from 1902 to 1906.
Justice Counihan was married in 1913 to Susan A. Collins, who died in 1918. They had three children, a daughter who died in her early years, and two sons who survived him and are practicing members of our Bar.
Shortly after admission to the Bar he was elected a member of the Cambridge School Committee and held that office for six years. Later, he was elected to the Cambridge City Council for two terms. In 1918 he was elected to the State Senate.
In 1921, he was appointed a special justice of the Third District Court of Eastern Middlesex in Cambridge by Governor Channing H. Cox. He served in that position until his appointment on September 6, 1949, by Governor Paul A. Dever, to fill the vacancy on this court created by the resignation of the late Justice Arthur W. Dolan.
Justice Counihan after his appointment as a special justice continued in private practice and continued interest and service in civic affairs in his native city. During World War II he served as a draft board member and worked on civil defense measures.
Justice Counihan was active in banking and fraternal affairs as well as in the public service.
He was one of the founders of a co-operative bank in Cambridge which later became the Cambridge Federal Savings and Loan Association, of which he served as President for many years. He was proud of what the institution had accomplished for home owners in Cambridge and vicinity.
As the Justice himself stated, he was a gregarious soul and found much pleasure in the society of his friends and fellow beings. He was a member and officer in the Elks and the Knights of Columbus and served as President of the Clover Club of Boston and as President of the Cambridge Club, and was active in the Eire Society of Boston.
Justice Counihan was a classmate in Harvard College of President Franklin D. Roosevelt, and as a delegate to the Democratic National Convention in 1920 voted to nominate him for Vice President of the United States. Justice Felix Frankfurter of the Supreme Court of the United States and Justice Harold P. Williams of this court were classmates of Justice Counihan in the Harvard Law School.
Justice Counihan enjoyed watching sports contests and claimed an unbroken record of attendance at every Harvard-Yale football game from the time he was a Harvard freshman in 1900 at least until his appointment to this court. He also was a baseball fan and regularly attended the games of both Boston professional teams.
Justice Counihan was a sound lawyer and a man of great common sense and broad practical experience, who always sought the essential and controlling aspects of cases. He was staunch in the expression and holding of his views but did so with the unfailing charm that was one of his personal characteristics.
He came to this court rather late in his career but his great experience and maturity of judgment enabled him to make a full contribution to its deliberations and decisions.
In 1950 he was honored by His Holiness Pope Pius XII with a decoration as a Knight of the Equestrian Order of the Holy Sepulchre, one of the oldest orders of the Roman Catholic Church.
Cardinal Cushing, delivering the eulogy at the services for Justice Counihan, justly said in part:
"Few men of our generation have achieved success and distinction by more persistent effort in the face of seemingly impossible obstacles. The picture of Judge Counihan is the picture of a man who had an overwhelming will to succeed but for whom success was more than a personal victory. It is the image of a man who was obdurate in his hatred of dishonesty, but who was ever kind and sympathetic toward those who sought earthly rewards through human weakness and error."
Edward Augustine Counihan, Junior, had a long and useful life. His service on this court crowned a career of honor to himself and benefit to the Commonwealth and its people. Another name has been added to the long list of those who have cheerfully and generously assumed the burdens of service of this great court.
Justice Counihan fully earned all that we can say in praise, and thanks for, the contribution he made for the public good in the course of his life and in the performance of the onerous duties of Associate Justice of this court.
On behalf of the Bar of the Commonwealth, I respectfully move that this memorial be spread upon the records of the court.
Edward A. Crane, Esquire, addressed the court as follows:
May it please the court: As Mayor of Cambridge, as President of the Cambridge Bar Association, and as a youthful neighbor, I am triply privileged this morning to participate in this formal memorial, noting the service of Mr. Justice Counihan as a member of this court.
Yes, just forty years ago, in what the neighbors then considered "the exclusive Dana Hill Section," the big news was "the Counihans have moved in, and there are two boys in the family." That same evening, the spacious Counihan backyard became our lush playground with the judge-father hitting grounders, as gracious "Gramp" umpired and devoted Aunt Al kept an honest score.
Truly, Justice Counihan was a great and good citizen of our University City. He loved Cambridge and served her well, climaxing a long series of civic roles as active Chairman of our memorable City Centennial in 1946.
His friends came from all walks of life. He was the citizen-catalyst, the great Common Denominator who could jell a heterogeneous group of fellow citizens into a cohesive force for the good of his native city.
His unique leadership qualities always brought him to the top; be it in Elkdom, among his fellow Clovers or in his profession.
Justice Counihan initiated the successful campaign of the Cambridge Bar Association against the unauthorized practice of the law. One of his findings at the Third District Court, East Cambridge, of which he was rightly proud, anticipated the 1947 statute (G. L. c. 186, § 16) providing that termination of a lease because a tenant has or shall have children was against public policy and void.
Recently, one of your members wrote with warmth and accuracy of "the qualities of mind and heart which made Eddie Counihan a faithful friend, a delightful companion, a generous benefactor, a discreet counsellor, a wise and just judge, and a responsible, respected and upright leader."
My support of the motion of the Attorney General is an occasion for solemnity, but I am sure Justice Counihan, who bequeathed to us today's greatest legacy, a pleasant memory, would have a warm and cheerful welcome for all of us this morning, upon this thoughtful remembrance. May his great soul rest in peace.
Richard C. Evarts, Esquire, addressed the court as follows:
May it please the court: I have been asked by the Cambridge Bar Association to speak with its President in its behalf in support of the motion of the Attorney General. Of course, I also speak in my own behalf.
I suppose one of the purposes of a memorial is to try to present as far as possible a living picture of a man we knew who is no longer with us. In a sense what we say cannot honor him or his memory. His life and character are his best and truest memorials.
Words cannot fully picture the vivid personality and human warmth of Justice Counihan. His temperament was gregarious; his disposition genial. He enjoyed nothing better than the give and take of informal conversation with friends and acquaintances. He liked people of all sorts and conditions and they generally liked him. It is no compliment to say of a man who has been a lawyer and a judge that he has no enemies. Of course Judge Counihan made enemies; but it is fair to say that the few he made were neither personal nor lasting. They were enmities which could not in all honor be avoided.
His twenty-eight years as special justice of the Third District Court of Eastern Middlesex in Cambridge were marked by patience, understanding and true wisdom. A high degree of common sense and a practical turn of mind enabled him to see through a specious argument or the extraneous trappings of a thin case. Nevertheless he was unfailingly considerate of the lawyers who appeared before him. From his broad general experience as a lawyer he could sympathize with the difficulties of a young brother at the Bar representing an hypercritical and probably parsimonious client, present in the court room and ready to attribute the loss of his case to the antipathy of the judge to his lawyer. Even though often not satisfied with the result, those of us who have tried before him in the District Court found that we always received a full and fair hearing and our case serious consideration.
For many years associated with the office of the late Herbert Parker, Judge Counihan always practiced law as an individual. His was a general practice of great variety, the kind which is sometimes thoughtlessly spoken of as old fashioned. If it is old fashioned, then so much the worse for the profession. That type of practice together with his years of service in the District Court contributed to the flexibility of a fine mind and gave him knowledge of all the strengths and frailties of our human nature. It may well be that this experience combined with his indomitable spirit helped him at the age of sixty-seven, severely crippled by illness, to adapt to the demanding work of this court. Devoid as he was of intellectual arrogance, Edward Counihan would be the last person to think of himself as a learned student of the law; but he had a sound knowledge of law and a keen mind. Moreover, he was not afraid of hard work. The opinions he wrote as a member of this court may justly be said to be generally models of conciseness and clarity. They are direct and unambiguous so that the working lawyer can see what they intend to decide without solving any puzzles. It is consistent with Justice Counihan's innate modesty and generosity that he was inclined to give full credit to the law clerk who assisted him.
From 1914, when Justice John W. Hammond resigned from the Bench, up to the time of Judge Counihan's appointment in 1949, no justice of this court has been so closely identified with the City of Cambridge. His father for many years was secretary to successive Mayors of Cambridge. He himself was born in Cambridge and lived there all his life. He graduated from Cambridge Latin School, Harvard College and Harvard Law School. He served in the City Council, on the School Committee and in the State Senate. He was one of the founders of the Cambridge Bar Association and always maintained an active interest in its affairs. There were few meetings he missed. His wife, the former Susan Collins, died in 1918. He remained a widower the rest of his life. With the help of his devoted sister, Miss Alice Counihan, he brought up two young boys who are today respected members of the Massachusetts Bar.
Most of all, Edward Counihan's family, friends and associates will remember him for his loyalty and for his debonair courage in the face of affliction. These are virtues which partake of eternity.
Chief Justice Wilkins responded as follows:
Mr. Attorney General and Brethren of the Bar:
Mr. Justice Counihan exemplified the lay public's idea of a judge. He not only looked the part, but he bore himself with the requisite decorum. He could be solemn if the occasion demanded, and he could be otherwise if suitable congeniality was appropriate. The layman was sure that Judge Counihan well discharged his judicial duties, and people could also observe that he felt a high sense of obligation toward the public responsibilities of the individual members of the judiciary. Notwithstanding the increasing heavy burdens of his office, and in spite of a grievous physical handicap, which he knew was incurable, he willingly and without complaint attended far more than his share of Bar meetings and of charitable and other public gatherings.
Mr. Justice Counihan also fully met the standards which the Bar expects of a judge. They were grateful for his background, for he had been one of their number for many years, and as such, as they well knew, had had an active and varied experience in the law. Seated at the Bench, he was an example of dignity and controlled authority. Always of courteous demeanor, he unfailingly respected the position of restraint in which counsel necessarily found themselves in a court room. Judge Counihan was not one to take advantage of superior power to humble anyone. Off the Bench, in handling court business he quickly put lawyers at ease and disposed of their matters with due dispatch and without friction. The Bar knew that he discharged his full complement of court work, and that he did so with reasonable promptness, in manifest fairness, and with that degree of ability which the legal situation demands.
To his colleagues on the Bench, Judge Counihan was a delightful associate. His industriousness made him a full partner in handling the work load. At the conference table his long years of practice made him a valued contributor in many fields. In helping to decide the numerous practical questions which beset a court of last resort, his judgment was sound and prompt.
During eleven years Mr. Justice Counihan wrote for this court 356 opinions, of which 311 bore his name and 45 were rescript opinions. The first was Gleason v. Hardware Mutual Casualty Co. 324 Mass. 695. The last was Atlantic Building Corporation v. Whyte, 341 Mass. 234. Others, representative of his authorship, are Sheehan v. Tobin, 326 Mass. 185; Landers v. Eastern Racing Association, Inc. 327 Mass. 32; McLean v. Boston, 327 Mass. 118; Foley v. Springfield, 328 Mass. 59; Commonwealth v. Makarewicz, 333 Mass. 575; Bowker v. Worcester, 334 Mass. 422; Berube v. Selectmen of Edgartown, 336 Mass. 634 and Bay State Stevedoring Company v. Boston and Maine Railroad, 340 Mass. 512.
This can be but the briefest outline of the career of Mr. Justice Counihan as an appellate judge. Allusion has been made to his standing with the lay public, to his relationship with the Bar, and to his cooperation with his associates. To each of the three he fully met the test. All are grateful that he could, and did, serve.
The motion that the memorial be spread upon the records of the court is granted.
The court will now adjourn.