Patrick v. Blake
| Decision Date | 18 June 1945 |
| Docket Number | 8741. |
| Citation | 19 N.W.2d 220,70 S.D. 494 |
| Parties | PATRICK et al. v. BLAKE, State Secretary of Finance, etc. |
| Court | South Dakota Supreme Court |
George T. Mickelson, Atty. Gen., and E. D. Barron Asst. Atty. Gen., for appellant.
Louis H. Smith, of Sioux Falls, for respondents.
This appeal involves the Soldiers' and Sailors' Memorial Building built at Pierre, in 1931 and 1932.
The Sixteenth Session of the South Dakota Legislature passed Chapter 323 of the 1919 Session Laws. Section 1 of this Act reads as follows:
By Section 2 of this Act the Governor, Adjustant General and the Secretary of the Department of History were constituted a committee to select the site, raise the necessary funds, and arrange for and supervise the construction of the Memorial, but with the strict injunction not to involve the state in any debt or other obligation therefor. Section 3 provided that all building contracts be let to the lowest bidder after specified notice was given. Section 4 constituted the Secretary of State, the State Auditor and the State Treasurer a board of auditors to audit all accounts.
The committee, provided for by such statute, assumed the duties enjoined upon them. They held meetings from time to time and kept a record of their proceedings. Such committee raised the necessary funds, arranged for the construction of the Memorial, chose the form of such Memorial and, in every respect, executed the mandate contained in said statute.
A vigorous campaign was waged to secure the necessary funds by popular subscription. In furtherance of this campaign, advertising matter was widely circulated throughout the state bearing the names of the Governor and other members of the committee. Such advertisements contained some rather extravagant language. It was stated therein: 'Living Memorial In the form of a classic building, to be the best product of American Architecture and built in a manner to endure for many centuries. * * * A memorial that will be as enduring as rock, and concrete, and steel can be; as beautiful as the most entrancing dream; as pure as the patriotism of our sons in whose honor it is erected. A Memorial in Every Way. Let us build now A Temple to loyalty that our posterity a thousand years hence, will look upon with awe and veneration and say, 'our sires of old were men of vision, who recognized heroism and appreciated strength and beauty. They built for Eternity.''
A large part of the necessary funds were raised by popular subscription. By Chapter 41 of the Session Laws of the 1920 Special Session of the Legislature, counties were authorized to contribute to the State Memorial Fund in amounts not to exceed one-tenth of one mill upon each dollar of the assessed valuation of such county. Under this statute various amounts were contributed to the fund.
By Chapter 271 of the 1923 Session Laws of South Dakota, the State Treasurer was made custodian of the Solidiers' and Sailors' Memorial Fund and he was directed to preserve and invest the same, and to credit same to a special fund to be known as the Soldiers' and Sailors' Memorial Fund and it was provided that all state depository bonds should apply to this fund.
A part of the fund was lost in closed banks while in the custody of the State Treasurer. By Chapter 47 of the 1931 Session Laws of South Dakota, $15,000 was appropriated for the completion of the Memorial Building. However, only so much of this fund was used as was required to replace the money lost in closed banks, and the balance was returned to the State Treasury.
The original plan was to build the Memorial on the Capitol grounds, but in February, 1930, the Chicago and Northwestern Railway Company tendered a deed to the state conveying a tract of land immediately across the street from the Capitol grounds to be used as a site for the Memorial Building. Such deed contained the following provisions: 'This conveyance, however, is made upon the express condition that said above described premises shall be Forever used as and for a Soldiers Memorial Building to be erected thereon by said grantee and if at any time the said premises shall be used for any other purposes or if the said Soldiers Memorial Building shall not have been erected on said premises by said grantee within ten (10) years from the date hereof title to the said premises shall revert to and revest in said grantor, its successors or assigns, without any declaration of forfeiture or other act on its or their parts to be performed.'
The state accepted this deed and the conditional grant by the enactment of Chapter 235 of the 1931 Session Laws.
The committee created by the Act of 1919 were given full power to choose the form of the Memorial and to provide for its erection. The minutes of the committee show various plans were considered and rejected Governor Gunderson at one time suggested the building of a joint Memorial and Office Building. This scheme too was disapproved. The American Legion submitted a plan whereby a Memorial Building was to be erected, especially designed as a Memorial. The Department of History was to be housed in the building, and the remaining space was to be used as a museum for the display of war relics and portraits and for other purposes connected with and appropriate for a Soldiers' and Sailors' Memorial. The plan of the American Legion was adopted by the committee, and the plans and specifications for the building were drawn accordingly. The State Historical Society has occupied a part of the Memorial Building ever since its completion.
On March 19th, 1943, the appellant, as Director of Employment of South Dakota, purporting to act under the provisions of SDC 55.2702, made an order addressed to L. K. Fox, State Historian, directing him to vacate all of the rooms in the east part of the Memorial Building, on both the first and second floors and the north room of the basement. The order recited that the portion of the building, above mentioned has been, by the Director of Employment, allocated to the State Free Library Commission. The State Historical Society was required to vacate said rooms by April 10th, 1943. The appellant threatened to enforce such order and was about to do so when this action was commenced in the Circuit Court of Hughes County for injunctive relief.
The trial court entered judgment restraining and enjoining the appellant, his agents, employees and successors in office from placing or installing the State Free Library Commission, or its property, books, records, texts, documents, or employees in said Memorial Building. An appeal was perfected from such judgment and an order denying a new trial.
By appropriate assignment of errors, the appellant presents various alleged errors for our consideration.
Appellant, in his answer, avers that the respondents do not have sufficient interest in the subject matter of this action to qualify them to maintain such an action. This defense is referred to in appellant's statement of facts, contained in his brief, wherein he states his various contentions, but such defense is not presented, for our consideration, by any assignment of error nor is it argued in appellant's brief. Under this state of the record, such alleged defense will be deemed to have been waived, so far as this appeal is concerned, and cannot be considered by the court. State v. Steensland, 56 S.D. 534, 229 N.W. 395; Anderson v. Brule County, 67 S.D. 308, 292 N.W. 429; Parsons v. City of Sioux Falls, 65 S.D. 145, 272 N.W. 288; Goetz v. Gurney, 50 S.D. 337, 210 N.W. 155; Minnehaha Land & Investment Co. v. Consolidated Sand & Stone Co., 64 S.D. 48, 264 N.W. 198.
It is further contended by appellant that the trial court committed error in permitting the witness, Fox, to testify as to what type of library was referred to in the plans and specifications compiled for use in the...
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