Seibold v. Kinston-Lenoir County Public Library

141 S.E.2d 519 (1965)

264 N.C. 360

Lucille Wiggins SEIBOLD v. KINSTON-LENOIR COUNTY PUBLIC LIBRARY and Thomas Hewitt, W. A. Allen, Alex Howard, T. J. Turner, Mrs. Wooten Moseley and Mrs. John Rowland, Trustees of the Kinston-Lenoir County Public Library.

No. 368.

Supreme Court of North Carolina.

April 28, 1965.

*520 Turner & Harrison, Kinston, for plaintiff appellant.

White & Aycock, Kinston, for defendant appellees.

PER CURIAM.

Our forefathers, drafting our first Constitution, declared the essentials of good government and happiness of mankind are religion, morality and knowledge, § 41, Constitution of 1776; now Art. IX, § 1, of our Constitution, G.S. 4A, p. 114.

The Constitutional declaration of 1776 was not a new concept to North Carolina. More than a half century prior thereto, the provincial legislature had enacted a statute captioned: "An Act for Appointing a Town in the County of Bath and for Securing the Publick Library belonging to St. Thomas's Parish in Pamptecough," c. LII, Laws of 1715, State Records of North Carolina, Vol. XXIII, p. 73.

An adequate library is essential for the dissemination of knowledge. Recognizing this fact, the State established a State public library in 1840. The librarian was required to keep the library open for the accommodation of the public every day, except on Sundays and the Fourth of July, see c. 92, Revised Code of 1854.

The operation of a public library meets the test of "governmental function," as stated in repeated decisions rendered by this Court. Clark v. Scheld, 253 N.C. 732, 117 S.E.2d 838; Jamison v. City of Charlotte, 239 N.C. 682, 80 S.E.2d 904; Britt v. City of Wilmington, 236 N.C. 446, 73 S.E.2d 289; Green v. Kitchin, 229 N.C. 450, 50 S.E.2d 545; Millar v. Town of Wilson, 222 N.C. 340, 23 S.E.2d 42. The Court of Appeals of Kentucky, in Alvey v. Brigham, 286 Ky. 610, 150 S.W.2d 935, 135 A.L.R. 1024, held that the operation of a free public library was the performance of a governmental function. The courts of New Jersey reached a similar conclusion in Trustees, Free Public Library of Newark v. Civil Service Commission, 83 N.J.L. 196, 83 A. 980. The Supreme Court of Illinois reached a different conclusion in Johnston v. City of Chicago, decided in 1913, 258 Ill. 494, 101 N.E. 960, Ann.Cas. 1914B, 339.

Appellant relies on the Johnston case to support her assertion that the operation of a public library is a proprietary, rather than a governmental function, when operated by a municipality. We have examined the case carefully. We do not concur in the conclusion there reached. The argument there advanced would apply with equal force to the operation of a fire department, the operation of a fogging machine to eradicate insects, the maintenance of a police force, or the operation of public schools.

Having reached the conclusion that the service rendered was a governmental function, it follows that the governmental agency and its officers are protected against plaintiff's claim of tort liability. Clark v. Scheld, supra; Britt v. City of Wilmington, supra; Stephenson v. Raleigh, 232 N.C. 42, 59 S.E.2d 195; Klassette v. Liggett Drug Co., 227 N.C. 353, 42 S.E.2d 411.

The judgment sustaining the demurrer is

Affirmed.