Com. v. Lou. Pub. Library, Etc.

• Decision Date: 08 January 1913
• Citation: 151 Ky. 420
• Parties: Commonwealth of Kentucky v. Louisville Public Library, etc. Board of Education of the City of Louisville v. Louisville Public Library, etc.
• Court: Kentucky Court of Appeals

151 Ky. 420

Commonwealth of Kentucky v. Louisville Public Library, etc.

Board of Education of the City of Louisville v. Louisville Public Library, etc.

Court of Appeals of Kentucky.

Decided January 8, 1913.

Appeals from Jefferson Circuit Court, (Chancery Branch, First Division.)

BENJAMIN F. WASHER, ARTHUR E. HOPKINS and McQUOWN & BECKHAM, for the Commonwealth.

RICHARDS & HARRIS, and ARTHUR M. RUTLEDGE, for the Board of Education.

BENNETT H. YOUNG, JOHN J. DAVIS and CLAYTON B. BLAKEY, for the Louisville Free Public Library.

GRUBBS & GRUBBS, for Mutual Life Insurance Co. of New York.

OPINION OF THE COURT BY JUDGE MILLER — AFFIRMING.

These two actions were instituted for the purpose of escheating the real estate held by the "Polytechnic Society of Kentucky" for the use of the "Louisville Public Library," fronting 136 feet on the east side of Fourth street south of Green street, in Louisville, Kentucky. In order to accurately comprehend the legal questions presented, it becomes necessary to give a brief history of the title to the property, and its use.

In 1871, the "Public Library of Kentucky" was incorporated by a special act of the legislature, which gave it the right to raise money by means of a lottery, in the form of five entertainments, at which a portion of the proceeds arising from the sale of tickets should be devoted to the purpose of the library. By means of this lottery the "Public Library of Kentucky" acquired $427,396.32.

In 1878, by another special act, the legislature incorporated the "Polytechnic Society of Kentucky," hereinafter called the "Polytechnic Society," for brevity. Section 3 of this act provided that the objects of the "Polytechnic Society" should be "The establishment of a public and circulating library, and maintenance thereof; the printing and publication of papers or works illustrative of the history of Kentucky, or literature and science, the encouragement of original (research), and the diffusion of knowledge."

Section 4 of said act, after providing that the corporation might acquire and hold by gift, purchase, loan, devise, or otherwise, books, pamphlets, periodicals, papers and minerals to be used as a library and museum, and might acquire and hold in fee, or otherwise, grounds and buildings in which to keep and preserve its library and museum, contained this further clause: "PROVIDED, That if the `Public Library of Kentucky' shall make any gift, sale, or transfer of property to the said `Polytechnic Society,' such gift, sale or transfer shall include all moneys, choses in action, claims, demands, and right of action belonging to said `Public Library of Kentucky,' either at law or in equity."

Section 6 of said original charter of 1878 reads as follows:

"The society shall lease, if practicable, such portions of its building or buildings as may not be required for its purpose; and the money so received for rent shall go into the general fund of the society, and the money received from any source whatsoever shall go into the general fund; and the general fund shall be used — first, to defray necessary current expenses; second, to pay the interest on any outstanding bonds or other indebtedness. The surplus remaining at the end of any fiscal year shall be used to further the "objects of the society and liquidate its outstanding debts."

And, finally, section 12 of said act of 1878, contained the following clause:

"In case this charter or corporation shall lapse for non-user or other cause, any property that may be owned by the corporation shall escheat to the Commonwealth of Kentucky, and pass under the supervision of the State Librarian."

The original charter of the "Polytechnic Society of Kentucky" of 1878, was amended by acts passed in 1880 and 1882. Section 2 of the amendment of 1882, enlarged the purposes of the original charter, to some extent, in the following terms:

"The objects of this society shall be the cultivation and diffusion of knowledge by maintaining a free reference library, a circulating library, and courses of popular lectures; by collecting, preserving, and arranging in its libraries and cabinets whatever may illustrate history, science, literature, the arts or other branches of useful knowledge, and especially the history, topography, geology, paleontology, zoology, botany, mineralogy, and the sociology and industries of Kentucky, and by organizing and maintaining, as may be deemed expedient, academies or classes in science, art, literature, philosophy and technology."

Section 12 of the amendment of 1882 repeated, verbatim, the clause contained in section 12 of the original act of 1878, providing for an escheat to the Commonwealth for non-user, or other cause.

It is evident from the clause copied above from the fourth section of the original charter of 1878 of the "Polytechnic Society," that it was contemplated that said society would take over the property of the "Public Library of Kentucky," and become its successor. This purpose further appears from section 5 of said act, which authorizes the society to borrow as much as $100,000.00 to be used in the purchase or improvement of real estate for library purposes, and to mortgage its property to secure the loan.

The reorganization of the library thus contemplated was carried out on May 22, 1878, by the "Public Library of Kentucky" conveying to the "Polytechnic Society" its property, including the real estate in controversy, the title to which it has held to the present time.

Subsequently, the corporate name of the "Polytechnic Society of Kentucky" was changed to that of the "Louisville Public Library," which seems to have merely succeeded to all the rights, powers and property of the "Polytechnic Society of Kentucky," without a formal deed of conveyance.

By common consent, all the parties to this action have treated the "Polytechnic Society of Kentucky" and the "Louisville Public Library" as one corporation; and, for convenience, we will speak of it as the "Polytechnic Society" in order to distinguish it from the "Louisville Free Public Library," which will be referred to later.

The "Polytechnic Society" took possession of the property of the "Public Library of Kentucky" in 1878, including the real estate which is the subject of this action, and maintained a library therein to November 1, 1904. In the meantime, the revenue which supported the library was acquired, for the most part, by rents from stores on the ground floor, and "Library Hall," a theater which occupied most of the second floor of the library building. In 1901 the old building was removed, and the present modern new building was erected, at a cost of several hundred thousand dollars.

By an act of March 21, 1902 (Ky. Stats., section 2801b), any city of the first class (Louisville being of that class) was authorized to use and maintain within its corporate limits a free public library; and sub-section 3 of the act gave the trustees of such free public library power to acquire by gift, purchase, or otherwise, real and personal property to the use of the public library. The city was further given power to raise money for library purposes by the levy of an annual tax of not less than 2½ cents, nor more than 4 cents, upon each $100.00 worth of property within its boundary.

Furthermore, section 7 of said act gave the board of trustees power to acquire and hold property on the following terms:

"The board of trustees may accept such gifts and donations of property, real and personal, to be used for the purposes contemplated by this act, upon such terms and conditions not in conflict with the Constitution and laws of this Commonwealth, as may be agreed upon by the said board of trustees, of the one part, and the donor, of the other part, and the title of the property, as may be so given or donated, shall be vested in such board of trustees, and the city wherein such library may be situated may be a party to any deed or instrument of transfer for the purpose of carrying out such arrangement pertaining thereto as it may lawfully make; and for the purpose of acquiring all property "of other corporations, or libraries, or societies, as may by contract or agreement under it be transferred from such library or association to it." (Sec. 2801b Ky. Stat.)

Acting upon the authority thus conferred, Mayor Grainger, of the city of Louisville, took steps looking towards the erection of a free public library; and, with that end in view, he acquired for and on behalf of the city, the lot on the north side of York street, extending from Third to Fourth street, for a main library — branch libraries having been subsequently built in other portions of the city.

At the instance of the "Polytechnic Society," the legislature of 1904 passed what is called, in the record, an "Enabling Act," which authorized existing library corporations to transfer or convey their property "to the city or town in which the same is located." That act provided as follows:

"WHEREAS, In the charters of said corporations, associations or societies, it is provided that, in case said charter or corporation shall lapse from non-user or other cause, any property that may be owned by the corporation shall escheat to the Commonwealth of Kentucky, and pass under the supervision of the State Librarian, and doubt may arise whether such corporation has power or authority to transfer its property to any such city or town; therefore, any corporation, association, or society, heretofore created "for the circulation and diffusion of knowledge by maintaining free reference libraries, circulating libraries or popular lectures, or by collecting materials for the illustration of the various branches of useful knowledge, is hereby authorized and empowered upon the majority vote of its members present voting at a regular meeting or a meeting called for the purpose of considering the subject, to transfer or convey to the city or town in which the same is located, to be used by said city or...