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Brown vs. Board of Education (1928)

No. 6294 in the Supreme Court of Appeals of West Virginia. Anderson H. Brown, et als., Plaintiffs Below, Plaintiffs in Error, vs. The Board of Education of Charleston Independent School District, et als., Defendants Below, Defendants in Error.


[Petition of Anderson H. Brown, E. L. Powell, and William W. Sanders to the Circuit Court for Kanawha County, March 29, 1928]

To the Honorable A. P. Hudson, Judge of the Circuit Court of Kanawha County, West Virginia:

The undersigned Petitioners respectfully represent unto your honor that they are citizens of the United States and of the State of West Virginia and residents of the City of Charleston and the Charleston Independent School District in said state; that they have resided in said City for a long period of time, prior to the happening of the grievances herein complained of, namely 5 years; that they have personal property and real estate in the said City of Charleston and the Charleston Independent School District, and that they have been for several years past, namely 5 years, regularly assessed with taxes; state, district and municipal taxes and have paid the same.

Your Petitioners, say, that by virtue of an Act of the legislature of West Virginia, entitled, "An act to amend and re-enact Chapter Fifty Three (53) of the acts of Eighteen Hundred and Eighty One (1881) of the Legislature of West Virginia, entitled, 'An act removing the control of the free schools within the corporate limit of the City of Charleston, from the common council thereof and placing the same in the hands of a Board of Education of the Charleston Independent School District, passed February 15, 1911, and became a law without the approval of the Governor, it was among other things, provided in Section Six (6) Chapter Seventy-Four (74) of said acts of Nineteen Hundred and Eleven (1911) the following: Sec. 6: The Board of Education of said Independent District may annually levy a tax not to exceed Two (.02) Cents on the One Hundred ($l00.00) Dollar valuation, for the establishment, support, maintenance and increase of a public library, which shall be under the control of the said Board of Education; that said Board of Education, among other things, by chapter Seventy-Three (73), entitled, "An act to amend and re-enact Sections 2, 5, 6, 14 and 17 of Chapter Seventy-Four (74) of the acts of the Legislature of Nineteen Hundred and Eleven (1911) relating to Charleston Independent School District, as amended by Chapter 110 of the acts of the Legislature of Nineteen Hundred and fifteen (1915)" in section 6 of said act last mentioned as amended, was authorized to levy a tax not to exceed Three (.03) Cents on the One Hundred ($100.00) Dollar valuation for the establishment, support, maintenance and increase of a public library within said district, which shall be under the control of the said Board; that said last mentioned act was passed February 19, 1917, went into effect Ninety, (90) days after passage and was approved by the Governor February 24, 1917; that said Board of Education was authorized and empowered, among other things, by an act of the Legislature of West Virginia of the session 1923; Chapter Ninety-Nine (99), entitled, "An act to amend and re-enact Section Six (6) of Chapter Seventy (70) of the acts of the Legislature of Nineteen Hundred and Eleven (1911), relating to Charleston Independent School District as amended by Chapter Seventy-Three (73) of the act of the Legislature of Nineteen Hundred and Seventeen (1917)" in Section Six (6) of said act as follows: Section 6: That said Board of Education is authorized to establish, support and maintain in said District a public library and branches thereof; to purchase, acquire by condemnation in the manner provided in Chapter 42 of the code of West Virginia or otherwise acquire such real estate as may be necessary or proper in connection therewith; and to construct, purchase, lease or otherwise acquire one or more library buildings and to furnish, equip and maintain the same, and for the purposes aforesaid, they shall levy annually for the years 1923, 1924, 1925, and 1926, a tax not to exceed Five (.05) Cents for each One Hundred ($100.00) Dollar valuation of property, and for the year 1927, and each year thereafter it may levy a lax not to exceed Three (.03) Cents for each One Hundred ($l00.00) Dollar valuation of property for the support, maintenance, and enlargement of said library building or buildings. And said Board of Education is further authorized to accept, receive and use gifts, devises and bequests for any or all of the purposes aforesaid.

Your Petitioners say, that in Section Seventeen (17) of Chapter Seventy-Three (73) of the acts of the Legislature of West Virginia of Nineteen Hundred and Seventeen (1917) there is the following: "All acts and parts of acts concerning the Charleston Independent School District not contained in said Chapter Seventy-Four (74) of the acts of the Legislature of Nineteen Hundred and Eleven (1911), as amended by said Chapter One Hundred and Ten (110) of the acts of the Legislature of Nineteen Hundred and Fifteen (1915), and by this act are hereby repealed; and all provisions of the general school law of the state, and all laws which are in any manner inconsistent with the provisions of the acts aforesaid or any of them, shall to such extend not be applicable to said Charleston Independent School District.

Your Petitioners say, that Chapter One Hundred and Twenty-Three (123) of the acts of the Legislature of Nineteen Hundred and Twenty Seven (1927) entitled, "An act to amend and re-enact Section Six (6) of Chapter Ninety Nine (99) of the acts of the Legislature of West Virginia, regular session 1923, entitled, "An act to amend and re-enact Section Six (6) of Chapter Seventy-Four (74) of the acts of the Legislature of West Virginia of 1911, relating to Charleston Independent School District, as amended by Chapter Seventy-Three (73) of the acts of the Legislature of Nineteen Hundred and Seventeen (1917), contains the following. "Section 6: That the said Board of Education, is authorized to establish, support and maintain in said District a public library and branches thereof; to purchase, acquire by condemnation in the manner prescribed in Chapter 42 of the code of West Virginia or otherwise acquire such real estate as may be necessary or proper in connection therewith; and to construct, purchase, lease or otherwise acquire one or more library buildings and to furnish, equip and maintain the same. For the purpose aforesaid it may levy annually for the years 1923, 1924, 1925, 1926, 1927 and 1928 a tax not to exceed Five (.05) Cents for each One Hundred ($100.00) Dollar valuation of property and for the year 1929 and each year thereafter it may levy a tax not to exceed Three (.03) Cents for each One Hundred ($100.00) Dollar valuation of property for the support, maintenance and enlargement of said library building or buildings.

And the Board of Education is further authorized to accept, receive and use gifts, devises and bequeaths for any and all of the purposes aforesaid." This act was passed. April 25, 1927, and went into effect ninety days (90) from passage and became a law without the approval of the Governor.

Your Petitioners say, that in Chapter Sixty-Four (64) of the acts of the Legislature of West Virginia of Nineteen Hundred and Fifteen (1915) entitled, "An act authorizing incorporated cities and towns and also counties and school districts to levy taxes for the purpose of establishing public libraries and reading rooms; to appoint library boards and define their duties and powers; provide penalties for the injury or defacement of library property or the detention of books, magazines, newspapers, etc., belonging to the public library," it is provided among other things, the following: "Sec. 5: Each library established under this act shall be free for the sue [use] of the inhabitants of the municipality where located, subject to such reasonable rules and and [sic] regulations as the library boards may adopt and publish in order to render the use of said library of greatest benefit to the greatest number, and the said Board of the library may exclude from the use of said library any and all persons who wilfully violate such rules. The board may extend the privileges and use of said library to non-residents of the municipality upon such terms and conditions as said Board may prescribe."

Your Petitioners say, that the aforesaid acts of the Legislature of West Virginia authorize and empower said Board of Education to establish a public library and branches thereof in the Independent District of the City of Charleston that said Board of Education has no other powers than through and by virtue of the acts aforesaid to establish public libraries in the Independent School District of the City of Charleston.

Your Petitioners say, that the said board of education has authority to establish and maintain school libraries, but they are not authorized by law to levy a tax upon the taxable property of the said district to keep and maintain the same nor are they authorized by law to keep and maintain the same nor are they authorized by law to keep and maintain school libraries as public reading rooms.

Your Petitioners say, that all school libraries are required to be supported, supplied with books and magazines, etc., and maintained out of the general funds in the hands of the said school board, as provided in Chapter Forty-Five (45), Section Sixty-Two (62) of the Nineteen Hundred and Twenty-three (1923) Barnes Code of West Virginia, and your Petitioners say that the said Board of Education has no other authority to establish or maintain a school library out of a special levy for public library purposes.

Your petitioners say, that said Board of Education is governed, in the establishment, maintenance and regulations of all public libraries which it has or may hereafter establish in said district by the provisions of Chapter Forty Seven (47) of the 1923 Code of West Virginia, insofar as the same are not inconsistent with the said Chapter Seventy-Three (73) of the acts of the 1917 session of the Legislature of West Virginia, and by the Constitution of the United States, by the Constitution of West Virginia, and by the laws enacted pursuant, thereto.

Your Petitioners say, that said Board of Education under and by virtue of Chapter Seventy Four (74) Section Six (6) of the Nineteen Hundred and Eleven (1911) session of the Legislature of West Virginia, laid a levy styled, "Special Library", of one cent upon the One Hundred ($100.00) Dollar valuation upon all of the taxable property within said district, for the year 1916 and for the year 1917, a levy of one-half () Cent, for the year 1918, one cent for each of the years 1919, 1920 and 1921, one and one-half (1 ) Cents, and for the years 1922, 1923, 1924, 1925, 1926 and 1927, five (.05) Cents; all for the support, maintenance, equipment and establishment of a public library and branches thereof, for and within the said Independent District of Charleston for the use of all of the inhabitants of said district and for all other non-resident persons whom said Board of Education should permit to use the same.

Your Petitioners say, that through and by reason of the levies laid upon the taxable property within said district by said Board, and for the purposes aforesaid, large sums of money were collected in taxes upon said property for said years, to-wit: About the aggregate sum of Three Hundred and Seven Thousand Four Hundred and Forty Five Dollars ($307,445.00).

Your Petitioners say, that for several years prior to the year 1921, said Board of Education established, kept and maintained a public library within said district for the use of the inhabitants thereof, without a discrimination against any of said inhabitants by reason of race, color or previous condition of servitude.

Your Petitioners say that said Board of Education of the Charleston Independent School District, at a meeting held in said district on the 20th day of December, 1921, adopted resolutions, a part of which are as follows:

RESOLVED: (l) "That the Board of Education of the Charleston Independent School District desires to cooperate with the Library Board and the other organizations of the city for the purpose of securing an adequate and well equipped public library in the city, and to such end this Board is willing to accept such private contributions as may be made for such purposes and to use and expend the same for the purpose of acquiring a suitable library site, erecting a building thereon and equipping and maintaining the same.

(2) That the Library Committee of this Board is hereby authorized and requested to confer and cooperate with the Library Board and other organizations of the city for the purpose of receiving subscriptions and taking such other action from time to time as may be advisable in order to promote the acquiring of such library.

(3) That when sufficient funds shall accumulate and become available either from public contributions or from other sources, this Board will undertake the acquiring of a site and the erection and equipment and maintenance of a library building; such Public Library when so erected to be conducted and maintained by this Board."

Your Petitioners say, that a meeting of the said Board of Education, regularly held on October 27, 1925, resolutions were duly adopted by the said board, and which resolutions are in the words and figures following:

WHEREAS, the library commission on the 6th day of June, 1925, adopted the following resolutions:

RESOLVED: "That Mr. George S. Laidley, chairman of this library commission by, and he is hereby authorized to make a proposition to the Citizens corporation which owns the capital annex lot and building in the city of Charleston, to purchase said property for a public library at the price of Four Hundred Thousand $400,000.00) Dollars to be paid in the same payments thereon at same dates as the unpaid balance on the purchase money is to be paid by said Citizens corporation to the State of West Virginia under its contract of purchase with the State; provided, however, that said proposition to purchase shall not be made until after this commission has had a conference with the Board of Education of the Charleston Independent School District and said Board has given its approval to said proposition. If said Board of Education does not approve of said proposition then nothing shall be done in the matter without further action by the commission. If said proposition is made, it is understood that the individuals of this commission will not be personally responsible for carrying out any contract that may be made for the purchase of said property or the payment of the purchase money, but the Citizens corporation is to look only to the property as security for the purchase money".

Therefore be it resolved, that the Board of Education approve of the said proposition and the library commission is authorized to proceed with the negotiation for the purchase of said property."

Your Petitioners say, that the last named resolutions were duly adopted by a majority vote by the said Board of Education.

Your Petitioners say, that at a meeting of the said Board of Education held on the 22nd day of December, 1925, the minutes of the said meeting of the said Board of Education, among other things, shows the following:

"Mr. Spilman presented and read a communication from the library commission which stated that the commission had, with the approval of the Board, purchased the capital annex building for the public library for Four Hundred Thousand ($400,000.00) Dollars, paying Fifty Thousand ($50,000.00) Dollars cash and assuming the payment of (3) three notes due the State of West Virginia by the Citizens Corporation, etc. In the interest of economy the commission desired to retire at once the note of December 1, 1924, for One Hundred Thousand ($100,000.00) Dollars, the approval of which was given by the Governor of the State and requested that the Board assume to pay, out of the proceeds of a levy laid for the purpose, the entire amount of a note or such part as the Board might deem proper.

Upon motion the secretary was instructed to file the letter and to deliver an order upon the sheriff in favor of the State of West Virginia for Fifty Thousand ($50,000.00) Dollars and to deliver same to the library commission."

Your Petitioners say, that on December 9, 1926, at a meeting of the said Board of Education, regularly held, among other things done, at said meeting, the following resolutions were duly adopted by said Board:

"Whereas, this Board of resolution of June 5, 1923, has declared that the Colored library be kept separate from the library of the white people of the city in the same manner and to the same extent that the colored schools are kept separate; and,

Whereas by resolution of October 12, 1926, the library committee of this Board was authorized to move the books and get in order the colored branch library in Shrewsbury Street; and

Whereas by resolution of November 9, 1926, the library commission was authorized and requested to open and provide suitable equipment for said colored library in Shrewsbury Street.

Be it resolved that this Board re-affirm the previous resolutions as adopted by them and proceed to open a library in Shrewsbury Street for the exclusive use of colored people of the city, to be known as the colored branch library and to appoint a committee of seven (7) colored citizens of the city to serve until the end of the fiscal year as a library board and for the operation and governing of said library after the manner in which the library is the capital annex building, which is for the exclusive use of the white people of the city, is now operated and governed; and,

Be it resolved further, that the library committee of this Board consisting of' Dr. Price, Chairman, Mrs. Rummell and Mrs. Spencer promulgate such rules and regulations for the operation of' said colored branch library as may be deemed proper and submit them to this Board for approval at the next regular meeting."

Your Petitioners say that on 'December 13, 1927, at a meeting regularly held by the said Board of Education the following resolutions were adopted by the said Board of Education:

"Resolved, That the secretary be requested to write the Librarian of the Charleston Public Library to inform any colored citizens who come into the library, that in as much as the Board has provided Garnett Branch Library for their exclusive use, they must use such library instead of the Charleston Public Library and that the Librarian shall be instructed to refuse to serve them hereafter."

Your Petitioners say that at a special meeting of the said Board of Education regularly called and held on Tuesday, February 21, 1928, at 8 o'clock p. m. the minutes of the said Board show, among other things, the following:

"The President called the attention of the Board to a letter written by T. Gillis Nutter dated February 9, 1928, and after discussion thereof upon motion of Mr. Fruth, unanimously adopted, it was resolved that the Board deems itself bound to establish and maintain separate libraries for the white and colored schools and citizens of this district and therefore declines to rescind its former orders dealing with this matter.

Upon motion of Mr. Spilman, the following resolution was adopted by the Board:

RESOLVED: That the Charleston Public Library located in the capital annex building be and it is hereby declared to be and made a part of the public school system of this district for the use of white school children and white citizens only; and that the Garnett Branch Library now located in Shrewsbury Street but which is to be transferred to and maintained in quarters provided for it in the new Garnett High School building, plans for which the Board has adopted and the erection of which is about to commence, be and it is hereby declared to be and made a part of the public school system of this district for the use of colored children and colored citizens only."

Your Petitioners say that the said Charleston Public Library and the branches thereof have been acquired, established and maintained by the said Board of Education by and through public monies by levies laid upon the taxable property, from time to time, with in the said district and collecting the same; that the said library and the branches thereof are public libraries and that all of the citizens and inhabitants of the said district are entitled to the use thereof and the said Board of Education has no right nor authority to prevent the use of the said libraries and its branches by any of the residents or inhabitants of the said district, and said Board has no right or authority to limit the use of said library or the branches thereof to the white school children and white citizens of said district or to deny the use of said library or branches thereof to your Petitioners, or the other colored citizens and inhabitants of said district.

Your Petitioners say that the said Board of Education and its agents and servants are enforcing the said rules, regulations and resolutions adopted and promulgated by it in the conduct of said libraries, in that they denying to your petitioners and to the other colored citizens and inhabitants of said district the use of said public library and branches.

Your Petitioners say that said Charleston Public Library is being maintained and conducted in that certain building hereinbefore referred to as the "capital annex, building"; that same was purchased, equipped and is maintained at the public, expense and through taxation of all the property of the said district, as provided by law; that said library was established as a public library by the said Board of Education and is subject to to be used as such public library and as a place for such reading and investigation as the citizens and inhabitants of said district may desire.

Your Petitioners say that said public library is subject to be used as provided by the said acts of the Legislature and especially is said library subject to be used by the inhabitants of the said district as provided in Section 54 of Chapter 47 of the 1923 Code of West Virginia, commonly known as "Barnes' West Virginia Code Annotated," which section of said code reads as follows:

"Every library established under this act shall be free for the use of the inhabitants of the municipality where located, subject to such reasonable rules and regulations as the library board may adopt and publish, in order to render the use of said library of greatest benefit to the greatest number; and said Board may exclude from the use of said library any and all persons who wilfully violate such rules. The Board may extend the privilege and use of said library to non-residents of the municipality upon such terms and conditions as the Board may prescribe."

Insofar as the said last mentioned section is not inconsistent with Section 17 of Chapter 73 of the acts of the Legislature hereinbefore referred to.

Your Petitioners say that Section 50 of Chapter 47 of said code, among other things, contains the following: "The word, 'municipality', shall include an incorporated city, a town, a county and a school district, etc."

Your Petitioners say that said Chapter 47 of the said code of West Virginia applies to and governs said Board of Education, except insofar as the same maybe inconsistent with the said acts of the 1917 Legislature of West Virginia, or act or acts specifically applying to the said Charleston Independent School District.

Your Petitioners say that the said public library was fully equipped and ready for use for more than a year prior to the grievances herein complained of and the said library has been in continuous use for the purposes for which it was established since said time.

Your Petitioners say that pursuant to rules and regulations adopted and promulgated by the said Board of Education as hereinbefore mentioned the said Board of Education and their agents and servants beginning about the month of December, 1927, refused to permit your petitioners and all other colored citizens and inhabitants of the said district to use said public library which was so established and maintained in the said capital annex building and they have ever since so refused to permit the use of the said public library to your petitioners and all other colored citizens and inhabitants of the said district and still refuses to permit your petitioners and all other colored citizens to use said library.

Your Petitioners say that they caused their agent, and attorney, Mr. T. G. Nutter of the City of Charleston, to communicate on February 9, 1928, with the said Board of Education concerning the said refusal of the use of said library to your petitioners and the other colored citizens of the said district, and the said Board of Education, through E. A. Babcock, its secretary wrote the following letter, dated February 22, 1928, in reply to the communication of T. G. Nutter concerning said refusal of the use of said library and which reply is in the words and figures following:

"Mr. T. G. Nutter,
Charleston, W. Va.

Dear Sir:

Referring to your letter of the 9th addressed to the members of the Board, relative to Garnett Branch Library, permit me to say that your letter was presented to the Board at a meeting held last evening and I am instructed to write you that the Board deems itself bound to establish and maintain separate libraries for the white and colored children and citizens of this district and therefore declines to rescind its former orders dealing with this matter.

Yours very respectfully,
(Signed) E. A. Babcock, Secretary"

Your Petitioners say that they, on the _____ day of March, 1928, went to said Charleston Public Library for the purpose of securing some books, papers and magazines for the purpose of reading the same in said library, as they and each of them were entitled to do, as residents and tax payers of said district, and the Librarian and other agents and servants of the said Board, all of whom were acting for and under the directions of the said Board of Education, refused to permit your petitioners, or either of them, to use any of the books or magazines or papers in the said library, and refused them or either of them to sit in said library for the purpose of reading in said library, as-petitioners had a perfect right to do, and said Librarian of the said public library and other agents and servants of the said Beard of Education employed therein and in charge of said library books and papers and magazines in said library and whose duty it was and is to permit the citizens and inhabitants of' said district to use said library for the purpose of reading therein as aforesaid, refused your petitioners or either of them to read any of the books and papers and magazines in said library because of the fact that your petitioners are of the Negro race and commonly designated as colored people, and did inform your petitioners that they could not use the said library or the books therein because of the fact that petitioners are colored.

Your Petitioners say that they and all of the colored citizens and inhabitants of the said district by reason and on account of the action of the said Board of Education in refusing them of the usage of the said library as aforesaid are deprived of the benefits and privileges of the Charleston Public Library in said district.

Your Petitioners say that the said Charleston Public Library is a large and well equipped building for library purposes and has in it about 17,960 volumes of books, besides a large number of pictures, paintings, portraits, magazines and reference books, all of which are of great benefit in studying, reading and research; that all of the same are paid for, kept and maintained, and all of the agents and servants of the said Board of Education in charge of said Charleston Public Library are hired by the said Board and paid by it, out of the public funds raised from taxes upon all of the taxable property within the said district, and that your petitioners and a large number of other Negroes or colored people are property holders and tax payers within the said district and have been and will be required to pay large sums of money annually for the upkeep and maintenance of said Charleston Public Library; that by the action of the Board of Education and its agents and servants your petitioners and all other colored people within said district, to-wit, 7,000, including all of the colored tax payers of said district have been and will be from year to year, required to contribute large sums of money as taxes for the upkeep of the said Charleston Public Library, but are and will be deprived of all use of the said library and the books and papers and magazines therein, contrary to law.

Your Petitioners say that the said Board of Education, notwithstanding that said Charleston Public Library was acquired, established and maintained as a public library, and the money for which was and is secured by levying a tax upon all of the taxable property within the said district did, at a meeting of said Board regularly held on February 21, 1928, pass a resolution, which is in the words and figures following:

"RESOLVED: That the Charleston Public Library, located at the capital annex building be, and it is hereby declared to be made a part of the public school system of this district and for the use of white school children and white citizens only; and that the Garnett Branch Library, now located in Shrewsbury Street, but which is to be transferred to and maintained in quarters provided for it in the new Garnett High School, plans for which the board has adopted and the erection of which is about to commence, be, and it is hereby declared to be made a part of the public school system of this district for the use of colored school children and colored citizens only."

Your Petitioners say that said resolution of the said Board of Education and all rules and regulations adopted by it purporting to establish separate public libraries for white people and colored people in said district are void and without warrant of law; that all attempts of the said Board and all acts done by it in the attempt to place the said Charleston Public Library under the school system of the said district are absolutely void and contrary to law.

Your Petitioners say that the said Board of Education has no power or authority to establish or maintain a public library for white children and the white public in such manner as to deprive the colored children and the colored public residing in said district from the full and free use of such library.

Your Petitioners say that the only distinction between white citizens and colored citizens that the said Board of Education is authorized to make is that white and colored children shall not be taught in the same school.

Your Petitioners say that for about six or eight months prior to the happening of the grievances herein complained of, the said Board of Education has kept and maintained a small frame building in which is housed less than 3,000 books, as a library, intended and declared by them to be a library exclusively for the use of colored school children and colored citizens only.

Your Petitioners say that Garnett Branch Library is now situate on Shrewsbury Street in said district; that it is not equipped with books, magazines and pictures and portraits as is said Charleston Public Library; that it is very much smaller than the said Charleston Public Library and does not approach the same in the way of equipment and accommodations and that it is in no way suitable for library purposes; that it does not meet the minimum requirements of a standard library; that it is wholly inadequate and does not offer equal accommodations to the colored citizens of the City of Charleston and of the Charleston Independent School District.

Your Petitioners say that the said Board of Education has not established nor does it maintain any other facilities for reading and studying for the colored citizens and inhabitants in said district than the Garnett Library as hereinbefore described; that your petitioners and all other colored citizens of said district are denied all rights and privileges to use the said Charleston Public Library for reading and studying as hereinbefore mentioned.

Your Petitioners say that the refusal of the said Board of Education and their agents and servants to permit your petitioners as well as all other colored inhabitants within said district to have full and free use of the benefits of the said Charleston Public Library for the purpose of reading and study and the refusal to permit them to use the books of the said Library is in contravention of Section One (1) of the Fourteenth (14) Amendment to the Constitution of the United States and the laws of Congress enacted pursuant thereto, and especially that portion of said article which reads as follows:

"No State shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the law";

that said action on the part of the Board of Education is in violation of Section One (1) of Article Three (3) of the Constitution of West Virginia; that said action of the said Board of Education and its agents and servants violates Section Fifty-Four (54) of Chapter Forty-Seven (47) of the Barnes' West Virginia Code of 1923, as well as the other legislative enactments herein mentioned.

Your Petitioners say that they have no other, or adequate remedy to enforce their rights in the premises except a writ of mandamus issuing out of your honor's court.

Your Petitioners now, therefore, pray than an alternative writ of mandamus may be awarded them, directed to the Board of Education of the Charleston Independent School District, a corporation, in the County of Kanawha, and State of West Virginia, J. E. Robins, W. L. Price, Val Fruth, Sallie Spencer, R. S. Spilman, W. H. Belsches, Ruth Rummel and Wilbur Stump, who are all of the members of the said Board of Education, returnable to the Circuit Court of Kanawha County, West Virginia, on the 8th day of April, 1928, and that said Board of Education and the said members thereof be made parties Defendants in their official capacities, commanding them, the said Charleston Independent School District, a corporation, and all of the members of said Board, naming them, last above mentioned named, to permit your Petitioners or any of them, as well as all other colored citizens of the said district at all proper hours to enter and use the said Charleston Public Library and to read the books in said Charleston Public Library, situate in what is commonly known as the capital annex building, subject to the rules and regulations prescribed by the Board for the governing of said Library but without discrimination against your Petitioners and the other colored citizens and inhabitants of said district on account of race, color or previous condition of servitude, and that your Petitioners and all other colored citizens of the said district who may deisre [sic] the lawful use of said Library be treated in the same manner in the use of said Library and the books therein as all other persons are treated who may use said library, or show cause, if any it, the said Board of Education of Charleston Independent School District can, and if any of the other of said Defendants can, why they should not do so.

That your Petitioners be granted such other and further relief as the nature of the case may require. And as in duty bound your petitioners will ever pray, etc.

ANDERSON H. BROWN
E. L. POWELL
WILLIAM W. SANDERS

By Counsel.
CLAYTON E. KIMBROUGH, SR.
T. G. NUTTER

STATE OF WEST VIRGINIA
COUNTY OF KANAWHA, TO-WIT

Anderson H. Brown, one of the petitioners named in the foregoing petition, being duly sworn, says that the facts and allegations therein contained are true, except so far as they are therein stated to be on information, and that so far as they are therein stated to be upon information, he believes them to be true.

ANDERSON H. BROWN
Petitioner

Taken, sworn to and subscribed before me by Anderson H. Brown this 23 day of March, 1928.

My commissioner expires on the 23 day of Sept. 1937.

CLINTON W. DICKERSON
Notary Public


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