LIBRARIES, POWERS OF BOARD, CITY ATTORNEY, DUTIES. Letter, October 6, 1959, to Mr. J. Eugene Balloun, Treasurer, Russell City Library, Russell, Kansas.
Your letter September 11, 1959, has been received. You state that the Library Board of the city of Russell desires to acquire a site for and construct a new library. You ask if the Board, either with or without the consent of the city governing body, has power to acquire a site by eminent domain. In Sutton v. Frazier, 183 Kan. 33, a case dealing with the extent of the interest acquired by a condemner, the Court entered into a general discussion of eminent domain in Kansas. It said:
"It is fundamental that no person can b divested of his land, or any part or portion thereof, or any interest therein, through the exercise of the power of eminent domain except under the provisions of express and positive constitutional or statutory law, . . . The power of eminent domain is inherent in a state . . . The power of eminent domain can only be exercised by virtue of legislative enactment. . . . It must be noted that we are not concerned in this case with the special power conferred upon a public or quasi-public corporation to purchase, hold, sell and convey real estate and other property. Under such special power it may purchase the real property fee simple by warranty deed, including all interests therein, and convey the same in like manner. This merely authorizes acquisition of property without resort to condemnation where it is possible to agree with the owner upon the price. But such special power confers no privilege upon a public or quasi-public corporation to take the fee title, including all interests therein, against the will of the owner by the exercise of its power of eminent domain."In Strain v. Cities Services Gas Co., 148 Kan. 393, 395, the Court said:
"The power of eminent domain can only be exercised by virtue of a legislative enactment. The right to appropriate private property to public use lies dormant in the state until legislative action is had, pointing out the occasions, modes, conditions and agencies for the appropriation . . . We must find in our statutes authority for this condemnor to take (private property). . . ."There is no inherent power of eminent domain in subordinate units of the State; the power is inherent in the State, and can be exercised by subordinate units only when the State has clearly delegated and authorized such power. (Sutton v. Frazier, supra; Dinges v. Board of County Commissioners, 179 Kan. 35, 41; Jahr Eminent Domain, § 14; 18 Am. Jur., Eminent Domain, §§ 26, 27.)
G.S. 1957 Supp., 12-1223 declares the Library Board to be a body corporate and politic, possessing the usual powers of a corporation for public purposes, and with power to contract, sue and be sued and acquire, hold and convey real and personal property in accordance with law. We find no express delegation to the Library Board of the State's power of eminent domain in this statute. Nor do we believe such power is delegated to the Board by any of the provisions of G.S. 1957 Supp., 12-1225. Therefore we doubt the power of the Board to acquire property by eminent domain.
We view a library maintained by a city pursuant to G.S. 1957 Supp., 12-1218, et seq., as essentially a city library, administered by a library board with certain powers. The library belongs, not to the library board which administers it, but to the city which established it and maintains it by taxes. G.S. 1949, 14-435, applicable to second class cities, provides:
"Private property may be taken for public use . . ."This statute is a general grant of power and authorizes a city to condemn private property for a public use. A city is authorized to establish and maintain a library. (G.S. 1957 Supp., 12-1218, et seq.) A condemnation of land to be devoted to a public library would be a taking for a public use and within the power of a city. (Jahr, Eminent Domain, §§ 6-10.) See State, ex rel., v. Urban Renewal Agency of Kansas City, 179 Kan. 435, 437-439. In addition, Chapter 79, 1959 Session Laws, empowers any city to erect or construct a public building and procure any necessary site therefore by condemnation. This chapter also recognizes that library buildings may be built by the city and bonds issued therefor.
As to your question regarding the duty of the city attorney if the city condemns land for the library, G.S. 1949, 14-201, provides that the city council shall by ordinance specify the duties and compensation of the city attorney. We are not familiar with the applicable ordinance of your city and, therefore, have no basis for an opinion regarding the attorney's duties. See Johnson v. Winfield, 75 Kan. 832.
You state that funds to be used in building a new library are being raised under G.S. 1957 Supp. 79-4001, but the city attorney questions the availability of these funds for other than a library annex or addition. The statute provides for a tax levy:
". . . for the purpose of creating and providing a special fund to be used in making any general improvement which such municipality is authorized by law to make, or, be used to remodel, construct, furnish and equip an addition or annex to any library being operated and maintained by such municipality. . . ."This statute requires that before such levy is made, the question shall be submitted to the electors, and the ballot question shall show the nature of the improvement contemplated. If authorized by the electors, the funds shall be used for that purpose. We don not know how the question was submitted to the electors, i.e., the ballot statement of the improvement contemplated, but the use of the funds is limited to the purpose as stated on the ballot. If the purpose was stated to be the construction of a new library, or words of similar import, we believe such would be a permissible purpose. The statute authorizes the funds to be used for any general improvement, or in the alternative, a library addition or annex. A new library would be an improvement for the general benefit of the city.
If the fund raised under G.S. 1957 Supp., 79-4001 is insufficient, we think bonds could be issued under Chapter 78, 1959 Session Laws, for addition financing.