In my opinion the appeal should be sustained and the respondents should be enjoined. The State Board of Education only has authority to grant State aid to a free public library of which the people of the neighborhood have free use (G.L., C. 65, Secs. 9, 10).
The first reference I find in the statutes to a "free public library" is in P.L., C. 668 (1867), which provides that property voters in any town or city, at any annual election may vote to impose a tax "for the foundation therein, of a free public library with or without branches, for all the inhabitants thereof and to provide suitable rooms therefor," under regulations to be prescribed by the town or city council; and thereafter such voters may annually vote a tax for the support of such free public library and may receive and manage any gifts for the establishment, increase or maintenance of any public library therein, to be under such regulations for its government, when they are not prescribed by the donor, as may be prescribed by the town or city council. In 1869 (P.L., C. 809) school districts, also adjacent towns by concurrent vote, were empowered to establish a free public library. At this time "public libraries" were already exempt by statute from taxation. (Rev. Stat. 1857, C. 37). In 1870 (P.L., C. 840) an additional exemption from taxation was granted to any property held for or by any "free public or incorporated library society." In 1872 (G. St., C. 38) the exemption was given to "any incorporated *Page 289 library, society or any free public library or any free public library society," which is the provision now in General Laws, 1923, C. 58. In 1892 (P.L., C. 1068 now G.L. 1923, C. 54) town and city councils were given authority to accept in behalf of the town or city the gift of any library or funds to be maintained as a free public library; the act further provides that whenever any city or town shall establish or become possessed by gift of a free public library, the town or city council shall elect trustees who shall have the custody and control of such library and who shall make rules and regulations for the government of the library and the use of the books, "provided that no fee for the use of the books shall ever be exacted."
In 1920 (P.L., C. 1838 now G.L., C. 47, Sec. 6) cities and towns in addition to the existing right to make annual appropriations for the maintenance of free public libraries were authorized in a like manner to make an annual appropriation for the maintenance of any free library therein.
The Providence Public Library was incorporated (January, 1871) under the name of "The Board of Trustees of the Free Library, Art Gallery and Museum," to erect and maintain in the city of Providence a building suitable for and to provide the same with a free library, art gallery, etc. Subsequently (by act passed April 2, 1875, as amended in January, 1885) the corporate name was changed to "Providence Public Library"; the object of the corporation, as stated in this amendment, was to establish a public library. The corporation was authorized, in its discretion, to provide an art gallery, etc. The management and control of the affairs and property of the corporation were vested in a board of trustees composed of contributors to the corporation or persons nominated by them, with power in the board of trustees after their first organization to fill all vacancies thereafter occurring. In Section 3 the purchase of books provided for therein was declared by the amendment to be for a public library and not, as originally provided in the charter, for a free library. The library was incorporated by *Page 290 special act of the legislature. Its management and control are entrusted to trustees appointed by individuals and it is given more extensive powers than the statutory free public library.
It thus appears that the legislature has often and designedly made a distinction between a free library, a public library and a free public library.
Assuming, however, that respondent library is a free public library within the meaning of the statute, I think it is prohibited from exacting a fee for the use of any of its books. In this respect it is subject to the same restriction as a town or city free public library. At the present time, although it is a public library, it is a part free, and a part pay, library. So long as it exacts a charge for the use of any of its books, it is not entitled, under the statute, to receive State aid.
VINCENT, J., concurs in the dissenting opinion of STEARNS, J.