Fordyce & McKee v. Woman's Christian Nat. Library Ass'n.

Decision Date02 July 1906
Citation96 S.W. 155
PartiesFORDYCE & McKEE v. WOMAN'S CHRISTIAN NAT. LIBRARY ASS'N.
CourtArkansas Supreme Court

Appeal from Circuit Court, Garland County: Alexander M. Duffie, Judge.

Action by the Woman's Christian National Library Association against Fordyce & McKee. From a judgment for plaintiff, defendants appeal. Modified and affirmed.

Wood & Henderson and Ratcliffe & Fletcher, for appellants. R. G. Davis, for appellee.

ROSE, Special Judge.

On the 14th day of June, 1902, several ladies filed a petition in the Garland circuit court, praying that they might be incorporated under the name of the "Woman's Christian National Library Association for the purpose of establishing, providing, and keeping in the city of Hot Springs, Garland county, Ark., a library for the free use of the public generally, and of soliciting and receiving donations and aid for said purposes." The constitution presented with the petition was preceded by the following preamble: "We, whose names are annexed, desiring to form an association to organize a reading room and library for our own benefit, and that of the multitude of people who visit our city in search of health and pleasure, do pledge ourselves to be governed by the following constitution." Then follow provisions as to membership: Any lady might become a member by paying an initiation fee of $2 annually and 25 cents monthly dues. Persons of either sex might become honorary members for life on payment of $50; and any one might become a "life patron" on payment of $250. The object of the association was further stated as follows: "The object of this association shall be to provide books, newspapers, and magazines of such character as will afford instruction and diversion; but such books and papers as are demoralizing in their tendency or subversive of religion shall not be admitted; also to provide a suitable and attractive building where the literature of the association may be permanently lodged, and where suitable lectures on such subjects as are not in the field of political or theological controversy and other entertainments not in conflict with the objects of the association may be given."

Having been duly incorporated, application was made by the association to Congress for leave to erect a library building on the government reservation at Hot Springs. This was refused. But Congress passed an act approved July 8, 1882, authorizing the association to purchase "for the uses and purposes of such association" lots 11 and 12 in block 127 in the city of Hot Springs. 22 Stat. 155, c. 282. These lots having been previously appraised by the United States, were now entered by the association on payment of $100, and a patent was accordingly issued by the President. The patent contains no limitation or condition except one forbidding the boring for hot water on the lots conveyed. Preparatory to building a house on these lots for the proposed library the association employed one Murray to excavate the rock on the mountain side, so as to secure a proper foundation; and while this work was in progress resort was had to blasting, whereby one Thomas had his leg broken by a shattered piece of rock thrown out into the street. To recover damages for this injury Thomas brought suit against the association in the United States Circuit Court held at Little Rock, in which he recovered a judgment for $7,642 on the 21st of December, 1893. Execution having issued on this judgment the lots were sold under it, and were bought by Wood & Henderson for $5,000, and in due time they received the marshal's deed therefor. Wood & Henderson afterwards conveyed the lots to the appellants Fordyce & McKee. On the 21st of June, 1902, the library association brought an action in the Garland circuit court against Fordyce & McKee to recover the lots, alleging that the association was merely a trustee, holding them for a public and charitable use, having no beneficial interest that could be seized or sold under execution to satisfy a judgment against the association for the negligence or torts of its agent; and that the defendants intended to divert the property from its charitable uses, and to apply it to the uses of a street car line. The defendants demurred. The demurrer was sustained, and the plaintiff appealed to this court, which reversed the judgment of the court below; but as there was not a full bench, and the judges were not agreed as to the grounds of reversal, the merits of the cause were not fully passed upon. See Woman's Christian National Library Association v. Fordyce (Ark.) 86 S. W. 417. On a second trial in the court below the plaintiff recovered a judgment for the lots and $200 for damages by reason of their detention, and defendants appealed.

1. We are convinced that this is a case of a charitable trust. We are referred to the decision in Old South Society v. Crocker, 119 Mass. 1, 20 Am. Rep. 299; but that is not in point. In that case the court found that a trust was declared for "the beneficiaries, which were the grantees themselves, and such as they should associate to themselves." The court was influenced by the further limitation in the deed "to their heirs and successors" implying "that the grantor contemplated a permanence of association of the cestuis que trust." The court added: "Gifts for the erection of houses of public worship or for the uses of the ministry may constitute a public charity, if there is no definite body for whose use the gift was intended capable of receiving, holding and using it in the manner intended. To give it the character of a public charity there must appear to be some benefit to be conferred upon, or duty to be performed towards either the public at large, or some part thereof or an indefinite class of persons." Page 22. In this case one of the objects of the association is to "organize a reading room and library for our own benefit and that of the multitude of people who visit our city in search of health and pleasure." This clause does designate an indefinite class of persons. It is plain enough that the phrase "for our own benefit" is not to be understood as confined to the persons who signed the petition for a charter, but was intended to embrace all persons who should thereafter contribute to the support of the library by becoming members of the association. This was also an indefinite class of persons. It certainly does not change the nature of the charity that the members of the association may also enjoy the privileges of the library along with other beneficiaries. It is clear from the rules as to the admission of new members that the object is to increase the utility of the association by an appeal to the public for an extension of its influence and for its support. The English statute of 43 Eliz. c. 4, is in force in this state. In it schools and free schools are mentioned, but not libraries. The statute was, however, only remedial and ancillary, and did not affect, in any wise, the jurisdiction of the chancery court as it previously existed. Ould v. Washington Hospital, 95 U. S. 303, 24 L. Ed. 450; Biscoe v. Thweatt, 74 Ark. 545, 86 S. W. 432. That a free public library is a charity there has never been any doubt. Duggan v. Slocum (C. C.) 83 Fed. 244; Pickering v. Shotwell, 10 Pa. 23; Cottman v. Grace, 41 Hun (N. Y.) 345; Fairbanks v. Lamson, 99 Mass. 533; Drury v. Natick, 10 Allen (Mass.) 169; Jones v. Habersham, 107 U. S. 189, 2 Sup. Ct. 336, 27 L. Ed. 401. The importance of a public library at a great health resort where many invalids congregate in search of health, often despondent and sad hearted from the effects of disease, loneliness, and melancholy forebodings, cannot be questioned. We may suppose that of those who go there for pleasure the majority will not be indifferent to the pleasure to be derived from reading. A distinguished writer of the eighteenth century has said: "An author may be considered as a merciful substitute to the Legislature. He acts, not by punishing crimes, but by preventing them."

A public library not only tends to the diffusion of knowledge, but also to public improvement in morals. The charter of the association in this case provides that demoralizing books shall not be admitted into the library; but if that clause had been omitted, the result would have been the same. This principle of selection, in ordinary public libraries, operates automatically, since men and women having children to bring up, and many other persons having the public good at heart, will not patronize or help to support a library in which pernicious books form a part. It goes without saying that whatever contributes to the advance of public morals and that of civilization tends to the support of law and order, and the prevention of crime. The library association is organized purely for charitable purposes. It has no capital stock, no provision for making dividends or profits, and is as unselfish as any enterprise can be. McDonald v. Mass. General Hospital, 120 Mass. 432, 21 Am. Rep. 529. Whatever it receives from any source it holds in trust for the purposes mentioned in its charter; that is, for sustaining the library and "increasing its benefits to the public, by extending or improving its accommodations and diminishing its expenses. Its funds are derived mainly from public charity. Its affairs are conducted for a great public purpose. "Id.; Powers v. Mass. General Hospital, 109 Fed. 299, 47 C. C. A. 122, 65 L. R. A. 372. By our Constitution "buildings, grounds and materials used exclusively for public charity" are exempt from taxation. Article 15, § 5. See, also, Kirby's Dig. § 6887. Further, in order to encourage institutions of that kind, and to diffuse their usefulness through all time, ample provision is made by statute for the incorporation of charities. Kirby's Dig. § 937. By our statutes cities of the first and second class are "empowered to establish and maintain public libraries" and to levy a tax for that purpose. Kirby...

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