351 Mass.824 (1967)
The Honorable Stanley Elroy Qua, an Associate Justice of this court from December 19, 1934, until he became Chief Justice on August 6, 1947, resigned on September 6, 1956, and died on November 8, 1965. On December 1, 1966, 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 the Attorney General of Massachusetts it is my privilege and honor to present -- on behalf of the Bar of this Commonwealth -- a memorial commemorating the contribution which the late Stanley Elroy Qua, Chief Justice of the Supreme Judicial Court of Massachusetts, made to the law and the people of this Commonwealth.
Justice Qua was the seventeenth Chief Justice to serve under the Massachusetts Constitution.
Chief Justice Qua was born in Lowell, on August 26, 1880. He was the son of Francis W. Qua and Alice Lelia Harder. His father was a lawyer who practiced in Lowell and served his community as City Solicitor for many years. The Qua family had moved to Massachusetts from Troy, New York, where their ancestors had settled about 1740.
Justice Qua attended the Lowell Public Schools and was graduated with honors from Dartmouth College in 1901. He was a member of Phi Beta Kappa. He received the degree of Bachelor of Laws f rom the Harvard Law School in 1904.
After his admission to the Bar, Stanley Qua combined the practice of law with public service. He served the people of Lowell, where he lived all his life, as an Alderman and as a City Councillor. Five years after his graduation from the Harvard Law School, he married Annie M. Tuxbury.
On October 13, 1921, Governor Channing H. Cox appointed Stanley Qua to a seat on our Superior Court Bench. Judge Qua was only 41 years old, but he had established himself as a lawyer of ability and integrity and his appointment to the Superior Court was vigorously applauded by the members of the Bar and the public alike.
In the ensuing thirty-five years -- for more than an entire generation -- Justice Qua served the citizens of this Commonwealth with genuine distinction.
On December 19, 1934, Governor Joseph B. Ely appointed Judge Qua to the vacancy on this court which arose after Justice William Cushing Wait's resignation.
When the late Chief Justice Fred T. Field retired in 1947, Justice Qua was promoted to the Chief Justiceship by Governor Robert F. Bradford.
He retired as Chief Justice on September 6, 1956, at the age of 76.
The Chief Justice died on November 8, 1965, a little more than one year ago. He was survived by a son, Marshall T. Qua, two daughters, Constance T. (Mrs. James Morton Gillespie) and Harriet T. (Mrs. Henry Martyn Lemon) and by a brother, Francis M. Qua, who practices in Lowell and to whom the Chief Justice bequeathed his law library.
Chief Justice Qua's life span was a long one -- 85 years. He was a product of 19th century ideals and beliefs, but he was nonetheless a thoroughly 20th century man and judge. He knew that the law was not an immutable, unchanging thing. He knew that the law, the courts, and judges had to be responsive to change.
The Chief Justice was an ideal appellate judge. He was, first of all, intelligent. He knew the law, was scrupulously fair and displayed a patience with counsel and litigants which extended far beyond the ordinary requirements of a fair hearing.
He personified the dignity which all of us associate with the Supreme Judicial Court of this Commonwealth.
But there was nothing pompous or arrogant about Justice Qua. His opinions were compact, brief and to the point. He had a distaste for verbosity in the speech and writing of others and displayed none in his own opinions.
He was a man of firm and independent judgment whose opinions reflect both legal scholarship and common sense.
And he had tremendous capacity and enthusiasm for his work as a judge.
At the banquet given in his honor by the Massachusetts Bar Association, after his retirement, the Chief Justice took occasion to speak with friendly candor about the future of this court and the responsibilities of those who would serve here after him. He opposed, for example, the commonly accepted proposition that a judge should retire at age 70. The Chief Justice felt on the basis of his 35 years of experience as a judge that in too many cases mandatory retirement forced men off the Bench who still had much to contribute. He also stated that he was apprehensive about the tendency to make the position of Chief Justice an administrative office. He felt that the office should be, first and foremost, a judicial one. And he hoped, he said, that the Supreme Judicial Court would never make the mistake of trying to be a policy-making body; that the function of the court had been and should be a judicial one.
In an article published after his retirement, in the Boston Bar Bulletin, Chief Justice Qua discussed a further important judicial policy matter. Dissenting opinions, he stated, should be rendered only when differences arise on a vital issue of principle.
His retirement as Chief Justice was, fortunately for the Commonwealth, only a partial retirement. The Chief Justice took an active and constructive part in groups and organizations who were working for improvement in the courts of the Commonwealth and overall improved administration of justice.
The wisdom he had accumulated in 35 years of experience on the Bench made his advice and recommendations extremely valuable in this final chapter of his service to the people of our Commonwealth.
Justice Qua's first love was his family. He once stated that his children had been the mainstay of his life. He was fond of walking and swimming and engaged in both those activities. Most of his leisure time was spent at home. In personal appearance he was tall and thin of frame and face. He was modest and unhurried. At the time of his appointment as a justice of this court a reporter who interviewed him stated, "One thing lawyers agree upon is that he is eminently fitted to wear the robes of a Supreme Court justice. Another is that he will look the part. A portrait painter seeking a model for a dignified, humane and serene judge need go no farther in his search."
Chief Justice Qua was awarded honorary degrees by Dartmouth College, Boston College, Boston University, Northeastern University, Harvard University, Amherst College and Williams College.
At a very early age, Stanley Qua made an important election. He decided to forego the great monetary awards which would have surely been his had he stayed in the private practice of law. He chose instead to serve Massachusetts as a judge. Our Commonwealth has been the beneficiary of that decision. We must hope that others who have his talent, his ability and his integrity will also make the decision which Chief Justice Qua made, for this Commonwealth, and our Nation, cannot remain as citadels of liberty and justice unless we have the service of men like Stanley E. Qua as our judges.
Chief Justice Qua, like every great judge, welcomed his judicial tasks and made their proper accomplishment his career.
The honor we this day pay to the memory of Chief Justice Qua is a manifestation of our knowledge of our debt to him, and to all who devote their talents and strength to the service of the public as members of the judiciary.
On behalf of the Bar of the Commonwealth, I respectfully move that this memorial be spread upon the records of the court.
Robert W. Meserve, Esquire, addressed the court as follows:
The edifice of Anglo-American law is a structure which will not be completed in the lives of those now living and one to which many minds and hands have contributed in the past. As with the great medieval cathedral, built over centuries of time, its design and execution have varied with the skill of many architects and artisans. Some parts of the structure became outgrown or outmoded and have had to be demolished before the work is completed. Other parts must soon be rebuilt, since the ability of the workmen proves to have been inadequate to the task they set for themselves. Other portions are so skillfully wrought, both with regard to the foundations on which they are reared, the development of the rest of the edifice, and the eventual perfect plan to which all the work may one day conform, that informed viewer and novice alike may, in after years, wonder at the skill of the craftsman, at their wisdom, and at their knowledge. Each part depends on the other and the work which is past must shape the work to come, for the structure, as a whole, cannot be begun anew. Those who contributed most to that building may not have been those who were quickest in innovation or whose brilliance is reflected in the novelty of their design, but may prove to be those who labored with a consistent knowledge of the need for continuity as well as the need for progress in the work. Such a judge, such a builder of the judicial edifice, was Stanley E. Qua, seventeenth Chief Justice of this Commonwealth.
Stanley Qua was one of those unusual persons whose ability to perform the task to which he was here called seems to have flowed naturally from a background and experience which appears almost consciously directed to the creation of outstanding qualification for the performance of the duties of his high office.
Born into the family of a lawyer, a brilliant student and a member of Phi Beta Kappa as an undergraduate at Dartmouth and an honors student at Harvard Law School, Stanley Qua went on to some seventeen years of successful, varied and general practice at the Lowell Bar. There followed some thirteen years, beginning in his forty-first year, as one of the abler judges of the great trial court of this Commonwealth and nearly thirteen years as an Associate Justice of this court before he became its Chief Justice.
As Chief Justice, he demonstrated the knowledge, skill and wisdom which he had derived, from that careful and extended training and experience, as well as from the resources of character with which he was endowed by nature and upbringing.
During his tenure as Chief Justice the high reputation which this court had achieved and maintained amongst American state courts was continued and enhanced.
A reader of the opinions of Mr. Justice Qua, whether those written before or during his incumbency as Chief Justice, is struck by certain obvious characteristics of the writer which parallel the physical and mental characteristics of the man. There is no waste-- no fat-- but strength; there is no conscious attempt to find an opportunity to be brilliant or striking in epigram; there is a clear understanding of the facts and appropriate simplification, but not over- simplification, of the issues involved; there is a conscious search for relevant precedent, before striking out into new fields, and a cogent analysis of the decided cases which argue by analogy for or against the result reached; and there is usually, almost invariably, a conclusion which instinct as well as intellect applauds. Moreover, the opinions of Mr. Justice Qua generally disclose clearly to the reader what I believe to have been his exact intention, absent overriding reasons of legal policy or judicial administration in a particular case -- the limitation of his decision to the precise issue before him, without obiter dicta, or learned but unnecessary excursions into history, sociology or economics, however great the temptation or opportunity, but with full knowledge of the impact of the particular decision upon possible future controversies which others might have failed to foresee.
As Francis Bacon said: "The contemplation of things as they are without error or confusion, without substitution or imposture, is in itself a nobler thing than a whole harvest of invention." This might well have been the precept by which Stanley Qua modeled his life and work.
Mr. Justice Qua was, in my experience, a kindly man (although not one to suffer fools gladly) but, in spite of this kindliness, he was fully conscious of the necessity for discipline and order in society and of the obligations which rest upon members of a learned profession. Some of us can remember the dignity and care with which he presided over a proceeding, fortunately rare in the history of this court, involving the professional conduct of a lawyer-judge, a District Attorney, and an Attorney General of the Commonwealth. In In re Mayberry, 295 Mass. 155, dealing with the measure of the evidence necessary in a disciplinary proceeding, and in In re Keenan, 314 Mass. 544, touching on the problem of readmission to the Bar after disbarment, Justice Qua's opinions made clear his recognition of the social need for complete and justified confidence in the absolute honesty of the adversary proceeding and the duty of the court to insure, that confidence.
In each of these opinions, particularly in the latter with its emphasis on the public welfare rather than on the question of the adequacy of punishment of the individual, Justice Qua, speaking for a unanimous court, extended the area of Massachusetts law but was consistently careful to point out the extent to which the direction of that extension had been foreshadowed by prior decisions.
In Kenyon v. City of Chicopee, 320 Mass. 528, however, the then Justice did not hesitate to depart from the old shibboleth that equity would only move to protect the property rights of the individual to a statement that it would also enjoin repeated instances of unwarranted prosecution of individuals under an invalid ordinance, an attempt by a majority of citizens to impair the constitutional rights of a minority. In this opinion, departing from his general practice, he refused to follow earlier Massachusetts cases, tending to suggest a contrary ruling, in favor of a new rule vindicating such constitutional rights, suggested by decisions in other jurisdictions to be sure but showing a willingness on his part to advance traditional concepts or limitations where the public welfare was consistent with such advance.
The decision in the Kenton case received wide, and generally favorable, contemporary publicity and was discussed fully in legal periodical literature, both in and outside Massachusetts. In a frequently quoted portion of this opinion the Justice said: "We cannot believe that personal rights recognized by law are in general less important to the individual or less vital to society or less worthy of protection by the peculiar remedies equity can afford than are property rights . . . . We believe the true rule to be that equity will protect personal rights by injunction upon the same conditions upon which it will protect property rights by injunction."
The application of the statutory words "out of and in the course of employment" in Sousa's Case, 316 Mass. 332, gave to this court a leading precedent in the workmen's compensation field which it has many times cited, quoted and relied upon, while the earlier case of Samna v. The American Bosch Magneto Corporation, 290 Mass. 340, had an equally salutary impact in the general tort field. Each case has often been cited as a rule of decision in other jurisdictions.
In the rate case of New England Tel. & Tel. Co. v. Department of Public Utilities, 327 Mass. 81, the then Chief Justice was not content to decide that the rates established by the defendant department were unlawful and confiscatory, but took care to compute the minimum rate which the court would not find to be confiscatory. In thus intentionally failing to follow his rule of avoiding the decision of matters not precisely before the court, the Chief Justice recognized the fact that the case might otherwise become merely the starting point of a series of attempts to ascertain by trial and error a figure which the court would allow to stand. In his years on the Bench the Chief Justice wrote many decisions in this complicated rate fixing field for this court.
His years on the trial Bench, enabled Mr. Justice Qua to handle with brevity and assurance many problems in the law of evidence. In Leonard v. Taylor, 315 Mass. 580, the Justice, in a brief and lucid opinion, dealt with the sometimes criticised rule of evidence applicable to the admissibility of written documents demanded in the court room by adverse counsel during cross examination. Refusing to depart from principles then established in our court for at least 83 years, the learned Justice dealt with suggestions for change in an opinion which more than any of his opinions, except perhaps Kenyon v. Chicopee, has been the subject matter of discussion in cases and law review articles since that date.
Many of the problems which came before this court during the twenty-two years that Mr. Justice Qua sat upon it involved the law of real property, and in no area are his opinions more helpful to the practitioner. In Pybus v. Grasso, 317 Mass. 716, the effect of the acceptance of a deed upon obligations of the seller under a pre-existing purchase and sale agreement was spelled out in a succinct, and able opinion, and in Swenson v. Marino, 306 Mass. 582, our real property law was clarified so far as it related to the user of rights of way and the interpretation to be given to descriptive words employed in grants of easements in the light of circumstances arising since the original creation of the right.
When Stanley Qua came to this Bench the flood of litigation involving the scope and interpretation of zoning laws had scarcely begun. It flowed unabated through his entire tenure of office. A landmark case in Massachusetts jurisprudence in this area is his opinion in Burlington v. Dunn, 318 Mass. 216, dealing with such subjects as the constitutional right of a municipality to prevent the removal of a natural product from the land of its citizens and the evidence necessary to demonstrate the existence and extent of a prior non-conforming use.
In the probate and trust field, too, Justice Qua demonstrated both wisdom and knowledge in dealing with such diverse subjects as the time when the period of the rule against perpetuities begins to run with respect to powers of appointment exercisable by will in Fiduciary Trust Co. v. Mishou, 321 Mass. 615, the effect of an exculpatory clause in New England Trust Co. v. Paine, 317 Mass. 542, and the doctrine of cy pres in Briggs v. Merchants National Bank, 323 Mass. 261, where the court made it clear that it had the power to direct the formation of a corporation to administer a public charity, even where the donor had not expressly provided that this could be done.
The foregoing are only a few cases -- perhaps an inadequate selection -- culled from almost a thousand that the late Chief Justice wrote for this court. He dissented seldom and, when he did, joined in the opinion of others without opinion of his own. So far as I can find he only dissented three times after becoming Chief Justice if the Opinion of the Justices, 326 Mass. 781, is not considered, and perhaps it is reasonable that it should not be so counted because in Lincoln v. The Secretary of the Commonwealth, 326 Mass. 313 (which is one of the three dissents to which I have referred), the same question of constitutional interpretation was involved as in the Opinion of the Justices in the same volume and the same three judges dissented.
His opinions bear the mark of industry, dedicated study and wide experience. That he was one of the craftsmen who builded well is even today already apparent -- his work was true and skillfully wrought, and his memory deserves well of those of the craft. He was a man whose virtues were many and whose faults were few, and one who gave to the business of being a judge the competent, careful and kindly attention of a fine mind and a delightful spirit.
But a discussion of Chief Justice Qua cannot stop with an examination of his work, impressive as the results of such an examination must be. Those of us who knew him off the Bench recognize that he possessed warm human qualities, as well as knowledge of the law and ability as a legal scholar. It always was a pleasure to have the Chief Justice attend a meeting of a bar association as a guest. His remarks were suitable and homely, in the best sense, and showed a full apprecitation of the demands of the practice of law and his wish to be helpful to the practitioner.
Some years ago the Boston Bar Association celebrated its 75th Anniversary. Fittingly enough the speakers were, Mr. Justice Frankfurter of the Supreme Court of the United States and Chief Justice Qua, each fondly remembered by those members of the Bar who came in contact with them. That evening was made a most enjoyable one because each of the Justices spoke of matters, homely matters, which were important to a Massachusetts lawyer and showed their complete knowledge of Massachusetts law and tradition.
I know of few people who were more genuinely loved by the members of the Bar than Chief Justice Qua. Even after his retirement from this Bench he gave willingly of his time to bar association activities and participated in the work of many committees and in civic affairs. Always welcome, never overbearing, always kindly, he was an extraordinary person as well as a very, very able judge.
He was a man who in all aspects of his life heeded well the injunction of Micah: "What doth the Lord require of thee, but to do justly, and to love mercy, and to walk humbly with thy God."
I urge that the motion of the Attorney General be granted.
Walter Powers, Esquire, addressed the court as follows:
When Stanley Qua was young those who knew him best must have foreseen that he would live a blameless but inconspicuous life; that he would be diligent and conscientious, but would learn the truth of the words of that king of Jerusalem who called himself The Preacher that riches come not to men of understanding; and that at his death he would leave a memory dear to few, but a name neither widely known nor long remembered.
There would have been good ground for that early estimate. He was never robust of stature. As a boy his health was so frail that he was ten years old before he could go to school. He was not of romantic air or arresting appearance, never an athlete, and never ostentatious.
But, as Ecclesiastes also said,
". . . the race is not to the swift, nor the battle to the strong . . ."
Before he died Stanley Qua had achieved the superlative honor of being Chief Justice of Massachusetts, presiding over its great, historic Supreme Judicial Court. His name became known throughout the nation, never to be forgotten. His clear, well-chosen words will serve as guides for generations to come.
His rise to preeminence involved no magic, no mystery. In many ways his life may be a pattern for others to follow. He was seen by all to be a good man, a dependable man. To be good and dependable is not impossible, but those were not his only virtues. He was also and above all a man of understanding.
He was a good man in every way. Exemplary in conduct, and deeply religious, he was not self-satisfied nor intolerant. It was not in his nature either to whine or to crow. He was called on to endure serious trials, unexpected and undeserved, which he bore usually with patience, and always with fortitude. He was not one to call for help nor to hint for sympathy, but he was always ready with resourceful aid and kindly compassion for those who needed either. Even if he had not been taught the manners of a gentleman he would have had those manners, for he had all the instincts of a gentleman.
He was a dependable man. Any responsibility that became his was carried through no matter how difficult or how much time it might take. He was thorough in all things. He never excused himself from the labor of study or uninteresting records or long arguments, or the careful sifting of data and contentions.
And above all he was understanding. He was a wise man, but with him wisdom was not a gift, but an achievement. He patiently analyzed each problem, and then as patiently analyzed, and if possible corrected, his analysis. His thinking was clear, because he criticized his own ideas until they were sound, and could be stated plainly. He despised what he called "wobbly" thinking, especially on any Bench. He always kept the flame of his mind burning so steadily, so uniformly, that many failed to recognize how brilliant it was.
He devoted himself to the noble profession of law. The profession of medicine is also noble, but no doctor can overcome the destiny by which we all are born as terminal cases; and, as the great surgeon Ambroise Paré said of his practice,
"I do not cure. Le bon Dieu cures. I only bind up wounds."
The clergy give solace, hope, and principles of guidance, but the good God watches over even those not reached by any man of devoted piety. The teachers fill a necessary role, but education, both by definition and by practice, means only the drawing out of the student's own mind. But only the law can with hope of victory give combat to that most dreaded and ever-menacing enemy of mankind, injustice. Stanley Qua's life was devoted to the true concept of justice, not as a blind, remote, goddess, but as a keen-sighted and, if necessary, redoubtable champion of those who are unarmed and otherwise defenseless, the weaker ones, the many of slender means, the unpopular. Injustice is overcome only while the Bar and the Bench wield the sabers and interpose the bucklers that the rest of humanity do not possess and would not know how to manage. Such a champion was Qua, Chief Justice.
His modesty was such that he never could have given thought to the writing of his own epitaph, but if he had been persuaded to write one he might well have quoted from Shakespeare, to put his life into seven characteristic words, "I have done the state some service."
Chief Justice Wilkins responded as follows:
Mr. Attorney General and Brethren of the Bar:
There has not been a more eminent member of the judiciary in recent Massachusetts memory than Stanley Elroy Qua. Following nearly a score of years of practice during which he became prominent at the Lowell Bar and held local public office, he accepted from his classmate at Dartmouth College and at Harvard Law School, Governor Channing H. Cox, an appointment to the Superior Court, where he was to serve thirteen years. There were able judges on that court, yet immediately Judge Qua assumed a leading position there. From the outset he presided with authority in the court room. Without ostentation he brought the appearance of great scholarship to his rulings on even routine matters. He gave particular attention to the preparation of records on appeal. Members of the Supreme Judicial Court used to speak of this. With him it never could be said that through overreaching or negligence of counsel a different question was argued to the appellate court from that tried in the court below.
Percentage of reversals on appeal does not necessarily reveal the learning of a trial judge. If it did, the judge who struggles to avoid making a decision on the merits (such as overpersuasion of settlements and deciding questionable criminal cases for the defendant) might stand near the top of the list. Nevertheless there comes to mind only one case in which one of Judge Qua's decisions in the Superior Court was reversed, and I thought the weight of logic was on his side even then.
As an appellate judge, his extemporaneous views expressed at the "sembles, " which are held at the close of the day of the arguments, not infrequently covered everything that should be said in an opinion. Very, often, while never overtroubled by trying to remember the names of cases, Chief Justice Qua was able to indicate to a struggling colleague where to find the requisite decisive authority. Unassuming, never overbearing, he took charge in quiet dignity. His opinions were concise but covered the material ground, and -- very important -- were not unreasonably long. "Write opinions at whatever length you wish, but cut them down," he used to say. The carefully thought out short opinion usually takes more time than a longer one in the preparation of which the essential process of condensation has been omitted. The Qua opinions were unfailingly prompt.
In his twenty-two years on the full court he wrote 947 opinions of which 37 were rescripts. His first opinion was Labagnara v. Kane Furniture Co., 289 Mass. 52. The last was Kalen v. Director of the Division of Employment Security, 334 Mass. 503. Among his best known opinions are Matter of Mayberry, 295 Mass. 155, Matter of Keegan, 314 Mass. 544, Commissioner of Insurance v. Massachusetts Accident Co., 314 Mass. 558, Souza's Case, 316 Mass. 332, New England Trust Co. v. Paine, 317 Mass. 542, Kenyon v. Chicopee, 320 Mass. 528, Fiduciary Trust Co. v. Mishou, 321 Mass. 615, New England Telephone & Telegraph Co. v. Department of Public Utilities, 327 Mass. 81, and Sears v. Treasurer & Receiver General, 327 Mass. 310.
It is no exaggeration to say that the Massachusetts judicial system is a much better one because Stanley Qua was so long a part of it.
The motion that the memorial be spread upon the records of the court is granted.
The court will now adjourn.