I. I am constrained to disagree radically with the majority opinion. The record before us involves on its face the very practical question whether a radio receiving set is exempt from execution, under Section 11760 of the Code, as a musical instrument. Its decision, however, involves consideration of a field of discussion that extends into broad realms. The magnitude of the question is somewhat out of proportion to the amount involved in the case, and it comes here by certification of the trial court. The question presented is a novel one, in the sense that it has not been heretofore passed upon by any court of last resort, so far as careful search discloses. Notwithstanding the absence of precedent, the appeal has been argued here with diligence and signal ability, and this, too, by younger members of the profession. The ramifications of the discussion are extensive, and involve the question of what a "musical instrument" essentially is. Indirectly, also, it involves the question as to what "music" is, and how it is produced and how it is heard, and whence it emanates.
Our statute confers exemption from execution upon "all musical instruments not kept for the purpose of sale." If the radio receiving set is a "musical instrument," then it comes strictly within the terms of the exemption statute. The majority opinion reaches the conclusion that a radio set is not a musical *Page 501 instrument, and is, therefore, not exempt. The conclusion reached here is that it is a "musical instrument," and that it is, therefore, exempt. The question which divides us is not so much one of construing the statute as it is of defining a "musical instrument," and of defining the essential functions of a radio set.
The majority opinion purports to adopt Webster's definition of a "musical instrument," as follows: "A contrivance by which musical sounds are produced." I accept this definition, and will contend for nothing that is contrary thereto. The majority opinion has not been obedient to this definition, but has transcended the same by adding materially thereto, as will presently be indicated.
The radio discovery has been full of revelation. It has revolutionized our thinking on some subjects. It has opened up a vast field of investigation in the world of sound. We think of it as something new. It is new only in the sense that the discovery is new. The natural law of radio thus discovered is not new, but is as old as the universe. This natural law, though undiscovered, has always been at work consistently with its present-day revelations. If it had been discovered a thousand years ago, it would have been as effective then as it is now. Nor dare we assert that such natural law has been fully discovered. Great as its unfolding has been, it may yet unfold infinitely more through still further discovery. The majority opinion makes too light of this great natural law and its relation to the world of music, and too light of the functions of the radio instrument through which this great law touches the ears of men.
In solving the problem of this case, the concrete thing set before us is a radio set in operation. Is it a musical instrument? Does it sing? Clearly it is an instrument. It is a contrivance, within the meaning of Webster. Is it musical? The primary definition of the word "musical," as given by Webster, is: "Pertaining to music." Does the radio set pertain to music? This raises the inquiry: What is music? How do we get it? Whence does it come, and whither, if anywhere, does it go? Do we find it or do we make it? If every "musical instrument" in the world were destroyed, and if every human voice were rendered raucous, would music be dead? True, a musical instrument produces music. Does it follow that music, in its essence, is the mere production of an instrument? *Page 502
The writer of this dissent is known to his musical kin as being quite devoid of musical capacity. He may, therefore, speak boldly on the subject, and "rush in where angels fear to tread," even as the distinguished writer of the majority opinion has done.
I find in no lexicon any definition of music that imparts any additional intelligence to the reader, however wise or otherwise he may be on the subject. Music is one of the arts. Like all the arts, it is mysterious in its essence and in its method and in its power over men. Our conception of what it is, is not acquired by words. It is so embedded in the inner consciousness of the human being and in the spirituality that dominates him that it cannot be isolated, analyzed, or defined. It comes to us through the human voice and through the voice of the animal creation and through the myriad voices of inanimate creation. It comes to us, also, through instruments which are the inventions of men. It expresses itself in an infinite variety of form. Its gamut runs from the humming of an insect to the singing of the morning stars. It comprises sound and note and tone and pitch and harmony and rhythm and melody. And if these attributes be sometimes wanting, more or less, it is music still. The new discovery of the radio has filled the human imagination with new and varying conceptions of music and its methods. The former conception was that the musical note fell upon the human ear near by and died there, never to be heard again. This conception has been staggered by the radio. One of the new conceptions is that, whenever or wherever a musical note is struck, it wings its way out like Noah's dove, seeking a place to rest its foot. The quest of the far-flung note is the human ear. The function of the radio is to find the fugitive note and to bring it home to its human destination. Under this conception, the spaces of the universe have been filled with musical notes for thousands of years, awaiting the coming of the radio through human invention.
Another new conception is that a musical note struck anywhere strikes everywhere throughout the ethereal universe. This conception of music does not confine it to this sphere or to any sphere. Like Jacob's ladder, it extends from earth to heaven, — a highway for angelic travel and a line of communication between the terrestrial and the celestial. This means that a musical note struck in New York or in Des Moines strikes also its chord within *Page 503 the portals of the Infinite. Music is not the mere production of invented instruments. It has the quality of the eternal, and antedates all human invention. The function of musical instruments is to draw upon the eternal stores, and to feed therefrom the hungry souls of men. This conception has support in Holy Writ.
"When the morning stars sang together" (Job 38:7); "Hosanna to the Highest;" "Peace on Earth, Good Will to Men."
Such is the biblical announcement of anthems primeval, — tuned to the rhythm of the stars, and sung by The Choir Invisible. This conception has its expression in classical literature as the "music of the spheres."
Turning our consideration to the instruments through which music is produced and upon which it strikes its notes, we find them in great variety, and many of them apparently unrelated. Out of, and through, this great variety, music is carried to human ears. It comes from the mouth organ within the lips of a child; and again from the steaming nostrils of a calliope. It comes from keyboard and horn and string and bell. These are all arrayed in endless line, both small and great, from the jew's-harp, which endures for a day, to the carillon bells, dedicated to the centuries.
Such are some of the varied aspects of the mystery of music and of its relation to the many musical instruments. The radio discovery has only deepened that mystery, and has added thereto its own mystery. We know something of its practical effects. We know little of the sweep of the natural law under which it acts. Must we, therefore, solve the mystery of the radio in conception and in word before we can render decision for or against the constable?
With these preliminary observations upon the theoretical and the mysterious and the occult phases of the subject, I turn to its more practical features.
II. I have indulged in the foregoing observations for the purpose only of illustrating the impracticability of predicating judicial decision upon an analysis of the art of music or of the radio as a discovery. The question to be decided may be turned upon more practical considerations. The action is at law. The question to be determined is essentially one of fact. *Page 504
Though the case was properly tried below, and again here, on the theory that the court could properly take judicial notice of the character of the radio invention, yet the trial court invited introduction of a limited amount of evidence in aid of his judicial notice. Two witnesses were examined by each side. Each of those for the defendant testified that he would not regard the radio receiving set as a musical instrument. One of the witnesses for the plaintiff, who was a practical salesman of musical instruments, testified as follows:
"I have been with S. Davidson Bros. for 15 years, where I have charge of the musical department. The principal instruments we sell are radios, pianos, phonographs, and band instruments. Radios greatly predominate in the musical instruments we sell, — the largest month of last year, December, our radio business ran $42,000 as against $57,000 for the entire department. * * * We have innumerable people who wish to trade in phonographs and pianos for radios every day, * * * I would say the trade generally classifies them [radios] as musical instruments, — they are always handled as such in conventions which I attend."
Similar testimony was given by the second witness. The practical question presented to us is: Does the receiving radio set "pertain" to music in such a way and to such an extent that it may be fairly classified as a "musical instrument?"
We take judicial notice of the generally known practical facts concerning the use of the receiving radio. We observe that the song sung in New York is delivered at the Dunbar fireside in Des Moines. Complete concerts are thus delivered, evening after evening, and from many distant cities. Though we do not understand the mystery, or the method, we do observe and know, as a practical fact, that the radio receiving set is one of the essential instrumentalities in the accomplishment of this great result. This instrument does, therefore, pertain to the production of the music at this fireside; and it does so in such a practical and obvious sense that even a judge can see it, non-musical though he be. This is done commonly and habitually, not in one home, but in thousands of them; and it matters not whether such thousands be a majority or a minority.
Looking, therefore, upon the receiving radio set as commonly used in the ordinary home, and as it is regarded in the popular *Page 505 mind, as well as in the commercial field, what practical reason can be suggested why it should not be deemed a "musical instrument," within the meaning of the exemption statute? This brings us to the specific consideration of the reasons advanced in the majority opinion why the radio set cannot be included in such classification.
The discussion of the majority opinion is reducible to a few cardinal reasons in support of the argument. In the consideration of these cardinal reasons, let us keep before us definitely the authorized definition of a musical instrument, as set forth in the majority opinion: "A contrivance by which musical sounds are produced."
To quote from the majority opinion:
"On the contrary, however, the radio has no likeness or kindred relationship with a musical instrument. A musical instrument, if rightly manipulated, produces the harmonious sounds in and ofitself, but the radio does not. Rather, the radio is an instrument `of communication or transmission, enabling the auditor to catch sounds already present in the atmosphere, which the human ear is not rightly constructed to register.'"
The italics are mine. They indicate the additional words which the opinion has added to the authoritative definition of its own selection. The authoritative definition is "A contrivance which produces music." The majority opinion cannot stand on this definition. It therefore puts forward a qualification: as "A contrivance that produces music in and of itself." In presenting such qualified definition, the opinion calls for an impossible attribute. There is no musical instrument which produces music inand of itself. Every musical instrument is dependent upon other instrumentalities. Prominent among such instrumentalities are the human finger and the human brain and the human aptitude. A musical instrument "in and of itself" is helpless to produce music. Such an instrument is not creative. It is mere material, to be acted upon by a performer; its function is essentially physical. It is a purveyor of music to the auditory nerve; and it is in such sense that it produces music, — not in and of itself. The genius, if any, is in the performer, and not in the instrument.
The only non-vocal music which has ever entered the human *Page 506 ear is that which is carried by material musical instruments, in obedience to the hand of a performer. The instrument "in and of itself" is a dead thing. True, it may serve a spiritual function, in that the music which it delivers to the ear may enter also the inner being. Is it not true, therefore, that the utmost function of any musical instrument is to deliver music at the auditory door? Such is confessedly the function of the radio set, under present discovery. I suggest, therefore, that all musical instruments are material and passive, and that none are creative; that they may serve spiritual ends through spiritual agencies, which we may not understand; that these instruments are infinite in their variety; and that one variety thereof is the radio.
I quote again from the majority opinion:
"Obviously, the instrument that produces music is not the radio. A human voice can be heard over the radio. Thus, it is not too far-fetched to ask: `Is the radio an instrument of voice? Did the radio produce the human voice?' Certainly it did not produce the spoken words that came from the human lips. Moreover, those words have no more influence upon the radio than does any other sound, however produced, whether musical or not. Continuing the thought, it may be said that the telephone, telegraph, and the wireless transmission systems are not musical instruments, under any conception of a reasonable definition. They are not far different from the radio."
The substance of the foregoing argument is that a radio cannot be conceded classification as a musical instrument because its functions are not confined to music. True, it can sing a song, but it can also speak mere words. That is, it talks, as well as sings. Is this a valid argument? Is the singer the less a singer because he also talks? May we safely say that Schumann-Heink has a musical voice? Is it less a musical voice because she uses it to talk, as well as to sing?
The further argument is put forth that the radio lacks the power of initiating music. That is, it is not original. The claim is that the radio merely reproduces the song already sung by another. It puts the radio in the attitude of a purloiner of the songs of others; a sort of mocking bird among the songsters. Because its production to its listener is a repetition or an echo of a song previously sung, its delivery by the radio is not its own *Page 507 musical performance. It is, therefore, not a musical instrument. This argument denies the musical quality of an echo. I may safely say that the echo-stop, included in the great organs, has the high appreciation of all musicians. Its sole function is to preserve the echo. Is the first peal of a great organ to be deemed more musical than the appealing echoes which respond from the far corners of the auditorium? Is the first blast of an alpine horn to be deemed more musical than its reverberations resounding through the mountains and repeating themselves in ever softening tones? Apart from its native Alps, the alpine horn is not in demand. The witchery of its music is in the echoing return of the mountain. Surely no musician will condemn the echo as non-musical. Must the musical echo be deemed legally non-musical because it is an echo?
The argument here considered is further amplified in the majority opinion as follows:
"Music, however, is not the only sound that can be thus amplified for the human ear; for through the radio that ear just as well may catch the sound of screeching voices, head-splitting noises, and rasping discords. A radio receiving set and a musical instrument cannot be classified together, because they are different and distinct devices."
Here is a representation of the radio as producing "discords," as readily as music. I could wish that the majority opinion had ventured to name one musical instrument which is not capable of producing an equal discord. The instruments have no blame for their discords. Every chord has the potential of discord. Every instrument must have its performer. He is responsible for the discords. The radio has its performer. Instead of occupying a piano stool near by, he takes his place at the broadcasting end, a thousand miles away. What essential difference is there between the distant performer on the radio and the near-by performer at the piano? Each one is responsible for the production delivered by his respective instrument. The majority opinion recognizes the horn as a standard musical instrument. Would the writer be willing to accept the emanations of a tin horn as being at all times musical? Even the best of horns are dependent upon their performers. Let us put into the hands of a beginner a horn of high quality. He must needs learn. Saintly *Page 508 is the neighbor who can bear with equanimity night after night the bellowings of a good horn at the mouth of a beginner. No one will concede that such production is musical. Does the horn lose its exemption during the period of such use? Is a tin horn non-exempt because non-musical? Is it not plain that "screeching voices, head-splitting noises, and rasping discords" can be produced upon substantially every musical instrument known? In that regard, all musical instruments classify with the radio. Why should it be said, therefore, that discord differentiates the radio from other musical instruments?
Finally, the majority opinion puts a belittling appraisal upon the thing we call "radio." To accept its argument is to imply that the radio is a freak of nature, an unsuccessful counterfeiter of music, an abortive attempt at quantity production. The radio is not such. It represents in its operation a great natural law, hitherto unknown. In the realm of this law, distance has been eliminated. Boundaries of time and space are ignored therein. Its operation cannot be localized. It is coextensive with the universe itself. It extends out to the uttermost outposts of creation, and up to the domes of the Divine Abode. It is the natural law of the realm of sound. It necessarily includes all sound, be it chord or discord. Music is the product of this law, and is subject to it. The operation of a radio instrument is a demonstration of the law. Music, in its touch with human beings, is a gainer by the discovery of it. Musical possibilities are multiplied thereby a millionfold. By its operation the musical note sung in New York is, at the same instant, sung likewise at the south pole. In short, the practical utility of the radio instrument to the enterprise of music in its service to humanity is as great as that of all other musical instruments combined. It carries every note of every one of them, not to one destination hitherto inaccessible, but to millions of them. As it serves one, so does it serve all of them, from the least to the greatest. If this be not a musical instrument, what is it?
I would christen it: The Universal Musical Instrument.
STEVENS and FAVILLE, JJ., join in this dissent. *Page 509