Mobley, Justice.
1. While many issues are raised by the petition, consisting of eighty-seven pages, and by the demurrers, [247] consisting of nineteen pages, the issue of whether the petitioner was ever elected to the office which he now holds, by the Board of Aldermen, and whether he is now serving a four-year term expiring as he contends, December 31, 1960, is controlling.
The petition sets forth all acts of the legislature and all city ordinances alleged to have to do with the establishment and operation of the Atlanta Public Library, and sets out a history of the library, which is briefly as follows: The Young Men’s Library Association of the City of Atlanta was organized in 1867, and thereafter began the operation of a library. On May 9, 1899, the Young Men’s Library Association and the City of Atlanta entered into a contract whereby the association turned over its library and property to the city. The contract recited that Andrew Carnegie had agreed to give $100,000 for a building, provided the city would appropriate $5,000 per year for its operation; and the contract provided that the city should obtain legislation requiring it to appropriate $5,000 annually for the library. It provided that the library should be operated by a Board of Trustees of twelve men appointed by the city, six of whom would be nominated by the Young Men’s Library Association; and it further provided that, at the end of six years, if the conditions of the contract had been performed, the reversionary rights of the Young Men’s Library Association and their right to nominate six trustees would cease, and that the property and control would then vest in the city. In June 1905, an ordinance was adopted by the City of Atlanta reciting that the contract of 1899 between the city and the Young Men’s Library Association had expired; that the city thereby took possession of the Carnegie Library, and assumed management and control thereof; and that management of same was vested in a Board of Trustees. Composition of the board was fixed, and the manner of election, terms, etc., was prescribed. The library has since been operated by a Board of Trustees appointed by the Board of Aldermen.
The petition alleges that the act providing that the Mayor and Council of Atlanta shall have full power and authority to pass all bylaws and ordinances respecting public buildings (Ga. L. 1874, pp. 116, 119) is the original source of all legislative [248] authority vested in the Mayor and Board of Aldermen with respect to the establishment, support, maintenance, and operation of the Carnegie Library, now known as the Atlanta Public Library. A charter amendment of December 20, 1899, required the city to appropriate annually $5,000 for the support of the library (Ga. L. 1899, p. 127); but the petitioner claims this did not amplify the authority given in 1874.
In 1901, the legislature by a general law (Ga. L. 1901, p. 52; Code § 32-2701) provided that any city might tax and appropriate money for the operation and maintenance of libraries. The act made it mandatory that the funds be expended by and under direction of the board of trustees of the public schools, or other authority controlling the public schools, which, by the act of 1904, was changed to the board of trustees elected by the city council. Ga. L. 1904, p. 90 (Code § 32-2701). Section 4 of the act of 1904 provided that the board of trustees should have supervision of the library, pass rules and regulations for its operation, elect a librarian, or designate someone to perform the duties of librarian, and should appoint and discharge said officer at pleasure.
The petitioner alleges that the act of 1901, as amended by the act of 1904, has no application to the Atlanta Public Library, but that its Board of Trustees was established by authority of the act of 1874 and the general law of 1892, which authorized the city to accept gifts of property and to act as trustee of said property (Ga. L. 1892, p. 104; Code § 69-501), and from later ordinances and a course of conduct indicating that the library was not being operated under the acts of 1901 and 1904.
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Mobley, Justice.
1. While many issues are raised by the petition, consisting of eighty-seven pages, and by the demurrers, [247] consisting of nineteen pages, the issue of whether the petitioner was ever elected to the office which he now holds, by the Board of Aldermen, and whether he is now serving a four-year term expiring as he contends, December 31, 1960, is controlling.
The petition sets forth all acts of the legislature and all city ordinances alleged to have to do with the establishment and operation of the Atlanta Public Library, and sets out a history of the library, which is briefly as follows: The Young Men’s Library Association of the City of Atlanta was organized in 1867, and thereafter began the operation of a library. On May 9, 1899, the Young Men’s Library Association and the City of Atlanta entered into a contract whereby the association turned over its library and property to the city. The contract recited that Andrew Carnegie had agreed to give $100,000 for a building, provided the city would appropriate $5,000 per year for its operation; and the contract provided that the city should obtain legislation requiring it to appropriate $5,000 annually for the library. It provided that the library should be operated by a Board of Trustees of twelve men appointed by the city, six of whom would be nominated by the Young Men’s Library Association; and it further provided that, at the end of six years, if the conditions of the contract had been performed, the reversionary rights of the Young Men’s Library Association and their right to nominate six trustees would cease, and that the property and control would then vest in the city. In June 1905, an ordinance was adopted by the City of Atlanta reciting that the contract of 1899 between the city and the Young Men’s Library Association had expired; that the city thereby took possession of the Carnegie Library, and assumed management and control thereof; and that management of same was vested in a Board of Trustees. Composition of the board was fixed, and the manner of election, terms, etc., was prescribed. The library has since been operated by a Board of Trustees appointed by the Board of Aldermen.
The petition alleges that the act providing that the Mayor and Council of Atlanta shall have full power and authority to pass all bylaws and ordinances respecting public buildings (Ga. L. 1874, pp. 116, 119) is the original source of all legislative [248] authority vested in the Mayor and Board of Aldermen with respect to the establishment, support, maintenance, and operation of the Carnegie Library, now known as the Atlanta Public Library. A charter amendment of December 20, 1899, required the city to appropriate annually $5,000 for the support of the library (Ga. L. 1899, p. 127); but the petitioner claims this did not amplify the authority given in 1874.
In 1901, the legislature by a general law (Ga. L. 1901, p. 52; Code § 32-2701) provided that any city might tax and appropriate money for the operation and maintenance of libraries. The act made it mandatory that the funds be expended by and under direction of the board of trustees of the public schools, or other authority controlling the public schools, which, by the act of 1904, was changed to the board of trustees elected by the city council. Ga. L. 1904, p. 90 (Code § 32-2701). Section 4 of the act of 1904 provided that the board of trustees should have supervision of the library, pass rules and regulations for its operation, elect a librarian, or designate someone to perform the duties of librarian, and should appoint and discharge said officer at pleasure.
The petitioner alleges that the act of 1901, as amended by the act of 1904, has no application to the Atlanta Public Library, but that its Board of Trustees was established by authority of the act of 1874 and the general law of 1892, which authorized the city to accept gifts of property and to act as trustee of said property (Ga. L. 1892, p. 104; Code § 69-501), and from later ordinances and a course of conduct indicating that the library was not being operated under the acts of 1901 and 1904.
The petitioner then alleged that, prior to May 10, 1949, the head of the department of the Atlanta Public Library was the librarian and that on that date the personnel board of the City of Atlanta recommended the creation of the position of office of Director of Public Libraries at a salary of $7,500 per year; that on May 11, 1949, the defendant Board of Trustees approved the creation of the new position and salary; that on May 16, 1949, the Board of Aldermen adopted an ordinance creating the position at said salary, and directed that he be paid by the city comptroller; that no ordinance, resolution, or other action of the [249] defendant Board of Aldermen was taken expressly naming, electing, or appointing the petitioner to the office of Director of Public Libraries of Atlanta; that no resolution, motion, or other action expressly electing or appointing the petitioner Director of Public Libraries of Atlanta was ever passed or approved by the defendant Board of Trustees and spread upon its minutes; that on May 17, 1949, the defendant Board of Trustees approved a motion to invite Mr. Settelmayer to become Director of Libraries of Atlanta, and directed the president of the board to communicate with him and to ascertain whether or not he would accept the position at the salary of $7,500; that the president of the board did call the petitioner, who agreed to take the office on July 1, 1949, and who, on that date, was sworn in and took possession of the office and has continued to serve in that office ever since; that since that date the petitioner has been recognized as the Director of Public Libraries of Atlanta and as head of the department of the Atlanta Public Library in numerous ways; that in 1939 an amendment to the charter of the City of Atlanta provided that the heads of all departments of the city whose terms would expire on the first Monday in January 1940 were extended one year, and at the expiration of that date terms of all officers, as then fixed by the charter, would be fixed at four years. Then the petitioner alleges, “that, by virtue of the foregoing facts in the light of the foregoing charter provisions, petitioner was elected in fact to the office of Director of Public Libraries of Atlanta, and as the head of the department of the Atlanta Public Library, by defendant Board of Aldermen for the balance of the four-year term expiring December 31, 1952.” These allegations alone or combined with any other allegations in the petition do not allege facts showing that Settelmayer has ever been elected Director of Public Libraries by the Board of Aldermen, or that he has ever been elected for any fixed term. Furthermore, there is no merit in the petitioner’s contention that only the Mayor and Board of Aldermen can remove the Director of Libraries. The act of February 26, 1941 (Ga. L. 1941, p. 1053), provides that the Mayor and Board of Aldermen of the City of Atlanta have sole authority “to declare any office whether legislative, executive, judicial, or administrative, [250] vacant for breach of duty . . Clearly, he is not a legislative, executive, or judicial officer. The act provides that “The term ‘administrative’ wherever used in this act shall mean department heads and not subordinate officers.” There is no ordinance or other law declaring the petitioner a department head; but, on the contrary, the only act designating department heads of the City of Atlanta (Ga. L. 1951, p. 3062) does not include the Director of Libraries. In addition, section 17.1 of the city charter provides that the department heads shall “be elected by a majority vote of the Board of Aldermen upon nominations by the Mayor.” It is not alleged that Settelmayer has ever been nominated by the Mayor for the office of Director of Libraries, or has ever been elected by the Board of Aldermen. Just the opposite is alleged, since the facts alleged show that he was elected by the Board of Trustees.
2. The petition, likewise, sets out no cause of action against the Board of Trustees.
As shown in division 1, the library was operated under a contract between the Young Men’s Library Association and the City of Atlanta from 1899 to 1905 by a Board of Trustees, six of whom were nominated by the Young Men’s Library Association. At the expiration of the contract, the library property vested in the City of Atlanta and the city took possession thereof and has since operated it under a Board of Trustees.
During the operation of the contract, a general law was passed in 1901 and amended in 1904, authorizing cities to establish and operate libraries, but requiring that same be operated under a board of trustees, which would hire and fire at pleasure a librarian and other employees.
In our opinion, the act of 1901, as amended in 1904, makes it mandatory that all libraries operated by cities be operated in accordance with its terms. While the establishment and operation of a public library by a city is permissive, a city having once established and undertaken the operation of a library must operate it in accordance with the requirements of that general law. See Vason v. City of Augusta, 38 Ga. 542, 545. The petitioner contends that the city has the right to elect whether it will operate under the general law and agrees that, if it makes [251] that election, it must comply with its terms. There is nothing in the act giving the city the right of such election. In fact, the provision of the 1901 act apparently was passed to assure that the contract then existing between the City of Atlanta and the Young Men’s Library Association under which the city obligated itself to appropriate at least $5,000 per year for support of the library should be binding upon the Mayor and Council of Atlanta and their successors in office, for it provides: “The municipal government of any such city shall have authority to enter into a legal and binding agreement to accept and receive any donation offered by any person or persons on such terms as may be agreed upon between said person or persons and said municipal government, and such agreement so made shall be legal and binding upon said municipal government and its successors; and all agreements by said municipal government of said city to pay any sum or sums of money annually thereafter for the use of said public library shall be legal and binding on the said city; and any ordinance or ordinances carrying said agreement into effect shall have the force and effect of law and be binding on the said city during the time mentioned in said agreement and said ordinance.”
The Atlanta Public Library has been operated by a Board of Trustees appointed by the Mayor and Board of Aldermen since the property vested in the city in 1905, the date of the expiration of the contract with the Young Men’s Library Association. The fact that there may not have been strict compliance with the provisions of the 1901 and 1904 acts as to operation of the library would in no way relieve the city from the requirements of those acts. No custom, acts, or courses of conduct could nullify the general law as to operation of the Atlanta Library. See Fleming & Bowles v. King, 100 Ga. 449 (2) (28 S. E. 239), and Deadwyler Co. v. Karow & Forrer, 131 Ga. 227 (2) (62 S. E. 172, 19 L. R. A. (NS) 197). “A mere custom cannot change the force of positive law.” Morris Plan Bank of Ga. v. Simmons, 201 Ga. 157, 172 (39 S. E. 2d 166).
The general law of the State applies to the operation of the Atlanta Public Library, and the Board of Trustees was authorized to discharge the petitioner, upon giving thirty days’ notice as provided in its bylaws.
[252]*2523. The trial court properly sustained the general demurrers and dismissed the petition.
Judgment ¡affirmed.
All the justices concur, except Duckworth, C. J., and Head, P. J., who dissent.