Trustees of Free Public Library v. City Council of Atlantic City , 42 Vroom 437 ( 1904 )

The opinion of the court was delivered by

Dixon, J.

On November 5th, 1901, Atlantic City, by popular vote, adopted the provisions of “An act to authorize the establishment of free public libraries in cities of this state,” passed April 1st, 1884. Gen. Stat., p. 1950. This act makes it the duty of the appropriate board of a city adopting it to raise annually b}r tax a sum equal to one-third of a mill on every dollar of taxable property for the purposes of the library.

On May 6th, 1902, the city, by popular vote, adopted the provisions of “An act relating to, regulating and providing for the government of cities,” approved April 3d, 1902. Pamph. L., p. 284. This act declares (section 40) that “the city council shall have power to raise by tax in each year such, sum or sums of money as they shall deem expedient * * * for the establishment and maintenance of a public 'library.”

In January, 1903, trustees of a public library for the city were appointed and organized in accordance with the Library act of 1884, and they now pray a mandamus, requiring the city council to take the necessary steps for raising the tax of one-third of a mill on each dollar. The only question presented for decision is whether, on the true construction of these statutes, the council is entitled, in its discretion, to provide for raising only a less sum than the equal of one-third of a mill on each dollar.

We think that question must be answered affirmatively. The terms of the statute of 1902 indicate no restriction on the discretion of the council to raise such sum as they shall deem expedient. This absolute discretion is inconsistent with an imperative duty to raise a prescribed sum. The statute conferring this discretion is the later expression of the legislative purpose, and in this case is also the later expression of the will of the citizens. Hence it abrogates in Atlantic City the duty indicated by the act of 1884.

The rule for a mandamus is discharged.