Lambert v. Board of Trustees of Public Library

• Decision Date: 24 January 1913
• Parties: LAMBERT, Mayor, v. BOARD OF TRUSTEES OF PUBLIC LIBRARY.
• Court: Kentucky Court of Appeals

152 S.W. 802

151 Ky. 725

LAMBERT, Mayor, v. BOARD OF TRUSTEES OF PUBLIC LIBRARY.

Court of Appeals of Kentucky.

January 24, 1913

Appeal from Circuit Court, Daviess County.

Petition by the Board of Trustees of the Public Library for a writ of mandamus against S. Lambert, as mayor. From a judgment granting the writ, respondent appeals. Affirmed.

George W. Jolly and Horace Jolly, both of Owensboro, for appellant.

Dean &amp Dean, of Owensboro, for appellees.

MILLER J.

Owensboro is a city of the third class. At its regular session in 1902 the General Assembly passed two acts providing for the establishment of public libraries in cities of the third class. Both acts were approved by the Governor on March 21 1902. The first act, denominated "chapter 65" (Acts 1902, p. 147), is entitled "An act to provide for the establishment of free libraries and reading rooms in cities of the third, fourth, fifth and sixth classes." Ky. Sts 1909, § 3480a. It contained no emergency clause, and by the terms of the Constitution it took effect 90 days after the adjournment of the General Assembly. The other act, known as "chapter 70" (Acts 1902, p. 155), is entitled "An act authorizing the establishment of free public libraries in cities of the second and third classes." Ky. Sts. 1909, § 3210b. This last-named act contains an emergency clause, and took effect upon its approval by the Governor. Chapter 65 authorizes the establishment and maintenance of a public library and the levy and collection annually of a tax not to exceed 10 cents on each $100 of the assessed value of the property subject to taxation; the appointment by the mayor, with the approval of the council, of a board of five "directors" for the management of the library; it gives the board power to purchase and lease grounds and erect buildings for library purposes, to appoint a librarian, and, in general, to carry out the spirit and purpose of the act in establishing and maintaining a public library. Section 9 further provides that, "any person desiring to make donations of money, personal property, or real estate for the benefit of such library shall have the right to vest the title of the property so donated in the board of directors created under this act, to be held and controlled by such board, when accepted, according to the terms of the deed, gift, devise, or bequest of such property, and as to such property the said board shall be held and considered to be special trustees."

Chapter 70, containing the emergency clause, authorizes the establishment and maintenance of a public library, which shall be under the direction and control of a board of "trustees" consisting of seven members, to be styled the "board of trustees of the public library"; that said board of trustees shall be a body politic and corporate, under said name and style, with perpetual succession, and by that name may contract and be contracted with, sue and be sued, have and use a corporate seal, the same to alter and renew at pleasure, or it may act without a seal, may purchase, receive, lease, hold, sell, and dispose of real and personal estate for public library purposes; that it shall have the custody, control, management, and expenditure of all funds theretofore accumulated, or that might be thereafter accumulated, for library purposes; that the mayor of the city and the presiding judge of the county court, in case the county contributes annually to the maintenance of the library, shall be ex officio members of the board, and the remaining five members thereof shall be appointed by the mayor; and that each member of the board shall give bond in the sum of $5,000 for the faithful performance of his duties. Said chapter 70 contains this further provision: "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, as the same may be collected, to the board of trustees of the public library, three per centum of the net amount of taxes levied annually in the city for common school purposes, and one-half of the net amount of all fines and costs collected in the police court; and to further aid in the establishment and maintenance of such public library, the general council of the city and the fiscal court of the county, either or both, jointly or separately, are hereby authorized and empowered to accept, by ordinance, resolution, order or contract (and if necessary, united with the board of trustees of the public library), any donation that may have been offered, or may hereafter be offered by Andrew Carnegie, or any other person, association or corporation, and comply with the conditions upon which said donations may be offered and accepted, and make the terms of said contract perpetually binding upon said city and county; and said general council of the city and fiscal court of the county shall annually levy such special tax as may be necessary to comply with said conditions or terms of contract, and to provide the sums of money agreed therein to be paid annually and perpetually for the maintenance of said public library, and shall cause the same to be collected as and when other taxes are collected and paid over promptly to the board of trustees of the public library."

On November 18, 1903, Andrew Carnegie offered to give $30,000 for the erection of a public library building in Owensboro, provided a site for the building was secured and the council would pledge an annual appropriation of $3,000 for the support and maintenance of the library. By an ordinance approved December 5, 1903, the city of Owensboro formally accepted the Carnegie offer upon the conditions therein stipulated, and the mayor appointed five trustees, who, with the mayor, organized as the board of trustees of the public library of Owensboro, under chapter 70 above referred to. A subsequent board of trustees raised, by popular subscription, the sum of $3,297.12, with which they contracted to purchase a site for the library building. In November, 1908, the board of trustees reported its action to the common council, which formally approved and ratified the act of the trustees in procuring the site for the library building, whereupon the trustees completed the purchase by paying the purchase price and procuring a deed dated December 2, 1908. Subsequently, in June, 1911, the board of trustees further reported to the common council that it had received Mr. Carnegie's donation of $30,000, with which it had erected a suitable library building at a cost of $26,000, and had expended the remaining $4,000 in furnishing and equipping said building. By a formal resolution, the council instructed its finance committee to inspect the building, and report, which it subsequently did by reporting favorably to the council on July 3, 1911, whereupon that body approved the report and directed the payment of the appropriation set apart for the maintenance of the library out of the revenues for that year. In the ordinance making the annual levy for the fiscal year beginning June 1, 1911, and ending May 31, 1912, a levy of $3,000 had been specifically made for the support and maintenance of the library for that year; and in the levy ordinance for the year ending 1913 a similar specific levy was made.

In making the appropriation for the fiscal year ending May 31, 1912, the common council passed an ordinance which, after reciting the Carnegie gift, and the construction and completion of the library building, made the following appropriation:

"Section 1. That there be and there is hereby appropriated for the maintenance of the public library aforesaid, mentioned in the preamble to this ordinance, payable out of the general revenue of the city of Owensboro for the present fiscal year, the sum of three thousand ($3,000.00) dollars; that said sum be paid to the "board of trustees of the public library," of the city of Owensboro, and that upon the final passage of this ordinance a warrant shall be drawn for said amount, in favor of said board of trustees on and payable by the city treasurer of said city, signed by the city clerk and countersigned by the mayor, as in cases of other warrants drawn on and payable by said treasurer.

"Sec. 2. That said sum of $3,000.00, mentioned in the first section of this ordinance, shall be payable out of and charged to the account of the fund of $13,000.00 heretofore set apart 'for the payment of judgments against the city for damages, for costs and expenses in legal proceedings, for lands in opening streets, for covering deficiencies in appropriations, for the different departments, objects and purposes above specified in conducting the city government, and for all other incidental expenses not specifically provided for, and to pay the annual sum of three thousand ($3,000.00) dollars to be paid by the city for the maintenance of the Carnegie Public Library,' by ordinance heretofore passed, entitled 'an ordinance concerning the taxes for the fiscal year commencing on the 1st day of June, 1911, and ending on the 31st day of May, 1913, and making a levy of ad valorem taxes and a poll tax in the city of Owensboro for the said fiscal year."'

A similar ordinance was passed, appropriating a similar amount out of the general revenue fund for the fiscal year ending May 31, 1913. Warrants were duly drawn by the city clerk for the payment of the first appropriation of $3,000 and for the payment of 1/2 of the second appropriation which was then due, and the same were presented to the mayor for his signature, as is required by ordinance. The mayor refused to sign said warrants, whereupon the board of trustees of the public library of Owensboro, joining with it five of its trustees brought this action for a writ of mandamus requiring him to...