Conley v. Daughters of the Republic of Texas

• Decision Date: 13 November 1912
• Citation: 151 S.W. 877
• Parties: CONLEY et al. v. DAUGHTERS OF THE REPUBLIC OF TEXAS.
• Court: Texas Court of Appeals

151 S.W. 877

CONLEY et al. v. DAUGHTERS OF THE REPUBLIC OF TEXAS.

Court of Civil Appeals of Texas. San Antonio.

November 13, 1912.

On Motion for Rehearing, December 11, 1912.

Appeal from District Court, Bexar County; J. L. Camp, Judge.

Injunction by the Daughters of the Republic

of Texas against A. B. Conley and others. From an order perpetuating a temporary injunction, defendants appeal. Affirmed.

J. F. Carl, of San Antonio, for appellants. Webb & Goeth and Denman, Franklin & McGown, all of San Antonio, for appellee.

FLY, C. J.

Appellee, a private corporation duly incorporated under the laws of Texas, instituted this suit to enjoin Dr. A. B. Conley, individually and as superintendent of public buildings and grounds, J. B. Nitschke, individually and as state inspector of masonry, and J. M. English, individually and as foreman of the workmen engaged in trespassing upon certain property, from so trespassing. It was alleged that, by an act of the Legislature of Texas dated January 26, 1905 (Acts 29th Leg. c. 7), the Governor was authorized to purchase the property known as the Hugo-Schmeltzer property, formerly a part of the Alamo Mission and adjoining the Alamo Church, which was the property of the state; that the Governor bought the property, and by the act of the Legislature of 1905 he was required to deliver the property, known as the Hugo-Schmeltzer property, as well as the Alamo Church property, to the custody and care of the Daughters of the Republic of Texas, and under the provisions of the act the custody, care, and possession of the property were duly delivered by the state of Texas to appellee; that appellants wrongfully and unlawfully, and without the consent of appellee, had entered upon the property and were engaged in tearing down the improvements and were threatening to remodel the same and erect improvements thereon without the consent of appellee and without the authority of law. A temporary writ of injunction was granted against appellants, which, on a final hearing, was perpetuated.

The court filed the following findings of fact, which are adopted by this court, with the emendation of a few unnecessary words:

"(1) The Daughters of the Republic of Texas is a private corporation, duly incorporated under the laws of the state of Texas, for the purpose set forth and alleged in plaintiff's petition herein.

"(2) Under the act of the Legislature of the state of Texas, approved January 26, 1905, as averred in plaintiff's petition herein, the state of Texas through its Governor purchased the property known as the Old Hugo & Schmeltzer Building in plaintiff's petition fully described, and being a part of what is commonly known as the `Alamo property,' and previous to such purchase, the state of Texas had acquired what is known as the `Alamo Mission' property proper in said city of San Antonio; the two properties together constituting what is commonly known as the Alamo property in the city of San Antonio.

"(3) In accordance with the provisions of said act of the Legislature, said two properties were delivered by the state of Texas into the custody and care of plaintiff prior to any of the trespasses alleged in plaintiff's petition, and at the time of the said alleged trespasses said plaintiff was in possession of said property, holding the care and custody of same under the terms of the act of the Legislature above referred to.

"(4) No plan for any changes or alterations or remodeling of any of the buildings upon said property has been made or adopted by plaintiff and approved by the Governor of the state of Texas.

"(5) No plan or any alteration or changes or remodeling of any of said buildings had been prepared by the Governor of the state of Texas and submitted to plaintiff for consideration by plaintiff.

"(6) Plaintiff has never surrendered said property nor the care or custody of same to any one, but has retained such possession, care, and custody ever since the delivery of the property to plaintiff.

"(7) The defendants in their official capacities alleged in plaintiff's petition entered upon the said property prior to the filing of plaintiff's petition, and without the consent of plaintiff were at the time of the filing of said petition engaged in tearing down certain of the improvements upon said property, making excavations thereon for rebuilding certain of the improvements thereon and for the erection of new improvements thereon, and were rebuilding certain of the improvements thereon and remodeling certain of the improvements thereon.

"(8) This work was being done without any plan as to what future improvements would be made upon the property or what remodeling of the property would be done, the evidence showing that the work was being done without any fixed or definite plan, and the defendants were unable to inform the court what remodeling of any improvements was contemplated, nor what improvements were contemplated, nor what changes in the present building were contemplated by them or by the Governor of the state."

Appellee was incorporated for the purposes, and given the authority, as follows: "First, to perpetuate the memory and spirit of the men and women who have achieved and maintained the independence of Texas. Second, to encourage historical research into the earliest records of Texas, especially those relating to the Revolution of 1835, and the events which followed; to foster the preservation of documents and relics, and to encourage the publication of records of individual service of soldiers and patriots of the Republic. Third, to promote the celebration of March 2d (Independence Day), and April 21st (San Jacinto Day); to secure and hallow historic spots by erecting monuments thereon; and to cherish and preserve unity of Texas, as achieved and established by the fathers and mothers of the Texas Revolution. This association may have and hold, by purchase, grant, gift, or otherwise, real estate on which battles for the independence of Texas were fought; such monument or monuments as may be erected thereon; and burial grounds where the dead, who fought and died for Texas independence, are buried; and personal property, consisting of books, manuscripts, and other historical records, relating to the early history of Texas; and relics."

After providing for the purchase of the land causing this controversy, the act of January 26, 1905, provided: "Upon the receipt of the title to said land, the Governor shall deliver the property thus acquired, together with the Alamo Church property already owned by the state, to the custody and care of the Daughters of the Republic of Texas, to be maintained by them in good order and repair, without charge to the state, as a memorial to the heroes who immolated themselves upon that hallowed ground; and by the Daughters of the Republic of Texas to be maintained or remodeled upon plans adopted by the Daughters of the Republic of Texas, and approved by the Governor of Texas; provided that no alterations shall be made in the Alamo Church proper, as it now stands, except such as are absolutely necessary for its preservation. All of said property being subject to future legislation by the Legislature of the state of Texas." Undoubtedly, that law, in plain and unequivocal terms, gave appellee the custody of the property in question and imposed upon it the duty and burden of keeping it in good order and repair without expense to the state, and under that law appellee took possession of the property and assumed the responsibility of maintaining it in good order and repair. It is apparent that by "care and custody" the state intended to place appellee in possession and give it exclusive and absolute control, within the limitations prescribed in the law, over the property. The state intended to and did lift the responsibility from itself of caring for and maintaining the property and placed those burdens upon appellee. No other reasonable intendment can be deduced from the language of the act. No limitations of the powers granted to appellee were made except that its manner of maintenance or remodeling of the property or its improvements should meet with the approval of the Governor, and that the Mission Church should not be changed or altered unless it was absolutely necessary for its preservation. Within those limitations the possession and authority over the property were exclusive and supreme. Those statutory checks and limitations of the power of the custodian of the Alamo property were enacted to prevent any ill-considered change being made in the property which the state desired to be preserved and cherished "as a sacred memorial to heroes who immolated themselves upon that hallowed ground."

Under the act of 1905, appellee had the right of possession, custody, care and control of the Alamo property, and has to this day, unless the authority has been canceled and destroyed by subsequent legislation, and that is the contention of appellants. The law relied on as a repealing act is an item in the appropriation act of 1911 (Laws 1911, p. 6) which is: "For the improvement of the Alamo property belonging to the state of Texas, in the city of San Antonio, to be expended under the direction of the superintendent of public buildings and grounds, upon the approval of the Governor, $5,000.00." There is no mention of the statute of 1905 giving the Daughters of the Republic of Texas control of the property, and the contention is that by implication it deprives it of the custody given to it by the former law.

Repeals by implication are not favored by the courts of the country, and a statute will not be held to repeal an existing one unless there is an irreconcilable repugnancy between them, or unless there is an evident design upon the part of the Legislature to supersede all prior legislation in connection with the subject-matter and to enact a complete law in regard to it. The item from the appropriation bill will not stand such a test; but,...