Thomas v. Daughters of Utah Pioneers

I concur in that portion of the opinion of Mr. Justice PRATT which determines that the act in question is not violative of Section 4 of Article I of Constitution of the State of Utah. I add to what is said in such opinion these observations: Since there are before us no facts which reveal that 1 the Daughters of the Utah Pioneers is an ecclesiastical organization or that it is engaged as an organization in propagating the Mormon faith or that it would use the building for such purposes, we are not at liberty to infer such facts or assume such objective. Furthermore, should it subsequently appear, in light of facts not now before us, that one of the purposes of the organization is that of proselyting, or that such has subsequently become one of its objectives or that the building is being used for such purpose, then an implied condition of the legislative enactment and of the lease made pursuant thereto, would be violated. That implied condition is contained in Article I, Section 4 of the Constitution. It, of course, would have to be read into the law and the lease in order to sustain the provisions of the one and the terms of the other.

Consequently, should such violation transpire, the lease could, without question, be terminated by the legislature without infringing upon the contract clause of the Constitution of the United States. Likewise, this court could, and undoubtedly would, restrain the use of the building by the Daughters of the Utah Pioneers in such circumstances.

The foregoing observations might not have applied to the act of 1941, set out in the opinion of Mr. Justice PRATT. Thereby, a simple lease of land for a consideration therein stated was to be made to the Daughters upon which land was to be constructed a building by them and for their purposes. But by the subsequent amendments, the building was to be built by the State — the legislative appropriations made total approximately four-fifths of the contract price — for an express public purpose. Use of the building for such express purpose as well as its use in conformity with the implied constitutional provision referred to above is required by any lease entered into, whatever its express terms.

Diverting for a moment to the lease executed June 5, 1941, and quoted in the opinion of Mr. Justice PRATT, such lease is, in the opinion of the writer, presently ineffective. The lease was executed pursuant to Chap. 106, Laws of Utah 1941, which, previously shown, contemplated the erection of a Pioneer Memorial Building by the lessee, which contemplated plan was radically changed subsequently to the execution of the lease, and which provided terms inconsistent therewith. Under the provisions of Chap. 128, Laws of Utah, 1945, a deposit of $75,000 by lessee rather than the sum of $50,000 provided in the lease is required. Furthermore, the lease obligates the lessee to construct the building solely at its own expense, while the 1945 and 1947 acts provide that the lessor furnish several times the amount which the lessee is required to deposit. The amendments clearly contemplated the execution of a lease subsequent to their enactment.

Is the legislation in contravention of Sec. 23, Article VI of the Constitution of Utah? I am of the opinion that it is not. The somewhat devious course by which the objective of erecting a memorial building was pursued in the several legislative sessions was such as to give pause before 2, 3 concluding that the intendment of such provision was not violated. But if in the final analysis we do find here an act which contains only one subject and find the subject clearly expressed in the title, then we must conclude that its enactment does not violate such provision.

Viewing the several enactments as a whole — the Act of 1941 and the amendments of 1943, 1945 and 1947 — the provisions thereof pertain to only one subject. The word "subject" is not synonymous with "provision." Many provisions may be necessary to effectuate the single object of an enactment. 1 Sutherland Statutory Construction, 3rd Ed., Sec. 1710, p. 301. Had the total legislation been enacted at one time, then the subject of the act would be the erection of a pioneer memorial building to house pioneer relics, documents and historical data relating to the life and work of the Utah pioneer. The provisions of such enactment dealing with the leasing of the building, the purchase of additional real estate if necessary, and making an appropriation to effectuate the objective of the legislation are clearly germane to the subject. Hence, there is no duplicity of subject-matter. See Edler v. Edwards, 34 Utah 13, 95 P. 367.

Furthermore, such subject is expressed in the title, within the meaning of the invoked constitutional provision. It may be conceded that had the legislature in 1945 attempted to change the body of the act by including therein the provision making an appropriation without amending the title, the 4, 5 added matter would be of no effect because violative of Sec. 23, of Article VI of the constitution. But the title of the act was amended in 1945 so as to include therein and call attention to the fact that an appropriation was provided for in the act. To the effect that where an amendatory act adds new matter to the original act but likewise amends the title of the original act so as to embrace such matter, a constitutional provision requiring the subject to be clearly expressed in the title of an act, is not violated, seeO'Donnell v. Powell, 9 Cir., 282 F. 1. And see 1 Sutherland Statutory Construction, 3rd Ed., p. 347, and cases cited under note 12.

The remaining constitutional grounds cited by plaintiff as requiring the issuance of the writ prayed for, remain to be considered. Is the law as it stands violative of Article I, Sec. 23, Constitution of Utah, which prohibits the legislature from granting irrevocably any franchise, 6 privilege or immunity; or of Article VI, Sec. 26, which prohibits the enactment of any private law granting any privilege, franchise or immunity? Incidentally involved and perhaps implicit in the constitutional provision is the implied constitutional limitation on the legislative power to enact irrepealable laws. This limitation and the reason therefore are well expressed in the following quotation from 1 Cooley's Constitutional Limitations, 8th Ed., p. 246:

"Similar reasons to those which forbid the legislative department of the State from delegating its authority will also forbid its passing any irrepealable law. The constitution, in conferring the legislative authority, has prescribed to its exercise any limitations which the people saw fit to impose; and no other power than the people can superadd other limitations. To say that the legislature may pass irrepealable laws, is to say that it may alter the very constitution from which it derives its authority; since, insofar as one legislature could bind a subsequent one by its enactments, it could in the same degree reduce the legislative power of its successors; and the process might be repeated, until, one by one, the subjects of legislation would be excluded altogether from their control, and the constitutional provision that the legislative power shall be vested in two houses would be to a greater or less degree rendered ineffectual."

I conceive that the cited provision of the constitution relative to franchises and privileges 7 means to apply this general limitation to a particular field. Irrepealable and irrevocable are synonymous.

With the enunciated principle in mind I address myself to what is granted by lease for 99 years. Under such a grant

"during the existence of the lease the tenant is the absolute owner of the demised premises for all practical purposes for the term granted, the landlord's rights being confined to his reversionary interest * * * With the exception of a contrary provision in the lease, and with certain other exceptions, the lessee has the sole and exclusive right to the occupation and control of the premises during the term, and the landlord has no authority during the term to enter or otherwise disturb the tenant in his occupancy and enjoyment." 32 Am. Juris., Landlord Tenant, Sec. 76, p. 89.

Such, I assume, was the estate in the land in question which it was the intention of the legislature to convey by the act of 1941. It was a lease of the land in question to a private corporation for its own use. And assuming no inhibition upon the legislature which would preclude its sale or its disposal otherwise — and none is suggested by applicant — there is no reason why it might not grant a lesser estate therein.

But the amendatory act of 1945 changed radically the nature and objectives of the legislation. The building is by such act to be constructed by the State for a specified public Purpose. It is this fact which brings into focus the question of tying the hands of future legislatures with respect to 8 the use and control of public property dedicated to a public purpose. Should it not be held that implicit in the grant of the legislature is the reserved right of the law making body to determine in the future in its discretion whether the public purpose enunciated in the act is being carried out by the custodians of the building, we would be, in my opinion, face to face with irrepealable legislation. I make this observation aware of the fact that one exception to the general rule as to irrepealable laws is that a state through its legislature may make an irrevocable grant to a private individual or corporation which when constitutionally granted is protected by Section 10 of Article I of the Constitution of the United States. The point is that if the grant here be so construed as to preclude future legislatures from determining whether the public purpose for which the grant is made is being properly carried out, it is violative of the provisions of the constitution cited at the outset of this discussion. But since the law can be constitutionally construed as not abrogating such legislative power, I am constrained to concur with the majority in so construing it.

Further, there is in my opinion, an additional reason why the writ of prohibition should not be granted. If the law in its final form is construed — and the majority of the court have so construed it — as evidencing as the paramount purpose of the legislature the erection of a pioneer memorial 9 building by the State and only incidentally to put such structure in the hands of the Daughters of the Utah Pioneers for the custody and control thereof, then the provision leasing the structure to the Daughters is clearly severable from the provisions relating to the erection of the building. In such situation, if it is reasonable to find that the legislative intent is to erect the building itself then, though the lease to the Daughters be held invalid, we are required to give effect to that intent, and hence to refrain from placing a restraining hand on its consummation. For the reasons stated, I am of the opinion that the writ should be denied.