THE PUBLIC LIBRARY.

Press, Volume XLVIII, Issue 14522, 26 November 1912, Page 10

THE PUBLIC LIBRARY.

T THE TRANSFER OF CONTROL. THE REVENUE QUESTION. JUDGMENT OF THE COURT. Mr Justice Dennis-ton delivered his judgment in the Public Library case at the Supremo Court yesterday. Tho parties wore The Canterbury College (plaintiffs) and the Mayor, Councillors, and Citizens of the City of Christchurch, and tho Solicitor-General for the Dominion of New Zealand (defendants). THE STATEMENT OF CLAIM. The last paragraph in the statement of claim states tho point which the Court was asked to decide in these words:— ' "Doubts have arisen as to whether tlio said Public Library" (that is, tho I/'.brary which has in fact been since December, 1873, controlled and managed by tho plaintiff) "is the library contemplated and intended by 'The Canterbury Museum and Library Ordinance, 1870,' and 'Amendment Ordinance, 1873.' At various times between the year 1878 and tho present time negotiations have been conducted between tho Canterbury College and tho Christchurch City Council, with a view to the said Public Library being transferred by tho said College to tho said Council, and being maintained and managed by tho said Council as a Free Publio Library for the City of Christchurch. In the course of such negotiations the said Council has maintained and still maintains, that the said Public Library is tho library contemplated and intended by tho ordinances aforesaid,- and that the said, library is iby> reason of the premises entitled to participate in the incomo arising from tho said reserves" (that is, certain lands reserved on January loth, 1872). "Tho said Council has demanded as a condition precedent to further considering the question of taking over the said Publio Library, that a portion of tho said reserves, or the income thereout, should be transferred to the said Council, together with tho said Public Library in the event of the saad Public Library being so taken over." And the plaintiff, the Canterbury College, asked for a declaratory judgment as to whether it is or is not under ah obligation to allocate any portion of the income arising from the said reserves to the maintenance of the said Public Library. MATERIALS FOR JUDGMENT. "The materials for answering the question," says the judgment, "are entirely documentary; they aro to be found in Ordinances and Proclamations of the Province of Canterbury, Acts of the General Assembly and correspondence and resolutions of Public Bodies of the Province and Provincial District. SOME LOCAL HISTORY. "The history opens with enactment by the Provincial Council of 'The Canterbury Museum and Library Ordinance, 1870." Tho preamble succinctly states the then position. 'Whereas the specimens of Natural History and other public property deposited in the Museum of the Province of Canterbury have now become of considerable value, and whereas it is deemed expedient for the promotion of Literature and Science that a Public Library and a School of Technical Science should be established, and that the specimens of Natural History, Books, Pictures, Manuscripts, Statues and other objects now deposited

in the said Museum, -which now belong to the Province- of Canterbury, or which fcJto Province may hereafter acquire by gift, bequest, purchase, or exchange, should bo deposited in th.> custody of trustworthy persons.' These ! three institutions —the Museum, a Public Library, and a School of Technical Science, aro thus associated as adjuncts to the promotion of literature and artAt that time, as is shown by the language, tho Museum had a physical existence —tho Public Library and School of Technical Science wove not then in being. Tho Ordinance proceeded to constitute a number of public officers and private individuals a body politic and corporate by tho name of 'The Trustees of The Canterbury Museum and Library,' and declared such Trustees able and capable in law to take, purchase, nnd hold to them and their successors not only all goods, chattels, and personal property then deposited in, or which might be thereafter acquired by, the Canterbury Museum, and also'all lands, buildings, hereditaments, and possessions then used and occupied for the Museum, but all such as might bo purchased or granted to them. By a proclamation gazetted July Bth, 1878, in pursuance of a resolution of the Provincial Council, certain lands were set apart as endowments for the said Canterbury Museum, Public Library, and School of Technical Science. Theso aro the reserves tho. subject of the present enquiry. THE CANTERBURY COLLEGE ORDINANCE. "In 1873 tho Provincial Council passed the Canterbury College Ordinance, 1873, by which, after reciting that it was decreed expedient to make provision for enabling all classes and denominations of her Majesty's subjects resident in tho province of Canterbury and elsewhcro in the colony of New Zealand to pursue a regular and liberal course of education, and with that intent to establish and incorporate a collego "within tho said province, it was enacted that a Board of Governors should be, and thereby was, constituted a body politic by tho name of tho Canterbury Collego. By a contemporaneous Ordinance, tho Canterbury Museum and Library Ordinance Amendment Act, 1873, after reciting tho constitution of 'Tho Trustees of tho Canterbury Museum and Library, 1870,' and that divers specimens of natural .history, statuary, coins, pictures, articles of vertu, books, apparatus, models, furniture, and other personal property then deposited within tho precincts of tho Canterbury Collego Museum wero then vested in tho said trustees, tho incorporation of 'Tlio Canterbury College' and its objects and that it was considered desirable that tho management of tho two institutions should "bo amalgamated, tho Trustees of the Canterbury Museum and Library (the corporate body) was empowered to transfer its property to 'The Canterbury College.' to bo held upon the trusts and for the specific purposes contemplated and intended by the Canterbury Museum and Library Ordinance, 1870; and it was declared that all endowments mado for tho purposes of the Canterbury Museum Library and School of Technical Science, or any of them, and tho rents, issues, and profits arising therefrom, were to be held by the Canterbury Collego for the specific object or objects for which such endowments were originally granted or given. Such assignment was duly executed on 6th June, 1874. It is assumed in tho caso that 'endowments' included tho reserves made by tho Proclamation of 1872. UNDER ONE MANAGEMENT. "That brings us to the point whero tho College, the Museum, tho Public Library, and the School of Technical Science are brought under ono management, that of the Canterbury Collego. Of these institutions the only ono in being was the Museum. The- Library' mentioned in these Ordinances is, of course, the same library as that referred to as tho Public Library in the Ordinance of ■1870. As far back as 1859 thero had been established in Christchurch a society known at first as The Christchurch Mechanics' Institute,' and later as 'The Christchurch Literary Institute.' It had obtained a grant of land from tho Provincial Council, and had from grants of moneys and subscriptions of members and otherwise, erected buildings thereon, and had therein established a circulating library and readingroom for its members. Tho case states that in tho samo year (1873) in which the two last-mentioned Ordinances were passed, the Provincial Council took into consideration the question of establishing a Free Public Library for the city of Christchurch, and that in furtherance of that object, negotiations were entered upon between the said Institution and tho Provincial Council and tho Board of Governors of the said Canterbury College with a view to the transfer by tho Institute of its land and buildings and. library, for the purposes of a Free Public Library, and with a view to tho futuro management and control of tho said Free Public Library by the said Canterbury Collego, it being the intention that tho Free Public Library when so established should bo controlled and managed on behalf of tho said Superintendent by the Board of Governors of tho Canterbury College. .There is not in tho caso stated any record of negotiations with the Provincial Council, but in what is called a 'short history' of tho Public Library, Christchurch, put in with other papers, there is a record that, at a special meeting of tho Institute ; to meet two of the Trustees under the 1870 Ordinance relative to the establishment of a Free Library, it was resolved -—That tho Committeo of tho Library Institute learn with great satisfaction that a Public Library will be established under the auspices of tho Provincial Government, which will carry out the objects and intentions of the Literary Institute with more effi- ' ciency and to a greater extent than has , been attained by the Literary Instituto • itself, and rcsolvo to recommend the \ transfer of tho entire property of tho Institute to the Public Library' Trustees \ on condition that all tne claims on and < obligations of tho Instituto bo satis- i fied.'" * A FURTHER STAGE. \ On tho 30th July, 1873, a special ' meeting of .members of the Committee ' of the Christchurch Literary Commit- 1 teo was held to meet the Library Committee of tho Board of Governors of ( Canterbury College, the latter com- * prising Messrs J. Strange Williams, 1 W. Montgomery, and J. Inglis. It j was resolved:—"That application be ' made to the Superintendent to intro- * duco and carry through the House of * Assembly a Bill giving power to tho ■* Committee of the Literary Institute to J transfer the property of "the Institute 1 to the Superintendent of tho Province of Canterbury for tlio purposes of a * Public and Circulating Library and ' Reading Room." It will be seen that in the latter resolution—the result of I the joint meeting—the words "Free 1 Library" aro dropped and the words I ''Public and Circulating Library and * Reading Room" are substituted. It 3 cannot be doubted that all s the parties concerned under- * stood and believed that they were a taking the preliminary steps for creat- r ing a Public Library in terms of the f Ordinances relating to that object, the I second of which was in effect passed c between the two meetings. Other- I wise there could be no justification for t tho interference of the Canterbury n College, a corporate body. The result t of these proceedings was the passing E by the General Assembly of 'The d Canterbury Public Library Act 1873," li by which, after a preamble 'declaring t that "it is expedient that a Public tl Library should be established in Christ- o church," and reciting and stating the j< position of the Institute, and the p willingness of its members to hand over n its land and property for tho purposes ti

of a Public Library, and that doubts had arisen as to the power of tho Trustees of the Institute to dispose of the said property for that purpose anrl the absence* of some of them from the province, and that it was expedient that power should be given to the Trustees jin the said province to transfer such j prouerty to the Superintendent of the j Province of Canterbury for the purI poses aforesaid, it was enacted :—'That lit shall be lawful for any two of the ! Trustees of the said Institute, at tho | request in writing of the persons acting ; for tho timo being as a Committee of Management of the said Institute, or |of a majority of them, by deed to I convey and assign all such estate and 1 interest as is now vested in the Trustees of the said Institute, all and singular the real and personal property so •vested in tho said Trustees in trust for the members thereof, to the Superintendent of the Province of Canterbury for tho purposes of a Public Library, on such terms and conditions as may b.' hereafter agreed upon between the said Trustees and the said Superintendent, and upon the execution of such deed, the land conveyed thereby shall vest in the Superintendent and his successors in fee." THE DEED OF CONVEYANCE. On 15th December. 1873, a deed of conveyance and assignment was duly executed, whereby tho Trustees of tho Institute conveyed tho said land with tho buildings thereon and assigned the books and other chattels vested in them to tho Superintendent upon trust for tho purposes of a Public Library and for purposes connected therewith, but for no other purpose wliatever under and subject to certain conditions. These are of some importance, and may b? cited textually. They are as follows:—(a) "That a Reading Room and Circulating Library.of at least equal dimensions, both as regards space and numbers of books and periodicals to thoso then ass'gncd, should be constantly maintained in tho same or other buildings, to be erected on the same site, and that such books and periodicals should from time to time be supplemented and increased so as to satisfy futuro requirements and generally tho institution maintained in accordance with tho usual recognised standard- of a Public Circulating Library and Reading Room, but with right to the Superintendent and his successors to exercise the discretion enjoyed by the prior management of determining which books should be retained for reference." (b) "That the Reading Room should bo open to tho public free of charge, and the advantages of tho Circulating Library should he open to the public either free of charge or at charges not greater than 20s per annum, payable either yearly or half-yearly or quarterly in advance, and that the Library should not bo moved to a less central position than it already occupied." CONTROL HANDED OVER. "Upon the execution of this deed, tho Superintendent handed over to tho Board of Governors of 'The Canterbury College' the control and management of tho said Public Library, which control and management have continued to tho present time. On the coming into operation of 'Tho Abolition of Provinces Act, 1875,' the property in tho land, buildings, books, and other chattels, became vested in tho Queen. On July 28th, 1878, tho land was conveyed to tho Canterbury College, and tho books and chattels transferred *to that body.

"Until the coming into operation on the 12th day of October, 1875, of 'The Abolition of Provinces Act, 1875, all moneys (other than such moneys as wero received from subscribers) expended either for the erection of buildings or for maintenance and upkeep of this Public Library, were voted each year by the Provincial Council. From that dato until July 25th, 1878, all such moneys were voted by the General Assembly, After that dato all such moneys, over and above the revenue derived from subscriptions, donations, and bequests, have been voted by the Board of Governors of tho Canterbury Collego from the incomo of the before-mentioned reserves. "Wo have, therefore, from tho earliest legislation on tho subject, a projected Public Library and a School of Technical Science linked with an existing Museum as institutions expedient for tho promotion of literature and science. Later we' have these united with the project of the establishment of a collego for tho purposes of enabling all classes and denominations resident within the colony of New Zealand to pursue a regular and liberal course of education, and their present and prospective control and management placed in the hands of ono body, the Canterbury College. Wo know that later the Collego and School of Technical Science havo taken form, and we have tho books and property, land and buildings originally belonging to the Christchurch Literary Institute, transferred to the Superintendent of the Province by direction of an Act of the General Assembly of tho colony for tho purposes of what is shown by the preamble of that Act to be tho Public Library designated and intended by the Provincial Ordinances before mentioned, and by them transferred to tho Canterbury College for the samo reason. We havo since such transfer tho institution thus established, with its additions, recognised and carried on by tho Canterbury College as such Public Library, anii partially maintained and supported by grants from the reserves set apart for, amongst others, a Public Library. WHAT THE COURT *IS ASKED. 'Tho Court is now asked by tho argument addressed to it on behalf of the Canterbury College to declare that tho Public Library contemplated and provided for by the Provincial Ordinances does not yet exist, and payments out of the income of the reserves therein reserved for tho support and maintenance of the existing institution known as the Public Library was, in fact, a breach of trust on tho part of the Board of Governors. . V TIle grounds for this startling proposition, as stated in argument, are that the collocation in the preamble to tho Canterbury Museum and Library Ordinance of an existing museum with a projected Public Library and a school of technical knowledge as means for tho promotion of literature and science, 13 proof that tho library there contemplated was (to uso the words of counsel) a library in the strict sense'—that is as an adjunct to, and primarily for, tho benefit of the Museum and School of lechnical Science, and that tho subsequent vesting by the Ordinance of 1873 ot the control and management of the proposed College and tho Museum, Public Library and School of Technical Science in ono body support that contention; and that the present institution, containing, as it does, a lending library and reading room, is therefore not the Public Library contended for by the Ordinance. These grounds are vholly inadequate to support tho contention founded on them. The referenco in tbo Ordinance of 1870 to books among the enumerated property then deposited in tho Museum, has no necessary connection with the Lublic Library there mentioned. Theso t>oofcs might have remained in the Nluseum without affecting the matter, ilthough it was, of course, competent to the governing body to treat them, is it seems to have done, as the aucleus of the Reference Library now .orming part of the existing Public Library. It is possible that, in a ■ase where funds were limited, a Iteference Library devoted entirely to ;he best literary and scientific works night be of greater value for the contemplated object than a library of jeneral literature with a circulating lepaxtment, but unless it can be ©sta£ ished that this latter cannot tend to ! he promotion of literature or science ho contention is untenable. Criticism >f tho quality of the literature and ' ournals preferred by the reading mblcc is beside the point. There is • to attempt in the original legislation o define or limit Tublic Library.' It i

was left to tho discretion of tho members for the time being ot tho goveruing body. Those responsible for tho nucleus of the present institution obviously did not share in this fastidious eclecticism. COLLEGE BOARD JUSTIFIED. "These considerations make it impossible successfully to contend that the existing Public Library is not tho Public Library intended and provided for by the Ordinance of 1870 and subsequent legislation on the subject. It follows that tho Board of Governors of tho Canterbury Collego havo been and are justified in applying the income from the Reserves of "loth January, 1572. towards its support and maintenance. "That, however, does not dispose of tho question actually submitted in the case—which is 'whether tho plaintiff tho Canterbury College, i s or is not under an obligation by reason of ;l.c promises to allocate any portion of the incomo arising from tiie said Reserves to tho maintenance of tho said Public Library.' ALIX.CATION OF REVENUE. "Thero is nothing in tho proclamation of theso Reserves to indicate in what manner or in what proportion tho income from them was to he applied to tho Institutions for whoso benefit they wero to bo set aside as endowments. There is certainly nothing to suggest that they wero* to bo allocated equally among tho three, without regard to thoir respective importance or requirements. The Canterbury_Museuin and Library Ordinance, 1873, which declares that all such endowments and the rents, issues and profits arising therefrom shall bo held received laid applied by tho said Canterbury College for tho specific object or objects for which such endowments wero originally granted or given, is silent on tlio point. Tho Board could not have been required to put asido two-thirds of tho onnual incomo of tho Reserves for institutions not in existonce. Special endowments or private munificenco might havo established them independently. Tho Museum, j tho College, and, in perhaps a lesser degree, tho school of Technical Science aro institutions for the benefit of the province or tho Dominion! A publiclibrary is to a largo degreo limited to tho city and to its environs. All these considerations were, and are, matters for tho exercise of tiie discretion of tho Board of Governors—a discretion which I need not add must bo exercised in good faith and not for any purpose ulterior to that of the reasonable administration of tho trust. My answer therefore to tho specific question put to the Court must bo that tho allocation by tho Canterbury Collego of tho incomo arising from tho Reserves among the three institutions (including tho Public Library) for whoso benefit such Reserves were" mado is in tho discretion of the Board of Governors. THE MAYOR AND COUNCIL. "Tho occasion of the present proceedings is said to be the insistence of the Mayor, Councillors and Citizens of Christchurch in demanding, as a condition precedent to their further considering tho question of taking over the Public Library that a portion of tho Reserves or of the income should bo transferred to the city. The SolicitorGeneral was added as a defendant, but has declined to take any part in tho proceedings. It may bo open to question whether, in tho absence of any power in either of the parties to carry out such transfer, thero being no litigation, or prospective litigation, the question is a proper one to bo submitted under Tho Judgments Act. In the circumstances 1 havo thought it best to deal with the matter, and only to mention my doubt in case my having done so should bo cited as a precedent." Mr Alpers appeared for plaintiffs, Mr Loughnan for the defendants, and Mr T. W. Stringer, K.C., for the Solicitor-General.

STATEMENT BY THE MAYOE.

Referring to the judgment at the meeting of tho City Councl last night, the Mayor stated that it seemed to him that matters wero left very much as they wero before, inasmuch as there was no sum clearly defined as necessary to bo allocated for the upkeep of the library. Tho Board of Governors, apparently, had acted quite legally in not allocating a certain portion of its endowment for tho upkeep of the library. On tho other hand it appeared quite clear that the Board was expected to deal generously with, tho library, as well as with other institutions under its control. When the matter camo officially beforo tlio Council he sincerely hoped that the Council would approach tho matter with* a full sense of responsibility. It seemed to him a very great pity that a valuable institution of that kind should go begging for an owner.