Board of Education of Covington v. Board of Trustees of Public Library of Said City. Legislature, the library does promote the object and purposes of the school system, then the Legislature has the undoubted right to order the appropriation of a part of the school fund towards the support of the library. 2. We think we have shown that the library is so necessary to obtain the intended result of the public educational system, that it was not only the right but the sacred duty of the Legislature to secure for the schools this important and necessary element. 3. We claim that the school funds raised by local taxation are absolutely under the control of the Legislature, and are not provided for in the Constitution at all. 4. The provision of section 181 of the Constitution forbidding any "sum to be raised or collected for education other than in common schools, until the question of taxation is submitted to the legal voters," refers to State educational institutions, such as the agricultural and mechanical college. 5. And we conclude that an enlightened view of the scope and object of the educational system of Kentucky, requires that the act in question should be upheld as constitutional. AUTHORITIES. Constitution, secs. 180, 184 to 188; Kentucky Statutes, secs. 4520, 3210, 4372, 4019; Acts of 1898, page 157; Charter of Cities of the 2d Class, Art. XI.; Dillon on Mun. Corp., sec. 230; Cyclopedia of Ed., Kiddle & Schem, Art. Libraries; Johnson's Universal Cyclopedia, Art Libraries; Report U. S. of Education for 1895 and 1896; Journal Ed., vol. 49; Library Journals, Passini, Collins v. Henderson, XI., Bush, 74; School Dist Kansas City v. Stocking, 40 S. W. R., 656; Trus. Morganfield Schools v. Thomas, 12 R., 832; Fitzpatrick v. Board Trustees, 87 K., 138; Newman v. Thompson, 9 R., 199; Higgins v. Prather, 91 Ky., 6; Com. Schools Cin. An. Rep. and Hand Book, 18741875, page 30. OPINION OF THE COURT BY JUDGE DURELLE-REVERSING. 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, section 15 (Kentucky Statutes, 1894, section 3210), pro Board of Education of Covington v. Board of Trustees of Public Library of Said City. vides: "Section 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 Board of Education of Covington v. Board of Trustees of Public Library of Said City. 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 (Kentucky Statutes, 1899, section 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 Board of Education of Covington v. Board of Trustees of Public Library of Said City. 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 estab lished 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 statute above quoted are, in any event, in conflict with sec Board of Education of Covington v. Board of Trustees of Public Library of Said City. tion 180 of the Constitution, because by these acts a tax levied and collected for one purpose is devoted to another purpose. For the purposes of this case we deem it unnecessary to consider or decide whether the tax levied by cities of the second class for school purposes is a part of the fund referred to in section 184 of the Constitution, which, after reciting certain assets of the State which "shall be held inviolate for the purpose of sustaining the system of common schools," provides further, "The interest and dividends of said fund, together with any sum which may be produced by taxation or otherwise for purposes of common school education, shall be appropriated to the common schools, and to no other purpose." There is no doubt that the money in contest here is levied and collected for school purposes. It is levied and collected by authority of section 3219, Kentucky Statutes, which provides: "Said board shall annually, in the month of January, approximately ascertain the amount of money necessary to be used to defray the expenses of maintaining the schools, improving or constructing of buildings, and so forth, thereof, and any liquidations of the liabilities during the current fiscal year, and report the same, together with the amount to be received from the common school fund of the State of Kentucky (which amount the board shall ascertain by taking the census required by law in April) to the auditor, and thereupon the general council shall, at the request of said board, levy and collect such taxes as may be requested, and the money arising from said levy shall, under the direction and control of said board, be used for the benefit of the common schools and for the purpose of paying off the indebtedness of said board: Provided, that said levy |