Hardin vs. Maust.

of Uniontown, Fayette County, I do hereby agree not to enter into the moving business, that is the raising and moving of houses and buildings, for a period of not less than eight nor more than ten years, in the above county.

Signed this 18th day of February, 1916.

(Signed) JOHN H. MAUST. (Seal)"

3. Thereafter the defendant again engaged in the business of raising and moving houses and buildings, in violation of the terms of his contract with the plaintiff, and continued therein until the time of the awarding of the preliminary injunction in this case.

4. The defendant pretends to have been employed, since entering into the contract with the plaintiff, merely as foreman and general manager for the Uniontown Moving Company, an alleged partnership composed of James M. Maust, a son, and Pearl Maust, a daughter, of the defendant, formed soon after the date of the contract between the plaintiff and defendant, but admittedly without written articles of co-partnership or anything else to show a bona fide and legal existence.

5. James M. Maust is a clerk in the office of the Monongahela Railroad Company at Masontown, and lives in that town, and Pearl Maust runs a small store in Uniontown, where she lives with her father, the defendant, and the alleged formation and subsequent business engagements of the Uniontown Moving Company and the pretended employment of the defendant by that company as its foreman and general manager was a mere subterfuge resorted to by all the parties thereto in an attempt to protect the defendant from the consequences of an intentional violatlon on his part of his contract with the plaintiff.

6. The defendant in reality has violated his contract with the plaintiff, in that he has engaged again in the business of raising and moving houses and buildings within the County of Fayette, and has continued so to do until restrained by preliminary injunction, to the continuous injury and damage of the plaintiff.

There is no doubt, in our opinion, as to the legality of the defendant's contract with the plaintiff. To some extent it may be said that it restrains trade. But it is limited both as to space and time, and is reasonable in its nature. When such is the case a contract of this nature will be upheld. Monongahela River Consolidated Coal & Coke Company vs. Jutte, 210 Pa., 288. We, therefore, reach the following conclusions of law:

1. The contract between the plaintiff and defendant should be enforced. 2. The violation of the terms of the contract by the defendant should be restrained by injunction.

And now, July 3, 1916, for the reasons stated in the opinion herewith filed, the preliminary injunction heretofore awarded is made permanent, and it is ordered that the defendant pay the costs of this proceeding; this decree to be entered nisi according to rule.

In re Free Public Library.

Public Schools—Funds of—Free Public Library-Act of May 18, 1911, P. L. 309 Constitutional Law.

A public school board may make an annual contribution to a free public library and Section 2510 of the Act of May 18, 1911, P. L. 309, known as the School Code, does not violate the provisions of Section 3, Article III, of the Constitution, nor Section 7, Article IX, of the Constitution, especially where the agreement between the school board and the free library places the controlling voice in the management and operation of the library in the school board.

I am in receipt of your letter of the 4th inst., requesting an opinion as to whether it is legal for the School Board of Pottsville to make an annual contribution to the Free Public Library of that city.

I have examined carefully the proposed agreement between the School Board and the Pottsville Free Public Library and also note that since the incorporation of the Pottsville Free Public Library in May, 1911, the School District has contributed the sum of $3,500 annually towards the maintenance and support of said library.

I further note that under the proposed agreement, which you have submitted to me, it is the intention of the Free Library Association to convey, ir fee simple, to the School District of Pottsville the site for a library building to be used for a free public library and that the Carnegie Corporation proposes to donate to the School District of the City of Pottsville the sum of $45,000.00 for the construction and furnishing of a library building on said site, on condition that the School District shall pledge itself, by resolution, to contribute to the support and maintenance of said free public library not less than $4,500 annually and that an annual tax shall hereafter be levied sufficient in amount to comply with said requirement.

I further note that under the proposed agreement the library is to be managed and controlled by a board of fourteen trustees, one of whom shall be, ex officio, the Superintendent of Schools for the City of Pottsville, seven of whom shall be composed of the Board of School Directors of the School District of the City of Pottsville and six of whom shall be citizen trustees, who shall be elected by the Pottsville Free Library Association.

The warrant for this action on the part of the School Board is found in Section 2510 of the School Code of May 18, 1911, P. L. 309:

"Instead of establishing or maintaining a separate public school library, any board of school directors may, by a two-thirds vote, join with or aid any individual or association in the maintenance, or the establishment and maintenance of a free, public non-sectarian library, under such written agreement as it may determine, which agreement shall be entered in full in its minutes. Such agreement shall specify the manner, terms, and conditions agreed upon, for the aiding, establishment, maintenance, or management of such joint library."

Objection is made that this section of the Act is unconstitutional as in violation of Section 3 of Article III, and Section 7 of Article IX of the Constitution, respectively.

These sections read as follows:

Section 3, Article III:

In re Free Public Library.

"No bill, except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in its title."

Section 7, Article IX:

"The General Assembly shall not authorize any county, city, borough, township or incorporated district to become a stockholder in any company, association or corporation, or to obtain or appropriate money for, or loan its credit to, any corporation, association, institution or individual."

Taking these objections up in their order, we find that since 1864 the establishment and maintenance of free public libraries have been provided for in connection with public schools.

The Act of May 5, 1864, P. L. 826, entitled:

"An Act to promote the establishment of District and School libraries," enacts, in Section 4:

"Any person over twelve years of age, and resident in the proper district, whether contributor, or not, to the library, shall be entitled, without charge, to the use of the books thereof, according to the rules and regulations thereof,"

thus providing that while the library is to be under the management of the Board of School Directors, as trustees, its advantages are not limited to the children in attendance on the public schools, but may be enjoyed by any person over twelve years of age, resident within the district.

This was followed by the Act of June 28, 1895, P. L. 411, entitled: "An Act for the establishment of free public libraries in the several school districts in the Commonwealth, except in cities of the first and second class."

It will be noted that the libraries provided for by this Act are not public school libraries, but are free public libraries to be established in the several school districts of the Commonwealth. This is shown by the first section, which provides for the establishment and maintenance of—

"Such public library for the general use of the residents in the district." By the terms of this Act the school board is not the trustees of the library, but the trustees are to be elected by the school board, with the exception of the president and treasurer of the board and superintendent of schools of the district, who are to be members ex officio; and by Section 5 public libraries established under the provisions of this Act are to be under the general supervision and subject to the inspection of the State Librarian.

By the Act of March 30, 1897, P. L. 10, which is a supplement to the Act of 1895, it is provided:

"That in any school district, except cities of the first and second class, wherein there is or shall hereafter be established, otherwise than under the provisions of the Act to which this is a supplement, a free non-sectarian public library, the school directors, board or organization having control of the common schools of said district may, instead of establishing another public library and providing for its government, extend aid to such library on such terms as to control and management as shall be agreed upon between the managers thereof and the school authorities, and for that purpose may levy the taxes provided for in the Act to which this is a supplement in the manner provided therein."

The Act of May 11, 1901, P. L. 180, amends the Act of 1895, so as to permit the Board of School Directors to act as trustees of the library upon resolution duly passed by a majority of the board.

The Act of April 2, 1903, P. L. 133, which is a supplement to the Act of 1895, provides for the joint establishment by an adjoining township and

In re Free Public Library.

borough of a free non-sectarian public library by the joint action and at the joint expense of the school authorities of the several districts.

This was the state of the law on this subject at the date of the approval of the School Code, which by Chapter XXV did little more than codify and re-enact the sections just quoted; Section 2510 being practically a reenactment of the provisions of the Act of 1897 above mentioned.

During all these years the provisions of these several Acts of Assembly have never been, to my knowledge, successfully questioned. The public has understood that the establishment and encouragement of such libraries formed a part of the educational system of this State and the subject has always been digested under the title "Common Schools," and both lawyers and the general public were familiar with the fact that the management of free public libraries has for nearly fifty years been committed to the charge and control of the school directors of the several districts.

This being the state of the public mind, I am of the opinion that the title of the Act of May 18, 1911, commonly called the "School Code," entitled:

"An Act to establish a public school system in the Commonwealth of Pennsylvania, together with the provisions by which it shall be administered, and prescribing penalties for the violation thereof; providing revenue to establish and maintain the same, and the method of collecting such revenue; and repealing all laws, general, special or local, or any parts thereof, that are or may be inconsistent therewith,"

with its various articles, to wit: "Article XXV-Public School Libraries" was sufficient notice of the intention of the Legislature to deal with the subject of free public libraries. In any event, if it was not, then the previous acts relating to the subject, which are expressly repealed by the School Code, would still be in force, for if an Act of Assembly in its title does not give sufficient notice of its intention to deal with a certain subject it certainly does not give sufficient notice either of its intention to repeal previous laws on the same subject.

I am, therefore, of the opinion that Section 2510 of the School Code does not violate the provisions of Section 3, Article III of the Constitution.

Nor do I think that the Act violates the provisions of Section 7, Article IX, of the Constitution, above referred to. In this connection I have given careful consideration to the case of Wilkes-Barre City Hospital vs. Luzerne County, 84 Pa., 55, which is cited as authority for such objection. In that case an Act of Assembly authorizing a private incorporated hospital to make requisitions upon a county for the payment of its charges for the support of patients under its treatment, even though they be paupers, was held unconstitutional.

The Supreme Court in its opinion said:

"The hospital exercises no municipal function, but takes as a private institution by a mere act of appropriation. It is under no obligation to open its doors to municipal inspection or visitation, and cannot be controlled or called to an account for the moneys drawn upon requisitioncnce paid the money is beyond the control of the county. Thus its expenditures may be lavish, and the public funds are liable to be misdirected or squandered, without check, through extraordinary charges and unfair requisitions."

I am of the opinion that the facts in that case are not at all similar to those involved in the present question.

It will be remembered that it is the intention to donate the site for the library building to the School District of Pottsville, not to the library corporation; that the donation of the Carnegie Corporation of New York

In re Free Public Library.

for the erection of the building is to the School District, not to the library corporation. We have, therefore, a library building built by the School District, out of funds donated to it, on a lot of ground belonging to it, so that the library building and lot of ground are the property of the School District. The appropriation made by the School District is, therefore, for the support and maintenance of the library conducted and maintained on its own property.

By the terms of the agreement the School Directors have the controlling voice in the management and operation of the library. They in nowise become stockholders in any corporation nor are they appropriating money nor loaning the credit of the School District to any corporation.

The facts in the present case are at least as strong as in the case of Commonwealth vs. Pittsburgh, 183 Pa., 202, where it was held that a city may appropriate money to a committee of private citizens appointed by the Chamber of Commerce, and ratified by the City Councils, to defray the expenses of having surveys for a ship canal made, and for securing information as to whether such a canal would be practicable, and would be a benefit to the city; or in the case of the Commonwealth vs. Walton, 182 Pa., 373, where it was held that the Councils of a city might appropriate moneys to a corporation organized to create a fund to pension its members who are policemen; or in the case of Commonwealth vs. Barker, 211 Pa., 610, upholding an ordinance of a city appropriating money to a firemen's relief association.

In Firemen's Relief Association vs. Scranton, 217 Pa., 585, the plaintiff corporation was a voluntary association over which the municipality had no control or supervision. This is referred to in the following extracts from the opinion of the Court:

"But there is serious question as to the right of the municipality to appropriate public funds to the support of an association over which it has no control or supervision. * * *

There does not appear to have been any provision in either charter cr by-laws giving the city any voice in, or control over, the management of the association. * * *

The funds appropriated by the city could, therefore, be used for purposes other than the relief of firemen or ex-firemen, and for the benefit of persons to whom the city owed no duty other than such as was due to every citizen.

* *

There is a plain distinction in this respect between membership in a voluntary association, such as this, and that of a paid fire department, organized and controlled by the city authorities. In the latter case the membership, the discipline and the management are subject to the regulation of the city. The benefits can be confined to those who have actually rendered service to the city. It is this feature only which distinguishes the payment of such a benefit from the bestowal of a gift or gratuity, which is prohibited by Section 7, Article IX, of the Constitution." * ⭑ *

A city may lawfully appropriate money for the purchase of fire engines even though to be used by a voluntary private fire company.

Dillon on Municipal Corporations, Sec. 303.

The purpose of the constitutional provision is stated in Brode vs. Philadelphia, 230 Pa., 434, where the present Chief Justice in referring to the case of Walker vs. Cincinnati, 21 Ohio State, 14, quotes from the opinion of the Ohio Supreme Court, as follows:

"The mischief which this section interdicts is a business partnership between a municipality or sub-division of the State and individuals or private corporations or associations. It forbids the union of public and pri