Lowe v. City of Eugene ( 1969 )

LANGTRY, J.

(Pro Tempore).

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 looldng 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 H. 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 religions 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. 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, tests, 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 v. Morrison, 57 So2d 238 (La 1952), cert. den., April 28, 1952; and Paul v. Dade County, 202 So2d 833 (Fla Ct App 1967), cert. den., Florida Supreme Court, 207 So2d 690, cert den., U. S. Supreme Court, 390 US 1041 (no opinion, Mr. Justice Douglas dissenting).

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

“ ‘ “St. Frances Xavier

Mother Cabrini

Erected August 25,1949

By The Order Of The Alhambra

During Its 23rd Biennial Convention.” ’ ”

This statue 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 So2d 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 religions in character, and then held:

“ ‘The only restriction against the City is that it cannot discriminate. That any statne 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 So2d 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 report of that case states that from 1955 to 1966 the Chamber of Commerce had erected a large cross consisting of lights on the side of the Dade County courthouse during the Christmas season. The county bore no part of the cost.

The practice of permitting the cross to be there was challenged by a non-Christian resident taxpayer.^③ The county admitted that it allowed the “Latin” cross upon the building and that such a Latin cross could be used as a religious symbol. But it asserted that crosses also have secular connotations and that the Latin cross on the courthouse had a secular connotation as a “yule” season decoration.

The defendants in the case at bar have made contentions similar to those made by Dade County. In this regard we noted above that the trial court in the case at bar found the cross to be “primarily a religious symbol,” and “secondarily a memorial of or monument to a vitally significant value system in the life and history of our nation and this community.” With these findings we do not disagree.

In Paul v. Dade County, the court held:

“The applicable constitutional criterion, as we divine it, is that set forth by the United States Supreme Court in Abington Tp. School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963):

" * The may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion. Everson v. Board of Education, [330 U.S. 1, 67 S. Ct. 504, 91 L.Ed. 711, 168 A.L.R. 1392, supra;] McGowan v. Maryland, supra, 366 U.S. [420] at 442, 81 S. Ct. [1101] at 1113-1114, 6 L.Ed.2d 393.’ Id. at 374 U.S. 222, 83 S.Ct. 1571.

“It has also been observed that many symbols, though religious in origin, have ceased to have religious meanings or have also acquired secular meanings. See Abington Tp. School District v. Schempp, supra. For example, the dove, the star, the fish, and three interwined [sic] rings have all had, or presently may have, some religious symbolism attached thereto. On the other hand, some have also acquired certain secular meanings.

“The record does not indicate that this temporary string of lights forming a cross was used to support, aid, maintain or establish any religion or religious edifices. Its purpose was not to promote the participation by anyone in the affairs of any religious organizations or sect.

“Consequently, we hold that under the Sehempp test, this does not amount to the establishment of a religion in violation of the First Amendment, and that it does not amount to a religious activity, Controlled, supported or influenced by the government as was found to exist in Engel v. Vitale, 370 U.S. 421, 82 S. Ct. 1261, 8 L.Ed.2d 601 (1962). See also: State ex rel. Singelmann v. Morrison, 1952 L.App., 57 So.2d 238.” (Emphasis supplied.) 202 So2d at 835.

The Florida court referred to the lights as temporary in character; the cross in the case at bar is permanent in physical character. Obviously, however, a physically permanent structure such as this cross can be quickly removed. The Dade County cross was put up from 1955 to 1966, a total of twelve years. It was assuming the proportions of tradition, which suggests permanency. In this respect, the cross in the case at bar and the cross on the Dade County courthouse share the same characteristic.

The trial court in the case at bar failed, apparently by oversight, to receive in evidence all of defendants’ offered Exhibits 2 through 53. These exhibits, which we hold should have been received, are in the record and we are considering them. They indicate that many crosses and other religious symbols traditionally have been used as monuments and memorials upon public property throughout Oregon and the United States, without appellate court challenge except as noted in this opinion. This, in itself, is indicative of a feeling among a people who strongly support a constitutional government, that there is no constitutional question involved in such a case, or it is so minimal as not to merit notice. The evidence indicates that to many people the cross, whether it is a Latin cross or some other type, carries connotations that are not essentially religious in character and to such people it has primarily secular meanings. There is nothing in the evidence which reasonably supports an inference that the purpose of the defendants in erecting the cross was to promote the participation by anyone in, or the advancement or inhibition of, any religious belief or organization, or that such was its primary effect. In Dickman et al v. School Dist. 62C et al, 232 Or 238, 247, 366 P2d 533 (1961), cert. den. 371 US 823, 83 S Ct 41, 9 L ed 2d 62 (1962), Mr. Justice O’Connell, speaking for this court, said:

“® * * A certain amount of interplay of influences exercised by state and church has been permitted. It is not difficult to cite examples. * * * [M]any * * * religious practices and connotations are found in the functioning of government, both state and federal.”

We do not believe that the erection and maintenance of the cross in question amounts to a religious activity which violates the applicable provisions of the Oregon Constitution or the First and Fourteenth Amendments to the United States Constitution.

The official action of the City of Eugene in issuing the building and lighting permits for the cross a few days after it was erected, and after a widely publicized and well attended public hearing, constituted formal permission of the city for it to remain there at no cost to the city. Such a permit appears to be limited in that it is revocable in nature. 10 McQuillin, Municipal Corporations 183, § 28.53 (1966).

The conclusions of this opinion follow a study of the extensive evidence, assignments of error, answers, and arguments. Although not all of them have been mentioned in this opinion they have not been overlooked. The decree of the trial court is reversed and the ease remanded for a decree to be entered consistent with this opinion.

① As early as 1874, the then Supreme Court of New York held that:

“Statues of men, and in commemoration of great public events, are now considered as the legitimate belongings of public places * * *. Cities * * * give abundant proof that statues, ornamental temples, obelisks, pillars and columns, have long been considered legitimate objects of public approval and admiration, and they are neither to be hid in a corner, nor placed where they cannot be seen.” Tompkins v. Hodgson, 2 Hun 146 (NY 1874).

To the same effect see Parsons v. Van Wyck, 56 App Div 329, 67 NYS 1054 (1900); Vale v. City of San Bernardino, 109 Cal App 102, 292 P 689 (1930); Brahan v. City of Meridian, 111 Miss 30, 71 So 170 (1916).

“* * * [T]he use of park lands for buildings or purposes which are incidental to its use as a public park are generally sustained, where the city retains control of the premises * * Rhyne, Municipal Law 473, § 21-7.

② The opinion of the trial court was rendered in this case on January 5, 1967. Paul v. Dade County, supra, was decided by the Florida Appellate Court on October 3, 1967, and certiorari was denied by the United States Supreme Court, 390 US 1041, on April 29, 1968. Appellant’s brief indicates the pleadings of Paul v. Dade County and the trial court’s decree therein were brought to the attention of the trial judge in the case at bar.

③ The challenge was based upon the First Amendment to the United States Constitution, and upon Sections 5 and 6 of the Bill of Rights of the Florida Constitution. The latter sections are:

“Section 5. The free exercise and enjoyment of religious profession and worship shall for-ever be allowed in this State * ** * but the liberty of conscience hereby secured shall not be so constrewed [sic] as to justify licentiousness or practices subversive of, or inconsistent with, the peace or moral safety of the State or society.

“Sec. 6. No preference shall be given by law to any church, sect or mode of worship and no money shall ever be taken from the public treasury directly or indirectly in aid of any church, sect or religious denomination or in aid of any sectarian institution.”

The section of the Louisiana Constitution construed in State v. Morrison, supra, is:

“Section 4. Every person has the natural right to worship God according to the dictates of his own conscience. No law shall be passed respecting an establishment of religion, nor prohibiting the free exercise thereof; nor shall any preference ever be given to, nor any discrimination made against, any church, sect or creed of religion, or any form of religious faith or worship.” LSA Constitution, Art. I, § 4.

The sections of Article I of the Oregon Constitution plaintiffs claim to be violated are:

“Section 2. All men shall be secure in the Natural right, to worship Almighty God according to the dictates of their own consciences.

“Section 3. No law shall in any case whatever control the free exercise, and enjoyment of religeous (sic) opinions, or interfere with the rights of conscience.

“Section 5. No money shall be drawn from the Treasury for the benefit of any religeous (sic), or theological institution, nor shall any money be appropriated for the payment of any religeous (sic) services in either house of the Legislative Assembly.”