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Fierro v. City of Williamsport:
There aren't many legal decisions that also discuss jazz music, especially in an entertaining way, but via The Party of the First Part I learned of a very amusing dissent in a 1956 Pennsylvania Supreme Court case about taxing jukeboxes: Fierro v. City of Wlliamsport, 120 A.2d 889 (Pa. 1956). Give me a second for the context, and then I'll get to the dissent.

  The state of Pennsylvania had passed a law limiting the power of municipalities to impose taxes; one allowance was that municipalities could impose taxes on "sales of admission to places of amusement." The town of Williamsport, Pennsylvania responded with a 10% tax "upon sales of admission to amusements" in the town; the ordinance stated that "'amusement' shall mean all manner and form or entertainment within the City of Williamsport, Pa., including among others, the following: juke boxes, pinball machines, and any other form of mechanical and/or electronic device for which admission is charged or paid."

  Fierro ran a bar featuring a jukebox filled exclusively with jazz records. Admission to the bar was free, but you had to feed coins into the jukebox for it to play songs. The town tried to levy the tax against Fierro's jukebox income, and he responded that he didn't have to pay because this was not a tax on a "admission to a place of amusement." The town responded that the "amusement" was the jukebox not the bar, and the "admission" to the jukebox was the coin used to play the jukebox. All but one of the Justices agreed with the town, and the court held that Fierro had to pay the tax.

All except Justice Musmanno, who penned an amusing dissent:
  I do not believe it is necessary to cite legal authority, if indeed any could be found on so obvious a matter, that a juke box is not a place of amusement. A place of amusement obviously denotes and connotes an establishment, indoors or outdoors, into which a human being enters for the purpose of amusement. It may be a building, it may be an enclosure, it may be a race track, but in every instance the introduction of a human body is contemplated and provided for.

  A juke box is not a structure into which a person can enter. It is not an enclosure. In the eyes and ears of many people, including the writer of this opinion, a juke box confined to 'jazz' records may be a nuisance. It robs the air of sweet silence, it substitutes for the gentle concord of stillness the wailings of the so-called 'blues singer,' the whinings of foggy saxophones, the screeching of untuned fiddles, the blasts of head-splitting horns, and the battering of earshattering drums. It makes a mockery of music, it replaces harmony with cacophony, tonality with discord, and peace with annoyance. If the purpose of the City Council of Williamsport was to tax the juke box out of existence as a nuisance and an enemy to the general welfare of its population, it certainly had the authority under general police power to do that, but it could not, merely as a means of raising revenue, play havoc with the English language.
(emphasis and paragraph break added)
Hattio (mail):
That's an awesome dissent.
8.15.2007 2:45pm
Gordo:
Justice Musmanno had a long, storied, and sometimes checkered history in American jurisprudence. I first became familiar to him as a dissenter in a Pennsylvania wills case (whose name escapes me) discussed in the Dukeminier Wills, Trusts, and Estates casebook. A footnote indicated that the Justice was known for colorful opinions and didn't get along with his colleagues.
8.15.2007 2:45pm
Steve2:
I know some fans of jazz... I think I'll share this with them.
8.15.2007 2:51pm
Steve in CA (mail):
The funny thing is, this was written in 1956, not 1926. By 1956 jazz was pretty respectable and rock n roll was the music cranky old guys got worked up about.
8.15.2007 2:58pm
Fub:
... the screeching of untuned fiddles, ...
Stephane Grapelli might be amused too, but not in the same way.
8.15.2007 3:00pm
BandarBush (mail):
It makes a mockery of music, it replaces harmony with cacophony, tonality with discord, and peace with annoyance.
I'll give him discord and cacophony but annoyance? really? If only he lived to hear Mudvayne...
8.15.2007 3:00pm
Richard Gould-Saltman (mail):
1956; the "cacophony" would be, at latest, be-bop.
So should we henceforth refer to the (I assume now long-since-late) justice as "Moldy Fig Musmanno"?
8.15.2007 3:07pm
Tony Tutins (mail):
By 1956 jazz was pretty respectable

Bebop killed jazz's popularity, and turned it into an acquired taste for hipsters. Although there are many post-Bird tunes I enjoy, after hearing Sonny Rollins live, producing a series of bleats and squawks with his saxophone, I determined I was no longer hip enough for jazz.
8.15.2007 3:08pm
dearieme:
"He put his horn to his lips and what came out was like the sound of a girl saying yes."
Eddie Condon on Bix.
8.15.2007 3:09pm
Thales (mail) (www):
Wow, there's some Ken Burns/Wynton Marsalis school of jazz history (everything after ca. 1945 is awful/not jazz) going on in the comments, though I know Orin at least appreciates a good deal of cool and modal jazz from his other posts and great YouTube finds. One wonders what the cranky justice would have written about a jazz jukebox comprising records from Ornette Coleman, post-1965 Miles Davis or John Zorn.
8.15.2007 3:14pm
Ex parte McCardle:
I also recall Dukeminier's hilarious parenthetical discussion of Justice Musmanno's, well, idiosyncratic judicial style.

To follow up Thales, if Justice Musmanno had the bad fortune to go to a Far Side-style hades, no doubt he's being regaled eternally with a jukebox full of Albert Ayler, Cecil Taylor and Peter Brotzmann.
8.15.2007 3:21pm
Q the Enchanter (mail) (www):
I wonder what Musmanno'd have written had the jukebox been confined, say, to Schoenberg, Berg and Webern. (An unlikely hypothetical, I realize.) At least their fiddles were tuned.
8.15.2007 3:23pm
Ex parte McCardle:
Q the Enchanter: You can find likely exemplars in Nicolas Slonimsky's Lexicon of Musical Invective.
8.15.2007 3:32pm
Thales (mail) (www):
Too bad Slonimisky died before he could incorporate quotes about Sonic Youth or the Boredoms in a new edition.
8.15.2007 3:35pm
OrinKerr:
Yes, the ironic part is that Musmanno was writing in the middle of the golden period of jazz music, a time filled with now legendary figures and legendary recordings. The music on that jukebox is probably now considered classic.
8.15.2007 3:43pm
Bill N:
What would have happened if this was a police power case instead of a tax case? Could post-Bird jazz have been regulated as a public nuisance in Moldy Fig Musmanno's court? Would anything past Bob Crosby's Bobcats have survived? What about Kenton's Wagner album?
8.15.2007 3:44pm
Tony Tutins (mail):
Justice Musmanno's, well, idiosyncratic judicial style.

Here, the majority opinion holding that the statute applied because a jukebox was a place of amusement to which you admitted a coin was so absurd that it demanded a verbal beat-down.
Yesterday, performing an equally absurd redefinition of a seemingly simple term, the California Board of Equalization decided to classify some fermented malt beverages as distilled spirits, to increase their tax rate so that teen girls would be less likely to drink, say, Mike's Hard Lemonade. The result, if anything, will be that these drinks will be reformulated to include vodka or rum, etc. But, because these drinks have never been distilled, what is to keep the taxing authorities from reclassifying fast cars as airplanes, or stocks and bonds as real estate?
8.15.2007 3:48pm
Zathras (mail):
Musmanno was also a judge at some of the Nuremberg trials, which led him to be a witness in the Eichmann trial. He had Hannah Arendt had a very public squabble over the validity of her book "Eichmann in Jeruselem."
8.15.2007 3:55pm
Ex parte McCardle:
Here, the majority opinion holding that the statute applied because a jukebox was a place of amusement to which you admitted a coin was so absurd that it demanded a verbal beat-down.

Well, that's as may be, but the text OK has highlighted goes exactly no distance toward making that point. Musmanno's inability to employ technical terms ("tonality," for instance) correctly does not serve to bolster whatever case he may have had.
8.15.2007 3:59pm
scote (mail):

the screeching of untuned fiddles,


Well, I was going to wonder aloud what styling of Jazz uses violins until I remembered that the Upright Bass is also a Bass Fiddle/Violin...
8.15.2007 5:14pm
Roscoe (mail):
Justice Musmanno was a very colorful character. He was, at various times, a Rear Admiral in the Navy, appellate counsel for Socco and Vanzetti, a judge at the Nuremburg trials, a Congressman, and a Justice of the Pennsylvania Supreme Court. He was a key witness for the prosecution in Adolf Eichmann's war crimes trial.

Justice Musmanno was also very proud of his Italian heritage, and among his numerous books was one arguing that Christopher Columbus was the first European to discover the new world.

Musmano was also intensly religious, and his last dissent was against overturning an assault/attempted rape conviction where the trial judge instructed the jury to seek God's guidance in reaching their decision. Justice Musmanno concluded his dissent:

"I am perfectly willing to take my chances with [the trial judge] at the gates of Saint Peter and answer on our voir dire that we were always willing to invoke the name of the Lord in seeking counsel in rendering a grave decision on earth, which I believe the one in this case to be.

Miserere nobis Omnipotens Deus!"

Com. v. Holton, 247 A.2d 228, 243 (Pa. 1968). Justice Musmanno died the following day, October 12, 1968, on Columbus day.
8.15.2007 8:21pm
JohnThompson (mail):
Tony Tutins:

If you thank that's bad, read Wickard v. Fillburn. We've been living in Wonderland ever since....
8.15.2007 8:39pm
Vic Stull (mail):
Wonder what he'd think, and write, about rap? Oh wait, no violins in rap.
8.16.2007 10:57am