Lowe v. City of Eugene

• Decision Date: 26 February 1969
• Citation: 254 Or. 518,451 P.2d 117
• Parties: Raymond N. LOWE, Corrinne R. Hill, W. A. Brooksby, Abe Brooks, G. Douglas Straton, Alfred Bloom, James Witzig, Claire L. Newport, Dirk P. Ten Brinke and E. Jean Ware, Respondents, v. CITY OF EUGENE, of Lane County, Oregon, a municipal corporation; Edwin E. Cone in his official capacity as Mayor of Eugene; Lester E. Anderson, John O. Chatt, R. G. Crakes, Ray Hawk, Bruce A. Lassen, Catherine Lauris, R. E. McNutt, Glen L. Purdy, each in his official capacity as a member of the Common Council of Eugene; David D. Campbell dba C & S Electric; Allen E. Hamilton, Allen E. Hamilton, Jr., Lillian T. Hamilton, Kenneth W. Hamilton; J. F. Oldham & Son, Inc., Defendants, Eugene Sand & Gravel, Inc., Appellant.
• Court: Oregon Supreme Court

Page 117

451 P.2d 117

254 Or. 518

Raymond N. LOWE, Corrinne R. Hill, W. A. Brooksby, Abe Brooks, G. Douglas Straton, Alfred Bloom, James Witzig, Claire L. Newport, Dirk P. Ten Brinke and E. Jean Ware, Respondents, v. CITY OF EUGENE, of Lane County, Oregon, a municipal corporation; Edwin E. Cone in his official capacity as Mayor of Eugene; Lester E. Anderson, John O. Chatt, R. G. Crakes Ray Hawk, Bruce A. Lassen, Catherine Lauris, R. E. McNutt Glen L. Purdy, each in his official capacity as a member of the Common Council of Eugene; David D. Campbell dba C & S Electric; Allen E. Hamilton, Allen E. Hamilton, Jr., Lillian T. Hamilton, Kenneth W. Hamilton; J. F. Oldham & Son, Inc., Defendants Eugene Sand & Gravel, Inc., Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted Jan. 6, 1969.

Decided Feb. 26, 1969. Opinion Withdrawn 459 P.2d 222.

William G. Wheatley, Eugene, argued the cause for appellant. With him on the briefs were William E. Flinn, and Jaqua, Wheatley & Gardner, Eugene, and Warren Cameron, Special Counsel, Seattle, Wash.

James P. Harrang, Eugene, and Leo Pfeffer, New York City, argued the cause for respondents. With them on the brief was Barbara B. Aldave, Eugene.

Howard M. Feuerstein, Portland, filed a brief for American Civil Liberties Union of Oregon as amicus curiae.

Richard D. Curtis, and Hansen & Curtis, Eugene, filed a brief for Leslie D. Erb, Alma M. Erb, Hazel H. Tillman, B. D. Dotson, Elsie L. Dotson, Mary Kay Williamson, Wayne H. Oldaker, Laurel J. Williams, Anna M. Jeppesen, James A. Brabham and Michael L. Wright as citizens of the City of Eugene as amici curiae.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE, and LANGTRY, JJ.

LANGTRY, Justice pro tem.

The crest of Skinner's Butte overlooks the City of Eugene and is within the city limits. It was donated to the city and for many years it has been maintained as a public park. From the late 1930's until 1964 successive wooden crosses were erected in this park, one replacing another as they deteriorated. These crosses were usually lighted at the Christmas and Easter seasons. One of the early crosses was large and neon-lighted. Construction of the first cross was motivated, at least in part, by a secular organization of physically handicapped people who received pleasure from looking out at the lighted cross. On November 28, 1964, defendant Eugene Sand & Gravel Inc., with the aid of defendants Hamilton Electric and J. F. Oldham & Son, Inc., erected a prestressed concrete tapered Latin cross 51 feet tall on the property. The cross was equipped with inset neon tubing to provide lighting for the cross at the Christmas and Easter seasons. The plaintiffs in this declaratory judgment suit seek removal of this cross upon constitutional grounds.

It appears that no permission had been obtained from the city for erection of the earlier crosses. The city did not, however, interfere with any of the crosses--all were erected and maintained by the Eugene Chamber of Commerce and various individuals and other organizations at no expense to the city. No permission was obtained from the city to erect the challenged cement cross. But on December 2, 1964, after the cross had been put up, a building permit and an electrical permit were applied for by Eugene Sand & Gravel and Hamilton Electric. On its application Eugene Sand & Gravel gave as its reason for erecting the cross the word 'admiration.' The applications were referred to the city council for approval and they became the subject of a highly publicized public hearing which was attended by an overflow crowd. At the conclusion of the hearing the council, by a 7 to 1 vote, issued the permits. The plaintiffs, who are voters and taxpayers of the city and members of various religious and nonreligious organizations, brought this declaratory judgment suit alleging violation of Art. I, §§ 2, 3, and 5 of the Oregon Constitution, and the First and Fourteenth Amendments to the U.S. Constitution. The city and the builders of the cross were named as defendants.

The defendant Eugene Sand & Gravel, Inc., in one of several affirmative answers, all of which were stricken by the court on plaintiffs' motion, asserted that the city has authority under its charter and the laws of Oregon to allow the erection and maintenance of the cross as a monument upon city park property. This defendant's amended answer, and answers by other defendants, joined issues solely upon the constitutional questions involved.

After an extensive trial, reported in an 883-page transcript, and thorough briefing of the case, the trial court handed down its written opinion in which it held that the cross is primarily a religious symbol and 'only secondarily a memorial of or a monument to a vitally significant value system in the life and history of our nation and this community;' that the charter of the city and the laws of Oregon do not specifically allow any private person to erect or maintain in the city park a permanent religious symbol; and that the city council or any private person has no authority to maintain the cross. These findings were in the formal findings of fact.

The court also found that the City of Eugene 'did not authorize or consent to the erection of the cross.' The court held as a legal conclusion that it could decide the case without reaching the constitutional questions. The basis of this conclusion was that the city had no specific authority under charter or statute to allow the cross in the park. The decree required removal of the cross.

The City of Eugene did not appeal from this decree, but Eugene Sand & Gravel, Inc., did appeal and relief has been stayed pending determination.

Eleven amici curiae, who are residents, voters, and taxpayers of the City of Eugene, joined the controversy when the city failed to appeal from the trial court decree. They have asserted that they represent the citizens of Eugene and they have filed a brief seeking reversal of the decree. The American Civil Liberties Union has filed a brief amicus curiae in support of plaintiffs' position.

We think the trial court erred in holding that the constitutional questions could be avoided. The rationale of the trial court was that the city, either in its charter or state laws, had no specific authority to allow erection of a religious symbol in a city park. It is correct that if a constitutional question can be avoided by deciding a case on a non-constitutional issue courts will do so. Elliott v. Oliver, 22 Or. 44, 29 P. 1 (1892). But this rule is limited to a situation where the record in the case presents some other and clear ground upon which the court may rest its judgment. 22 Or. at 48, 29 P. 1. In the case at bar, the issue of city authority which defendants sought to raise in an affirmative answer was stricken by the court on plaintiffs' motion. The issues were then drawn solely on constitutional grounds in amended pleadings, and the record did not present the issue of the city authority. The constitutional questions must be decided.

These questions have been briefed and argued in depth by the contending parties and amici curiae in this appeal. The briefs present more than 650 citations of authority, texts, and statutes.

Two of the many precedents cited by counsel come close to being in point to the factual situation and law upon which this case must be decided. These are State ex rel. Singelmann v. Morrison, 57 So.2d 238 (La.App.1952), cert. den., April 28, 1952; and Paul v. Dade County, 202 So.2d 833 (Fla.Ct.App.1967), cert. den., Florida Supreme Court, 207 So.2d 690, cert. den., U.S. Supreme Court, 390 U.S. 1041, 88 S.Ct. 1936, 20 L.Ed.2d 304 (no opinion, Mr. Justice Douglas dissenting).

In Morrison a Catholic religious order presented to the City of New Orleans a statute of Mother Cabrini on which the following inscription appeared:

"'St. Francis Xavier

Mother Cabrini

Erected August 25, 1949

By The Order Of The Alhambra

During Its 23rd Biennial Convention."'

This statute was placed upon public park property at no cost to the city and the city's authority to allow its placement there was challenged in a suit by a lay member of a Protestant religious sect. The statue of Mother Cabrini showed her in religious habit, wearing a cross. She had done part of her charitable and church work in New Orleans. The Louisiana appellate court held:

'It cannot be questioned that a municipality may permit the erection of statues and memorials in public places, whether they be purely ornamental or include the idea of a memorial * * *.' 57 So.2d at 247. ¹

The appellate court in its opinion approved the trial court's finding that there was no federal constitutional question involved '* * * since the erection of the statue here complained of cannot be held to be the establishment of a religion * * *.' Reference was made to the pertinent provisions of the Louisiana Constitution which are quite similar to those respecting freedom and establishment of religion in the Oregon Constitution. The court took judicial notice of the existence of the many kinds of statues and monuments on public property in Louisiana and across the country which are religious in character, and then held:

"The only restriction against the City is that it cannot discriminate. That any statue or monument might incidentally have some religious significance cannot be held violative of the constitutional prohibitions, unless it was designed and used as a public shrine or place of worship, or for the propagation of a religious belief; or was intended to hold some other religious group in public contempt and ridicule; or designed to cause religious strife and antagonisms." 57 So.2d at 246.

The appeal in the second case, Paul v. Dade County, supra, which we consider to be more closely in point, was decided after the trial court in the case at bar made its decision and thus the trial judge did not have the benefit of its reasoning. ²

The...