
    State Aid to Libraries
    April 17, 1946.
   Adams, Deputy Attorney General,

This department is in receipt of your request for an opinion with regard, to State aid for the maintenance of certain free, public, nonsectarian libraries. State aid is rendered to these libraries as the result of appropriations made by the General Assembly to your department. A question has been raised as to whether these libraries are legally established, and you wish to be advised whether it is proper for your department to grant State aid to such libraries.

Authority for the establishment and maintenance of free public nonsectarian libraries is found in the Act of January 20, 1917, P. L. 1143, as amended, 53 PS §1701 et seq. Sections 1, 2, 3, and 4 of this act, 53 PS §1701 to §1704, inclusive, read as follows:

“Section 1. The term ‘municipality’, wherever used in this act, shall be interpreted as meaning any county, city, borough, town, or township, as the case may be, but shall not be interpreted as meaning school district.

“Section 2. The term ‘municipal authorities’, wherever used in this act, shall be interpreted as meaning the mayor and council of any city, the bur-gess and council of any borough or town, the commissioners or supervisors of any township, or the commissioners of any county, as the case may be.

“Section 3. The municipal authorities of any municipality may make appropriations out of current revenue of the municipality, or out of moneys raised by the levy of special taxes to establish or maintain, or both, a free, public, nonsectarian library, for the use of the residents of such municipality. The appropriations for maintenance shall not exceed a sum equivalent to two mills on the dollar on all taxable property, annually. Special taxes for these purposes may be levied on the taxable property of the municipality, or the same may be levied and collected with the general taxes. The provisions of this section shall not be construed to limit appropriations made for library purposes to those made from special tax levies.

“Section 4. The municipal authorities of any municipality may submit to the qualified electors of such municipality at any general or municipal election, the question of establishing, maintaining and/or aiding in maintaining a free, public, nonsectarian library, and must submit such question, if petitioned for by three per centum of the voters at ,the last preceding general election. At such election the question of establishing, an annual tax at a certain rate, not exceeding two mills on the dollar, on all taxable property of the municipality, shall be submitted.”

It should be noted that under section 4 of the above act, when the question of establishing a public library is submitted to the vote of the electorate, the question of establishing an annual tax at a certain rate is also to be submitted at the same time to the electorate. Section 3, however, provides for the direct appropriation by the municipal authorities for the establishment of public libraries.

The Act of June 23, 1931, P. L. 1203, 53 PS §1730 et seq., established a system of State aid for the maintenance of free public nonsectarian county libraries, and, by the Act of May 29, 1945, Act No. 39-A, the General Assembly appropriated funds to the Department of Public Instruction to carry into effect the provisions of the Act of 1931, supra.

You inform us that in one county a threat of surcharge has been made against the county commissioners for the reason that the library was not established by the vote of the electorate; and you ask whether, in view of such failure, your department should allocate funds to the county in question. The question, therefore, for us to decide is whether it is necessary for a free, public, nonsectarian library to .be authorized by a vote of the electorate before your department grants State aid to such library.

Section 3 of the Act of 1917, supra, as amended by the Act of April 3, 1945, P. L. Ill, 53 PS §1703, is, in our opinion, a definite grant of authority to a county to make appropriations out of current revenue or out of special tax levies to establish, or maintain, or both, a free, public, nonsectarian library. The provision with regard to an election is found in section 4 of the act, and it seems to us that this is a permissive grant of authority to submit the question of the establishment of a library to the voters, if the county commissioners so decide; and a mandatory provision that such question be submitted, if a petition signed by three percent of the voters at the last preceding general election is presented to the county commissioners. In other words, it seems to us that action may be taken with regard to the establishment of libraries when any one of the three following situations exists:

1. Where the county commissioners have no doubt about the advisability of establishing a library, and they take such action.

2. Where the county commissioners deem it advisable to submit such a question to the electorate.

3. When the electorate petitions for the submission of the question to the voters.

This opinion is borne out by the provisions of section 12 of the Act of 1917, supra, as amended by the Act of April 3, 1945, P. L. Ill, 53 PS §1712, which reads:

“ (a) The municipal authorities of any municipality may make appropriations out of current revenue of the municipality, or out of moneys raised by the levy of special taxes, not to exceed a sum equivalent to two mills on the dollar annually, on all taxable property in the municipality, to maintain or aid in the maintenance of a free library established by deed, gift, testamentary provision, or in any manner otherwise than under the provisions of sections three, four, and seven of this act: Provided, That the municipal authorities shall be represented by at least two members of the board having control of the affairs of said library.”

Section 3 is the section which empowers the county commissioners to make appropriations for a library. Section 4 is the section which provides for the submission of the question to the electorate, and section 7 is the provision which provides for the raising of funds for the establishment of a free, public, nonsectarian library by public subscription.

Our opinion is also strengthened, we feel, by the provisions of the General County Law of May 2, 1929, P. L. 1278,16 PS §605, which provides in section 605: “Counties shall have power to take, purchase or acquire, through condemnation proceedings, property for the purpose of erecting thereon . . . public libraries,

Section 606 of said law, 16 PS §606, reads:

“Counties, by order of the commissioners thereof, shall have power to appropriate money from the public funds, ... for the erection on said property taken, purchased or acquired . . . public libraries, . . .”

The General County Law makes no provision for the submission of such a question to the electorate, and we do not think the General Assembly would attach such a condition to the appropriation in one law, and fail to make a similar condition in another law. If we take the position that the submission of the question to the electorate is permissive in the one act, then both laws are more readily reconcilable.

We are, therefore, of the opinion, and you are accordingly advised, that you may exercise the authority granted to you by the Act of May 29, 1945, P. L. Ill, and the Act of June 23,1931, P. L. 1203, and make appropriations to free, public, nonsectarian libraries established by virtue of the Act of June 20,1917, P. L. 1143, notwithstanding the fact that the establishment of such libraries was not approved by the votes of the electorate.  