| R.I. | Oct 6, 1870

The question raised in this case is, whether the real estate of the Providence Athenaeum was privileged from taxation by the Revised Statutes, chapter 37, section 2, which *562 exempts "public libraries, and the land and buildings used in connexion therewith."

The Providence Athenaeum was incorporated in 1836, the corporation being entitled under its charter, which is very general in its language, to "have all the privileges and powers incident to corporations instituted for library and scientific purposes." A "constitution," adopted February 29, 1836, provides that "any individual who shall pay into the treasury fifteen dollars, shall be a stockholder or proprietor, and entitled to one share of the joint stock of the corporation, which shall be transferable. And he shall be entitled to all the rights and privileges secured to stockholders, or proprietors, by the laws of the corporation, and subject to all the rules and regulations therein made and provided. The board of directors may admit annual subscribers to the privileges of the library, on such terms and conditions as they may from time to time prescribe." It also provides that each stockholder or proprietor "shall be liable for all assessments voted by the corporation, provided the same do not exceed five dollars per annum on each share." This constitution is open to amendment, upon due notice, at any meeting of the corporation, by a vote of two thirds of the members present at such meeting.

By the by-laws, the privileges of the Athenaeum are accorded to stockholders and their immediate families, to temporary transferees of shares, to persons authorized by written orders of stockholders to take out books on their shares, and, for a month's time, to strangers from abroad introduced by a stockholder, except that strangers are not to have the right to take out books. By the "regulations of the library, reading room, and other rooms," it is provided that "no book shall be delivered to any one excepting a stockholder, or one of the immediate family of a stockholder, or upon the written order of a stockholder," unless it be to some individual specially authorized by the board of directors "to make use of the Athenaeum, under such restrictions and regulations as they may deem it advisable to impose, for purposes connected with objects of public utility, or in order to facilitate inquiry or investigation." *563

It appears or is infeasible from this statement, that the ownership of the library is in the corporation, and that the privilege of using it is confined to the stockholders, their immediate families, and their licensees. The public, as such, have no right there. What claim, then, has the Athenaeum, to be deemed a public library? The counsel for the corporation say it is public, because anybody can acquire the right to use it by paying fifteen dollars and becoming a stockholder. They say it is like a turnpike-road or railway, which, though held by a corporation, is yet a public highway, because the public has the right to travel thereon upon payment of the regular toll or fare. The analogy, however, is very imperfect. The person who wishes to travel on a railroad or turnpike-road is not obliged to become a stockholder in the corporation in order to acquire the right to do so. If such were the requirement, the claim of the road to be called a public highway would hardly be allowed. The traveller uses the road as a matter of right, paying the proper toll or fare, which is simply a reasonable equivalent for the use. But furthermore, the turnpike or railway company is bound to keep its road in suitable repair for the public travel. If it neglects this duty it is liable to indictment, and to a forfeiture of its charter. There is no corresponding obligation resting on the plaintiff corporation. It is not bound to maintain a library for the public use. There is nothing in the agreed statement to show that it may not, without the violation of any legal duty to the public, sell its library, or that it may not rescind the article, allowing every person to become a stockholder on the payment of fifteen dollars, and limit the stockholders to the present number. The library, in fact, however wide may be the sphere of its usefulness, is, for any thing that appears, merely the private property of the corporation. The public, as such, has no claim upon it whatever.

The act exempting public libraries from taxation was passed in 1855. The agreed statement shows that from 1855 to 1868 the real estate of the Athenaeum was not taxed, though it had previously been taxed. This practice, immediately following the passage of the act, is entitled to respectful consideration in determining its construction. But while giving the practice its *564 due weight, we are too clearly of the opinion that the Athenaeum library is not a public library, to hold it to be such within the meaning of the act.

We give the defendant judgment for his costs.