August 16, 1984

Ms. Joan P. Baker 
Hand County State's Attorney 
Post Office Box 91 
Miller, South Dakota 57362

OFFICIAL OPINION NO. 84-35

Recovery of overdue library books 

Dear State's Attorney Baker:

You have requested an official opinion from this office regarding the following question:

QUESTION: 

Is a person who borrows a library book and after repeated requests, including written requests, refuses to return the book or acknowledge the request in any way, subject to criminal prosecution for theft of public property?

SDCL 22-30A-1 provides: 

Any person who takes, or exercises control over, property of another with intent to deprive him of it, is guilty of theft.

I am assuming, for the purposes of this discussion, that the Hand County Library Board has adopted a book return policy which provides that at some point past due fees are no longer imposed and that the book is permanently missing.  It is my opinion that a person, who has borrowed a book under such policy and has, after repeated requests to return the book, refused to do so, is guilty of theft.  Clearly, the 'intent to deprive' required by the statute can be inferred from the act of taking coupled with the refusal to return the book.  See State v. Poss, 298 N.W.2d 80 (S.D. 1980).

SDCL 22-30A-13 provides: 

Any person who intentionally converts to his own use any leased or rented personal property, after receiving proper notice demanding the return of the property following expiration of the lease or rental agreement, is guilty of  theft.  'Proper notice' means a written demand for the return of the property addressed and mailed by certified or registered mail to the lessee or renter or personal service of such written demand in the manner provided for service of a summons.

Assuming that the Library Board has adopted a policy which treats the 'lending' of books as a gratuitous rental, the criminal prosecution of a person who refuses to return the property at the end of the rental period should be successful, provided the notices required by the statute set out above are provided.

Free lending libraries whereby citizens can receive and evaluate information for themselves are one of the hallmarks of a free country.  Acts by one citizen which deprives all other citizens of this opportunity are a serious matter and should be dealt with vigorously.  I encourage you to work with the Library Board in identifying a group of the worst offenders and filing charges against them.

While the amount of money involved in a single book may be relatively trivial, I am informed that in some libraries the cumulative effect of these losses exceeds the annual acquisition budget of the library.  For example, in Pierre over the past year and one-half 238 books have not been returned; assuming an average value of $20.00, this loss exceeds $4,000.00 and must be considered a serious matter.  While the Pierre Library Board, like many others,  has adopted a policy of terminating library services to those who refuse to return books, the fact remains that the library and the public are permanently deprived of the book.  When the public is permanently deprived of its property, theft has occurred.  In my opinion, the potential for criminal prosecution should substantially alleviate this problem.

Respectfully submitted,

Mark V. Meierhenry
Attorney General