March 5, 1956 —
April 3, 1956.
APPEAL from an order of the circuit court for Manitowoc county: F. H. SCHLICHTING, Circuit Judge. Affirmed.
For the appellant there was a brief by F. W. Dicke, city attorney, and Fred G. Dicke, assistant city attorney, and oral argument by Fred G. Dicke.
For the respondent there was a brief by Clark, Rankin Nash of Manitowoc, attorneys, and Don A. Olson of Two Rivers of counsel, and oral argument by Mr. Olson and Mr. John P. Nash.
Action for declaratory judgment. The defendant demurred to the complaint on the ground that the same did not state facts sufficient to constitute a cause of action. A summary of the allegations of the complaint follows:
1. Plaintiff is a nonstock, nonprofit corporation.
2. Defendant is a municipal corporation.
3. Prior to January 27, 1893, plaintiff was the owner of certain real estate in the city of Two Rivers referred to as the "old library," which was operated by plaintiff as a public library.
4. On January 27, 1893, the plaintiff conveyed the old library to the defendant, subject to certain conditions. Among said conditions it was provided that the property be used as a public library for the people of the city. Other conditions provided for the selection of the board of directors to operate the library.
5. Thereafter, and until 1913, the defendant owned the old library property subject to the conditions contained in the deed and the same was managed by the board of directors selected as provided in the deed.
6. In 1913 the plaintiff accepted a grant from the Carnegie Corporation for the purpose of erecting a new library building. The plaintiff acquired a site and a building, which is now referred to as the "new library."
7. Plaintiff and defendant agreed that the old library should be converted into a city hall.
8. Pursuant to such agreement the plaintiff, by deed, canceled the restrictions and conditions contained in the deed given in 1893.
9. On May 31, 1913, plaintiff conveyed the new library property to the defendant by deed containing substantially the same provisions and restrictions as those contained in the deed given in 1893. The conditions contained in said deed are as follows:
"To have and to hold the said premises as above described, with the hereditaments and appurtenances, unto the said party of the second part, and to its successors and assigns forever, upon the express conditions that the name `Joseph Mann Library' which is the name of the library heretofore conveyed by the party of the first part to the said party of the second part and which library is to be housed in a building to be erected on said described premises, be retained, that the party of the second part keep and maintain the library and continually improve the same according to its needs by a reasonable appropriation by tax each year of at least one mill on each dollar of its taxable property, for books, periodicals, repairs, improvements, etc., and to meet running expenses, to be expended by the board of directors as they may deem necessary for such purpose. But in case the raising of such tax should at any time exceed twelve hundred fifty dollars ($1,250), the party of the second part, may, at its option lower the said one-mill tax at a rate that will raise not less than twelve hundred fifty dollars, also keep the buildings and everything appertaining to the library in good repair and condition, that as long as the Joseph Mann Library Association keeps up its present organization, it shall be considered an auxiliary in the management of the library and shall have the privilege and be assigned the duty of recommending and nominating from among the citizens at large of the city of Two Rivers, for approval and appointment by the mayor and council, the board of directors of the Joseph Mann Library, subject to the right of the council to refuse to approve the nomination so made of any proposed director for reasonable cause, when the association shall again choose a director in place of the one rejected, and so to continue until all the directors are announced to be satisfactory to the council and save as foresaid, the Party of the second part to have complete control and management of the library pursuant to the law relating thereto, that the party of the second part maintain the library indefinitely in the manner provided by law and the conditions herein contained, that the library buildings be used only as a free, public library and for no other purpose. In default or failure to keep up and maintain the library according to the several conditions aforesaid, the library grounds, buildings, and property aforesaid, to revert back to the party of the first part, its successors or assigns, free and unincumbered by mortgages, tax liens, judgments, liens, or other incumbrances." (Emphasis supplied.)
10. All of the conditions and requirements of the deed were observed until 1954. Plaintiff has preserved its corporate organization and has nominated members of the board of directors who have been confirmed by the city council and said board, until approximately July 1, 1954, managed and directed the new library.
11. On May 3, 1954, the city, by ordinance, created a city library board to take office on July 1, 1954.
12. Thereafter the city library board usurped the functions of the board of directors created under the terms of the 1913 deed, and the board of directors has been prevented by the city library board and other officers of the city from exercising its functions as the governing body of the new library.
13. For several years the city has appropriated approximately $25,000 per year for the operation and maintenance of the library. The ordinance of May 3, 1954, provides that a minimum of $1,250 shall be turned over to the board of directors for the purchase of books, periodicals, etc., leaving the balance of the appropriation in the hands of the city library board and subject only to its jurisdiction.
14. By reason of such action by the defendant the board of directors is no longer in fact the board of directors of the Joseph Mann library and the conditions of said deed have been violated by defendant in that approximately 95 per cent of the annual budget is now under the control of the city library board rather than the board of directors. The employment and discharge of library employees are under the control of the city library board. Questions of policy and questions of individual selection of books, periodicals, etc., are now in the hands of the city library board, except for the sum of $1,250. Rules, regulations, and policies adopted by the board of directors are ignored by the personnel of the library unless approved by the city library board.
15. By reason of such violations the grounds, building, and property constituting the new library have reverted to plaintiff.
16. Plaintiff brings this action for declaratory judgment and not for ejectment.
On September 16, 1955, the trial court entered an order overruling the demurrer and the defendant appeals.
This case involves the construction of the deed given by the plaintiff to the city in 1913. The defendant contends that the deed is ambiguous and argues for a certain construction thereof.
It first contends that conditions subsequent which work a forfeiture are to be strongly construed against the grantor. There seems to be no quarrel about this rule. However, the plaintiff states that this is not an action for forfeiture and that said rule need not be considered. The trial court, in construing the deed, followed the rule laid down in Giese v. Giese, 242 Wis. 581, 584, 9 N.W.2d 67, as follows:
"Our court has held that deeds, like other instruments, should be construed so as to arrive at the intention of the parties. If there is no ambiguity, this must be arrived at from the language used, and effect should be given to all of the provisions, if that is possible without doing violence to the language used."
The trial court determined that the library located upon the real estate described in the 1913 deed is the Joseph Mann library; that the board of directors of that library is the board of directors appointed by the defendant from nominees of the plaintiff; that any city library board or other board of directors appointed by the defendant otherwise than from nominees of the plaintiff is not the board of directors of said library; that only said board of directors appointed as provided in the deed can expend the defendant's appropriation for the Joseph Mann library. Contrary to the contention of the defendant, the trial court held that there were sufficient allegations of violations of the conditions of the deed and that, under the liberal rules of pleading for determining the sufficiency of allegations in a complaint when attacked by demurrer, the complaint states a cause of action. We agree that the complaint does so constitute a cause of action. The deed provides for appropriations to be made by the city and that said appropriation is to be expended by the board of directors as they may deem necessary for such purposes.
The defendant calls attention to the language that the Joseph Mann Library Association is to be considered an auxiliary in the management of the library, and to the further provision that, save as aforesaid, the city is to have complete control and management of the library pursuant to the law relating thereto.
Although the deed is not drafted in the most precise language, taken as a whole we have no difficulty in construing it as did the trial court. Deeds are construed as are other instruments. They speak as of the time of execution and delivery. Mathy v. Mathy, 234 Wis. 557, 291 N.W. 761. When the language of a deed is susceptible of two meanings, the practical construction given to it by the acts of the parties is of great force in determining its construction. Georgiades v. Glickman, ante, p. 257, 75 N.W.2d 573, and cases there cited. Since 1893, under similar provisions in the two deeds, the parties have agreed that the management and control of the library and the expenditure of the funds raised by the city be under the sole direction of the board of directors. This board is separate and distinct from the plaintiff. Even if the provisions of the deed were said to be ambiguous, this interpretation thereof adopted and acted upon by the parties over so long a period would be controlling in determining the intent of the parties when the deeds were executed and delivered.
The defendant finally contends that the 1913 city council was without power to limit the legislative and governmental functions of future councils. That may well be. However, a municipality may take property in trust for a free public library within its boundaries. This is clearly an educational purpose and is therefore a public charity. Estate of Mead, 227 Wis. 311, 277 N.W. 694, 279 N.W. 18. The rules relevant to public charities will govern. The maintenance of public libraries is a public purpose and municipalities may, if authorized by the legislature, raise moneys therefor by taxation even though the library is operated by a nonstock, nonprofit corporation, or where the original trustees are named in a donor's will and are self-perpetuating. State ex rel. La Crosse Public Library v. Bentley, 163 Wis. 632, 158 N.W. 306. In 1913 when the last deed was executed and delivered, secs. 931 and 931a of the statutes were in effect and they authorized the defendant to appropriate money to the library. The city, of course, cannot be compelled to continue to raise the amount of its recent appropriations. It has effective control of the library through its control of the purse and the confirmation of the members of the board of directors.
By the Court. — Order affirmed.