Litz, Judge:
This is a writ of error to the judgment of the circuit court quashing an alternative writ of mandamus which commands the respondents, J. E. Robins, W. L. Price, Val Fruth, Sallie Spencer, R. S. Spilman, W, IT. Belsches, Ruth Rummel and Wilbur Stump, as members of The Board of Education of The Charleston Independent School District to show cause why they shall not permit the petitioners, Anderson H. Brown, E. L. Powell and William W. Sanders (negro citizens and tax-payers of said school district), and all other colored residents therein to enter and use the Charleston Public Library in the city of Charleston at the former Capitol Annex Building, subject to proper rules and regulations.
Article 12, section 8, of the West Virginia Constitution proclaims that white and colored persons shall not be taught in the same schools. 'Chapter 45, section 67, Code, also declares that white and colored pupils shall not be taught in the same school or in the same building.
Section 6, Chapter 74, Acts 1911, provides that the Board of Education of Charleston Independent School District “may annually levy a tax not to exceed two cents on the hundred dollars’ valuation, for the establishment, support, ma.int.en-anee, and increase of a public library, which shall be under the control of the said board of education. ’ ’ This section was re-enacted and amended as section 6, Chapter 73, Acts 1917, by increasing the levy from two to three cents. It was again re-enacted and amended as section 6, Chapter 99, Acts 1923, as follows: ‘ ‘ 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 forty-two 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 purposes aforesaid it may levy annually for the years one-thousand nine hundred and twenty-three, one thousand nine hundred and twenty-four, one thousand nine hundred and twenty-five, and one thousand nine hundred and twenty-six a tax not to exceed five cents for each one hundred dollars’ valuation of property, and for the year one thousand nine hundred and twenty-seven, and each year thereafter, it may levy a tax not to exceed three cents fo.r each one hundred dollars’ 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.” The statute was again re-enacted and amended as section 6, chapter 123, Acts 1927, by increasing the rate of levy for 1927 and 1928 from three to five cents.
With the levies collected under the several special acts and other large sums of money privately contributed for the establishment and maintenance of a public library in the city of Charleston, the Capitol Annex Building has been purchased and equipped as a public library.
At a meeting of the Board of Education December 9, 1926, the following resolution was adopted: “Whereas, this Board by resolutions 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 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 tbe manner in which the library in the Capitol Annex Building, which is for the exclusive use of the white people of the city, is now operated and governed.”
At another meeting of the Board of Education February 21, 1928, it was resolved: “That The Charleston Public Library located in the Capitol Annex Building be, and it is hereby declared to be and made 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 he 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 it 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.”
The circuit court in its ruling adopted the contention of the respondents that The Charleston Public Library established and maintained in -the Capitol Annex Building is a part of the public school system of The Charleston Independent School District, and as such may be limited in its use to “white school children and white citizens.” In view of section 62, Chapter 45 of the Code, providing for the establishment and maintenance of school libraries by the Boards of Education of every district and independent district, it cannot be said that the Legislature intended to establish a school library in the passage of the several special acts providing for the establishment ánd maintenance of a public library. The mere designation of a Board of Education as the agency to establish, maintain and control a public library does not convert it into a school library or make it a part of the public school system. As an illustration, a ministerial act does not become a judicial act when performed by a judicial officer.
A public library is a library to which the general public has free access. 32 Cyc., 1248. It is said, however, that the maintenance of a public library for the joint use of white and colored citizens would be inconsistent with the public policy of the state, established by its laws, institutions, cus
toms, practices and traditions, of separating the races; and that in keeping with this policy, the legislative acts, under consideration, should be construed so as to uphold the action of the board in denying to negroes the use of the Charleston Public Library. In other words, it is contended that the Legislature meant to provide for the establishment of a school library, which should be under the control of the board of education as a part of the public school system, and not a public library as the statutes declare. This argument is answered by chapter 64, Acts 1915, authorizing any municipality to establish a public library on approval of a majority vote of its citizens by levying a tax of not more than one and one-half cents on each one hundred dollars’ valuation of the taxable property therein.
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Litz, Judge:
This is a writ of error to the judgment of the circuit court quashing an alternative writ of mandamus which commands the respondents, J. E. Robins, W. L. Price, Val Fruth, Sallie Spencer, R. S. Spilman, W, IT. Belsches, Ruth Rummel and Wilbur Stump, as members of The Board of Education of The Charleston Independent School District to show cause why they shall not permit the petitioners, Anderson H. Brown, E. L. Powell and William W. Sanders (negro citizens and tax-payers of said school district), and all other colored residents therein to enter and use the Charleston Public Library in the city of Charleston at the former Capitol Annex Building, subject to proper rules and regulations.
Article 12, section 8, of the West Virginia Constitution proclaims that white and colored persons shall not be taught in the same schools. 'Chapter 45, section 67, Code, also declares that white and colored pupils shall not be taught in the same school or in the same building.
Section 6, Chapter 74, Acts 1911, provides that the Board of Education of Charleston Independent School District “may annually levy a tax not to exceed two cents on the hundred dollars’ valuation, for the establishment, support, ma.int.en-anee, and increase of a public library, which shall be under the control of the said board of education. ’ ’ This section was re-enacted and amended as section 6, Chapter 73, Acts 1917, by increasing the levy from two to three cents. It was again re-enacted and amended as section 6, Chapter 99, Acts 1923, as follows: ‘ ‘ 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 forty-two 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 purposes aforesaid it may levy annually for the years one-thousand nine hundred and twenty-three, one thousand nine hundred and twenty-four, one thousand nine hundred and twenty-five, and one thousand nine hundred and twenty-six a tax not to exceed five cents for each one hundred dollars’ valuation of property, and for the year one thousand nine hundred and twenty-seven, and each year thereafter, it may levy a tax not to exceed three cents fo.r each one hundred dollars’ 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.” The statute was again re-enacted and amended as section 6, chapter 123, Acts 1927, by increasing the rate of levy for 1927 and 1928 from three to five cents.
With the levies collected under the several special acts and other large sums of money privately contributed for the establishment and maintenance of a public library in the city of Charleston, the Capitol Annex Building has been purchased and equipped as a public library.
At a meeting of the Board of Education December 9, 1926, the following resolution was adopted: “Whereas, this Board by resolutions 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 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 tbe manner in which the library in the Capitol Annex Building, which is for the exclusive use of the white people of the city, is now operated and governed.”
At another meeting of the Board of Education February 21, 1928, it was resolved: “That The Charleston Public Library located in the Capitol Annex Building be, and it is hereby declared to be and made 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 he 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 it 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.”
The circuit court in its ruling adopted the contention of the respondents that The Charleston Public Library established and maintained in -the Capitol Annex Building is a part of the public school system of The Charleston Independent School District, and as such may be limited in its use to “white school children and white citizens.” In view of section 62, Chapter 45 of the Code, providing for the establishment and maintenance of school libraries by the Boards of Education of every district and independent district, it cannot be said that the Legislature intended to establish a school library in the passage of the several special acts providing for the establishment ánd maintenance of a public library. The mere designation of a Board of Education as the agency to establish, maintain and control a public library does not convert it into a school library or make it a part of the public school system. As an illustration, a ministerial act does not become a judicial act when performed by a judicial officer.
A public library is a library to which the general public has free access. 32 Cyc., 1248. It is said, however, that the maintenance of a public library for the joint use of white and colored citizens would be inconsistent with the public policy of the state, established by its laws, institutions, cus
toms, practices and traditions, of separating the races; and that in keeping with this policy, the legislative acts, under consideration, should be construed so as to uphold the action of the board in denying to negroes the use of the Charleston Public Library. In other words, it is contended that the Legislature meant to provide for the establishment of a school library, which should be under the control of the board of education as a part of the public school system, and not a public library as the statutes declare. This argument is answered by chapter 64, Acts 1915, authorizing any municipality to establish a public library on approval of a majority vote of its citizens by levying a tax of not more than one and one-half cents on each one hundred dollars’ valuation of the taxable property therein. Section 5 of the Act declares that each library established thereunder “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 authorizes the library board to exclude from the use of said library any and all persons who shall wilfully violate such rules. The fact that this statute has not been adopted by the citizens of Charleston has no bearing upon the legislative intent shown in the enactment of a general law authorizing the establishment and maintenance of public libraries which “shall be free for the use of the inhabitants of the municipality where located, subject (only) 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. ’ ’ But we would not be justified, on account of public policy, in construing a plain statute to mean something other than its language imports. Section 81, chapter 51, Acts 1925, provides that “it shall be the duty of the board of education in any district which does not maintain a high school, or assist in the maintenance of the county high school, to pay the tuition fees of all pupils in its district who have completed the course of study in the elementary school and who attend public high schools in other districts or counties,
or other schools of high school grade within the
state.”
Applying this statute, it was held in
Gissy
v.
Board of Education,
105 W. Va. 429, 143 S. E. 111, that the board of education in a district which did not maintain a high school or assist in the maintenance of the county high school, should pay the tuition fee's, of pupils in its district (who had completed the course of study in the elementary schools) while attending a parochial high school in another district. The board of education in resisting payment of the fees in Question contended that because of the policy of the state to foster public school education, the statute should not be so construed as to 'encourage the establishment of church schools whose pupils are eligible for public school training. Responding to this contention, Judge Lively, who wrote the opinion of the Court, said:
‘ ‘ It was further suggested in argument and conferenee that to allow pupils to attend ‘ other schools of high school grade,’ when a public high school was equally available, would bring about undue activity and solicitation from denomination schools of such grade for the enlistment of such pupils in their schools, to the detriment of the free schools, and we should interpolate into the plain words of the statute the choice of dictation by the board paying the tuition as to whether the pupil should attend a public high school or other school of like grade, in order to prevent that suggested imaginary evil. It may be observed that the tuition fees are limited in the Code of 1923 to $5 per month for each pupil, with a minimum of $2.50. Whether this sum would induce hurtful activity and competitive solicitations from the various denominational schools is rather a vague assumption. But, whether that result may ensue or not, the courts have nothing to do with the wisdom of legislative acts. The Legislature has unlimited power, except where it is not restricted by the Constitution of the state or United States.
Even if the courts are convinced that some particular act is unwise or vicious, they will not declare the act invalid, if not in conflict with the paramount law of the land. To do so would be usurpation of legislative powers, and violate the fundamental division of our government into leg
islative, judicial, and executive branches.
State
v.
Peel Splint Coal Co.,
36 W. Va. 802, 15 S. E. 1000, 17 L. R. A. 385;
State
v.
Workman,
35 W. Va. 367, 14 S. E. 9, 14 L. R. A. 600;
Slack
v.
Jacob,
8
W.
Va. 612;
Osburn
v.
Staley,
5 W. Va. 85, 13 Am. Rep. 640.”
It is sought to justify the action of the Board of Education also on the ground that the governing body of the public library may in the exercise of the police power of the state limit its use to “white school children and white citizens.” The principle relied on has been applied by the courts in approving miles and regulations by railroad companies providing separate coaches for white and colored passengers.
Granting that the Board of Education may provide separate departments for white and colored persons in the library building, we do not think it is vested with such regulatory powers either under the statute or under the police power of the state as would justify it in excluding colored persons therefrom.
The petition, in our opinion, states a case for relief. The ruling of the circuit court is therefore reversed and the case remanded.
Reversed and remanded.