I concur in the first part of the opinion of Mr. Justice PRATT which deals with the constitutionality of the act when it is tested by the constitutional restrictions of appropriating money for the support of an ecclesiastical establishment or order. I disagree with the latter portions of the opinion which hold (a) that the legislative enactment contravenes the constitutional provisions which prohibit *Page 150 the granting of privileges, immunities or franchises, and (b) that the various statues involved in this litigation violate the constitutional provisions with respect to the enactment of statutes containing more than one subject.
It may be that I approach the problem too greatly influenced by those legal concepts which require that this court uphold the constitutionality of an act if reasonably possible. The members of this court have, on many occasions, passed on their duty to uphold an act of the legislature, and while it 10-14 would be the work of supererogation to cite the many cases dealing with this subject, I quote from one of the more recent opinions. Mr. Justice Folland in the case of State v.Packer Corporation, 77 Utah 500, 297 P. 1013, 1016 announces the rule to be as follows:
"It is well settled in this state, as elsewhere, that the courts will not dclare a statute unconstitutional unless it clearly and manifestly violates some provision of the Constitution of the state or of the United States. Every presumption must be indulged in favor of the constitutionality of an act, and every reasonable doubt resolved in favor of its validity. Utah State Fair Ass'n v. Green, 68 Utah 251,249 P. 1016. The whole burden lies on him who denies the constitutionality of a legislative enactment. Brown v.Maryland, 12 Wheat. [419], 436, 6 L. Ed. 678. If by any fair interpretation of the statute the legislation can be upheld, it is the duty of this court to sustain it, even though judges may view the act as inopportune or unwise; and it is not within the province of the judiciary to question the wisdom or the motives of the Legislature in the enactment of a statute. Utah StateFair Ass'n v. Green, supra. The provision in question was regularly passed by the Legislature and approved by the Governor. The presumption should be and is in favor of validity. It must be assumed that the legislative department, whose members pledged themselves by oath to support the Constitution, has not lightly disregarded that pledge."
A reading of the dissenting opinions causes me to ponder whether or not the dissenting members have not overlooked this principle and found a way to condemn the act rather than to have found a way to uphold it. Many of the objections made to the plan by Mr. Justice PRATT appear to *Page 151 me to be founded on the failure to incorporate adequate provisions in the lease to control the lessee.
Over the course of years, the work of steering legislation through the various sessions of the legislature has required the joint efforts of the members of the Daughters of Utah Pioneers, Inc. and the members of the legislature. The personnel has changed over the years and, as a result, the 15 various pieces of legislation when fitted together do not make a clear and definite picture. Our concern, however, is not whether the legislation is a model of clarity, but rather whether or not the legislation is sufficient to overcome the constitutional objections raised by the plaintiff. Even though the various acts are incomplete, if the legislation is not so indefinite and uncertain as to offend against the constitutional provisions, then the appropriation as made by the legislature is not in excess of its authority. If the appropriations are offensive and contrary to the constitutional provisions, it must be because they make funds available for private purposes and not because of the sufficiency or insufficiency of a lease, the terms of which are in part dictated by legislative enactments.
As outlined in Mr. Justice PRATT's opinion, the efforts to construct a memorial building to house pioneer relics commenced many years ago; however, the first act of the legislature with which we are concerned was passed in 1941. In view of the fact that this act is the starting point in the legislative history of the building of this memorial, I quote the same in full with the exception of the description of the property leased, Chapter 106, Laws of Utah 1941, p. 225:
"Lease Of Land To Daughters Of Utah Pioneers "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.
"Be it enacted by the Legislature of the State of Utah:
"Section 1. Lease of Land to Daughters of Utah Pioneers — Description. *Page 152
"The state land board is authorized and directed to execute in writing and deliver to the Daughters of Utah Pioneers, Incorporated, a non-pecuniary corporation, organized and existing under and by virtue of the laws of the state of Utah, a lease covering certain land, situated in Salt Lake County, state of Utah, lying between Columbus and North Main streets at the southwest corner of the capitol grounds, and more particularly described as follows, to wit: (Description omitted)"Section 2. Term of Lease.
"The lease shall run for a period of ninety-nine years from the date of its execution and delivery at a rental of One Dollar per year, payable annually to the state treasurer on the first day of March of each year, commencing with the year 1943."Section 3. Lessee to Deposit $50,000 — Use of Money — Completion of Building.
"The lease shall be subject to the following conditions: The lessee, the Daughters of Utah Pioneers, Incorporated, shall deposit with the state treasurer the sum of fifty thousand dollars, not later than February 1, 1943, as evidence of its ability to carry out a building project. Said sum, with other funds is to be used in the erection of the building. It is further provided that the Pioneer Memorial Building shall not be subject to taxes or liens of any kind whatsoever."The building shall be completed and ready for public reception before the Utah state centennial celebration, which will be held in the year 1947.
"Section 4. Failure to Perform — Termination.
"Failure on the part of the lessee, Daughters of Utah Pioneers, Incorporated, to perform the foregoing conditions will automatically terminate the lease."A cursory reading of this act will convince the reader that at the time of its enactment the intent of the legislature was to lease the land to the Daughters of Utah Pioneers, Inc., and require that organization to construct a building on the premises. It should be noted that with the exception of the title of the act, no reference is made to the purpose for which the building is to be constructed. The title provides 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. The body of the act, however, merely provides that the $50,000 deposited by the *Page 153 Daughters of Utah Pioneers, Inc., together with other funds is to be used in erecting a building. The significant parts of Section 3 of the act are that the pioneer memorial building shall not be subject to taxes or liens of any kind whatsoever and that it shall be completed before the Utah state centennial celebration. Obviously these provisions would be unnecessary if the building were not to be constructed by the Daughters of Utah Pioneers, Inc.
Pursuant to Chapter 106, Laws of Utah 1941, a lease of the land was executed by the state land board. This lease is set out in full in Mr. Justice PRATT'S opinion and certain parts considered of importance are italicized. It will be observed that the state land board in preparing the lease included items which were not included in the act as passed by the legislature and neglected to include many of the usual provisions included in standard leases.
The first amendment of any importance was enacted by the legislature in 1945. This act as finally passed became Chapter 128, Laws of Utah 1945, and it amended the previous acts passed by the 1941 and 1943 legislatures. The act as introduced was so altered and amended by the 1945 legislature as to indicate an intention to relieve the lessee, Daughters of Utah Pioneers, Inc., of the duty of constructing the building and to place this responsibility on the state of Utah. The act was introduced in the senate as senate bill No. 13, and following is the wording of the senate bill as presented:
"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.
"Be it enacted by the Legislature of the State of Utah:
"Section 1. Section Amended.
"Section 86-1-48.12, Utah Code Annotated 1943, as amended by Chapter 95, Laws of Utah, 1943, is amended to read:"86-1-48.12. Conditions of Lease. *Page 154
"The lease shall be subject to the following conditions: The lessee, the daughters of the Utah pioneers, inc., shall have available for immediate use the sum of $75,000.00 or its equivalent, in United States or Utah state bonds not later than February 1, 1946, as evidence of its ability to carry out a memorial building project. Said sum, with other funds, is to be used in the erection of the pioneer memorial building, for the purpose of depicting the history of Utah in a proper display of pioneer relics; and for the purchase of additional land in the name of the state of Utah in the event such purchase is consented to in writing by the governor. It is further provided that the pioneer memorial building and contents thereof shall not be subject to taxes, liens or assessments of any kind whatsoever. The erection of said pioneer memorial building shall be commencedwhen the governor shall determine that labor and materials areavailable, and that the best interests of the state will beserved."Section 2. Appropriation.
"There is hereby appropriated to the Utah state buildingboard 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 moneysappropriated by this act shall be turned over to the statetreasurer for the credit of the Utah state building board for thepurposes herein specified." (Italics mine.)The changes between the bill as introduced and the act as finally passed are significant and are indicated by the italicized words and phrases. Section 2 of the bill as introduced provided for an appropriation of $225,000 to the Daughters of Utah Pioneers, Inc., out of any unappropriated funds in the general fund to be used for the construction of a building and for the purchase of additional grounds. When the bill was considered in the senate, Section 2 was amended so that the money was not appropriated to the Daughters of Utah Pioneers, Inc., but was appropriated to the Utah *Page 155 State Building Board. The provisions that the funds therein appropriated should be available only to the extent that might be required to supplement the funds of the Daughters of Utah Pioneers, Inc., and any federal funds that might become available for such construction, and that all unexpended balances of any monies appropriated by the act should be turned over to the state treasurer for the credit of the Utah State Building Board were written into the bill by amendments. The sentence in the proposed bill dealing with the time for commencement of construction was amended so as to provide that the building should be commenced when the governor should determine that labor and materials are available and the best interests of the state would be served. For the first time in the body of the act is found a provision with respect to the purpose of the building. In the 1945 act, the funds are committed to be used in the erection of a pioneer memorial building for the purpose of depicting the history of Utah in a proper display of pioneer relics.
These changes by the legislature lead me to believe that the plan as contemplated by previous legislatures was found not to be feasible and that the legislature determined in 1945 that if a memorial building was to be constructed, the state would be required to advance the major portion of the money. It must be conceded that when the legislature changed the plan from that which provided for, or anticipated the construction of the building by the Daughters of Utah Pioneers, Inc., to that which proposed a construction of the building by the state of Utah, it did not delete from senate bill No. 13 some of the provisions which were considered necessary if the building was to be constructed by the Daughters of Utah Pioneers, Inc. Illustrative of this is the provision in the bill as proposed and the act as finally passed making reference to taxes, liens and assessments on the building and its contents. This provision might be necessary if the building were to be constructed by the Daughters of Utah Pioneers, Inc., but only taxes on the contents would *Page 156 be of any importance if the building were to be constructed by the State of Utah. The provision with respect to the purchase of additional lands and consent to the purchase by the governor might be a necessary provision if the money were appropriated to the Daughters of Utah Pioneers, Inc., and the land was to be purchased by the corporation in the name of the state of Utah, but it is hardly necessary to require the governor to consent in writing if the land is to be purchased for the state of Utah with money belonging to the state of Utah.
These inconsistencies are pointed out solely for the reason that references are made in Mr. Justice PRATT'S opinion to some of these items and others which it is claimed establish that the building is being constructed for the Daughters of Utah Pioneers, Inc. To strengthen this contention, his opinion refers to other items such as approval of a plot of land by the lessee, seal of the Daughters of Utah Pioneers, Inc., inside the building, and certain other facilities such as office space and kitchen. In my opinion these items are not inconsistent with a lessee-lessor relationship, and those portions of the act which may be inconsistent with state ownership of the building are in the act because of the change in the plan made by the 1945 legislature. The senate bill as introduced was written with the old plan in mind, and the act as finally passed by the legislature was on the newly conceived idea. The most that I think can be claimed for the inconsistencies in the provisions of the act is that the legislature neglected to delete some items which would have been important had the Daughters of Utah Pioneers, Inc., constructed the building, but are of no importance now that the state is the owner and the builder.
Before considering some of the authorities that deal with the public purpose principle of this problem, I believe it appropriate to dispose of the contention that the acts are fatally defective because the Daughters of Utah Pioneers, Inc., is not adequately controlled in the 16 management *Page 157 of the memorial building. As far as I have been able to ascertain, the only lease executed by the Daughters of Utah Pioneers, Inc. is the one referred to in the majority opinion, and this was executed on the 5th day of June, 1941. Subsequent legislatures have made important modifications and many changes to the act of 1941 and have imposed additional conditions upon the lessee. The modifications have been of such materiality and importance that I have grave doubts that any enforceable lease now exists between the state of Utah and the Daughters of Utah Pioneers, Inc. I mention this at this point for the purpose of suggesting that if the terms of the original lease do not give the state of Utah sufficient control over the lessee so as to require it to properly operate the building as a memorial for the appropriate display of pioneer relics, then, in my opinion, the state of Utah has every right and reason to require the execution of a proper lease based on the terms and conditions of the 1945 act. A lease founded on the later act can require the lessee to display not only relics belonging or loaned to it, but any and all relics of the early pioneers. The lease could further require the lessee to maintain such opening and closing hours and such display of exhibits as would be required to properly serve public purposes.
Regardless of whether or not the lease of 1941 is a valid and subsisting lease, I believe the 17, 18 appropriations for building the structure can be sustained. Cooley on Taxation, 4th Ed., par. 184, provides as follows:
"Private agency as affecting purpose. So far as a public purpose is concerned, the nature or character of the person natural or artificial, through whom or by whom the proceeds of the tax is to be applied or used, is immaterial. If the purpose is public, it does not matter whether the agency through which the money is dispensed is public or private, since the appropriation or tax is not made for the agency but for the object which it serves. The right to tax `depends upon the ultimate use, purpose and object for which the fund is raised, and not on the nature or character of the person or corporation whose intermediate agency is to be used in applying it. A tax for a private purpose is unconstitutional, though it pass through the hands of public officers, and the people may be taxed for a public *Page 158 purpose, although it be under the direction of an individual or private corporation.'"
In the case of Hager v. Kentucky Children's Home Soc.,119 Ky. 235, 83 S.W. 605, 608, 67 L.R.A. 815, the court of appeals of Kentucky upheld the constitutionality of an act which appropriated $15,000 annually to a private corporation organized under the laws of that state for charitable purposes and conducted solely to seek out destitute children and provide homes for them. The court announced the following principle:
"These authorities clearly settle that the vital point in all such appropriations is whether the purpose is public; and that, if it is, it does not matter whether the agency through which it is dispensed is public or is not; that the appropriation is not made for the agency, but for the object which it serves; the test is in the end, not in the means. The limitation put upon the state government by the people is as to what things it may collect taxes from them for, to which it may apply their property through taxation; not upon the means by which or through which it will do it. It may well and wisely be left to the Legislature to say how it will dispense the state's charities."
The case of State ex rel. Trustees of La Crosse PublicLibrary v. Bentley, 163 Wis. 632, 158 N.W. 306, deals with the question of unconstitutionality of an act because the corporation that administered the affairs of a library was a private corporation. The test applied by the court in 19 that case in determining whether or not a particular agency might be employed by the state to perform the particular work was not whether the operating agency was public, but whether the purpose for which the agency was employed was public. The court there held that the purpose was public and the agency selected by the state was an appropriate one for the administration of such purpose through which the purposes could be accomplished. The reasoning in that case seems to me to be persuasive in the present situation. The construction and maintenance of a museum for the purpose of displaying pioneer relics is a public purpose and the Daughters of Utah Pioneers, *Page 159 Inc., is an appropriate agency to be trusted with the duties of carrying out the purpose. As long as the act does not prohibit that organization from so acting, then we should not invalidate the act because we believe the agency selected by the legislature is not an appropriate one.
In Conley v. Daughters of the Republic of Texas, Tex. Civ. App., 151 S.W. 877, 881, the court of civil appeals held that an act which gave to the Daughters of the Republic of Texas, a private corporation, the exclusive care and 20 custody of the Alamo property owned by the state and which placed the corporation in the exclusive and absolute control of the property was constitutional. The following quotation is extracted from that case:
"The title to the Alamo property is in the state of Texas and it alone has the right and authority to place the possession, control, and custody of it in the hands of another; such permission to control and possess being expressed through its only medium of expression, in such case, the legislative branch of the government. It alone can legislate, and to it and the Constitution of the state the other branches of the government must look for power, guidance, and authority. Within constitutional limits its power in the enactment of laws is supreme."
In the case of Furlong v. South Park Com'rs, 340 Ill. 363,172 N.E. 757, 759, the Supreme Court of Illinois held that the park commissioners' agreement to allocate a public building to a non-profit museum corporation was not invalid. I quote from that portion of the opinion dealing with the right of a non-profit corporation to be the operating agency for the municipal government:
"In answer to appellant's contention that the ordinance and agreement of the park commissioners constitute a donation or loan of credit to the museum corporation, appellees state that the benefits accruing to the park commissioners and the public greatly outweigh any benefits accruing to the museum corporation. The museum corporation is not a corporation organized for profit. It has no stock, and no member of the corporation can receive any dividends. Appellees cite St. Hedwig's [Industrial] School v. Cook County, 289 Ill. 432, 124 N.E. 629, and Maffit v.City of Decatur, 322 Ill. 82, *Page 160 152 N.E. 602, that the exchange of one thing for another does not constitute a donation or loan of the municipality's credit. InBullock v. Billheimer, 175 Ind. 428, 94 N.E. 763, it was urged that the appropriations involved were invalid as providing aid to private corporations. The court denied the claim and said the associations were not organized for pecuniary profit, but for public purposes, and that the test was not the means employed but the use or object sought."
I believe the foregoing quoted cases announce good law, and even though the legislature, when it authorized the leasing of the property to the Daughters of Utah Pioneers, Inc., may have preferred that organization, such a preferment under the facts in this case, was within the legislative 21 authority. It matters not to whom the state leases the property; the lessee would have certain rights not possessed by other similar organizations. Any tenant of the property would have the right of occupancy, and this, of necessity, carries the right to use the facilities of the government. I know of no other organization that is interested in assuming part of the costs of operating this property, and if the state of Utah has been fortunate enough to find an organization which is willing to assume part of the costs of exhibiting the relics, and the members of the organization have sufficient interest to devote their efforts to a public purpose, I am unable to determine why we should deny the state the benefit of the contributions of both money and services. The corporation is only the operating agency employed by the state and not the objective of the statutory provisions. The objective sought by the legislature is a proper display of relics. The use of the corporation as a means to this end should not defeat the act.
If the state can choose an operating agency to carry out a project, then this brings our problem of public purpose into focus. No one can deny that the state may venture into those activities which are definitely impressed with 22 public purpose, and, surely, this court is not prepared to say that constructing a building to house and exhibit relics of the past is not so impressed. *Page 161
Generally speaking, the reasonable use of public money for the construction and maintenance of memorial buildings designed to inspire respect and admiration for the memory of worthy individuals or classes of individuals is for a public purpose and within the power of the state. In support 23 of this proposition I again refer to those cases previously cited in this opinion. Hager v. Kentucky Children'sHome Soc., supra, holds that appropriations made to an organization conducted for the benefit of destitute children was for a public purpose. LaCrosse Public Library v. Bentley, supra, held that the appropriation to the trustees of a library was expending money for a public purpose. Conley v. Daughtersof the Republic of Texas, supra, held that appropriations for support and maintenance of a building to perpetuate the memory and spirit of men and women who helped achieve the independence of Texas was for a public purpose. Furlong v. South ParkCom'rs, supra, held that an appropriation for the restoration of a fine arts building and its operation as an industrial museum was for a public purpose.
An Annotation found in 30 A.L.R. 1029 is referred to in Mr. Justice PRATT'S opinion as being excellent, but the case preceding the annotation is not discussed. That is the case ofAllied Architects' Ass'n v. Payne, 192 Cal. 431,221 P. 209, 212, 30 A.L.R. 1029. That case involved the 24 erection of a memorial building to symbolize the soldiers' spirit of sacrifice. The use of the building was limited to organizations of veterans. The California Supreme Court held that the erection of a building as a memorial to soldiers and permitting its use only by organizations of veterans was not in violation of the constitution of the state of California. Mr. Justice Lennon stated the following:
"It may be fairly said in the instant case that the benefit conferred is but incidental to the paramount purpose contemplated by the statute and is in and of itself inconsequential. The main object of the statute should not be circumvented and condemned because some *Page 162 mere incidental and inconsequential benefit may be derived from the operation of the statute."
An early United States Supreme Court case, United States v.Gettysburg Electric R. Co., 160 U.S. 668, 16 S. Ct. 427, 429,40 L. Ed. 576, held that an appropriation for the acquisition of land for the preservation of an historic 25 spot as a perpetual monument to those who had risked or lost their lives was an appropriation for a public purpose. Mr. Justice Peckham speaking for the court said:
"Any act of congress which plainly and directly tends to enhance the respect and love of the citizens for the institutions of his country, and to quicken and strengthen his motives to defend them, and which is germane to, and intimately connected with, and appropriate to, the exercise of some one or all of the powers granted by congress, must be valid. This proposed use comes within such description. The provision comes within the rule laid down by Chief Justice Marshall, in McCulloch v.Maryland, [17 U.S.] 4 Wheat 421 [4: 605], in these words: `Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adequate to that end, which are not prohibited but consistent with the letter and spirit of the constitution, are constitutional.'"
There are three decisions relied on by other members of the court which I do not believe to be contrary to the principle I announce. In the case of Frohliger v. Richardson, 63 Cal. App. 209,218 P. 497, the district court of appeals, District No. 1, of the state of California held that a legislative act appropriating $10,000 for the restoration of a San Diego mission was unconstitutional. While the court deals with the importance to the state of California of the history of the Franciscan missions, the act was held invalid as not being for a public purpose. The difference in the facts of the two cases makes the rule announced by the California court in that case of no material help. At the time of the passage of the appropriation bill, the mission at San Diego had been and was owned and controlled by the Roman Catholic church and the same was being used for religious purposes by that church. At no time was it being conducted *Page 163 for the benefit of the public or for the support or maintenance of children or aged persons in necessitous or indigent circumstances. The court concluded that while the California missions were of historical and educational interest from a religious, cultural, and literary standpoint, they were being used solely and exclusively for ecclesiastical purposes and consequently did not approach such classification as would make them the subject of a legislative appropriation in the guise of public interest, public good, or public welfare. Under a similar state of facts the law as announced in that case would be applicable here. I respectfully suggest that if our legislature appropriated money to rehabilitate the Mormon Tabernacle that such an appropriation would contravene the provisions of our constitution. That, of course, is not the problem that now confronts us.
An attempt is made to distinguish the case of State ex relTrustees of LaCrosse Public Library v. Bentley, 163 Wis. 632,158 N.W. 306, by making reference to the purposes set forth in the articles of incorporation of the public library. I can see no good reason for concerning ourselves with 26 the fact that the articles of incorporation of the Daughters of Utah Pioneers, Inc., do not expressly provide that exhibits shall be received from all and displayed for the benefit of the people of the state of Utah. The important document, in my opinion, is the lease. If the state of Utah can, as lessor, require the Daughters of Utah Pioneers, Inc., to appropriately receive and properly display the exhibits for the benefit of the people of this state, then the wording of the articles of incorporation is immaterial. The members of the corporation might amend the articles and defeat this purpose, but they could not amend the terms of the lease.
Another case cited in the majority opinion is Kingman v.City of Brockton, 153 Mass. 255, 26 N.E. 998, 11 L.R.A. 123. This case seems to me to be consistent with the theory for which defendants contend. The Massachusetts state legislature authorized the city to appropriate 27 *Page 164 money for the erection of a memorial hall to be used and maintained as a memorial to soldiers and sailors. The legislative act was held constitutional. An ordinance adopted by the city was held invalid because it reserved part of the hall for a particular G.A.R. post. That case presents an entirely different picture from the one I see in the present action. If we assume the state is constructing a building to be operated by itself and has reserved part to the Daughters of Utah Pioneers, Inc., for its own private purposes and to the exclusion of the public, then the cases would be parallel and our act might not be sound. Under that state of facts, the Daughters of Utah Pioneers, Inc., would be no more entitled to free accommodations than would any other eleemosynary or nonprofit corporation. However, when the state has selected an operating agency to manage and control the exhibition for the use and benefit of the state, there is no constitutional prohibition against the organization having office space for the purpose of carrying out the functions delegated to it by the state. If a public corporation can be used by the state for supervising the memorial building, and for this purpose can have access to the whole of the building, I cannot understand why it could not legally occupy part.
In the present action the benefit to be derived from the construction of a pioneer memorial building should not be circumvented and condemned because the Daughters of Utah Pioneers, Inc., may derive some incidental and inconsequential benefit. If the nature of an 28 appropriation can be determined by inquiring into the use of the funds, then there can be little question that the display of pioneer relics is a public purpose. For the people of this state to see the inadequate weapons, tools, equipment, household belongings, and means of conveyance of the early pioneers should impress indelibly on their minds the courage, determination, endurance, foresight of and sacrifices by the early settlers of this state. The erection of a building as a memorial hall to extoll their deeds and to influence *Page 165 future citizens of this state to struggle under adversity for the betterment of themselves and the state is truly a public purpose and should be respected by this court as such.
Even were there doubts in my mind that the appropriation was for a public purpose, I would be inclined to follow those authorities which hold that the determination of what is and what is not a public purpose belongs in the first instance to the legislative department; and that while the 29, 30 legislative determination is not absolutely conclusive, there is a presumption in favor of the validity of the act. An appropriation should be considered valid unless it be for a purpose in which the community has no interest, and it is only in a clear case that this court should invalidate legislative enactments because in our judgment a public purpose is not being served.
If I am correct in my premise that the purposes of the act are public and that the state can operate the building through an agency of its selection, then little need be said about the act offending against the constitutional provision prohibiting the granting of a privilege, immunity or 31 franchise to a corporation. Practically all the cases I have previously cited have disposed of similar contentions and Mr. Justice PRATT apparently concludes that our act grants the corporation only a privilege. Undoubtedly such a holding would be correct if the act prescribed that the state was to build a building and that only property belonging to the lessee could be displayed. The various legislative enactments do not so provide, and I am of the opinion that the fair inference from the act is contrary to such a construction. To require the building be used for a proper display of pioneer relics negatives the idea that the lessee can arbitrarily exclude any pioneer object which is esteemed or venerated. Further, it is my belief that the state can control the display by and through the terms of its lease or because the corporation is only an operating agent for the state in the proper display of these items, and as such, can be directed by the state. Certainly *Page 166 both the corporation and the state have assumed that the corporation is subject to legislative control as the conditions of the original pact have been substantially modified by subsequent legislative action.
Conceding the corporation has a right to occupy the property to the exclusion of other tenants, I am unable to subscribe to the doctrine that by leasing the building, the state has granted such a privilege as is prohibited by the constitution. If the constitutional provision is to be so construed then the state could not lease any of its property. Any lessee acquires rights to the exclusion of other people, but that does not prohibit the state from leasing any of its property. In this case if the corporation obtained a privilege, I am convinced it is one that no other organization was willing to accept. It was required to advance $75,000, and if we accept the terms of the original lease, it was required to operate the building and pay all the costs and expenses of operation during the life of the lease. It strikes me very forceably in considering these legislative enactments that the legislature was very definitely acting in the public interest. The benefits of a museum for such purposes are not disputed and the public will receive a substantial sum of money and the efforts of the members of the corporation to maintain a building for the public benefit. I am unable to see how this contravenes that section of the constitution which provides that the state shall not grant a privilege.
The Arizona Supreme Court in the case of Leatherwood v.Hill, 10 Ariz. 243, 89 P. 521, 523, passed on the question of making an appropriation to a private corporation which was incorporated for the purpose of collecting and 32-34 preserving information connected with the early settlement and subsequent history of the territory. The language taken from the decision rendered by that court is apropos:
"Neither it nor its officers are being endowed by the appropriation with `any special or exclusive privilege, immunity, or franchise.' A *Page 167 privilege, as defined by the Standard dictionary, is `a peculiar benefit, favor, or advantage, a right * * * not enjoyed by all, * * * a special right or power conferred on or possessed by one or more individuals, in derogation of the general right.' An immunity is `freedom from duty or penalty.' A franchise is a `special privilege emanating from the government by a legislative grant, and vested in an individual person or in a body politic or corporate.' This appropriation act imposes a duty. It does not confer a privilege. It furnishes the means for a compilation of data and collection of Arizonana specifically for the benefit of and open to the public and owned by the territory. It does not grant something in derogation of the general right, or to be enjoyed by the few instead of by all. It does not free the society from any duty or penalty. For practical purposes the society becomes a public agency, an executive instrument of the government, a convenient means for accomplishing an end deemed by the Legislature in its wisdom to be useful to the public, an end of a kind which has been generally and frequently promoted by legislative enactments throughout the United States."
In connection with the holding that the act is unconstitutional because it contains more than one subject, I call attention to the following language 35 found in the case of State v. Barlow, 107 Utah 292,153 P.2d 647, 655:
"However, the contention that there is more than one subject in the act in question cannot be sustained. The decisions of this court announce the rule that the legislature may not include matters which are neither related nor germane to one subject; but that the constitutional provision is not to be applied so as to hamper the law-making power in adopting comprehensive measures covering a whole subject, where matters included all have some direct connection with or relation to the principal subject treated; and that the constitutional provision should be so applied as to guard against the real evil which it was intended to prevent. Utah State Fair Ass'n v. Green, 68 Utah 251,249 P. 1016; Edler v. Edwards, supra; Martineau v. Crabbe,46 Utah 327, 150 P. 301. See Crawford, Statutory Construction, Sec. 98, and Cooley's Constitutional Limitations, 6th Ed. p. 170, 171."
In dealing with the sufficiency of the title under Article VI, Section 23 it should be kept in mind that in addition to the presumption of constitutionality the objects of this *Page 168 provision should be considered. The aim of the constitutional provision is to give information as to 36 the subject of the legislation with which the act deals and to apprise the members of the legislature and the people of the subject of the legislation under consideration. The general rule has been announced that the title is sufficient if it is not productive of surprise and fraud and is not calculated to mislead the legislature or the people, but is of such character as fairly to apprise the legislators and the public of the subject matter of the legislation and to put anyone having an interest in the subject on inquiry. See Am. Jur. 50, p. 146, sec. 167.
The original act of 1941 was titled as follows: 37
"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."
The amended act of 1945 was as follows:
"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."
Whether we consider these acts individually or together, both include sufficient information to meet the standards required by the constitutional amendment. The subjects included in the act are germane to the purposes to be accomplished and the title would apprise anyone of the subject matter of the statute.
Chapter 122, Laws of Utah 1947, is not in conflict with the quoted section of the constitution for the reason that it is a general appropriation bill and meets the requirement of the constitution. *Page 169
For the foregoing reasons I am of the opinion that the alternate writ should be quashed and the petition dismissed.
WADE, J., concurs in the opinions of McDONOUGH, C.J., and LATIMER, J.