Board of Trustees, Newport Public Library v. City of Newport

• Decision Date: 13 March 1945
• Citation: 187 S.W.2d 806,300 Ky. 125
• Parties: BOARD OF TRUSTEES, NEWPORT PUBLIC LIBRARY, v. CITY OF NEWPORT.
• Court: Kentucky Court of Appeals

187 S.W.2d 806

300 Ky. 125

BOARD OF TRUSTEES, NEWPORT PUBLIC LIBRARY, v. CITY OF NEWPORT.

Court of Appeals of Kentucky

March 13, 1945

Rehearing Denied June 22, 1945.

Appeal from Circuit Court, Campbell County; Ray L. Murphy, Judge.

Action by the City of Newport against the Board of Trustees of the Newport Public Library to determine whether the act requiring municipalities to levy taxes within prescribed limits to support their public libraries is unconstitutional. From a judgment declaring the act unconstitutional, defendant appeals.

Reversed with directions.

Louis Reuscher and Vincent Reuscher, both of Newport, for appellant.

Carl H Ebert, Walter J. Burke, and Wm. J. Heringer, all of Newport for appellee.

Samuel M. Wilson, of Lexington, amicus curiae for Lexington Public Library.

Anna H. Settle, of Louisville, amicus curiae for Kentucky Library Ass'n.

Wm. A. Minihan, of Lexington, amicus curiae for City of Lexington.

VAN SANT, Commissioner.

The question is whether the General Assembly may require a municipality to levy a tax, within minimum and maximum limits, to support a public library owned and being operated by the municipality. It is conceded the Legislature has such power, unless inhibited by Section 181 of the Constitution, as amended in the year 1903. The section, in so far as pertinent, reads: 'The General Assembly shall not impose taxes for the purposes of any county, city, town or other municipal corporation, but may, by general laws, confer on the proper authorities thereof, respectively, the power to assess and collect such taxes. * * *'

The act under consideration was passed by the General Assembly in its regular session of 1944, and is compiled in KRS 173.300 to 173.410, inclusive.

Appellee is a city of the second class, and instituted the action under Section 639a-1 to 639a-5 of the Civil Code of Practice, seeking a declaration of its rights: contending that Sections 2, 7, and 11 of the act (KRS 173.310, 173.360, and 173.400, respectively) contravene the section of the Constitution quoted above. Therefore, we will discuss the act as if it were applicable to second-class cities alone, although our remarks apply with equal force to all 'governmental units' covered by the act. In abbreviated terms, and in its application to second-class cities, the act provides: That a city with a minimum assessed valuation of five million dollars may provide library service for its inhabitants according to any of four methods, one of which was the method adopted by the City of Newport to create the Newport Public Library in the year 1896. After the creation of the library service by one of the approved methods, the legislative body of the city is mandatorily required to levy a tax of not less than five cents (5¢) nor more than fifteen cents (15¢) on each one hundred dollars ($100) worth of property assessed for taxation by the city. Every existing public library established under provisions of State law in effect previous to the passage of the 1944 Act must operate under the authority of the 1944 Act.

Section 181 of the Constitution has been construed by this court in innumerable cases. In each instance we have held that the inhibition upon the power of the Legislature to levy a tax for a municipality applies to levies for local purposes, and not to matters with which the public at large is concerned. In this connection it has been held that the inhibition applies in respect to levies for fire departments, McDonald v. City of Louisville, 113 Ky. 425, 68 S.W. 413, 24 Ky. Law Rep. 271; Campbell v. Board of Trustees of Firemen's Pension Fund of Louisville, 235 Ky. 383, 31 S.W.2d 620; and waterworks, Kenton Water Co. v. City of Covington, 156 Ky. 569, 161 S.W. 988. On the other hand, it has been held that that section is not applicable to: County farm bureaus, Hendrickson v. Taylor County Farm Bureau, 196 Ky. 75, 244 S.W. 82; police departments, Board of Trustees of Policemen's Pension Fund v. Schupp, 223 Ky. 269, 3 S.W.2d 606; Duke v. Boyd County, 225 Ky. 112, 7 S.W.2d 839; payment of coroners' fees, Whittenberg v. City of Louisville, 238 Ky. 117, 36 S.W.2d 853; homes for dependent and delinquent children, Fox v. Board of Louisville and Jefferson County Children's Home, 244 Ky. 1, 50 S.W.2d 67; tubercular sanatoriums, District Board of Tuberculosis Sanitarium Trustees for Fayette County v. Lexington, 227 Ky. 7, 12 S.W.2d 348; schools, City of Louisville v. Commonwealth, 134 Ky. 488, 121 S.W. 411; and junior colleges, Pollitt v. Lewis, 269 Ky. 680, 108 S.W.2d 671, 113 A.L.R. 691. The distinction is well drawn in Board of Trustees of Policemen's Pension Fund v. Schupp, supra [223 Ky. 269, 3 S.W.2d 609], wherein it is said: 'It is evident from a reading of section 181 that the makers of our Constitution realized and provided for the twofold character of municipal corporations. One of these is purely municipal, affecting only local matters of concern to no one in particular except the inhabitants of the particular municipality. The other is its governmental character, in which the state at large is concerned. This twofold character is well pointed out in 19 R.C.L. p. 697, § 9, and in 43 C.J. p. 179, § 178. The general public of the state is not interested in the imposition of taxes for purely municipal purposes, and the General Assembly is forbidden to levy such taxes, but the general public is interested in the maintenance of order in all municipalities of the commonwealth, and the General Assembly may by general laws, require municipal corporations to take such steps and to impose such taxes as will provide for the maintenance of order.'

It is true, the act under consideration in that case was merely an enabling act and contained no mandatory provision. But the principles above quoted are well established in this jurisdiction. The decision in this case, therefore, turns upon a determination of the category, i. e., local or governmental, into which public libraries must be placed.

At the outset, it may be helpful to determine the respect to be accorded certain language contained in Alvey v. Brigham et al., 286 Ky. 610, 150 S.W.2d 935, 936, 939, 135 A.L.R. 1024. In the course of the opinion it is said: 'We do not think this court, in the Thompson case, supra (City of Lexington v. Thompson, 113 Ky. 540, 68 S.W. 477, 480, 24 Ky. Law Rep. 384, 57 L.R.A. 775, 101 Am.St.Rep. 361), committed itself on the proposition that the maintenance of the library in question here is proprietary, though we may say that following the Campbell case, supra (Campbell v. Board of Trustees of Firemen's Pension Fund, 235 Ky. 383, 31 S.W.2d 620), it may and should be free from state interference. There is no evidence here of attempt on the part of the state to dictate, control or interfere. Its acts merely delegate governmental powers.' (Our emphasis.)

It is obvious that the words we have emphasized have no rightful place in the opinion, and that the question of the right of the Legislature to dictate to cities in respect to public libraries was not presented in that case. The statement, then, that the library in question 'may and should be free from state interference' is obiter dictum, or an utterance of the writer of the opinion in turning aside, for the time, from the question presented. This utterance, therefore, cannot be considered as a precedent in determining the question now under consideration.

With that opinion disposed of, we are free to examine the question upon basic principles, and in the light of other cases bearing upon the question.

It seems that the best approach to the subject would be to examine the function of a public library; and then to determine the scope of its function: that is to say, whether its function inures solely to the benefit of the city in which it is situate, or whether it inures to the benefit of the public at large. At this point attention should be called to the fact that, even though the local community may benefit to a greater extent than the public in general, yet if the service inures to the benefit of the State at large to any appreciable extent, it control rests with the Legislature and does not come within the purview of Section 181 of the Constitution. This principle was established clearly in District Board of Tuberculosis Sanitarium Trustees for Fayette County v. Lexington, supra [227 Ky. 7, 12 S.W.2d 351], wherein the Court said: 'As construed by this court, the restrictions thus imposed (by Section 181 of the Constitution) do not apply to matters of state-wide importance in which there is also a local interest, but do apply to matters of purely local concern, * * *.'

Counsel for appellee takes the position that a public library is solely a place of amusement where its patrons indulge in moments of relaxation and enjoyment--'a kind of enjoyment to pass away the time in a realm separate and apart from the realities and drab sameness of everyday existence'. It may be that some of the patrons experience this character of enjoyment upon their visitations to public libraries; and for them such institutions, indeed, are places wherein they may relax and be relieved of the 'cares that infest the day'. But such cannot be said to be idle amusement; on the contrary, it is one that better fits the individual to be of help to his neighbor, city, state, and nation. His contact with his fellowmen spreads knowledge, helps lift the ban of ignorance, and stimulates a desire on the part of his associates to improve their own minds, thus advancing the cultural status of the community. But, irrespective of the beneficial effect to the public of this character of its use we are not willing to concede that such is the sole function of a public library--it provides for the youth a...