Conley v. Texas Division of U. D. of the Confederacy

• Decision Date: 05 July 1913
• Citation: 164 S.W. 24
• Parties: CONLEY, State Superintendent of Buildings and Grounds, v. TEXAS DIVISION OF UNITED DAUGHTERS OF THE CONFEDERACY.
• Court: Texas Court of Appeals

164 S.W. 24

CONLEY, State Superintendent of Buildings and Grounds, v. TEXAS DIVISION OF UNITED DAUGHTERS OF THE CONFEDERACY.

Court of Civil Appeals of Texas. Austin.

July 5, 1913.

Rehearing Denied October 8, 1913.

Writ of Error Denied by Supreme Court December 17, 1913.

Appeal from District Court, Travis County; Chas. A. Wilcox, Judge.

Suit by the Texas Division of the United Daughters of the Confederacy against A. B. Conley, State Superintendent of Buildings and Grounds. From a decree for plaintiff, defendant appeals. Affirmed.

B. F. Looney, Atty. Gen., and C. M. Cureton, Asst. Atty. Gen., for appellant. Gregory, Batts & Brooks, of Austin, for appellee.

RICE, J.

This suit was brought by appellees against appellant for an injunction to restrain him, and all other persons acting for or under his direction, from removing any of the relics or property in their charge from the northwest room of the first floor of the state capitol building, or from otherwise interfering with them in the use and possession of said room, alleging that appellant had informed them that he intended to take from them the use and possession thereof, and remove said relics therefrom. A temporary restraining order was issued by the court in accordance with the prayer of said petition, from which this appeal is prosecuted. Appellant alleges the invalidity of said restraining order, upon the ground that appellees had no lawful right to the possession and use of said room, insisting that it was needed for the State Fire Insurance Commission, recently provided for by the acts of the Thirty-Third Legislature, and that there was no other adequate room in said building at his disposal for its accommodation.

Appellees insist that under and by virtue of House Concurrent Resolution No. 18, passed at the regular session of the Twenty-Eighth Legislature (see Acts of 1903, p. 250), they had the lawful right to the use and occupancy of said room as a museum for the deposit of relics and historical mementoes of the Confederacy, which said resolution is as follows:

"Daughters of the Confederacy—Setting Aside a Room for.

"House Concurrent Resolution.

"To set aside the northwest room of the first floor of the Capitol for the use of the Daughters of the Confederacy for the deposit of relics and historic mementoes of the Confederacy.

"Whereas, the 21st Legislature of this state by House Concurrent Resolution No. 4, approved February 25th, 1889, Session Acts, page 173, extended the thanks of the people of the state of Texas to Messrs. W. H. Westfall, S. W. Lacey and N. L. Norton for the `princely donation of the beautiful granite of which this magnificent capitol is built';

"And whereas, it was therein resolved that `a room in this capitol building * * * be set apart for the reception' of deposits to be made by said `Westfall, Lacey and Norton of specimens of granite, marble and lithographic stone of different grades'; and

"Whereas, it was also therein resolved that `in recognition of our appreciation of the donation thus made by W. H. Westfall, S. W. Lacey and N. L. Norton, they are hereby especially invited to visit and occupy said room when they visit the capitol during life or until the state shall need the room for other purposes'; and

"Whereas, said room has never yet been designated; and

"Whereas, the Daughters of the Confederacy are desirous of having a room in the capitol designated in which to place the relics of the Confederate and other wars in which the state took part; and

"Whereas, it is the wish of the said Col. N. L. Norton and his said associates that said room be designated, and that the Daughters of the Confederacy be permitted to place said relics in said room, and to care for, protect and exhibit the same: Now therefore,

"Be it resolved by the House of Representatives, the Senate concurring:

"Section 1. That the northwest room on the first floor of the capitol building formerly occupied by the purchasing agent of the state, be and the same is hereby set aside for the uses and purposes aforesaid, and that in addition to the deposits made and to be made under said original concurrent resolution, that the Daughters of the Confederacy of the State of Texas be and they are hereby authorized to take charge of said room and use the same conjointly with the said Westfall, Lacey and Norton, for all of the purposes aforesaid."

It is contended, however, on the part of appellant that this claim is not well founded for the reasons: First, that the Legislature had no authority, by means of such resolution, to grant said privilege to appellees; second, because in undertaking to place said State Fire Insurance Commission in said room, he was acting within his discretion as superintendent of public buildings and grounds, and therefore, not subject to the writ of injunction herein issued; third, because appellee in this case is a corporation, and is not the same body, association, or legal entity upon which the Legislature attempted to confer any right by virtue of said resolution; and, fourth, because the resolution under which appellees claim must be construed in connection with House Concurrent Resolution No. 4, therein referred to, and, when so construed, it is left to the superintendent of public buildings and grounds and the Governor to determine when the room in controversy shall be needed for other purposes; and, they having reached this conclusion, and there being no abuse of discretion on his part, said injunction should not have been issued.

Before undertaking to discuss the points raised and presented by this appeal, it may be well to state that, long prior to the passage of said resolution, the Daughters of the Confederacy, composed of the wives, widows, and daughters of Confederate soldiers, was a voluntary association for the purpose of perpetuating history and doing benevolent and monumental work, and on the passage of the resolution in question they immediately took charge of said room so set aside to them, furnishing the same, and depositing therein many relics and mementoes of the war of the Confederacy, consisting of guns, swords, battle flags, historical documents, uniforms, and other articles in use by Confederate generals and soldiers, valuable pictures and books including the Ordinances of Secession, and many other interesting relics relating to said war. This room, though usually closed, except during their meetings, was always accessible to the public who might desire to visit it, by application to the watchman in charge of the building. In order to erect a home for the benefit of the old ladies of the Confederacy, and take title thereto and convey the same to the state, it was deemed advisable, in 1905, for such association to obtain a charter, which was done, but this in no manner changed the purpose or object of the association, nor the character and holding of...