Board of Education of City of Covington v. Board of Trustees of Public Library of City of Covington

• Decision Date: 02 May 1902
• Parties: BOARD OF EDUCATION OF CITY OF COVINGTON v. BOARD OF TRUSTEES OF PUBLIC LIBRARY OF CITY OF COVINGTON. [1]
• Court: Kentucky Court of Appeals

68 S.W. 10

113 Ky. 234

BOARD OF EDUCATION OF CITY OF COVINGTON v. BOARD OF TRUSTEES OF PUBLIC LIBRARY OF CITY OF COVINGTON. ^[1]

Court of Appeals of Kentucky.

May 2, 1902

Appeal from circuit court, Kenton county.

"To be officially reported."

Agreed case between the board of education of the city of Covington and the board of trustees of the public library of the city of Covington to test the validity of certain acts of the legislature. Judgment for the board of trustees of the public library of the city of Covington, and the board of education of the city of Covington appeals. Reversed.

Byrne &amp Reed and W. A. Byrne, for appellant.

H. C Theissen, for appellee.

DU RELLE, J.

This is an agreed case to test the validity of two acts of the legislature with reference to public libraries in cities of the second class. In the act of March 19, 1894, for the government of cities of the second class, article 10, § 15 (Ky. St. 1894, § 3210), provides: "Sec. 15. That as soon as a sufficient fund for that purpose shall be accumulated under the provisions of this act, augmented by private contributions or otherwise, there shall be established and maintained, in connection with the public school system of the city, and as a part of it, a public library, which shall under proper regulations established by the general council be under the direction, custody and control of the school board. Said library shall at all reasonable times, and under reasonable directions, be open to the pupils of the public schools of such age and grade as may be fixed in the regulations of the school board, and shall, in like manner, be open and forever free to the public during reasonable and proper hours of the day, and until at least nine o'clock of the evenings; but said library may be closed on Sunday if deemed proper. When there is already established in the city a public library, the school board, under the authority of the general council, may enter into an arrangement with the person, association or corporation owning and controlling such library, whereby such library may be transferred or leased to the school board for a time or in perpetuity, or united with that established by the city under the provisions of this act, and in execution of this purpose the school board may appropriate and expend, with the approval of the general council, the funds coming to their hands under the provisions of this section: provided, however, that the library so leased, purchased, acquired, united with or established, shall be free to the pupils of the public schools and to the general public, and that said library shall be strictly non-sectarian, and so conducted. That in aid of the establishment and maintenance of such free public library, there is hereby appropriated, and the general council shall direct to be paid over to the school board annually, or at more frequent periods, one per centum of the net amount of the tax levied and collected by the city for school purposes, and one half of the net amount of all fines and costs collected in the police court: provided, said one-half of fines and costs so appropriated to said library fund shall not exceed five thousand dollars per annum." Acts 1894, p. 304. By section 4 of the act of March 15, 1898, to amend the act for the government of cities of the second class (Ky. St. 1899, § 3210), it was provided: "That section fifteen of article ten of the act mentioned in the title of this act be amended and re-enacted so as to read as follows: 'That as soon as a sufficient fund for that purpose shall be accumulated under the provisions of this act, augmented by private contributions or otherwise, there shall be established and maintained a free public library, which shall be under the direction and control of a board of trustees, consisting of five members to be appointed by the mayor for a term of four years, to be styled "The Board of Trustees of the Public Library." Said board shall have the custody, control, management, and expenditure of all funds that may heretofore have been accumulated for free public library purposes, or that may be hereafter accumulated for, or devoted to said purposes. The members of said board shall serve without compensation, they shall each give a bond in the sum of five thousand dollars for the faithful performance of their duties, and shall take an oath faithfully to perform their duties before the mayor. Said board shall have the power necessary to establish, maintain and conduct said free public library, and said board shall establish rules and regulations for the proper conduct of said library. Said library shall be open and free to the public, under such rules and regulations as aforesaid during reasonable and proper hours, and until at least nine o'clock at night, but said library may be closed on Sunday if deemed proper. When there is already established in the city a public library, the board of trustees of the public library, may enter into an agreement with the person, association, or corporation owning and controlling such library whereby such library may be transferred or leased to said board for a term of years or in perpetuity or united with that established by the city under the provisions of this act. Said library shall be strictly non-sectarian and so conducted. In aid of the establishment and maintenance of such library, there is hereby appropriated and the general council shall annually direct to be paid over to said library board three per centum of the net amount of taxes levied annually in the city for school purposes, and one half of the net amount of all fines and costs collected in the police court."' Acts 1898, p. 157.

The question submitted is whether "it is unlawful for the general council to appropriate the one per cent. and the three per cent. of the taxes levied and collected for school purposes toward the maintenance of the free public library," and whether "the acts providing for said appropriation are unconstitutional." On behalf of appellant it is insisted that the percentage appropriated from the net amount of taxes levied for school purposes is a part of the common-school fund, and the use of it for any other purpose than for the common schools is prohibited by section 184 of the constitution; that the public library is not a part of the common-school system, and this aid to it is not in aid of the common schools; and that the provisions of the statutes above quoted are, in any event, in conflict with section 180 of the constitution, because by these acts a tax levied and collected for one purpose is devoted to another purpose.

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