Brown vs. Board of Education (1928)

Supreme Court Records & Briefs: Cases Reported In 106 West Virginia,
September 11, 1928 To February 19, 1929
. 106-D.

No. 6294

In The

Supreme Court Of Appeals


West Virginia


Anderson H. Brown, Et. Als. Plaintiffs Below, Plantiffs in Error vs. The Board Of Education Of Charleston Independent School District, Et. Als., Defendants Below, Defendants in Error.

Brief On Behalf Of Plaintiffs In Error

From the Circuit Court of Kanawha County


This is a mandamus proceedings instituted in the Circuit Court of Kanawha County by Anderson H. Brown, E. L. Powell and W. W. Sanders, on behalf of themselves and the colored citizens and residents of the Charleston Independent School District against the Board of Education of the Charleston Independent School District and the individual members of said Board, to compel said Board and the members thereof to permit the plaintiffs or either of them, as well as all other colored citizens in said district at all proper hours, to enter and use the 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 the plaintiffs and the other colored citizens and inhabitants of said district on account of race, color or previous conditions of servitude, and that the plaintiffs and all other colored citizens of said district who may desire 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.

On the 13th day of March, 1928, the plaintiffs went to said Charleston Public Library for the purpose of securing some books, papers and magazines, as they and each of them were entitled to do, as residents of said District and tax payers of said District, and the Librarian and other agents and servants of the said Board, refused to permit them or either of them, to use any of the books or magazines or papers in said Library and refused them or either of them to sit in said library for the purpose of reading in said library.

On March 29, 1928, the plaintiffs on their behalf as well as on behalf of the colored residents and taxpayers, filed their petition in the Circuit Court of Kanawha County for alternative Writ of Mandamus against said Board and the individual members thereof for the purposes stated in the first paragraph, upon the grounds that the refusal of the said Board of Education and their agents and servants to permit the plaintiffs 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 purposes of reading and study and the refusal to permit them to use the books of 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 the Constitution of West Virginia and the hereinafter mentioned Acts.

The Alternative Writ of Mandamus was granted on the 29th day of March, 1928, and returnable on the 5th day of April, 1928. On the 5th day of April, 1928, the respondents moved the Court to enlarge the time within which they, the said respondents, may move to quash, demur, make return or otherwise plead to the alternative Writ of Mandamus, which motion was unopposed by attorneys for plaintiff and the time was enlarged and extended to the 12th day of April, 1928.

On the 12th day of April, 1928, the defendants tendered their joint and several motions in writing to quash the alternative Writ of Mandamus awarded berein against them, together with the joint several returns of said defendants, duly verified, denying that the resolutions, rules and regulations adopted by said Board of Education for the purpose of establishing and maintaining separate libraries for the white and colored children and citizens of said District are void or without warrant of law, as alleged in said Alternative Writ, or contrary to any provision of the constitution of West Virginia, or contrary to any provision of the constitution of the United States and laws enacted pursuant thereto; denying that the separation of the two races in public libraries established and maintained by the Board of Education of said District for educational purposes, is a violation of any constitutional or legal right of the plaintiffs or of any colored citizens of said District; that the separation of the two races for educational purposes in the public schools of said District, is required by Section 8 of Article XII of the Constitution of West Virginia and that such segregation or separation is required by the public policy, customs, usuage and traditions of said State, as is manifested not only from the fact that separate public resorts for the two races, including churches, hotels, theatres and other places of resort, have always been and still are maintained, but also by numerous statutes enacted by the Legislature of West Virginia for the purpose of maintaining said policy.

And the matters arising upon the motion of said defendants to quash said alternative writ of mandamus, and upon the demurrer of the said defendants to said return to said alternative writ, being fully argued by the attorneys for both parties and considered by the court, the court held that said alternative writ is not sufficient in law and does not state a cause of action against either or any of said defendants, and that said motion to quash said altern[a]tive writ should be sustained for reasons stated in a written memorandum of the opinion of the court upon said motion, which is ordered to be filed and made a part of the record herein, marked "Memorandum of the Court."


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