The attention of the reader is invited to the fact that this opinion is the majority opinion only as to the question of the violation of Section 4, Article I of our State Constitution pertaining to the expenditure of public monies for religious purposes. Upon the other issues involved it is a minority opinion, and the majority of the court conclude that the writ should be denied. As this opinion contains a complete statement of the historical and factual background *Page 115 of the case it introduces the determination of the case on this appeal.
This matter is before us upon petition for an alternative writ of prohibition, which, by stipulation of the parties and in order to expedite final determination, is to be considered as a petition for a peremptory writ of prohibition. The parties also agreed that this court may on its own motion, or upon motion of counsel take evidence with respect to the issues, the same to be submitted either by stipulation, or by the taking of testimony either before the court or by reference.
Plaintiff seeks to restrain the defendants, and perpetually enjoin them from action under and pursuant to certain legislation enacted for the purpose of building a certain memorial building and the display therein of historical relics of this state. The issues will be specifically treated hereafter, but may be classed generally as an attack upon the constitutionality of the legislation from the standpoints of the separation of state and church, of special and irrevocable privilege, and of statutory construction. References herein to the Society or the lessee are references to the Daughters of Utah Pioneers.
Before taking up the legislation directly involved, there is a bit of legislative history that may be of some importance in considering this case. In February 1921, a
"Resolution authorizing the Governor to appoint a committee offive to investigate and report regarding the provision of asuitable place for the preservation and housing of documents,relics, etc. belonging to and pertaining to the history of theState of Utah" (italics added)
was passed by our legislature; and it was signed by the Governor, March 5, 1921. This was known as S.J.R. No. 4.
Under the heading "Communications from the Governor" dated February 10, 1923, and bearing the following letter of transmittal, the report of a Committee was submitted and filed and referred to the Committee on Appropriations: *Page 116
"To the Senate:
"I have the honor to transmit herewith, the report of the committee appointed by me, in compliance with the provisions of Senate Joint Resolution No. 4, Fourteenth Legislature, pertaining to the proposal to erect a suitable building for the housing of State documents, relics and other sources of information relating to the history of Utah.
"Charles R. Mabey, "Governor
"To the Honorable Charles R. Mabey, "Governor of Utah.
"Sir:
"The undersigned have the honor herewith to submit their report, in compliance with the terms of Senate Joint Resolution No. 4, passed February 23, 1921, and approved March 5, 1921, which reads as follows:
"`Whereas the history of any people can only be properly preserved for future generations when a place is provided wherein the documents, relics and other sources of information relating to their life and work may be housed; and
"`Whereas, we believe that the erection of a memorial building to contain such records and relics would receive the approval of the people of this State; therefore
"`Be it Resolved by the Legislature of the State of Utah that the Governor is hereby authorized and requested to appoint a committee of five resident citizens of the State, who shall serve without pay, whose duty shall be to consider the subject of the erection of a building for that purpose and to report to the next session of the Legislature.'
"In the exercise of the authority conferred, by this resolution, and in order to carry out its provisions, the Governor, in August, 1921, appointed as said committee, Mrs. Alice Wright of Provo; Mrs. Donnette Smith Kesler; Dr. George W. Middleton, Dr. John Z. Brown, and Mrs. Annie Wells Cannon, all of Salt Lake City; and though the committee has not held a large number of meetings, it nevertheless feels that it has with reasonable thoroughness fulfilled the duty entrusted to it. An investigation has been made as to the whereabouts and condition of many records, documents, relics, etc., pertaining to the history of our State, and we are obliged to report with regret that though Utah is the very heart of Pioneer history in the Westthese priceless records and relics are widely scattered andlamentably uncared for except where local patriotic clubs orsocieties — notably the Daughters of Utah Pioneers — haveundertaken the task of collecting and preserving them. In this connection we beg to draw attention also to the fact that many unique and valuable historical land marks — Cove Fort in Millard County, for example — denoting special phases *Page 117 in the State's formation and development, are in danger of being destroyed or commercialized through private ownership — a fate which we hardly need say, would be universally deplored, and which obviously can be more easily averted now than at any later date.
"In the course of its inquiries the committee has ascertained that fourteen of the States in the American Union have historical memorial buildings specially devoted to the housing of the records and relics of those commonwealths, while twenty-nine States have space reserved in their respective Capitols for these purposes. Of the remaining eight States, some have placed their historical records in the keeping of their universities — a plan which is generally regarded as unsatisfactory for the reason that such institutions are closed part of the year, also that the documents are not readily accessible, and come under the supervision and control of the school authorities instead of being regarded as the property and heritage of the State.
"Your Committee firmly believes that the time is not far distant when the people of Utah will demand the erection of a Memorial in honor of the labors and achievements of the Pioneers — the founders of their beloved State. With that thought in mind, we recommend that the Legislature now about to convene be asked to reserve a site on the Capitol grounds for the erection of a Pioneer Memorial Building for the housing and care of all statehistorical records, documents, relics, etc., and for such other purposes as would conduce to the preservation and illustrations of Pioneer history; and that until such building shall be erected proper space be allotted in the State Capitol for the care of such documents and relics as have been or shall be collected.
"The committee cannot feel to close its report withoutbestowing a word of commendation upon the untiring and patrioticservices of the Daughters of Utah Pioneers in the variouscounties of the state, in striving to collect and preserveeverything of historic interest. Their energy and zeal in this service deserve state-wide recognition and gratitude.
"In conclusion we desire to express our appreciation of the honor of having been appointed to act on the Pioneer Memorial Committee; and we respectfully advise that the work thus far done, and as represented in this brief report, be carried on with ever-increasing enthusiasm and loyalty until the desired objects are fully attained.
"Respectfully submitted, "Alice P. Wright "Donnette Smith Kesler "Geo. W. Middleton "John Z. Brown (Italics added) "Annie Wells Cannon." *Page 118
Other events of interest were:
On January 27, 1923, a resolution from the Utah Daughters of Pioneers requested an appropriation to take care of their work, was presented and referred to the Committee on Appropriations in the House. No further action appears to have been taken on the resolution.
On January 29, 1923, the following petition was presented:
"To the Senate and House of Representatives of the State of Utah:
"Your Memorialists — the Daughters of Utah Pioneers — respectfully represent that,
"That Society of the Daughters of Utah Pioneers has now been organized for twenty one years, and during that period of time its members have endeavored to carry out the objects of its organization, namely: to perpetuate the names and achievements of the men and women who were the Founders of this great Commonwealth, by preserving old land-marks, collecting relics, establishing a library of pioneer historical matter, securing unprinted manuscripts, photographs, and all such data as shall aid in perfecting a record of the strong character, pure life, and heroic deeds of the pioneers, also to commemorate the advent of the pioneers into the barren wastes of Utah, by observing appropriately the twenty-fourth of July and such other days and advents as are important in Utah History.
"Your Memorialists further represent that, this Society is the only organization which has collected personal biographies of the pioneers of Utah, and that it now has hundreds of such biographies, and thousands of relics systematically filed and registered.
"The Society has had no funds for this purpose up to the present time, save membership fees, a source of revenue which is wholly inadequate, even though all service has been voluntary; wherefore, the Society now feels that its work is of sufficient value and interest to the commonwealth, to be carried on and maintained in a more definite and persistent way.
"In consideration of the foregoing and in order that the ideals and achievements and service of the Founders of the State may be thus perpetuated for future generations,
"Your Memorialists respectfully ask the Fifteenth Legislature of the State of Utah, to grant the Society, Daughters of Utah Pioneers, the sum of two thousand dollars ($2,000.00) per annum to continue *Page 119 the work above described — the same to be duly accounted for to the proper State Authority:
"Signed:
"Flora Bean Horne, "President "Donnette Smith Kesler "First Vice Pres. "Julia P. Murdock Farnsworth "Second Vice Pres. "Josephine Jane Woodruff "Secretary."
The petition was referred to the Committee on Appropriations, and apparently no further action was taken during the Fifteenth Session of the Legislature. However, through later years appropriations were made to the Daughters of Utah Pioneers as follows:
1925 ................................. $2,000.00 1927 ................................. $2,250.00 1929 ................................. $2,000.00 1931 ................................. $2,000.00 1935 ................................. $ 650.00We come now to the legislation directly involved in this controversy.
The first enactment was in 1941.
Chapter 106, Laws of Utah 1941, entitled "Lease of Land to Daughters of Utah Pioneers" is
"An Act Leasing Certain State Capital Real Estate Known asthe Triangle to the Daughters of Utah Pioneers, Incorporated, forthe Erection and Maintenance of a Pioneer Memorial Building to BeUsed for the Preservation, Housing and Care of HistoricalRecords, Pioneer Documents and Relics Relating to the Life andWork of the Utah Pioneers." (Quoted from the Act.) (Italics added.)
It provides that the State Land Board is authoribed to execute the lease in writing and deliver it to the Daughters of the Utah Pioneers; it describes the land by metes and bounds; it fixes the term of the lease as 99 years, and the rent at $1 per year, payable annually to the State Treasurer *Page 120 on the first day of March of each year commencing with the year 1943. It provides, however, for certain conditions: That the lessee shall deposit with the State Treasurer the sum of $50,000 not later than February 1, 1943, as evidence of the lessee's ability to "carry out a building project" (italics added); and provides that said sum, with other funds is to be used in the erecting of the building designated the Pioneer Memorial Building. The act also provides that the building shall not be subject to taxes or liens of any kind whatsoever, and that the building shall be completed in time for the 1947 Centennial exhibition. The act ends with the provision that the lessee's failure to perform any of the foregoing conditions willautomatically terminate the lease. (This law was carried into our 1943 Code as Sections 86-1-48.10 to and including 86-1-48.13.)
Pursuant to the 1941 law, and on June 5, 1941, the following lease was executed:
"Lease "Know All Men by These Presents:
"That the State of Utah, by and through its State Land Board, lessor, and by virtue of Chapter 106, Laws of Utah, 1941, and in consideration of the rents and covenants hereinafter set forth, does hereby lease and let unto the Daughters of the Utah Pioneers, Incorporated, a non pecuniary Corporation, organized and existing under and by virtue of the laws of the State of Utah, lessee, the following described property, located in Salt Lake County, State of Utah, and particularly described as follows:
"Commencing at the SW cor of Lot 5, Block 11, Plat "E", Salt Lake City Survey; thence No. 23° 51' 45" W. 25.0'; thence No. 89° 59' 13" E. 187.43' to the West line of Columbus Street; thence along the West line of Columbus Street So. 17° 47' 15" W. 257.49'; thence No. 23° 51' 45" W. 243.52' to the point of commencement, upon the following terms, conditions and covenants, to wit:
"1. The term of this lease shall be for a period of ninety nine (99) years, beginning upon the date of execution hereof.
"2. The lessee shall pay to the lessor as rental for the above premises the sum of One Dollar ($1.00) per year, payable annually to the State Treasurer of the State of Utah on the first day of March of each year commencing with the year, 1943. *Page 121
"3. The said premises shall be used by the lessee for memorial purposes and for the erection of a Pioneer Memorial Building, which shall be suitable for said purposes, and which shall beconstructed, maintained, and operated solely at the expense ofthe said lessee.
"4. The lessee shall deposit with the State Treasurer of the State of Utah the sum of Fifty Thousand Dollars ($50,000) no later than February 1, 1943, as evidence of its ability to carry out a building project upon said lands for the purpose above stated, and said sum, together with other monies, is to be used in the erection upon said premises of said Pioneer Memorial Building which shall not be subject to taxes or liens of any kind whatsoever.
"5. The said building shall be completed and ready for public reception before the Utah State Centennial Celebration, which will begin during the year 1947.
"6. The lessee will peaceably and quietly surrender the possession of the said premises to the lessor upon the termination of this lease, including all improvements thereon.
"7. The said lessee will not assign or sublet the said premises or any portion thereof during the term of this lease without first obtaining the written consent of lessor.
"8. The failure on the part of lessee to perform theforegoing terms and conditions, or any of them will automaticallyterminate this lease.
"In Witness Whereof, the said Lessor has set its hand at the Capitol, Salt Lake City, Utah, this Fifth Day of June, 1941.
"The State of Utah "The State Land Board
"By H. Warren Taylor /s/ "Executive Secretary of the State "Land Board
duly authorized to execute this lease by a resolution of the State Land Board, made and entered on the Third Day of March, 1941." (Italics added.)
The next legislative enactment of importance was in 1943. By Chapter 95, L. Utah, 1943, the 1941-43 law was amended by allowing U.S. bonds, or Utah State bonds to be submitted in lieu of the $50,000 cash previously required, and changing the date the fund is to be available to February 1, 1945.
The next amendment was in 1945. Chap. 128, L. of U. 1945. This amendment increased the $50,000 to $75,000, and provided that it must be available by February 1, 1946. *Page 122 It is provided further that this fund with other funds is to be used in the erection of the Memorial Building, and also that the fund may, with the consent of the Governor, be used for the purchase of additional land in the name of the State of Utah. It also includes a provision that the building shall be erected for the purpose of depicting the history of Utah in a proper displayof relics. It adds further that the erection of the building shall commence when the Governor shall determine that labor and materials are available, and that the best interests of the State shall be served. There is another section added covering appropriations for the project. This section reads:
"There is hereby appropriated to the Utah state building board out of any unappropriated funds in the general fund the sum of $225,000.00 to be used toward the construction of the said memorial building and for the purchase of additional land adjacent to the said capitol grounds in the event the governor shall consent in writing to such purchase. Provided, however, that no portion of the said $225,000.00 shall be used until the daughters of the Utah pioneers, inc., shall have deposited with the state treasurer the sum of $75,000.00, or its equivalent, in United States or Utah state bonds, and provided that the fundsherein appropriated shall be available only to the extent thatmay be required to supplement the funds of the daughters of Utahpioneers, inc., and any federal funds that may become availablefor such construction. All unexpended balances of any moneys appropriated by this act shall be turned over to the state treasurer for the credit of the Utah state building board for the purposes herein specified." (Italics added.)
This is the first appearance of an appropriation of money pursuant to the law and for this project. It is to be noted that these funds are intended to be
"available only to the extent that may be required tosupplement the funds of [the lessee] and any federal funds that may become available for such construction." (Italics added.)
To "supplement" is "to fill the deficiencies" (Webster).
In the 1947 laws, Ch. 122, L.U. 1947, the following sections covering the Reserve Building Fund act are of importance:
"Section 1. There shall be a fund to be known as the Reserve Building Fund. Withdrawal therefrom shall be for buildings, the construction *Page 123 of which may hereafter be authorized by law, or which may be approved for construction by the Board of Examiners. Transfer of funds therefrom to the Building Commission for building purposes shall be done by the proper fiscal officer upon certification by the Board of Examiners, if specific building is authorized by law; and upon certification of the Board of Examiners if and when building is authorized by the Board of Examiners as in this act provided.
* * * * * "Section 4. There is appropriated to the Reserve Building Fund from the State General Fund the sum of $3,000,000, or so much thereof as may be raised by a State property tax levy for general fund in the years 1947 and 1948.
"Section 5. Appropriations made by this act shall be expended, as provided by law, subject to the provisions of this act, for the following purposes:
* * * * * "9. Pioneer Memorial Building $150,000."
This last act became effective March 18, 1947. On October 15, 1947 a construction contract was entered into between the Utah State Building Board, called the "Owner" and the Paulsen Construction Co., reciting that the "Owner" intends to construct a "Pioneer Memorial Building for the Daughters of the Utah Pioneers" on the lot in question. It also states that the scope of the work is contained in certain specifications and plans. These plans and specifications set out the details of construction and include such as: Lecture room, exhibit rooms, little theater, library, board room, office, editors room, manuscript room, "Brigham Young" room, and Kitchen unit. The initial or plot plan bears the written approval of the Daughters of Utah Pioneers by three members of the society designating themselves as President, Chairman, and Treasurer. The specifications in their caption and in detail repeat that the construction of the building is for the Daughters of the Utah Pioneers. The society badge is an ox yoke surmounted by a beehive and bearing the words: "Daughters Utah Pioneers." (Art. X, their Constitution.) On the first floor plan of the grand stair hall this symbol is included as part of the decorative construction, similar, it might be said, to the representative symbol *Page 124 of recognized clubs in their club houses. The contract price is $364,794. The contract does not bear the signature of the Society.
So much for the laws and the action of the parties pursuant thereto. We shall now give some consideration to the Society (lessee) known as the Daughters of Utah Pioneers.
This organization came into being many years before the date it was incorporated — April 2, 1925. It is a non-profit organization, which on that date was incorporated for 100 years for the avowed purpose of
"collecting and preserving in every possible way the History of the State of Utah and her people" (quoted from its articles of incorporation).
In its constitution we find these provisions:
Article III (qualification for membership and application for)
"Section 2. Any woman shall be eligible to membership in this society who is over the age of 18 years, of good character, and a lineal descendant of an ancestor who came to Utah prior to the advent of the railroad, May 10, 1869."
"Section 3. Application. (a) Every application for admission to membership shall be made in writing upon duplicate forms prescribed in the By-laws, and shall state the proof of claims of the applicant required by Section 2 of this article."
The by-laws do not prescribe a form. However, a form of application has been submitted for consideration. It is addressed to the Society of Daughters of Utah Pioneers, with appropriate blanks for listing the ancestral chain to the pioneer upon whom applicant's admission to the society is dependent. A space is provided for answer to this statement about ancestors:
"Give brief history of what they did to help establish the community in which they lived."
The answer to the following statement is also included therewith: *Page 125
"Give references to documental or other authorities and submit same or authenticated copies."
"Section 4. Election of Members.
"(a) The Central Registrar shall present such application together with said endorsement and her own verification and signature, to the regular meeting of the Central Company, and if a majority of the members present vote for admission of such applicant, she shall become a registered member upon the filing of her papers with the Central Company, and a membership card and her duplicate paper shall be forwarded to her by the Registrar of the Central Company."(b) Any member whose papers are filed with the Central Company may become a member of any local Camp where she resides upon presenting her membership card."
Article II sets out the objects of the corporation as follows:
"The objects of this society shall be to perpetuate the names and achievements of the men and women who were the pioneers in founding this commonwealth; by preserving old landmarks, collecting relics, establishing a library of pioneer historical matter, securing unprinted manuscripts, photographs, and all such data as shall aid in perfecting a record of the strong character, pure life, and heroic deeds of the pioneers; by seeking topromote and carry out the objects and purposes which the pioneershad in view when they sacrificed all that they possessed andturned their faces to the West to seek homes in these mountains; by commemorating the advent of the pioneers into the barren wastes of Utah and such other days and advents as are important in the history of the early days; by reviewing the lives of the pioneers, teaching their descendants and the citizens of ourcountry the lessons of faith, courage, and patriotism, and by creating a spirit of union and fellowship among the posterity of the pioneers." (Italics added.)
Article IV, covering organization, includes this:
"This Society shall consist of a Central Company, established at Salt Lake City, which is the presiding Company of the Society, and whose officers shall be residents of the State of Utah, nine of whom shall constitute a quorum to transact business. County Companies and local Camps may be organized throughout Utah and other states, territories and foreign countries in the following manner:
"Section 1. — Organizing Companies or Camps. * * *
"(b) All new Camps shall be organized on L.D.S. ward lines and all eligible daughters living within the confines of such wards should *Page 126 be members of the Camp. Whenever the Central Company deems it for the best interest of the Society to divide any Camp, it may direct the County Company to do so."(c) Whenever ten or more lineal descendants of Utah Pioneers shall petition the Central Company, stating their desire to be formed into a County Company in this Society, the presiding officers shall issue authority to hold a meeting and elect a President and such other officers as are deemed necessary, and report the results of said election to the Chairman of Organization of the Central Company. The Chairman of Organization shall present such report to the next meeting of the Central Company, and upon approval of said report the said County Company will become a part of this Society.
"(d) Whenever ten or more lineal descendants of Utah Pioneers living within an L.D.S. Ward shall petition the County Company, stating their desire to be formed into a Camp in this Society, the presiding officers shall issue authority to hold a meeting and elect a Captain and such other officers as are deemed necessary, and report the results of said election to the County Company. The President of the County Company shall present such report to the next meeting of the County Company, and upon approval of said report the said Camp will become a part of this Society."
Under the by-laws, the duties of Historian and of the Chorister include the following:
"The Historian, together with the assistant historians, shall collect Pioneer historical matter including manuscripts, photographs, etc., and file in the Historical Library of the Society histories of Utah Pioneers and other matter of vital interest; edit some historical matter for the benefit of the society to be read at the annual encampment or convention and submit the year's necrological report."
"The Choristers of the County Companies and Camps shall search for and collect Pioneer songs and file them in the Pioneer Historical Library; be responsible for and keep a record of same, and submit a copy thereof to the Historian of the Central Company; conduct the congregational singing; serve as a member of the program committee, and promote concerts, operas, etc., and encourage the spirit of music in general."
The word "necrological" used in the last sentence of the paragraph about the "Historian" is defined by Webster as pertaining to necrology, which latter term has among its definitions: A register of deaths especially in an ecclesiastical organization; and also a roll of the dead. *Page 127
In addition to the above facts, the evidence before us discloses that membership in the society is not limited to those applicants who are members of the Mormon Church. The society disclaims any record of the religious faith of its members, but states there are known members of other faiths.
Apparently there is no conflict over the fact that the society does possess, either as owner or as custodian, articles and literature of a historical value; and these items are not limited merely to such as are peculiar to the Mormon faith.
We come now to the first issue. Section 4, Article I of our State Constitution includes this:
"* * * No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or for the support of any ecclesiastical establishment. * * *"
It is the plaintiff's contention that the law which is the foundation of this project violates the above constitutional provision. In particular plaintiff stresses the objects of the corporate society (Art. II quoted above) as being religious — in effect the perpetuation of the Mormon faith, and that to appropriate money for their benefit is flying right in the teeth of the constitutional prohibition.
This is a question of grave importance. We quote some expressions upon the question of the separation of church and state:
From Board of Education of the City of Cincinnati v.Minor, 1872, 23 Ohio 211, 13 Am. Rep. 233:
"Let the state not only keep its own hands off, but let it also see to it that religious sects keep their hands off each other. Let religious doctrines have a fair field — and a free intellectual, moral and spiritual conflict. The weakest — that is, the intellectually, morally, and spiritually weakest — will go to the wall, and the best will triumph in the end. This is the golden truth which it has taken the world eighteen centuries to learn, and which has at last solved the terrible enigma of Church and State." *Page 128
From the very recent decision of the Supreme Court of the United States, People of State of Illinois ex rel. McCollum v.Board of Education, Champaign County, Illinois, 68 S. Ct. 461,464:
"Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force or influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion."
This above quotation is found also in Everson v. Board ofEducation, 330 U.S. 1, 67 S. Ct. 504, 91 L. Ed. 711, 168 A.L.R. 1392:
"We renew our conviction that `we have staked the very existence of our country on the faith that complete separation between the state and religion is best for the state and best for religion.' Everson v. Board of Education, 330 U.S. at page 59, 67 S.Ct. at page 532 [91 L. Ed. 711, 168 A.L.R. 1392]. If nowhere else, in the relation between Church and State, `good fences make good neighbors'."
This latter statement appears in the opinion of Mr. Justice Frankfurter.
The sentence preceding the quotation we have set out above as taken from Section 4, Article I of our State Constitution has this to say:
"There shall be no union of Church and State, nor shall any church dominate the State or interfere with its functions."
Is the picture now submitted to us one that evidences a potential hazard in the nature of a step toward a breaking down of that separation of Church and State? To answer this question we cannot avoid reference to certain facts of historical importance.
Religious persecution of a particular faith — the Mormon — led to the settlement of this State. Prior to the advent of the railroad the great majority of the immigrants were of that faith. Naturally much of the history they left — many of the relics they left, will be viewed in the light of *Page 129 that religion as distinguished from others. Naturally too, descendants of those pioneers are very apt to be in the large majority of any group that has for its foundation relationship to the pioneers of that period. The few of other faiths who may become members of such a group, in all probability will be divided between those whose ancestors were non-Mormon, and those who have left the faith of their Mormon ancestry. Thus we have a situation in this State that if we are not careful in applying, in our endeavors to uphold the constitutional separation of Church and State, may forever doom this State to silence about its own history for fear it may violate its own constitutional prohibition. For example: As indicated above, one of the proposed rooms of this Memorial Building is designated the "Brigham Young" room. Let us assume that in that room there is placed for exhibition such relics as the carriage or wagon in which he rode as he entered the Valley, and heirlooms with which he had personal contact — part of the exhibits now on display in this Capitol. This man is conceded a leading place in the historical archives of this nation. He is known as the leader of a religious faith that survived a severe persecution and ordeals of emigation that have not been surpassed. That room with such a display in it would have proselyting value in and of itself, by reason of historical circumstances we could not now control, unless we held that even the State as a public body could not open it for display for fear of violating the State Constitution.
It would seem fair and just to say that an impartial display of historically valuable exhibits will not lose its impartiality because historically those exhibits were born in an effort of a particular religious faith to survive persecution, and in and of themselves possess proselyting value to that faith.
The serious question is: How will they be displayed? To answer this question plaintiff in effect says that they will be displayed to further the objects of the society, and *Page 130 as one of those objects is the perpetuation of the Mormon faith, they will be displayed for religious purposes. This, of course, is denied by the defendants.
At its best human nature is weak in its efforts to exercise impartiality. This weakness is accentuated under circumstances where the responsibility is group rather than individual. If the question of religion comes into the picture there arises a tendency to shut out all argument that opposes the religious emotional desires. Given then a society predominantly of one faith, and imbued with the idea of proselyting — if that be their idea — and there is no question that the best of legal phraseology in the wording of their objectives will be but a small hurdle in a road to perpetuating the faith of their choice. How then are we to estimate such potentialities?
It would seem that old adage "Actions speak louder than words" might be a proper criterion upon which to base our estimate. Is there positive evidence of efforts on the part of this society to favor any particular religious faith? We use the expression "positive" in view of the fact that we wish to avoid a decision founded upon suspicion. It is very easy to conclude from the religious atmosphere of many of the historical exhibits, and from the predominance of one faith all over all others in the membership of the society, that the predominant faith will to say the least, receive the greater amount of the benefit from the exhibit. Is this not, however, a coincidence of history rather than a deliberate attempt to further that faith? Should we not require proof of overt acts of proselyting before we conclude that the nature of the society is such that it cannot function impartially in the contemplated position of exhibitor — this assuming, of course, that its declared purposes are insufficient foundation for such determination?
Is one of its objects the perpetuation of the Mormon faith? In particular plaintiff invites attention to the wording of Art. II of its constitution (quoted). What *Page 131 about the object being that of seeking religious freedom — an interpretation broader than that for which plaintiff contends? Undoubtedly the pioneers of the Mormon faith came out West that they might worship as they pleased. Without religious freedom they could not exercise their belief in their faith. Educating one to the belief of religious freedom is not the "exercise of," "instruction in" or "worship" in any religious faith. The school history we teach our children builds up in their minds the importance of religious freedom. The constitutional prohibition in question evidences our belief in that principle. A society including the purpose of educating the people in that belief, as one of its objectives, is not, by reason of such inclusion, an "ecclesiastical establishment." If then it is proper to view their objective as that of emphasizing the importance of religious freedom, we must look elsewhere — to their actions — for a determination of what they believe is one of the purposes of their organization. Which then should we select as definitive of the object: education in the belief in religious freedom, or perpetuation of the Mormon faith?
The language used by the Society in declaring its objects is general and capable of more than one interpretation. We, of course, are not justified in giving an interpretation that will hurdle the constitutional prohibition, simply for the reason that such an interpretation will avoid the constitutional difficulty, if, as a matter of fact, the society has adopted as their interpretation that which is unconstitutional. To do so would defeat the very purpose of the prohibition. As a result we are forced to view the object from the standpoint of the evidence before us that bears upon the society's interpretation of its own objectives.
We have no evidence of any activity on the part of the society indicative of proselyting the Mormon faith. Part of its organization — the Camp — is upon L.D.S. ward lines. This seems to be merely a method of dividing the society up by locality. The Wards of the Mormon Church are well *Page 132 known or easily ascertained territorial limitations or areas, that afford a convenient method of territorial designation. Membership in the society is not limited to members of one faith — in fact, other faiths are now represented — a fact that is rather inconsistent with the idea of upholding a particular faith, unless we assume it a deliberate camouflage to cover ulterior motives. There is no foundation for such an assumption. The use of the word "necrological" in the duties of the historian does have an ecclesiastical interpretation, but has as well a use as pertaining to a roll of the dead, without religious significance. The nature of the exhibits and the proposed room arrangement of the Memorial Building above have already been mentioned.
From all these facts we are unable to say that the "perpetuation of the Mormon faith" interpretation is any stronger, if as strong, as that of the belief in religious freedom. The language of the Article is general, and as the right to believe in any faith is contingent upon the existence of religious freedom, we are of the opinion that the proper interpretation is that of the belief in religious freedom.
For the reasons given the majority of this court hold that Section 4, Article I of our State Constitution has not been violated.
I come now to the other issues, the violation of the following sections of our Constitution: (My solution of these issues does not meet the approval of the other members of this court.)
Article I, Section 23:
"No law shall be passed granting irrevocably any franchise, privilege or immunity."Article I, Section 24:
"All laws of a general nature shall have uniform operation."Article VI, Section 26, Par. 16:
"The Legislature is prohibited from enacting any private or special laws in the following cases: *Page 133* * * * * "16. Granting to an individual, association or corporation any privilege, immunity or franchise."
These issues in my opinion bring to light some bad features about the law and the project.
In 1921, when the matter was first presented to the legislature (see opening paragraphs of this opinion), the proponents had a correct view of the project in mind: The construction of a public building for all exhibits. Although praise was given the Daughters of Utah Pioneers for their efforts, no suggestion was made that their possessions should be the sole beneficiaries of the use of the building. Recognition was given to the fact that others possessed historically valuable material. It seems unquestionable that a display by the State ofState historical material is the exercise of a public purpose. Furthermore it is non-the-less public if the state sees fit to put the display in charge of a particular individual or group. Doubt creeps in, however, if we find that such supervision includes the power to exclude from the display anything that does not meet the approval of the supervisor. Supervisory control may include the power to reject particular items, but the grounds for rejection should be in the interest of the public, not in the interest of the supervisor.
Let us examine the law and the lease of 1941. It seems obvious that when this law was enacted and this lease executed, all parties had in mind that the building was to be erected by the society, was to be operated by the society and was to be maintained by the society "solely" at its expense. A failure of any of these terms of the lease was to automatically terminate the lease; and in case the lease terminated, all improvements were to become the property of the lessor.
In C.I.R. v. Hills, 10 Cir., 115 F.2d 322, Hills leased a lot in Salt Lake City to a corporation for a term of 50 years, lessee to erect a building costing not less than $35,000. *Page 134 A provision of the lease was as follows: "At the expiration of this lease the improvements on said property shall become the property of the parties of the first part" (lessor). The case held that the language of the lease in effect made this building the personal property of the lessee until termination of the lease. This case is in point. However, the cases cited by it as authority, including a Utah case are not in point in facts on this question. The cases cited by the court are cases where the lessee had the right to remove the improvements at the end of the period of the lease.
The case Helvering, C.I.R. v. Bruun, 8 Cir., 105 F.2d 442, announces what is the general rule as to the ownership of improvements placed on the premises by the lessee, stating that it is a question of intent to be determined by the language used in the written lease. Another case on the subject is: CentralCoal Lumber Co. v. Board of Equalization, 70 Okla. 131,173 P. 442.
It seems clear that the reference to the purpose of the deposit by the society in the present case; the reference to the building's freedom from taxes and liens; and the reference to the surrender of improvements upon termination of the lease, all indicate strongly that the parties to this controversy were taking the view that the building was to be that of the society for the duration of the lease — 99 years. However, whether we wish to go that far or not in our holding, it is sufficient to say that the lessee was to have exclusive control of the use of the building, except it shall be used as a memorial building and there shall be "proper" display of historical material. "Proper" savors of the manner of display, rather than the quantum of the display. There is nothing in the law or the lease that would require the society to accept historical material owned or in the custody of others — even that in the custody of the landlord. The State has an historical society, Title 85, Chapt. 5, U.C.A. 1943, as amended by Chapt. 123, L. of U. 1945, which presumably has in its possession many historical records. They *Page 135 could not be displayed in this building without the consent of the lessee, as no such right has been reserved by the lessor.
The 1941 law contemplated the housing and care of the exhibits. The 1945 law brought into the picture the additional provision of a proper display of exhibits. With this 1945 law, the picture began to change. A large appropriation is provided for the purpose of supplementing the funds of the society. We defined "to supplement" above. If we compare the funds deposited by the society — $75,000 — with the total appropriation for the project — $375,00 — and with the contract price for the construction of the building — $364,794 — we find that we have rather tail-waging-the-dog version of supplementation, without any provisions for the society to make up that large deficiency. These facts indicate clearly that the project has now become one of construction by the State for the lessee, in spite of the fact that one of the conditions of the lease and the 1941 law is that if the lessee fails in performance of any of its terms that agreement shall "automatically" terminate — and one of thoseterms is that the lessee shall construct the building. In 1947 when the construction contract was finally let, construction by the State, rather than by the Society became an accepted fact by the parties — and this in spite of the fact that none of the amendments to the 1941 law specifically amended, or evidenced to the public any intention to change the basic provision as to such construction.
Let us now examine into the nature of the proposed building. Exhibit rooms, lecture rooms, board rooms, office editorial room, library, manuscript rooms, little theater, are all consistent with public purposes, even though they might be found in private club rooms depending upon the nature of the club. On the other hand, the symbol of the society included as part of the decorative construction of building points to the exclusiveness of a club in its use. Had the seal of the state been placed in the wall, no such complaint could have been made. A kitchen unit adds some to this thought *Page 136 of a club house or its equivalent. These facts are consistent with the original thought that this building was to be exclusively that of the Daughters of Utah Pioneers. If exclusively theirs, regardless of who builds it, undoubtedly their control of it and its use would be exclusive.
Numerous authorities upon the questions involved in this issue have been cited by the parties. I shall discuss some of them.
Defendants stress the contention that the Society is organized for a public purpose, and that the appropriation of funds is not to a private use or to a private party. One of the cases cited isState ex rel. Trustees of La Crosse Public Library v.Bentley, 163 Wis. 632, 158 N.W. 306, 308. Let us make comparison. In that case the La Crosse Public Library was incorporated for the purpose of establishing and maintaining a public library for the benefit and the free use of the people of the City of La Crosse. In the case now before us, there is nothing said in the incorporation about the collection and/or preservation of the history of the State of Utah being for the benefit or for the use of the public. In the objects of this Society although expressions are used indicating a desire to teach the objects and purposes of the pioneers, and the lessons of faith, courage, patriotism and a spirit of union and good fellowship — whether free or not, does not appear — there is nothing said about the public's free use of the history and relics. Furthermore the by-law covering the duties of Historian has a provision that access to any manuscript for historical purposes shall not be allowed except by permission of designated boards — rather evidencing the desire to withhold from public consideration, those manuscripts.
In the La Crosse case, the aid of the court was sought to compel delivery of some $6,000 in taxes to the trustees of the library, the same as had occurred in previous years. The issue raised was as to the appropriation being for a public purpose. The court held that it was, holding that the library *Page 137 managed by this organization was as free and public in its functions as one organized under state law. The court said further that the law authorized library funds by taxation for the support and maintenance of any established secular and non-sectarian public library, and reading room free to the inhabitants of a city. In laying down the test to be applied where supervision lies in the hands of a non governmental agency, the court said:
"* * * its employment, under reasonable regulations forcontrol and accountability to secure public interests, is legitimate and constitutional. * * * As indicated in Curtis'sAdm'r. v. Whipple, 24 Wis. 350 [1 Am. Rep. 187], it is not sufficient that an enterprise be one in which the public are interested and which might be conducted at public expense, to warrant the using of the taxing power to aid it ex donatio; but it may be used for the purpose of compensating for an equivalent in public service rendered under proper regulations to protectmunicipal interests, unless the particular governmental function to which it relates is expressly or by necessary implication restricted to public agencies." (Italics added.)
This quotation is part of a quotation the Court took fromWisconsin Industrial School for Girls v. Clark County,103 Wis. 651, 79 N.W. 422. In the present Utah case there are no control provisions that would enable the State to enforce public use, other than what might be implied from the words "proper display." Should the Society desire, it could limit the display to any part of its possessions it saw fit. The Society as tenant and, for all practical purposes, owner of the building would have much broader powers than merely those of an employee. It is conceivable that the display of historical material could become a secondary matter to the social functioning of the Society in a publicly constructed building.
Plaintiff cites the case of Frohliger v. Richardson,63 Cal. App. 209, 218 P. 497. In that case the appropriation of $10,000 for the restoration of the San Diego Mission was attacked as unconstitutional. The building was owned by the Roman Catholic Church, and was used for religious purposes. *Page 138 It was not at any time under the management and control of the State of California. The articles of the California Constitution alleged to have been violated covered the religious question, the question of a gift to a corporation or individual, and particularly one that prohibited appropriations to any corporation or institution not under the exclusive management or control of the state. All three were held to have been violated. I call attention to the case, however, by reason of the fact that the Court in rather glowing terms recognized the importance of the missions as historical background for the state, but said that in spite of their public importance and interest the appropriation ran afoul of the constitution.
Defendants invite our attention to the fact that the answer to the question of what is a public purpose is for the legislature, not the courts. Previously in this decision I expressed the opinion that a display by the State either directly or through a properly authorized agent is the exercise of a public purpose. The trouble in this case is that there is no certainty of the exercise of such a purpose at all. When the alleged agent is left free to decide just what shall be considered to the public interest, if anything, there is no assurance that the public interest will be subserved.
A rather interesting case for comparison — one cited by the plaintiff — is Kingman v. City of Brockton, 153 Mass. 255,26 N.E. 998, 999, 11 L.R.A. 123. The Massachusetts State legislature authorized the City to appropriate money for the erection of a memorial hall to be used and maintained as a memorial to the soldiers and sailors of the War of Rebellion. The City appropriated $40,000 for a memorial hall and public library building, a part thereof to be for the use of Fletcher Webster Post G.A.R. No. 13, so long as the post continued to exist as an organization. It was provided that the plans should be approved by the trustees of that post. In the present Utah case the plot plan has been approved by the Daughters of Utah Pioneers — it may be that approval of the plot plan, which is the first sheet of *Page 139 the plans, was intended as approval of all plans. The present lease is for 99 years from 1941; the Society was incorporated for 100 years from 1925. Among other things said by the court in the Massachusetts case is this:
"There is no definition of public purpose or use which can include the maintenance and support of a Grand Army post."
Is this Massachusetts case not a parallel situation to the present Utah case? It seems clear that this Memorial Building is going to be used by the Daughters of the Utah Pioneers as their headquarters. Will the interest of the public in their exhibits make it more of a public purpose than the memorial value of that part of the Massachusetts memorial not used for the G.A.R. post?
Defendants have cited an excellent Annotation (30 A.L.R. 1029 et seq.) upholding the use of public funds or the exercise of taxing power to promote patriotism. There are any number of cases upholding memorials for that purpose, but there are certain facts that should not be overlooked in attempting to apply those principles to the present case. It is not the sense of the 1941 law, with its amendments, to erect this building merely as a memorial in the form of an edifice rather than a shaft or a bit of statuary. The principal reason for the memorial is the use to which it is to be placed — presumably that of an archive wherein the public is to be afforded the opportunity of viewing the history of this state in the form of historical material and relics left by the pioneers. That the building itself may have memorial value as representative of part of the early history of this community is only an incident of the total purpose. The question is broader than that which might have arisen had the purpose of the law been merely to erect a monument which depended upon its appearance and not its use for its patriotic inspiration. A consideration of use involves necessarily a question of whose use, the public's or a restricted number of the public; and if a restricted number, is that restriction such as covers all of a given classification such as *Page 140 the veterans memorial cases. See Veteran's Welfare Board v.Riley, 189 Cal. 159, 208 P. 678, 22 A.L.R. 1531, 1542, also theKingman case cited above.
Do the facts, the lease and the law involved in this project show an expenditure for a public purpose? I think not. For all practical purposes the building is to be built and given to the Society with no reservation as to control of its use. It in effect includes in the control by the Society the power to exclude historical material regardless of merit, unless that material is either given outright to the Society, or subjected to their personal control. It is comparable to a situation of erecting a memorial hall for veterans generally, to be occupied, however, by a particular post, which post shall have the final determination as to whom shall be admitted as a veteran. The predominant benefit is to the post or the society; the incidental benefit is to the public. That situation should be in reverse.
The uniform operation of a law is not governed solely by uniformity as to persons. If it operates upon entities or things of a class, it should be uniform as to them. This law covers historical material or relics, but instead of covering all historical material or relics, is by its limitation to the Society limited to that acquired by the Society. In effect it grants that Society a particular advantage over all others as to its possessions. 50 Am. Jur. 21, sec. 7. It grants a special privilege. Allen v. Trueman, 100 Utah 36, 110 P.2d 355. The duration and nature of the grant is such that I am constrained to conclude that it violates Art. I, sec. 23, and Art. VI, Sec. 26, par. 16 of the Constitution of this State. See Utah Mfrs' Ass'n v. Stewart, 82 Utah 198, 23 P.2d 229, headnote 5.
A third objection raised by plaintiff is that the law violates Section 23 of Article VI of our Constitution, which provides:
"Except general appropriation bills, and bills for the codification and general revision of laws, no bill shall be passed containing more *Page 141 than one subject, which shall be clearly expressed in itstitle." (Italics added.)
Their objection goes to the amendments as well as the original law.
For purposes of comparison let us requote the original title of this law (1941):
"An Act Leasing Certain State Capitol Real Estate Known as the Triangle to the Daughters of Utah Pioneers, Incorporated, for the Erection and Maintenance of a Pioneer Memorial Building to Be Used for the Preservation, Housing, and Care of Historical Records, Pioneer Documents and Relics Relating to the Life and Work of the Utah Pioneers."
This title is carried into the 1943 Code (see par. preceding Sec. 86-1-48.10).
Obviously this contemplates a very simple thing — a lease of public land to the lessees for specific use by them. The use they are to make of the land is the erection and maintenance of a memorial building and the preservation therein of the designated historical relics. The scope of the public side of this transaction is a lease of public land. Section 86-1-48.12 of this law emphasizes the fact that all the State intended was the lease of public land, as it requires a specified payment by the lessees to evidence their financial ability to perform their side of the transaction — the erection of the building.
Now let us consider the 1943 amendment, chapter 95, Laws of Utah 1943, which reads as follows:
"State Lands. An Act Amending Section 86-1-48.12, Utah Code Annotated 1943, Relating to the Leasing of a Portion of the State Capitol Grounds to the Daughters of Utah Pioneers, Incorporated, for the Purpose of Erecting a Pioneer Memorial Building."
The section amended is referred to by number and located by reference to a part of the title of the original act. The amendment consists of changing that specified payment *Page 142 from cash to bonds. Clearly the amendment contains nothing but what could have been included
"in the original act under its title." (Italics added.)
This quotation is from the case of Intermountain TitleGuaranty Co. v. State Tax Comm., 107 Utah 222, 152 P.2d 724,726, and from that part thereof reading as follows:
"This court has decided numerous times that if the amendatory act refers by the number to the section of the law to be amended and declares that it is being amended, the constitutional provision is satisfied, as long as the amended act contains subject matter which could have been included in the originalact under its title." (Italics added.)
Now let us consider the 1945 Amendment, Chapt. 128, Laws of Utah 1945, which reads as follows:
"Lease Of Lands To Daughters Of Confederacy (Italics added.) An Act Amending Section 86-1-48.12, Utah Code Annotated 1943, as Amended by Chapter 95, Laws of Utah, 1943, Relating to the Leasing of a Portion of the State Capitol Grounds to the Daughters of the Utah Pioneers, Inc., for the Purpose of Erecting a Pioneer Memorial Building and the Purchase of Additional Lands and Making an Appropriation."
(Obviously "Confederacy" is a clerical error.) Again the amendment refers by number to the section to be amended and locates it by reference to part of the title of the original act. We have something added, however: "and the Purchase of Additional Lands and Making an Appropriation." What does this phrase mean?
Keeping in mind the intent of the original act — that of leasing public land — possibly this would not be inconsistent therewith, as an insufficient amount of land in the original lease no doubt could be added to without changing the transaction to something other than a lease of land. Naturally the purchase of additional land calls for an appropriation. As a matter of fact the amendment did include authority to purchase additional land. But, upon examination of the amendment we find something new — something more than *Page 143 just a lease of public land — in fact something at odds with lessees' use as contemplated by the original act. The state isto build the building with public funds. If upheld as a proper amendment then, under an original title of leasing public land, we find leasing public land, building a public building and leasing a public building. Instead of remodeling the old home we've torn it down and built a duplex — or probably triplex is the appropriate word — and called it remodeling.
It doesn't ease the matter any by stating that the public funds shall supplement those of the lessees. As evidenced by the appropriations and the construction contract price the supplementation is just the reverse. Furthermore the picture is completely confused by a retention of the lessees' specificpayment to evidence its ability to construct the building, the amount of which is raised from $50,000 to $75,000. What difference does it make that the lessees may or may not be able to "carry out a building project" (1941 law) if the State builds the building? One wonders if this retention of the specified payment and the reference to the supplementation are not included to impress the reader with the thought that the amendments have not changed the scope of the original act from that of merely a lease so far as the state is concerned.
What is the purpose of such a constitutional provision as Sec. 23, Art. VI? The title of an act defines its scope. 50 Am. Jur. 162, Sec. 183.
"The mischief sought to be remedied by the constitutional requirement of a single subject or object of legislation was the practice of enacting omnibus bills, or of bringing together in one bill matters diverse in nature, and foreign to each other, that is, matters having no connection with each other, either proper or necessary, but often entirely unrelated and even incongruous." 5 Am. Jur. 173, Sec. 193.
This section goes on to say that the abuse of attaching unpopular legislation to meritorious legislation in order to get it by was one of the ills sought to be overcome. Along this line one might ask: Would the original act have met with public favor if it had been known that what was really *Page 144 contemplated was that the State with its own funds was going to build a building to be leased to these lessees — not just lease them some unoccupied land?
In closing, attention is invited to the following quotation from the case of Edler v. Edwards, 34 Utah 13 at page 19,95 P. 367, at page 368 — notice the emphasis placed upon the words "under its title":
"The constitutional requirement under discussion as applied to acts of this character (amendatory acts), when they contain matter which might appropriately have been incorporated in the original act under its title, is satisfied generally if the amendatory or supplemental act identifies the original act by its title, and declares the purpose to amend or supplement it. Undersuch a title, alterations by excision, addition, or substitution may be made, and any provision may be enacted which might have been incorporated in the original act." (Italics added.)
For the reasons given I am of the opinion the peremptory writ should issue and be made permanent, however the majority are of the opposite conclusion. The writ is denied.