JANUARY 6, 1920
Upon the convening of court for the January term, 1920, on Tuesday, January 6th, HARRIS E. THOMAS, of Lansing, presented the following resolution, prepared by a committee of the Ingham County Bar Association, and moved the court to place it on the records of the court.
May it Please the Court:
For the third time in four years we have been called upon to mourn the death of one of the Justices of our Supreme Court. In each case the summons has come without warning and has shocked this community by its suddenness. In the midst of their usefulness, and, while they were still at work, the summons came and they passed on to the “pale realms of shade.”
On the evening of September 11, 1919, Justice OSTRANDER retired as usual.
About midnight his heart ceased to perform its function and his life’s journey was ended. He left surviving a widow and four children, three daughters and a son, all grown to maturity. He was twice married, first to Dora Porter, daughter of Major Frank Porter of the Twentieth Michigan Infantry. She was the mother of his children. She died in 1888, and in 1892 he was married to Lou S. Davis.
RUSSEELL COWLES OSTRANDER was born at Ypsilanti, Michigan, September 1, 1851. His father, Simon Ostrander, was by trade a wagon and carriage maker, in the days when they were built of good timber by skilled hands. In 1858, he moved with his family from Ypsilanti to Lansing, where, in company with P. G. Sprang, he conducted a thriving business for many years. His son Russell first attended school at Lansing in 1858 at the old Townsend street school, later at North Lansing, and when the high school was established took the high school course, and graduated therefrom at about the age of sixteen. In 1868, he taught school in Woodhull township, Shiawassee county. It was in these primary schools that the foundation was laid for the liberal education which in his case was largely self-acquired. When barely more than a boy, he left school and went to work in a general store of Robson Bros. at Lansing, and was there employed for several years. Later, he went to Jackson and was engaged in the same kind of work. While so employed, he began the study of law by reading Blackstone’s Commentaries. In 1873 he became a student in the law office of Albert E. Cowles, and remained there until in the fall of 1874 he entered the law department of Michigan university. He graduated in June, 1876, and was admitted to the bar by the Supreme Court. At the fall election of the same year he was elected circuit court commissioner and re-elected in 1878. During the years 1879 and 1880, he was employed by the prosecuting attorney as his assistant, and was himself elected to that office in 1880, and served one term. In 1882, the firm of Cahill & Ostrander was formed, and continued until 1898. In 1885, he was the republican candidate for circuit judge of the fourth judicial circuit, then composed of Jackson and Ingham counties, but was defeated by Erastus Peck, the democratic candidate. In 1895 and 1896, he served by appointment as. city attorney of Lansing. Justice OSTRANDER was always interested in politics, not only in theory but in practice. He was a republican of the strictest sort, but never, except on one occasion, could he be persuaded to run for any office outside of his profession. In 1896 and 1897, he was elected and served as mayor of Lansing.
He served as a member of the State board of law examiners from 1895 to 1904. He was president of the Michigan State Bar Association in 1903 and 1904.
Justice OSTRANDER was first elected to the office of Justice of the Supreme Court on November 8, 1904, for the term of seven years. He assumed his duties on January 1, 1905. He was re-elected April 4, 1911, for the term of eight years. His second term of office commenced January 1, 1912. On April 7, 1919, he was again elected for the term of eight years. Had he lived, he would have commenced his, third term as Justice of the Supreme Court on January 1, 1920.
Justice OSTRANDER was Chief Justice of the Court during the years 1911 and 1918.
The first case in which he wrote the opinion of the court was Cadillac State Bank v. Wexford Circuit Judge, 139 Mich. 126, a mandamus case. This opinion was filed February 27, 1905. Since that time the Michigan Reports are replete with evidence of his splendid work upon the bench. No single opinion in any case can be said to crown his efforts, but possibly the most important case in which he delivered the court’s opinion, from the standpoint, not only of dollars and cents, but likewise because of the principles of corporation law involved, was that of Dodge v. Ford Motor Co., 204 Mich. 459. His reasoning in that case is clear, cogent and convincing. In fact, Justice OSTRANDER was a man whose power of analysis was seldom excelled. He was endowed with a remarkably clear thinking mind, and was able to reduce his thoughts to paper with a simple and elegant diction that was both entertaining and persuasive. His fourteen and one-half years’ labor in the Supreme Court fairly reflect his great worth as a man and a jurist.
The bar of Ingham county, and more particularly of the city of Lansing, where Justice OSTRANDER spent his entire professional life of more than forty years, has more than the common sorrow and regret for his untimely death. The State at large mourns the loss of one of its great citizens and valued public servants, but we while sharing in this common loss, mourn him as a beloved friend and brother, whose vacant place in our counsels cannot be filled. The citizens of Lansing, among whom he lived as a boy and man for more than half a century, not only honored him with their confidence but felt for him sincere affection, and we believe their hearts are with us on this occasion though they be absent in the body.
CHAS. W. NICHOLS,
CHARLES F. HAMMOND,
CHAS. H. HAYDEN,
WALTER S. FOSTER,
The Honorable WILLIAM L. CARPENTER, of Detroit, spoke as follows:
May it Please the Court:
RUSSELL C. OSTRANDER was admirably fitted to be a Justice of this court. He had extraordinary natural abilities, abundant legal learning, a judicial temperament, a judicial presence, a judicial demeanor, a just sense of the importance of this court, a proper conception of his judicial duties and a fixed determination to discharge those duties in accordance with that conception.
He first undertook to acquire a correct understanding of the case he was called to decide. Speaking generally, he succeeded in this undertaking. His opinions show that rarely indeed did he have any material misconception of the case. He acquired this generally correct conception, not by intuition but by conscious endeavor—chiefly by due attention to the briefs and arguments of counsel.
His attitude during argument was admirable and deserves the highest commendation. He was an attentive listener and his attractive, expressive face faithfully portrayed that attentiveness. This greatly encouraged counsel, resulting in better and fairer arguments, to the advantage of the court and to the cause of justice. After thus acquiring a knowledge of the case, he exerted himself to have it decided in accordance with his conception of the law applicable thereto. In determining this applicable law, Justice OSTRANDER had a just regard— and I think no more than a just regard— for precedent. If the decisive question in the case had been determined by a long series of uniform decisions of this court, or if the decision turned upon a rule of practice, he was strongly inclined to follow precedent, unmoved by the argument that it would result in injustice in the particular case under consideration. In other cases, that is, in cases where the decision could be predicated on the general principles of the common law or by the application of those principles in the construction of statutory or constitutional provisions, he paid little heed to precedents. Here he exhibited wisdom, independence, originality and courage in selecting that common law principle which led to a just decision of controversies like that under consideration.
Justice OSTRANDER, like every other Justice of an appellate court, will be judged by the character of his written opinions. So judged, he is certain to occupy a high place. For he was a brilliant and graceful writer and his thoughts, were grammatically and elegantly expressed. He did not use extravagant or intemperate language either in stating facts or the applicable law. His opinions were appropriate to the case and read as if they were written by a judge compelled to make a fair decision, and not by a partisan employed to advance an argument.
High as will Justice OSTRANDER rank, if judged by his written opinions, he deserves to be placed even in a higher rank. For as he himself said in his excellent tribute to the memory of Justice HOOKER, the “consideration” of his opinions “will not disclose the most considerable, and, in my opinion, the most valuable service which he rendered to the court, the bar and the people…He concerned himself about all of the opinions of the court delivered in causes in the decisions of which he took part….In this manner he impressed himself upon and into the work of the court and in this way his judgment is reflected in the judgments of the court.” These were appropriate words to characterize the work of Justice HOOKER—they are appropriate words to characterize the work of Justice OSTRANDER.
The law expounded by the courts, as well as the law enacted by the legislature, is slowly but constantly changing and if we have faith in righteousness— and no wise person can lack that faith— we must believe that it is growing nearer perfection. During the nearly fifteen years that Justice OSTRANDER was a member of this court the law of Michigan so grew. It so grew perceptibly and no single influence contributed more to that growth than that exerted by him in the manner I have indicated.
MR. ALVA M. CUMMINS, of Lansing, spoke as follows:
May it Please the Court:
Owing to the enforced absence of Judge CAHILL, who was to have spoken from the intimacy of his knowledge of the life, character and attainments of his long-time business associate and friend, I have been asked to say a few words on this occasion.
I do this hesitatingly, for I feel that at such a time one’s utterances should be the result of careful thought and should be free from the impulses of the moment.
I have known Justice OSTRANDER for considerably more than a quarter of a century. At the beginning of our acquaintance he stood high in his profession and the esteem in which he was held by his associates, by his clients and by the public in general was an increasing one throughout all the years, of his practice at the bar and of his service upon this bench.
I was early impressed with the fact that RUSSELL C. OSTRANDER practiced law on a high plane and his influence upon the professional life of his associates was both far-reaching and elevating.
To illustrate the mental attitude of this man toward the problems of his profession, I will speak of an incident of which I knew in his practice. A client of his and a man of prominence in the State, laid before him a proposed line of business conduct with the query as to whether it would, if carried out, amount to a violation of any criminal law of the State. Mr. OSTRANDER did not hesitate. His answer was direct and pointed. He said in substance:
“If a man had actually done what you propose to do, I might, to save him from the danger of imprisonment, investigate the question you propound, but I decline to inquire in advance or to advise as to its criminality. It is indefensible from the standpoint of business morals and decency, and if you do it, you do it at your peril so far as I am concerned.”
Another incident well illustrates the type of man he was. An important matter came into his hands which it was necessary, owing to the financial situation of his client, should be handled on a contingent fee. A long drawn out and hard fought legal battle seemed inevitable and no provision was made in the contract for a lessened fee in case such a contest did not take place. But none was necessary with RUSSELL C. OSTRANDER. The case was settled without a trial on a very favorable basis which would, had he stood on the letter of his contract, have entitled him to a large fee. His client expected nothing else than the payment of the full stipulated amount. But Mr. OSTRANDER, to the surprise of his client, handed her a check for the amount received in the settlement, less only a very minor fraction of the sum agreed upon.
Justice OSTRANDER possessed the type of mind which could never be hurried to its conclusions. He did not jump hastily to a conclusion and then devote his talents to the search for reasons and authorities to sustain it. His convictions followed legal research and analysis. They did not run in advance of them.
He lived his life well as man and lawyer and judge, and his State is the better for his life and services. May his influence long continue and his example be not soon forgotten.
Justice BROOKE spoke as follows:
Justice OSTRANDER was a member of this court for fifteen years, having served since January, 1905. His period of service was comparatively short, yet long enough for him to have left a distinct impress upon the jurisprudence of the State. His unusual natural abilities had been disciplined and matured by an active and dignified practice and when he left the bar he was admirably equipped for the discharge of the duties of the bench. His quickness of apprehension enabled him to readily grasp the essentials of a case and the weight and bearing of an argument. He was patient and thorough in investigation. Widely familiar with the learning of the law, he was no mere book lawyer. The law to him was no collection of sacrosanct formula whose exact and meticulous observances was the sum and limit of judicial duty, but a living organism, elastic, vigorous and infinitely adapted to the needs and changes of a progressive society. He knew the history of our law and the enormous difficulty with which its principles have been developed and established. He realized the futility of theoretical determinations of right and justice and the infinite perils of disturbing rules tested and approved by long experience, the need of maintaining the uniformity of decisions and the continuity of development.
This made him diligent to compare not only his own opinions but those of his associates with the former decisions of the court. The press of business makes inadvertent departure from precedent easy. Such departure he was sedulous to avoid and he did more to prevent errors of this nature than any other judge of his time, except, possibly, the late Justice HOOKER. The labor involved in the task thus voluntarily assumed was great but its results are only apparent to his associates and they alone can truly estimate their value.
He was conservative in the sense that any vigorous and instructed mind capable of looking into the future and properly estimating the past necessarily will be.
The great structure of the law has been slowly and painfully developed through many centuries in the countless vicissitudes of political and social growth. It has been tried and tempered in the heats of a thousand conflicts between the actual and the ideal, the never-ending struggle between the selfish interests of individual and of class that are coeval with civilization itself and the aspirations toward a larger and higher life which make progress possible. No institution so developed can be ideal, but it expresses and answers the enduring needs and conceptions of the society out of whose demands it grows, as no ideal system could. As those needs and conceptions change, the law changes. The process has been, and for safe and healthful development it must necessarily be, slow and in accordance with the spirit and genius of the great social organization of which the law itself is but a part. With these truths Justice OSTRANDER was profoundly impressed. Accordingly, he had small regard for the nebulous visions and crude experiments of those who, ignorant of the past, have no clear discernment of the causes of present ills or of proper remedies for future palliation of those ills.
His conception of judicial duty and of legal progress was founded in the spirit of the oath he had taken to support the Constitution and the laws. He believed that by the wise administration and conservation of the law, our great and priceless heritage from the past, unimpaired by rash and ignorant innovations, could be maintained and the safety, happiness and true progress of the State secured. To that administration his life was dedicated and to that high conception of judicial duty he was always faithful.
Chief Justice MOORE spoke as follows:
I can add but little to the appreciative utterances so fittingly spoken by those who have preceded me.
My acquaintance with RUSSELL C. OSTRANDER began nearly thirty years ago when we were passengers in an old-fashioned stage going from the railroad into Bad Axe where I was to hold court for Circuit Judge Watson Beach, who for some reason did not want to hear an important case. There was a downpour of rain. The country was new and flat, and the horses traveled through water above their fetlocks a good share of the way. Mr. OSTRANDER had just finished Mr. Bellamy’s popular book entitled “Looking Backward” and told us in a most charming way about the plans unfolded in the book to secure more of the comforts of life for the average man and his family, indicating his strong feeling for the welfare of his fellows, a characteristic which followed him until death.
There were several solicitors employed in the case which I was to hear, and Mr. OSTRANDER was one of them. His conduct of the case demonstrated that he was possessed of great legal learning. The respect for his legal ability then begun, continually grew until the last. Since I have been a member of this court I have been associated with a number of men who performed their work well, and then fearlessly passed into the future life. Justices LONG, HOOKER, BLAIR, MCALVAY, PERSON, and OSTRANDER, who have gone hence, were all worthy men.
Justice OSTRANDER was the associate of four of these men. His work coordinated well with theirs. He had their confidence and respect and was worthy of it.
A little more than eight years ago a service was held in this room in memory of the late Justice HOOKER. Justice OSTRANDER was Chief Justice. I quote from some of the things he then said:
“He possessed the power of close analysis, mental stores well assorted and available, and the genius of common sense. He had formed no habits which interfered with the fullest exercise of his intellectual faculties, and had no interests which might affect his honest judgment. He surveyed life and men, and the actions of men, with level eyes, without passion, and, as nearly as any of us can do so, without prejudice. He was charitable towards human frailties, and had the saving grace of humor. Add to these qualities honest purpose, a high sense of the importance of the work of the court, instinctive rectitude, and great capacity for work, and you have, somewhat broadly pictured, the apparent characteristics of the man.
“But he was by nature helpful. He was unselfish of his time and knowledge in aid of his colleagues. He gave cheerfully, bountifully, helpfully. He concerned himself about all of the opinions of the court delivered in causes in the decision of which he took part, not in the framing, but in the matter of them. The members of the court came to rely with increasing confidence upon his painstaking examination of cases, reviewed with care conclusions opposed to his, and advanced with greater confidence reasoning of which he approved. In this manner he impressed himself upon and into the work of the court, and in this way his judgment is reflected in the judgments of the court. It is due to his reputation and his memory that so much should be said.”
With what aptitude do these words describe some of the characteristics of Justice OSTRANDER.
Death is as inevitable as birth, and if we understood we would regard it as just as desirable. I have no doubt Justice OSTRANDER, for the last year or two of his life, believed the summons might come at any time, but he went on with his work unafraid.
The memorials which have been presented and the words of appreciation which have been spoken will be made records of the court, and will be published in the Reports, and in token of respect the court will take a recess until 1:30 p.m.