STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5739

July 15, 1980

CONSTITUTIONAL LAW:

Const 1963, art 8, Sec. 9

LIBRARIES:

Use by nonresidents

All residents of the State of Michigan are entitled to use the public libraries of this state subject to reasonable regulations of the library.

Honorable Thomas Guastello

State Senator

The Capitol

Lansing, Michigan 48909

I am advised that the Avon Township Public Library was established pursuant to 1877 PA 164, MCLA 397.201 et seq; MSA 15.1661 et seq. The Avon Township Public Library is located in Avon Charter Township of Oakland County. Washington Township, which is adjacent to Avon Township, is located in Macomb County, and has no township library.

Washington Township is part of the Romeo District Library established under the provisions of 1955 PA 164, MCLA 397.271 et seq; MSA 15.1780(1) et seq. In addition, the Romeo District Library is a member of the Library Cooperative of Macomb, 1977 PA 89, MCLA 397.551 et seq; MSA 15.1791(151) et seq.

The Avon Township Public Library is a member of the Wayne-Oakland Library Federation, pursuant to 1977 PA 89, supra. The Library Cooperative of Macomb and the Wayne-Oakland Library Federation have no inter-cooperative agreement. ⁽¹⁾ Therefore, no reciprocal borrowing privileges exist between the two, independent cooperatives.

Thus, under current policies of the Avon Township Library Board, the residents of Washington Township, while adjacent to Avon Township, have no means of fully utilizing the facilities of the Avon Township Public Library, unless Washington Township enters into a service contract pursuant to 1877 PA 164, supra, Sec. 14, and pays for library services.

Based on the foregoing, you have requested my opinion on two matters which may be phrased as follows:

Const 1963, art 8, Sec. 9, provides for the establishment and support of public libraries, and states in relevant part:

The underscored language in Const 1963, art 8, Sec. 9 represents new language.

The circumstances leading to the adoption of Const 1963, art 8, Sec. 9, supra, should be examined and the purpose sought to be accomplished should be ascertained by review of the Address to the People and the Convention debates. Advisory Opinion on the Constitutionality of 1978 PA 426, 403 Mich 631; 272 NW2d 495 (1978).

The Address to the People, 2 Official Record, Constitutional Convention 1961, p 3397, accompanying art 8, Sec. 9, supra, provides that '[r]easonable rules for the use and control of their facilities may be adopted by the governing bodies of the libraries.'

Const 1963, art 8, Sec. 9, supra, had its genesis in Proposal 31 of the Convention's Committee on Education, and provided:

Proposal 31, and its emphasis on availability of libraries to state residents, was prompted by the committee's awareness that under 1908 Const, art 11, Sec. 14, supra, fn 1, only 1 out of every 15 townships possessed a library. ⁽³⁾ 1 Official Record, supra. Delegate Andrus, Chairman, of the Subcommittee on Libraries of the Committee on Education, stated:

In discussing Proposal 31, Delegate Bentley, Chairman of the Committee on Education, stated:

Following discussion, Proposal 31 was amended to read:

Delegate Dehnke, who proposed the above amendment to Proposal 31, supra, stated that the amendment would '. . . give the library board the authority to lay down some regulations to set up the hours during which the library shall be considered open and all that sort of thing.' 1 Official Record, supra, p 836.

Proposal 31, as amended, was approved by the Committee of the Whole, and referred to the Committee on Style and Drafting. 1 Official Record, supra, p 841.

The Committee on Style and Drafting further amended Proposal 31:

Amended committee Proposal 31 was then passed by the convention (2 Official Record, supra, p 2562). As a component of art 8, Education, Proposal 31 (as art 8, Sec. 9) was approved by the convention (Id pp 3149; 3231; 3343; 3397).

The language of Const 1963, art 8, Sec. 9, supra, providing public libraries shall be available to residents of the state must also be interpreted in accordance with its plain meaning as commonly understood by the general public who approved Const 1963. Butcher v Grosse Isle Township, 387 Mich 42; 194 NW2d 845 (1972); Bond v Ann Arbor Schools, 383 Mich 693; 178 NW2d 484 (1970). The word 'available' has been defined as 'capable of use' for accomplishment of a purpose. Bay City Dredge Works v Fox, 245 Mich 523, 525-526; 222 NW 747 (1929).

Thus, under Const 1963, art 8, Sec. 9, supra, all public libraries and their facilities shall be available for use by all state residents, subject to reasonable rules governing the use and control of the library facilities. Clearly, under the constitutional mandate, and the Convention debates, supra, the right of state residents to use the facilities of any public library includes not only the right to enter a public library and read books there, but the same right to borrow books that is offered to residents of the community in which the library is established subject to reasonable regulations; cf Bekins v City of Tulsa, 299 P2d 792, 794 (Okla 1956); People ex rel Pierpont Morgan Library v Miller, 29 NYS2d 445, 447; 177 Misc 144 (1941).

The framers of Const 1963, art 8, Sec. 9, supra, did not intend to create, or perpetuate, a library system where library privileges are not provided to state residents on an equal basis.

In light of the command of Const 1963, art 8, Sec. 9, supra, the reasonable regulations of each public library concerning usage and borrowing privileges must be uniform within the community in which the library is established, and such regulations must afford to any resident of the state who desires to use the facilities of the library access thereto. On the other hand, while the regulations of each public library must be reasonable, local conditions may require that regulations between public libraries vary, so long as library facilities remain equally accessible to all state residents, as well as local residents. Eg, McAvoy v H. B. Sherman Co, 401 Mich 419; 258 NW2d 414 (1977).

Under Const 1963, art 8, Sec. 9, supra, it is clear the framers intended that each local governmental unit which operates a public library may prescribe reasonable rules and regulations governing availability of its library services. 2 Official Record, supra, p 2562. In particular, the framers intended that local libraries may adopt reasonable rules regarding accessibility and availability '. . . in cases where the applicant for a book or periodical was not an immediate resident of the locality.' Id p 2561 (Remarks of Delegate Bentley). In such circumstance, a local library in its discretion may adopt rules to assure the return of books. However, as the legislature provides the conditions for state aid to public libraries pursuant to the terms of 1977 PA 89, supra, the legislature may amend that statute to address the circumstance of non-resident borrowers, in addition to other related matters. Eq, Imlay Township Primary School District No 5 v State Board of Education, 359 Mich 478; 102 NW2d 720 (1960); State Board of Agriculture v State Administrative Board, 226 Mich 417; 197 NW 160 (1924). ⁽⁴⁾

It is, therefore, my opinion that Const 1963, art 8, Sec. 9, supra, entitles all residents of the state to the full use of the facilities of any public library within the state, subject to reasonable regulations. In view of my response to your first question, it is unnecessary to address your second question. However, the legislature is invited to enact legislation to fully implement the mandate of Const 1963, art 8, Sec. 9, supra.

Frank J. Kelley