Opinion No. (1981)

REQUESTED BY: Senator Elroy M. Hefner Member of the Legislature State Capitol Building Lincoln, Nebraska 68509

Dear Senator Hefner:

This is in response to your inquiry regarding the ownership of the statue of William Jennings Bryan which was once located on the north approach to the Capitol Building, and in 1967 was moved to its present location at Bryan Memorial Hospital, and the right, if any, of the Legislature to move the statue from its present location.

In order to determine the ownership of the statue a review of its history is necessary.

In 1941 the Legislature, by resolution, provided for the appointment of a memorial commission whose duty it would be to secure a suitable memorial to Bryan to be erected on the Capitol grounds at no expense to the state.

After World War II the commission engaged a sculptor to make a suitable statue of Bryan. With the approval of Governor Griswold the commission caused the construction of a footing for the statue near the north end of the walk leading to the steps rising to the north entrance of the Capitol, and prepared a dedicatory program to give the statue to the state on September 1, 1947.

As a result of objections to placing the statue on the Capitol grounds by many persons and organizations, in 1952 the commission entered into an agreement with Governor Val Peterson that without the state taking legal title to the statue the statue would be placed temporarily on the site provided for it in front of the north entrance to the Capitol, until another site became available in front of a State Historical Society building, or on a proposed parkway or plaza to be constructed by the city on 15th Street between K and L Streets.

The agreement also provided that:

Should neither the Historical Society or 15th Street plaza sites become available, then the Commission may remove the statue from the Capitol grounds and have it erected at any point in any city or state which the Commission thinks a suitable location, it being the intention of this agreement that the legal title to the statue does not pass to the State of Nebraska because it is temporarily erected on the walkway leading to the Capitol.

In 1953 the Legislature enacted Neb.Rev.Stat. § 72-723 (Reissue 1976) which provides as follows: `All monuments and memorials now fixed to the building or the grounds of the State Capitol shall be regarded as permanent fixtures, and shall not be removed without the consent of the Legislature.'

Insofar as the Bryan statue is concerned, it is our conclusion that the state did not acquire title to the statue by this legislation because, (1) it is contrary to the provisions of the contractual agreement of December 8, 1952, between the Commission and Governor Val Peterson; and (2) it being very clear that at the time of enactment of § 72-723 if the title to the statue was in anyone, it was in the Memorial Commission, and therefore § 72-723 would be contrary to the provisions of Article I, Section 21 of the Constitution of Nebraska, which provides: `The property of no person shall be taken or damaged for public use without just compensation therefor.'

On April 13, 1967, the Legislature, by motion, consented `to the removal of the Bryan memorial statue so that it may be placed upon the grounds of the Bryan Memorial Foundation.'

On June 17, 1967, the statue was moved from the Capitol grounds and placed in front of `Fairview', the Bryan family home, located on the grounds of Bryan Memorial Hospital.

We have been unable to find any record of any objection to the move of the statue by the Memorial Commission, or, for that matter, any record of the existence of the commission on or after January 3, 1967.

Since there appears to be no record of any objections to the removal of the statue to the Bryan Memorial Hospital grounds in 1967, and since the statue has remained there for more than ten years, it is our conclusion that in the absence of such a record to the contrary, the statue is the property of Bryan Memorial Hospital and cannot be removed therefrom without the consent of the Bryan Memorial Hospital Board of Directors.

Very truly yours, PAUL L. DOUGLAS Attorney General Bernard L. Packett Assistant Attorney General