Alvey v. Brigham

• Decision Date: 26 April 1940
• Citation: 150 S.W.2d 935,286 Ky. 610
• Parties: ALVEY v. BRIGHAM et al.
• Court: Kentucky Court of Appeals

150 S.W.2d 935

286 Ky. 610

ALVEY v. BRIGHAM et al.

Court of Appeals of Kentucky

April 26, 1940

Rehearing Denied June 6, 1941.

Opinion Extended June 20, 1941.

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division; Churchill Humphrey, Judge.

Suit by J. E. Alvey a taxpayer, against Harold F. Brigham and others to enjoin the trustees of the Louisville Free Public Library from paying named defendant more than $5,000 for his services as secretary and librarian, wherein named defendant filed a demurrer. From an adverse judgment plaintiff appeals.

Reversed with directions.

Hubert Meredith, Atty., Gen., Jesse K. Lewis, Asst. Atty. Gen., and William David Becker, of Louisville, for appellant.

Hal O Williams and Lawrence S. Poston, both of Louisville, for appellees.

MORRIS Commissioner.

Appellant resident and taxpayer of Louisville, for himself and others of a class, filed suit seeking to enjoin the Trustees of the Louisville Free Public Library from paying the named appellee more than $5,000 for the latter's services as secretary and librarian. The petition sets out in detail, laws ordinances and the by-laws of the Board, under which the library was established, is operated, and the functions and duties of the secretary-librarian. Appellant contends that Mr. Brigham is an officer within the purview of § 246 of the Constitution, which, in so far as is pertinent, reads: "No public officer, except the governor, shall receive more than five thousand dollars ($5,000.00) per annum as compensation for official services."

A special act of the legislature of 1871 Loc. & Priv.Acts 1871, c. 1947, created the Public Library of Kentucky, authorizing it to raise maintenance funds by means of a lottery, in which manner it accumulated something over $400,000. In 1878 a special act incorporated the Polytechnic Society of Kentucky, Loc. & Priv.Acts 1877-78, c. 1024, and the Public Library conveyed to it all its property. Subsequently the Society was changed to Louisville Public Library, and became its successor in rights and properties.

In 1901 the city officials began communications with Mr. Andrew Carnegie, who agreed to donate $250,000 for building and equiping a library, on conditions that the city furnish land necessary for the building, secure legislation for the establishment of a free public library, and enact necessary city laws for raising by taxation of not less than $25,000 annually, for maintenance purposes. Mr. Carnegie evidently desired the institution to be free and public.

By an Act of 1902, Ch. 71, p. 158, the Louisville Free Public Library was created. Amendments were added in 1918 and 1938, all of which are now sections 2801b-1 to and including 2801c-2, Ky.Stats.1936 and Baldwin's Supp.1939. After passage of this act the city adopted ordinances meeting the approval of Mr. Carnegie, who made the gift.

When the Louisville Free Public Library was created its predecessor, a private corporation, owned a building on Fourth Avenue, wherein it conducted a library. The building was then, and has since been occupied by a mercantile establishment. Under a contract between the two Louisville libraries the building was leased to the new concern for 99 years; it thus became a part of the Free Public Library. The rents from the property were regularly turned over to the Free Library, operating in a part of the same building until completion of the library building at Fourth and York Streets.

In 1913, following litigation (Com. v. Louisville Public Library, etc., 151 Ky. 420, 152 S.W. 262) the Louisville Public Library conveyed its properties to the Free Public Library, and it thereafter received the rentals. At this point we may say that it is shown that for the fiscal year 1937-38 the funds for the use of the Louisville Free Public Library were made up as follows: City taxes, $146,764.24; rent, $56,000; fines and fees, $5,281.52; county contract, $9,000, the latter item growing out of the use of the library by county residents; § 2801c-1, Ky.Stats. It will thus be seen that if our surmise as to the last item be correct, more than $155,000 of the total during the exemplary year was raised by taxation.

Section 2801b-3, Ky.Stats.Supp.1939, provides for the election of library trustees for varying terms; for filling vacancies; making the mayor ex officio a trustee, and defines powers and duties. The Board was empowered to make rules and regulations necessary for its government, the control, management and use of the library and its properties. By § 2801b-4, providing first for the choosing from its members a president and vice-president, the Board was to "choose a secretary and treasurer and such other officers, agents and servants as it may deem *** necessary, and may prescribe the duties required of them, fix their compensations and may remove appointees at pleasure."

Article 7 of the by-laws of the Board provides for election of a librarian, subject to removal at any time, he to execute the orders of the Board. He was to have "direct charge of the library and its administration in all its departments; to carry out the policies adopted by the Board *** in regard to the management of the library, and perform such other duties as may from time to time be assigned him." He was to prepare annual report showing the use of the library, the receipts and expenditures of all moneys, and giving such information "as may be called for by the legislative body of the city," which was to be first submitted to the trustees, and when approved transmitted to the Board of Aldermen of the city. It was further provided that: "The librarian shall keep an exact and detailed account of all monies received from fines and other sources, and report the same monthly to the board *** and shall discharge such other duties *** as may from time to time be prescribed by the board of trustees."

Digressing for a moment from a recitation of the law and ordinances, we note that shortly after the named appellee was installed, a resolution was adopted dispensing with the services of the pro tem librarian, and providing that appellee, "by virtue of his office as permanent librarian, be recognized as secretary of the Board, charged with the duties attaching to his office, and as disbursing agent delegated with authority to sign checks and vouchers in accordance with the constitution and by laws." Appellee is holding under an election of April 1938, as certified by the "duly elected and qualified secretary of the board of trustees, under his hand and seal."

Section 2801b-4, Ky.Stats., provides for the choosing of a secretary, whose duties are fixed by Article 2 of the Board's by-laws, as follows: "The secretary shall keep a record of all meetings of the board; and shall have the custody and care of the seal and all papers and documents, except such documents and securities as shall properly be in charge of the treasurer, or in the custody of some of the standing committees or the chairman thereof. He shall give notice of all meetings; execute such documents as require his signature, and perform such other duties as may from time to time be assigned to him."

Mr. Brigham was chosen librarian in June 1931, and thereafter annually since the original appointment, and was officially appointed secretary in October of 1931. His compensation was fixed at $6,000 per annum.

The foregoing facts are set out in the petition and an amendment, it being sought to enjoin the Board from paying any more than $5,000 annually. To the petition, as amended, appellant filed demurrer; upon submission the chancellor sustained same; defendants stood on demurrer and the petition was dismissed with appeal granted. The chancellor in his opinion made part of the transcript, said:

"A public library is in my opinion a proprietary holding. This library was originally privately endowed; express provision is made for acceptance of future private endowment. Part of the present running expense comes from taxes, but I know of no law that forbids a city to levy a tax to maintain and operate its proprietary holding.

"I think the librarian exercises no function of government, but is an employee engaged to carry out meticulously detailed policies formed by the library board. An officer within the purview of the constitutional salary limit must, in my opinion, exercise governmental functions, which in my mind the librarian does not."

Counsel in brief for appellee contend that the judgment below should stand, because (a) in no sense of the word as used in the Constitution, is Mr. Brigham an officer, since he in no wise is performing an official duty; (2) if so, it is in the performance of a duty in a proprietary and not a governmental function of the city. (b) § 246 of the Constitution which fixes the limitation, does not apply where revenue is derived from sources other than taxes.

Taking up first the status of the free public library by the city, we are impressed with the language used in Dawson v. Knox, 267 N.Y. 565, 196 N.E. 582, to the effect "that the line between a public office and public employment, has not been too clearly marked by judicial expression, probably because the distinction is not too clear." In Lexington v. Thompson, 250 Ky. 96, 61 S.W.2d 1092, this court remarked that it was difficult to frame an answer to the question so as to indicate clearly the line of separation, though the court there found little difficulty in deciding the question at issue, on the given state of facts. What is said of the dim line as between office and employment, applies in a measure to the distinction between proprietary and governmental functions.

Counsel point to the case of City of Lexington v. Thompson, 113 Ky. 540, 68 S.W. 477, 480, 24 Ky.Law Rep. 384, ...