Thomas v. Daughters of Utah Pioneers

• Decision Date: 14 July 1948
• Docket Number: 7130
• Citation: 114 Utah 108,197 P.2d 477
• Court: Utah Supreme Court
• Parties: THOMAS v. DAUGHTERS OF UTAH PIONEERS et al

197 P.2d 477

114 Utah 108

THOMAS v. DAUGHTERS OF UTAH PIONEERS et al

No. 7130

Supreme Court of Utah

July 14, 1948

Proceeding By James Rolla Thomas, For Himself And All Other Persons Similarly Situated, For A Writ of Prohibition Enjoining The Daughters of Utah Pioneers And Others From Acting Under Legislation Authorizing Construction of The Pioneer Memorial Building And Display of Historical Relics Therein Alternative Writ Quashed, Peremptory Writ Denied, And Petition Dismissed

Certiorari Denied by U.S. Supreme Court May 16, 1949.

Rehearing denied September 14, 1948. [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Allen G. Thurman, N. J. Cotro-Manes and W. Stanford Wagstaff, all of Salt Lake City, for plaintiff.

Grover A. Giles, Atty. Gen., and Martin M. Larson, of Salt Lake City, for defendants.

Pratt, Justice (dissenting). McDonough, Chief Justice. Latimer, Justice, concurring Wade, J., concurs in the opinions of McDonough, C. J., and Latimer, J. Wolfe, Justice (dissenting).

OPINION

McDonough, Chief Justice.

The attention of the reader is invited to the fact that this opinion is the majority opinion only as to the question of the violation of Section 4, Article I of our State Constitution pertaining to the expenditure of public monies for religious purposes. Upon the other issues involved it is a minority opinion, and the majority of the court conclude that the writ should be denied. As this opinion contains a complete statement of the historical and factual background of the case it introduces the determination of the case on this appeal.

This matter is before us upon petition for an alternative writ of prohibition, which, by stipulation of the parties and in order to expedite final determination, is to be considered as a petition for a peremptory writ of prohibition. The parties also agreed that this court may on its own motion, or upon motion of counsel take evidence with respect to the issues, the same to be submitted either by stipulation, or by the taking of testimony either before the court or by reference.

Plaintiff seeks to restrain the defendants, and perpetually enjoin them from action under and pursuant to certain legislation enacted for the purpose of building a certain memorial building and the display therein of historical relics of this state. The issues will be specifically treated hereafter, but may be classed generally as an attack upon the constitutionality of the legislation from the standpoints of the separation of state and church, of special and irrevocable privilege, and of statutory construction. References herein to the Society or the lessee are references to the Daughters of Utah Pioneers.

Before taking up the legislation directly involved, there is a bit of legislative history that may be of some importance in considering this case. In February 1921, a

"Resolution authorizing the Governor to appoint a committee of five to investigate and report regarding the provision of a suitable place for the preservation and housing of documents, etc. belonging to and pertaining to the history of the State of Utah" (italics added)

was passed by our legislature; and it was signed by the Governor, March 5, 1921. This was known as S. J. R. No. 4.

Under the heading "Communications from the Governor" dated February 10, 1923, and bearing the following letter of transmittal, the report of a Committee was submitted and filed and referred to the Committee on Appropriations:

"To the Senate:

"I have the honor to transmit herewith, the report of the committee appointed by me, in compliance with the provisions of Senate Joint Resolution No. 4, Fourteenth Legislature, pertaining to the proposal to erect a suitable building for the housing of State documents, relics and other sources of information relating to the history of Utah.

"Charles R. Mabey,

"Governor

"To the Honorable Charles R. Mabey,

"Governor of Utah.

"Sir:

"The undersigned have the honor herewith to submit their report, in compliance with the terms of Senate Joint Resolution No. 4, passed February 23, 1921, and approved March 5, 1921, which reads as follows:

"'Whereas the history of any people can only be properly preserved for future generations when a place is provided wherein the documents, relics and other sources of information relating to their life and work may be housed; and

"'Whereas, we believe that the erection of a memorial building to contain such records and relics would receive the approval of the people of this State; therefore

"'Be it Resolved by the Legislature of the State of Utah that the Governor is hereby authorized and requested to appoint a committee of five resident citizens of the State, who shall serve without pay, whose duty shall be to consider the subject of the erection of a building for that purpose and to report to the next session of the Legislature.'

"In the exercise of the authority conferred, by this resolution, and in order to carry out its provisions, the Governor, in August, 1921, appointed as said committee, Mrs. Alice Wright of Provo; Mrs. Donnette Smith Kesler; Dr. George W. Middleton, Dr. John Z. Brown, and Mrs. Annie Wells Cannon, all of Salt Lake City; and though the committee has not held a large number of meetings, it nevertheless feels that it has with reasonable thoroughness fulfilled the duty entrusted to it. An investigation has been made as to the whereabouts and condition of many records, documents, relics, etc., pertaining to the history of our State, and we are obliged to report with regret that though Utah is the very heart of Pioneer history in the West these priceless records and relics are widely scattered and lamentably uncared for except where local patriotic clubs or societies -- notably the Daughters of Utah Pioneers -- have undertaken the task of collecting and preserving them. In this connection we beg to draw attention also to the fact that many unique and valuable historical land marks -- Cove Fort in Millard County, for example -- denoting special phases in the State's formation and development, are in danger of being destroyed or commercialized through private ownership -- a fate which we hardly need say, would be universally deplored, and which obviously can be more easily averted now than at any later date.

"In the course of its inquiries the committee has ascertained that fourteen of the States in the American Union have historical memorial buildings specially devoted to the housing of the records and relics of those commonwealths, while twenty-nine States have space reserved in their respective Capitols for these purposes. Of the remaining eight States, some have placed their historical records in the keeping of their universities -- a plan which is generally regarded as unsatisfactory for the reason that such institutions are closed part of the year, also that the documents are not readily accessible, and come under the supervision and control of the school authorities instead of being regarded as the property and heritage of the State.

"Your Committee firmly believes that the time is not far distant when the people of Utah will demand the erection of a Memorial in honor of the labors and achievements of the Pioneers -- the founders of their beloved State. With that thought in mind, we recommend that the Legislature now about to convene be asked to reserve a site on the Capitol grounds for the erection of a Pioneer Memorial Building for the housing and care of all state historical records, documents, relics, etc., and for such other purposes as would conduce to the preservation and illustrations of Pioneer history; and that until such building shall be erected proper space be allotted in the State Capitol for the care of such documents and relics as have been or shall be collected.

"The committee cannot feel to close its report without bestowing a word of commendation upon the untiring and patriotic services of the Daughters of Utah Pioneers in the various counties of the state, in striving to collect and preserve everything of historic interest. Their energy and zeal in this service deserve state-wide recognition and gratitude.

"In conclusion we desire to express our appreciation of the honor of having been appointed to act on the Pioneer Memorial Committee; and we respectfully advise that the work thus far done, and as represented in this brief report, be carried on with ever-increasing enthusiasm and loyalty until the desired objects are fully attained.

"Respectfully submitted,

"Alice P. Wright

"Donnette Smith Kesler

"Geo. W. Middleton

"John Z. Brown

"Annie Wells Cannon."

(Italics added) Other events of interest were:

On January 27, 1923, a resolution from the Utah Daughters of Pioneers requested an appropriation to take care of their work, was presented and referred to the Committee on Appropriations in the House. No further action appears to have been taken on the resolution.

On January 29, 1923, the following petition was presented:

"To the Senate and House of Representatives of the State of Utah:

"Your Memorialists -- the Daughters of Utah Pioneers -- respectfully represent that,

"That Society of the Daughters of Utah Pioneers has now been organized for twenty one years, and during that period of time its members have endeavored to carry out the objects of its organization, namely: to perpetuate the names and achievements of the men and women who were the Founders of this great Commonwealth by preserving old land-marks, collecting relics, establishing a library of pioneer historical matter, securing unprinted manuscripts, photographs, and all such data as shall aid in perfecting a record of the strong character, pure life, and heroic deeds of the pioneers, also to...