JANUARY 30, 1906
At the opening of court on Tuesday, January 30, 1906, Mr. FRED A. BAKER, of Detroit, presented the following memorial prepared by a committee of the Detroit bar association, and moved the court to place it on the records of the court:
JOHN WESLEY McGRATH was born in Philadelphia, on the 12th day of January, 1842, and he died at his home in the city of Detroit, on the 9th day of December, 1905. His parents emigrated to America from New Town Stewart, Tyrone county, Ireland, in 1840. His father, Joseph McGrath, was an Irishman, and his mother was a Scotch woman born in Glasgow. They were sturdy Methodists of the genuine John Wesley type. Joseph McGrath was a self-educated man, as he never went to school a day in his life, yet he became a great reader and a well-informed man, and gave his children all the educational advantages within the reach of his limited means. In 1843 he became a resident of the city of Detroit, and his children had the benefit of the primary and other public schools of that city.
In 1854 the family moved to a small tract of land near the center line in the township of Warren, in Macomb County. At that time this land was in a wilderness, and it was covered with tall elm and big whitewood trees. Deer, wild turkeys, and other game were in the woods.
An older brother was not very strong, so John became the main reliance of his father in clearing 40 acres; hauling the whitewood logs to a sawmill at or near Utica. They had an unruly and stubborn yoke of oxen, and John was the only one who could manage and control them. He was the protector of the family, as might be expected from a strong and resolute Irish lad. The two winters he spent at the farm he taught the district school.
When 19 years old he was sent to Albion College, and was a student there for three years, and one winter taught school in a nearby district. In 1864 he entered the law department of the University of Michigan, but sought a clerkship in the provost marshal’s office in Detroit, and did not graduate until 1868, when he entered the law office of Charles I. Walker, a distinguished Detroit lawyer, and one of the law professors at the university. He soon became a well and favorably known member of the bar. He served as a member of the Detroit board of education from 1872 to 1876, and in 1883 he was appointed State labor commissioner by Governor Begole. He organized the work of that office. From 1887 to 1890 he was the city counselor of the city of Detroit, and conducted much important litigation for the city.
In the political upheaval of 1890 he was elected, as a democrat, a Justice of the Supreme Court of the State, and served the people in that capacity for five of the best years of his life. Judge McGRATH’S first opinion is reported in 84 Michigan, 450, and his last in 108 Michigan, 170. In the intervening volumes there are some of the most interesting and important judgments in the history of the court; among them a number involving the validity of acts passed by the legislature elected at the time he was. The act adopting the district plan of electing presidential electors was sustained, but the legislative gerrymander of 1891 was declared unconstitutional with a hearty concurring opinion by Justice McGRATH. Other important cases soon followed. The county road law for Saginaw county and female suffrage in municipal elections were declared unconstitutional by the court in opinions by Justice MCGRATH; and with his concurrence it was definitely settled that the power of the governor under the Constitution to remove a State officer was executive and not judicial, and that the board of State canvassers is not beyond the corrective process of the court.
The most striking and conspicuous opinion delivered by Justice McGRATH, while he was a member of the court, is his dissenting opinion in the case, of Davock v. Moore, 105 Michigan, 120, 136, which involved the validity of an act creating a health board for the city of Detroit, to be appointed by the governor, and authorizing it to impose taxes upon the city for the preservation of the public health. Justice McGRATH expressed his views clearly and forcibly, and no one can read the opinion without admiring the strength and power of his reasoning, even if he does not yield to the conclusion reached.
Justice McGRATH had a happy faculty of going direct to the vital questions in a case, whether of fact or law, and of stating his conclusions with brevity and clearness. He was a man of strong and robust convictions, yet, in temperament and disposition, very kind, conservative and judicious. Warm blood coursed in his veins and he could resent an insult or denounce a wrong as forcibly as any one. His conception of the duties and obligations of public position was high; no allurements could tempt him from the path of duty and of honor; and his record shows that he was fit to be a judge.
It was a pleasure to know him. He had a keen sense of humor and was a good companion; above all, he was a good citizen, a good public officer, and a good judge.
FRED A. BAKER,
C. A. KENT,
JOHN J. SPEED,
JOHN C. DONNELLY.
If the Court please:
Charged with the duty and given the privilege of presenting this memorial to the court, I desire to briefly express my high appreciation of the character of John W. McGrath as a citizen, a judge, and a man. I did not become well acquainted with him until he was appointed city counselor and became the chief legal adviser of the city of Detroit. From that time on I knew him well, and I can say of him that I never knew a man who in the everyday affairs of life had a better conception of what is right and what is wrong, or who was more steadfast and faithful to his convictions. In the performance of official duty, either as a public officer or a judge, no allurements could swerve him from the path of duty. Like other men he was not oblivious to outside and extraneous considerations, but in his ultimate judgment he gave them no weight and expelled them from his mind.
An instance of this is the case in this court involving the abolition of the old central market in Detroit. The tenants occupying that market held by the year, paying rent in monthly installments. I had advised them that if, at the commencement of a new year, the city accepted rent, their leases were renewed for another year. Judge McGRATH, as city counselor and as a patron of the market, had secured the friendship and admiration of these tenants, and they were his personal and political friends, yet, as one of the justices of this bench, he faithfully performed the duty of delivering the opinion of the court that the contracts between the city and the tenants did not deprive the common council of its authority, under its governmental or police power, to remove or abolish markets; which was nothing more than the application of the distinction, not always understood, between a common council or other representative body acting in its legislative capacity, and the same body acting in its private or contractual capacity.
It is possibly true, yes, it is probably true, that Judge McGRATH had very strong views and opinions as to what the people of this country can do in their legislative assemblies; to protect and advance their own interests without violating constitutional principles; but it is certain that men of his type are entitled to respect and considerations, for if there is any one thing history teaches us, it is that it is only after protracted controversy, with able advocates on both sides, that the truth is finally arrived at, and is recognized by all. I trust it will not be considered out of place to say, that as history is said to repeat itself, the lesson is again to be taught and learned in the United States, that the people are supreme, and that they recognize no sovereigns except reason, justice, and truth.
The parentage and life of Judge McGRATH suggest reference to some interesting facts. Tyrone county, in Ireland, in 1840, when his parents came to America, had a population of 248 persons to the square mile, nearly all rural, With only two-thirds of the county arable land. Of these, 40 per cent were wholly illiterate, as they could neither read nor write, and one-half the others could read, but could not write. Counties in which there was a more dense population were those in which there were considerable towns or cities. The island had a population of over eight million, and only one million were urban, with seven million rural. Over half the population were wholly illiterate. Transplanted, as thousands of them were, to the productive soil and favorable conditions existing in the United States, they have shown an unexampled capacity and aptitude for the enjoyment of better things. Their sons adorn the bar; grace the bench; add to the valor and patriotism of the army and navy; their wit and eloquence electrify our legislative assemblies, and their trenchant and sometimes caustic pens enliven the columns of the press. We honor ourselves in honoring one of their number, John W. McGRATH.
My relations with him were so friendly and cordial, I cannot better express myself than to quote these poetic lines from “The Grave” by Blair:
“Oh! When my friend and I
In some thick wood have wandered heedless on,
Hid from the vulgar eye, and sat us down
Upon the sloping cowslip-covered bank,
Where the pure limpid stream has slid along
In grateful errors through the underwood,
Sweet murmuring; methought, the shrill-tongued thrush
Mended his song of love; the sooty blackbird
Mellowed his pipe, and softened every note;
The eglantine smelled sweeter, and the rose
Assumed a dye more deep; whilst every flower
Vied with its fellow-plant in luxury
Of dress.—Oh! then, the longest summers day
Seemed too, too much in haste; still the full heart
Had not imparted half; ’twas happiness
Too exquisite to last. Of joys departed,
Not to return, how painful the remembrance!”
The venerable WILLIAM T. MITCHELL, of Port Huron, said in substance:
May it please your Honors:
I have just been called upon by Mr. BAKER to take part in these memorial services, so that, what I may say is with little previous thought or preparation. I highly appreciate the honor and privilege of addressing this court in memory of your late distinguished associate, the Honorable JOHN W. McGRATH, recently departed this life.
I had the happiness of knowing him well in private life, as lawyer, and as judge of this high court, but more especially as member and Grand Master of the Grand Lodge of the ancient order of Free and Accepted Masons of Michigan, an order which, next to Christianity, teaches and inculcates the principles of uprightness, morality, charity, and brotherly love.
Looking around these walls, I see among those of their eminent predecessors the portraits of two others, also but recently departed, the Honorable JOHN W. CHAMPLIN and Honorable GEORGE H. DURAND, who also occupied seats upon this honored bench and were Past Grand Masters of the same ancient and well-approved fraternity. Of each of them in early youth the Lord had inquired, as he did of the prophet Amos, “What seest thou?” and each answered, as did Amos, “A plumb-line;” and by that plumb-line of uprightness and integrity each walked through life, each controlling his life by the square of truth, keeping within the circumspect lines of their obligations, and while occupying these eminent positions always walking upon the level and keeping in constant view the plumb-line as their guide.
It was my great privilege and honor to be intimately associated with these three distinguished men, who but recently occupied seats in this high court with distinguished ability. He, whom we now mourn and hold in sacred memory, was the peer of all. Elected by partisan nominations, as democrats, they were not partisan judges, and knew in the discharge of their duties only that broad democracy to which we all adhere without regard to political affiliations. In this light Judge McGRATH was particularly prominent, as he had occasion, as a justice of this court, to give and write opinions showing his absolute freedom from partisan bias.
Permit me in closing to say that in a practice before this honorable court for over 60 years, almost since its first organization, and with a personal acquaintance with nearly all the eminent Supreme Court Judges of the State of Michigan from 1839 to now, each and all of whom were appointed or elected as members of political parties, I have never known of a decision of this court to which a partisan color or bias may justly be given. All, like him whose memory you now honor, on taking their seats in this highest tribunal of the State, discarded party politics and have only given their decisions in view of the plumb-line of right.
I most respectfully join with the bar of Wayne county in asking that their memorial of our deceased friend and brother, the Honorable JOHN W. McGRATH, may be perpetuated in the records of this court, and his memory ever retained in your and all our hearts.
The resolutions submitted most felicitously express a just estimate of Justice McGRATH’S ability and qualities as a jurist.
My acquaintance with Justice McGRATH dates from about the time he assumed his duties as a member of this court. For the last four years of his service I enjoyed the privilege of sharing his responsibilities. I came to respect him for his many excellent qualities and to entertain a high regard for his attainments, for his love of justice, and for his unswerving determination to administer the law in accordance with his best light after careful and painstaking investigation.
Justice McGRATH was a man of such positive convictions that he might, at times, have been led to the verge of prejudice, had it not been for the fact that honesty was so inbred in him, and was so firm an element of his character, that he never took a decisive step not influenced by well-digested considerations of right and justice. He was, in his work on the bench, assiduous and industrious to a degree seldom surpassed. He took pride in his position and had a high sense of the dignity of his calling, and yet was democratic in his views and habit, and most genial in his intercourse with men.
It can be said of him that he served his State well and to the full measure of his ability. His term of service was brief—too brief to have afforded him opportunity to impress his personality upon the jurisprudence of the State to the extent that others with longer years of service have—but his decisions, rendered during his comparatively brief term of service, dealt with many important questions, are marked by a clear and lucid style, and are almost uniformly supported by citations which evidence the research of the writer for authorities.
It is most appropriate that these resolutions be given space in our reports.