I dissent but since my conclusions rest largely on different grounds than do those of Mr. Justice PRATT I shall state the reasons for my dissent. I desire first to express my regret that this petition for a writ of prohibition was not brought in the District Court where evidence could be adduced. I find myself without the benefit of such information as could be adduced by a trial court with its facilities for taking evidence and for cross-examination. We are thus handicapped. The method of obtaining evidence piecemeal by stipulation when five judges are involved is very unsatisfactory, especially in a case where there is a demand for expedition. There is no reason why the questions now before us in this matter could not earlier have been litigated first in the lower court either by declaratory judgment proceedings or otherwise instead of waiting until the contract was let and the contractors had started excavation and incurred expense. However, I believe my conclusions rest on submitted evidence together with historical facts of general knowledge in this state of which we can take judicial notice, and on inferences which fairly flow from such submitted evidence and the facts of which we may take judicial notice.
I have no doubt that the care, preservation and display of the relics of the pioneers is a public purpose. Ordinarily where the purpose for which the money is appropriated is a public one the nature of the agency chosen by the legislature to dispense moneys for the public purpose will not in most cases affect the constitutionality of the tax or the appropriation. Should the money be, by the agency chosen, diverted from a public to a private purpose, it is thought *Page 170 that a remedy to prevent such diversion may exist by injunction or the agency and those responsible for the diversion be made to account. But power to use non-public agencies for execution of a public purpose may, under certain circumstances, be limited by the requirement of Section 4, Article I of our State Constitution reading
"* * * No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction * * *."
To this I shall later advert.
I do not think that Chapt. 106, Laws of Utah 1941, nor any of its amendments offend against Sec. 23 or 26 of Article VI of our Constitution nor against Sec. 1 of Article XIV of the Constitution of the United States.
In many respects this case is sui generis. I shall postpone to a subsequent place in this opinion the factors which make it so and which differentiate it from all of the cases cited by defendants. We do not need to discuss the question here whether the care and display of relics or paraphernalia belonging to a former period is itself a public purpose. I can conceive that there may be educational value in a display of ladies' apparel of past periods, such as the bustle and hoop skirt in that they are marks of a past and different culture and therefore of use to the historian. Historical manuscripts and documents which throw light on the thought and problems which were of general concern in bygone periods gives us a glimpse into the detailed history of those periods and permit us to live imaginatively in that past. What is of historical or educational value as to past cultures, the care and preservation of which is of public concern, is largely for the legislature. The preservation of the homes of our national heroes and their appointments as national shrines for the education and inculcation of patriotism is conceded to be a public purpose. While it is a little difficult to see how a view of the bed in which Washington slept at Mount Vernon or the *Page 171 sight of a pair of his boots or his shaving mug would kindle within us a warm appreciation of his heroic deeds or his services to his country, there may be some transference of thought from them to their owner and hence to his life, deeds and character. And that brings us to the heart of the real purpose of veneration of those to whom future ages are indebted for the enrichment of their lives. When we venerate the man we do not do so because he was a mortal but because of his life, his deeds, his character and his achievements. And while I am convinced that military heroes have too much "stolen the show" and that all those whose inventions and discoveries, whose toil and production, whose sacrifices and work, whose lives and activities have been devoted to the public good — the peace heroes — are in many cases even more entitled to our plaudits than are the military heroes, I recognize that their less dramatized contributions to future generations will have to await a more discriminating public. So much for some general observations.
Admitting that what is a public purpose may lie with the legislature, subject perhaps to a review for arbitrariness, and of course subject to a review as to the question of whether the method of executing the purpose falls athwart the restrictions of Sections 4 and 23 of Article I and other germane provisions of our Constitution, whether we are Mormon or non-Mormon in our religious persuasions, we have no doubt that the deeds, character, lives and achievements of the pioneers who made the long trek and endured the hardships and the toils and disappointments and whose devotion, work and skills converted the desert lands of this region into a habitable area for future generations, deserves the everlasting gratitude of those generations. The preservation and care of those articles, books, manuscripts and documents which serve to remind and rekindle this feeling of gratitude and veneration for the persistence, fortitude, courage, sacrifice, hardihood, faith in the future, vision, determination and other qualities *Page 172 which, under Brigham Young and other leaders, they so valiantly applied to their task of consecration, is a public purpose. I think it well that measures be taken properly to house these relics and documents. I should add to this appreciation of the character and the accomplishments of the pioneers, a recognition of the great and earnest work which the Daughters of the Utah Pioneers have unstintingly and without material compensation done in collecting and preserving the mementos, relics and documents of that early pioneer culture.
The main opinion discovers that the Mormon pioneers made their great trek in order to establish freedom of religion. I think the history of the Mormon people reveals that they sought an asylum in the remoteness of the west for the purposes of enjoying freedom to worship in their own way without interference. I have gained no impression that the Mormons left their homes in Nauvoo and came to this desert country in order to establish general freedom of religion for all. In fact, I have the distinct impression from my reading of the history of the early days in Utah that gentiles were not welcome in numbers. And for a good reason. If, before the Mormons had thoroughly established themselves and their authority and regime, the gentiles had come in numbers, the result might have meant a second migration and a desertion of the fruits of their toil and hardship to escape what might have been a renewed persecution. There was no guarantee that only sympathetic gentiles would settle among them. The situation was far different when the newcomers were thoroughly established and in position to maintain their numerical superiority and dominant authority. While in small communities there may have continued for a time a suspicion of strangers, and a "show me" attitude may have prevailed, members of all churches were permitted to worship according to the dictates of their consciences and the policy and treatment of members of other faiths approximated that of the Quakers rather than that of the Puritans. I only touch on this because I *Page 173 think the conception that the great trek — perhaps only paralleled in known history by the march of Xenophon and his ten thousand — was made to establish a place where all could worship freely, would come as a surprise to Brigham Young if he were here. And I mention this not to detract one iota from this epic migration, but because what I shall later say may depend to some extent on a proper conception of the motives and purposes for which the migration was made.
I do not think it vital to determine whether Chapt. 128, Laws of Utah 1945 effected a change of intent from one which contemplated a lease of the triangle piece of ground to the Daughters of the Utah Pioneers (who at times throughout this opinion I shall, for the sake of brevity, refer to as the Daughters) and their construction on it by them of a Pioneer Memorial Building to one which contemplated a lease to the Daughters and the erection by the state of said such Pioneer Memorial Building on such leased ground.
The outstanding fact is that throughout the course of this legislation the intent appears to have been to lease to the Daughters the triangle described and to appropriate money to them to enable them to build a building thereon or for the state itself to build such Pioneer Memorial Building for the Daughters. I am inclined to the view of Mr. Justices Pratt and Latimer that the intent in 1945 was for the state to build the building. But throughout, the building was to be erected for the Daughters of the Utah Pioneers. One of the prime questions is whether under the evidence as it has been given to us piecemeal by stipulation, the building which when built would be for a public or a private purpose. Certainly the Daughters and not the State would virtually own it. Ninety-nine years is a long time in any man's life. And subject to a few general conditions required by the lease which Chapt. 106, Laws of Utah 1941, provided for, the state would seem to have little if any, control or supervision in regard to the "public purposes" for which the act of February 6th, 1941, Chapter 106, Laws of Utah 1941, *Page 174 and amendments thereto purported to be passed. Furthermore, unless it can be said that the Daughters of the Utah Pioneers is itself a public institution or is engaged solely in a public enterprise the building was erected for all purposes for which it was organized and evidently is to be used for all and any of such purposes. Apparently, as stated by Mr. Justice PRATT, it was to be run and managed entirely by the Daughters without interference by the state or any of its agencies. I am not much concerned, as is Mr. Justice PRATT, that the Daughters may discriminate in their custody and display of relics between those owned or loaned to it and those owned by others and not loaned. Some agency must have that power to select. I do not see that in order to bring exhibition of historical articles and manuscripts within the purview of a public purpose it should require that everyone who thinks he has some relic which should be displayed to the public should have the right to display it. The matter of placing within the discretion of the Daughters the right to select the days and hours for display is an ingredient of the right which is apparently given to them entirely to manage the building and the display without interference. If a private agency were to manage and administer the display it would seem that there should be a right of supervision of the acts and actions and policy of that agency. That may be so in this case but the legislation providing for the lease and the erection of the memorial building specifies only a very few conditions to be placed in the lease. This gives me pause as to whether the Daughters are not given absolute discretion as to hours of display, management of the building, and supervision of the display of its contents. I think it may even be debatable whether the State Land Board has the authority to include conditions in the lease other than those laid down by the legislation, but I do not believe I will need to resolve that question.
Furthermore, in view of the plans of the building mentioned by Mr. Justice PRATT there may be a question as *Page 175 to whether the building is primarily for the purposes of displaying relics or primarily for the social and private purposes of the Daughters, but I doubt if I need to resolve that question. In any event, I shall leave this subject for the time being in the state of suspended animation. I may return to it later when I come to a consideration of the question which I think really controls this case.
As I see this matter there are two closely related questions: First, is it within the authority of the legislature to lease to the Daughters for a period of 99 years, land which was dedicated for the use of the state for Capitol grounds and to build thereonfor the Daughters a memorial building (a) assuming that the predominant and main purpose of the lease and erection was the housing and care of pioneer relics; or (b) assuming that it was principally to provide a hall for the Daughters and only incidentally for the housing and display of the relics. Second, assuming that the making of the lease provided for in Chapt. 106, Laws of Utah 1941, as amended by Chapt. 128, Laws of Utah 1948, and the building to be constructed thereon was within the authority of the legislature, and assuming that the Memorial Building is not to be built for the Daughters but for the State, does the designation of them as sole custodian, manager and administrator of the building, relics and the documents to be housed therein for display to the public, contravene any of the provisions of Sec. 4, Article I of the Constitution of Utah, reading, so far as material here, as follows:
"* * * There shall be no union of Church and State, nor shall any church dominate the State or interfere with its functions. 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. No property qualification shall be required of any person to vote, or hold office, except as provided in this Constitution."
I shall address myself to the second of these questions because if an appropriation for a building in which the Daughters are given sole control is unconstitutional certainly *Page 176 we need not answer the (a) and (b) arms of the first question.
In order to measure the appropriation for the Pioneer Memorial Building alongside of the above quoted Constitutional Provision, I must first revert to certain facts, policies, and activities concerning the Church of Jesus Christ of Latter Day Saints (hereinafter for brevity designated as the Mormon Church) which are of common knowledge in this state. It is the dominant church in this state in members and influence. It is aggressively active in proselyting and crusading for its beliefs and for new members. It sends missionaries all over the world. This policy was apparent from the very advent into this valley. It was publicly proclaimed in the conference of 1849. A large portion of its members are not only earnest but intense in their belief in its teachings and creed, and are energetic in the spreading of them. And proselyting is, to put it mildly, encouraged by the Church. There is nothing wrong with this. People who intensely and earnestly believe that they possess truths that would be helpful to mankind may be actuated by an unselfish motive to share such beliefs with others and especially is the case where tolerance for the beliefs of others is retained. I am not aware of any place where so many of one dominant faith have in the latter years been so tolerant of the beliefs of others and where one can feel more comfortable in worshipping in another church than in the state of Utah. But we must recognize as a fact that propagation and dissemination of the Mormon faith are considered by the authorities of the Church and by a great many Mormons to be their privilege and their duty. I ask the reader to hold the above facts in mind while I pass on to consider the membership of the Daughters.
It is a fair inference that, since those of the Mormon faith greatly preponderated in the territory of Utah up to May 10, 1869, the descendants of those Mormon pioneers who now constitute the present membership of the Daughters greatly preponderate. While unfortunately we have no *Page 177 figures regarding the number of members of the organization who are now Mormons or who are quite active in the Church, I think it can be assumed that the number is large and constitutes a decided majority; also, that among the leaders there are those who are avid in their espousal of church doctrines and work to disseminate its beliefs. It hence transpires that we have on the one hand a church which is aggressively engaged in the propagation and dissemination of Mormonism and which encourages, if it does not command, its members to do so; on the other hand, there exists the organization of the Daughters in regard to which it may be fairly inferred that there are many members alsomembers of the Church who have these ideas as to their duty to propagate the doctrines and beliefs of the Church. While not a lay or clerical organization of the Church or organically or officially affiliated with it, the Daughters have the aspect as such because of the great degree of identity of membership and ideology. It constitutes at least an ideological connection which opens to the Daughters whose contact with the public through its display of relics and its sale to that public of pamphlets and souvenirs an opportunity, and perhaps even a temptation, to disseminate the doctrines of the Church. These pioneer relics, manuscripts and documents constitute not only the symbols and evidence of the heroic exploits of a pioneer society — there have been a number of that type of society — but at one and the same time the evidence of a religious and formerly a semi-theocratic society aggressively engaged in perpetuating its religion and increasing its membership. And that spirit and will to crusade for the dissemination of Mormon doctrines has persisted throughout the history of the Church and still persists. Many of the pamphlets now on display by the Daughters in the Capitol deal with the phases of early pioneer life, social and otherwise, its difficulties and its problems. A want of sufficient time has prevented me from reading their pamphlets, which are sold to the public, to ascertain whether they deal with Mormon theology, doctrines or beliefs. I must assume that they do *Page 178 not since no evidence has been presented by the plaintiff that the pamphlets carry subtly or otherwise any attempt at religious propagation. However, the line which separates a dissertation on purely pioneer life, where one of the main ingredients of that pioneer life and the very purpose which brought it about was the pursuit and dissemination of religious life from a dissertation on religious dogma, may itself in many cases be a very thin one. These pioneer relics, historical manuscripts, documents and pamphlets constitute potential media for the propagation not only of the deeds and sturdy qualities of the pioneer founders but for their religious doctrines and creeds. Their potentialities as pabulum to further the doctrines and principles of Mormonism when under the uncontrolled supervision of those Daughters having an identity of ideological interest in the propagation of the doctrines of Mormonism need not be further labored. All this would be constitutionally unobjectionable if the taxpayers' money were not appropriated to enhance such opportunities and potentialities.
There is nothing wrong or improper in such Church members being also memebrs of the Daughters nor for that matter in engaging, if they care to do so, in some identical activities of members of two organizations. My thesis is that our constitutional provision which prohibits taxpayers' money from being appropriated or applied to religious institutions was passed in this state in the light of the history of this state; that it is against the spirit and perhaps the letter of that provision broadly construed to effectuate its purpose to appropriate land (a 99 year lease amounts to an appropriation of land for that period) and for the state to vote moneys for the erection of a structure to be turned over to an organization when the State retains little, if any, control of the activities carried on in said building and when this organization, while itself not a church, has many among its members and even among those in control of the organization, who have been steeped in the belief that *Page 179 "verily, the sound must go forth from this place to all the world, and unto the uttermost parts of the earth." Doctrine and Covenants, 58:64, 65.
The opportunities, the potentialities, and perhaps the unconscious urge to use this structure and this leased land and these relics and certain historical and religious pamphlets to propagate their religious beliefs are not imaginary but real when we look down the vista of years through which this lease runs. At first we may expect great circumspection in this regard but over the years the influence of a Church, one of whose cornerstones is an aggressive crusade for proselyting and converting, always holds the likelihood that it will be expressed through the activities of members of the Daughters in that capacity, especially since their contact with the public as above pointed out is one which presents a constant opportunity for such propagandistic activities. If money appropriated for the collection and display of these symbols of an early religious culture were the only matter in issue I do not think Section 4 of Article I of our Constitution would prohibit such appropriation even though as a by-product it might result in an increase in the membership of the dominant Church.
What I have said above does not prevent the voting of public money for the collection, care and display of relics. This itself, as said at the beginning of this opinion, is a public purpose. Nor was anything said meant to prevent the Daughters, whose work over the years has resulted in preserving these valuable symbols of an early religious and theocratic culture, from continuing their fine work in this field. Presently it occurs to me that the State may (laying aside the question of the use of land which may have been specifically dedicated for Capitol grounds, a question I have not gone into) build the Memorial Building, and, were it not for one matter later to be considered, constitutionally use the Daughters as an agency to collect, preserve, and display the relics, manuscripts and documents in the building, *Page 180 keeping control, however, of the building and its use through some over-supervisory agency.
This is not the case of placing in the hands of a veteran's group war relics or trophies and voting them funds to display or exhibit for patriotic or educational purposes such mementos of the critical times of our history or of the building of a memorial for their housing and display and turning it over to a veteran's organization to administer as an agency of the state. Such is the case of Conley v. Daughters of the Republic ofTexas, (Tex.Civ.App.) 151 S.W. 877, relied upon by defendant. There, the State of Texas bought property formerly part of the Alamo Mission and delivered the same to the Daughters of the Republic of Texas, a private organization, for the purpose of honoring the men and women who had achieved the independence of Texas and of perpetuating their memories by preserving and displaying documents and relics. There was no religious phase involved in that case. Here we have a unique history. The pioneers were predominantly members of, and ardent believers in, Mormonism, a comparatively new religion on the face of the earth. The government partook of the nature of a theocracy. The history and culture was an interweaving of the secular and sectarian — the church and state. The relics and phyiscal symbols of that culture therefore assume a religious as well as a civil significance.
The great majority of the members of the Daughters are descendants of those pioneer Mormons and at the same time members of the aggressively proselyting Mormon Church. This combination of circumstances furnishes such potentialities and opportunities for the use of a Pioneer Memorial Building and the relics and documents to be kept and exhibited there for the propagation of particular religious doctrines and beliefs when under the sole control of the Daughters as to make any appropriation for its construction and maintenance under such circumstances an appropriation for religious instruction. *Page 181
So far, I have purposely discussed this phase of the case without resort to the purposes of the organization set out in their Constitution. But I have done so as a background to what I consider the most critical point before us. An examination of those purposes not only adds greatly to the conclusion set out above, but seems to me to rule out the Daughters as the agency to display these relics and historical data to the public. One of those objects of the organization, as set forth in its constitution, is
"to perpetuate the names and achievements of the men and women who were the pioneers in founding this commonwealth; * * * byseeking to promote and carry out the objects and purposes whichthe pioneers had in view when they sacrificed all they possessedand turned their faces to the West to seek homes in thesemountains." (Italics added.)
I have before called attention to the fact that the main if not the only objectives the Mormon pioneers had in leaving Missouri and coming to the territory of Utah was to preach, practice and propagate the Mormon religion.
I do not think that the Daughters had in mind when they worked to secure the lease on the triangle and the appropriation for the Memorial Building any idea of capitalizing on their control of the relics and the building for propagation of religious beliefs. But I think the "set-up" is so fraught with potentialities and opportunity for propagation of the Mormon religion that it falls within the prohibition of Section 4, Article I of our Constitution. The time to prevent the fruition of the potentialities of this situation is now — at the threshold. I think our Constitution meant to prohibit the appropriation of moneys not only for religious exercise, instruction or worship but also to prohibit the appropriation for the purpose of bringing into existence a "set-up" so highly fraught with potentialities, opportunities and temptations for the propagation of one religious faith in contradiction to competing faiths.
It is suggested that Section 4, Article I of our Constitution is an implied condition of the legislative enactment and *Page 182 the lease made pursuant thereto and "that it must be read into the law and the lease in order to sustain the provisions of one and the terms of the other." But our Constitution does not bid us to stand guard to see whether over a long period of years an organization, one of whose avowed objectives is to promote the "purposes which the pioneers had in view," commits overt acts in furtherance of its purpose and then appeal to some future legislature to cancel the lease because of a breach of an implied condition. We should know that evidences of propagation of a faith under circumstances above described are most difficult to ferret out unless they are so flagrantly and so extensively indulged in as to become notorious. If there would be proselyting it would be more likely to be subtly rather than boldly carried on, especially if it were realized that it might be made the basis for an attempt to have the legislature cancel the lease. It is enough to make applicable the prohibition of Section 4 of Article I that public money is to be voted and public property to be applied to a building which is for the use of an organization whose expressed purpose is to promote the purposes "which the pioneers had in view" when we are apprised that one of these purposes was the propagation of the Mormon faith. To await the proof of overt acts showing active work in the furtherance of this expressed objective is equivalent to leaving open the stable door to see if the horse disappears. If I may be granted the use of a mixed metaphor our Constitution requires that we close the stable door to the appropriation and application of public moneys and property to the use of any organization whose expressed object, whether latent or active, is to propagate a definite religious faith. I do not think we would sanction a lease to a church or the appropriation of public moneys to build a structure for the church to house relics and manuscripts connected with its earlier religious life when its express purpose was to propagate its religious doctrines. By the same token I cannot see why we should sanction such appropriation and grant of property to an organization not a *Page 183 church but one of whose expressed purposes was to further the doctrines of a specific church.
It was early recognized that institutionalized religion deals with man's relation to God and man's life hereafter; that these matters are of the gravest and most serious concern of man as they deal with his eternal welfare; that there are many sects and many religious and ecclesiastical organizations each convinced that it possesses the true concepts of this relation to God, and its implications, and what is necessary to attain everlasting life; that these have their effects on the emotions of men and unless the field is left free for the development and expression of these emotions without aid or interference by the state and the preference of one sect over others which such state aid or interference would bring about, institutionalized religion will be divisive of our citizenry far more than it is today. The experience in other continents bears this out. Consequently, there has generally been a zealousness in guarding this policy on the part of the highest court in our land as well as by the courts of the states.
To resolve any doubt in favor of constitutionality it is not necessary that we resolve every bit of evidence which may have two or more interpretations in such a manner as to bring about a conclusion of constitutionality. The various segments of evidence should each be examined so as to deduce from them their most reasonable inferences and these portions of evidence must also be examined in the light of each other. When this process is carried out and there results a conviction that the appropriation would produce a situation against which our Constitution meant to guard in this very sensitive and controversial field wherein religious worship and religious ideas and beliefs touch and compete with each other we must declare the appropriation as prohibited by our Constitution.
Because of the length of this opinion and for the purpose of summing up and tying together the propositions in which my conclusions rest, I recapitulate these propositions: *Page 184
1. The Mormons came to Utah in 1847 for the purpose of gaining for themselves the right to worship their faith without interference or prosecution and of propagating this faith.
2. That very early the policy of vigorous propagation of their faith was officially adopted and that has been continuously and effectually carried on ever since.
3. The Daughters of the Utah Pioneers has no official connection with the Mormon Church but the great majority of its members are Mormons and many of these, and especially the leaders, may be deemed to believe in the Church policy of vigorous propagation of the Mormon faith and the conversion of new members to the Church.
4. The Constitution of the Daughters expressly states that one of its purposes is "to promote and carry out the objects and purposes which the pioneers had in view" when they came to Utah, one of which purposes was to propagate and proselyte the Mormon faith.
5. The Daughters is given a 99 year lease which is an appropriation of public property to it. There is also appropriated a large sum of money for the building of a Memorial Building on the leased land for the housing and care of pioneer relics, manuscripts, and historical documents, which building and its contents are to be under the immediate control and management of the Daughters, and are to be on display for the public.
6. That the nature of the exhibits, being of a pioneer socio-religious culture present the temptation to proselyte and the potentialities for proselyting, since the display is under the supervision of a group, many of which we may fairly infer are imbued with the missionary spirit and desire to propagate the Mormon faith.
7. That this urge will be all the stronger in light of the fact that one of the purposes of the Daughter's as expressed clearly in the Constitution of their organization is to "promote *Page 185 and carry out the objects and purposes which the pioneers had in view," when they came to Utah, and one of which purposes of the pioneers was propagation of the Mormon faith over the earth.
8. That under this situation the leasing of public land and appropriation of public money and property for a building to house the relics on property leased to the Daughters thus giving them control and supervision of the contents and charge of the display, places in their hands the intrumentalities for carrying out one of the expressed purposes of their constitution and a purpose which many of them by reason of their being ardent Mormons might be tempted to carry on; and
9. Thus the appropriation and lease is an appropriation and application to a religious instruction as is prohibited by Section 4, Article I or our Constitution and is therefore unconstitutional.
For the reasons herein given, I concur with the result of the opinion of Mr. Justice PRATT. *Page 186