The opinion
Maxwell, Judge,
(concurring on petition for rehearing) :
It is asserted on behalf of respondents: “If the library /is a part of the school system, then clearly the board was
I
bound to make such a separation. If it is not a part of the i school system, then the board has the power to make such a . separation as police regulation under all the authorities. ’ ’
The legislative acts referred to in the opinion by Judge Litz authorize the establishing and maintaining of a public library in Charleston Independent School District. There is nothing-in any one of the four acts to indicate that the proposed library was to be a school library merely. The phrase “public library” has a definite and well understood meaning and is not susceptible of construction or interpretation. It means just what it says — neither more nor less.
People ex rel. etc.
*483
v.
Tax Commissioners,
(N. Y.), 11 Hun. 505 . The fact that the legislature has seen fit to place this library under the control and supervision of the school board does not make of it a school library. Presumably this plan was adopted because at the times of the several enactments aforesaid, the school board was an existing', efficient and proper instrumentality to be entrusted with the responsibilities attendant upon the establishing and maintaining of a public library. The situation is no different than if a special board had been created for the purpose, or than if the legislature had seen fit to place these responsibilities upon the county court or the city council. The legislature thus not having authorized the establishment of this institution as a school library, the resolution of the board of education of February 21, 1928, declaring the said library to be a part of the public school system for the use of white school children and white citizens only, was without legal justification. Of course, if this library were in fact and in law a part of the public school system, segregation of the races would be warranted and lawful as a school matter. Constitution of West Virginia, Article 12, section 8; Code, Chapter 45, section 67. It is to be noted that in prior resolutions of the board bearing upon the segregation of the races in the use of the library, no intimation is made that it is a school proposition. So far as appears from the records before us this idea first chrystal-ized in the above mentioned resolution of February, 1928, and this was after the right of the board to enforce segregation as first attempted by it had been challenged.
Now as to the other proposition, namely, whether, it being considered that the library is not a part of the school system, the board has the power as a police regulation to declare the library in the Capitol Annex to be for the use of white people only. It cannot be seriously questioned that by constitutional provision or legislative enactment segregation of the races may be legally provided for in certain circumstances, notably in the matter of schools and public transportation; perhaps also in the use of libraries and other public institutions. ‘ ‘ The object of the amendment (14th amendment of the Constitution of the United States) was undoubtedly to enforce the abso
*484
lute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions placed upon color, or to enforce social, as distinguished from political equality, or a eo-mingling of the two races upon terms unsatisfactory to either. Laws permitting, cind even requiring their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and hás been generally, '' if not universally, recognized as within the competency of . the State Legislatures in the exercise of their police power. ’
’ Plessy
v.
Ferguson,
163 U. S. 537, 544 . Federal and state courts alike uphold this principle. Further citation of authorities is not necessary. The Supreme Court of the United States has also declared it to be the law that by reasonable regulations interstate public carriers may separate white and colored passengers.
Chiles
v.
C. & O. Ry. Co.,
218 U. S. 71 . In the opinion in that case the court said: “Regulations which are induced by the general sentiment of the community for whom they are made and upon whom they operate, cannot be said to be unreasonable.” Such regulations, it will be {noted, are incident to interstate commerce and are not based on the police power of the state. There may also be segregation by contract.
Corrigan
v.
Buckley,
299 Fed. 899 . But that is not the proposition here.
Can the attempted segregation, bearing on a matter as to which the Constitution is silent and as to which the Legislature has not spoken, be made by a subordinate governmental agency? We are cited no cases, nor does a diligent search reveal any, upon which an affirmative answer might be predicated. The cases are the other way. Boards of education and other subordinate governmental agencies are limited in their authority by the constitutional provisions or the legislative' enactments which give them birth.
“School districts are public
quasi
municipal corporations, sometimes termed ‘involuntary corporations’. They have perpetual succession, and may sue or be sued even in the absence of a statute authorizing such action. They may make contracts, levy taxes, and possess property. They are organized not for the purpose of profit or gain, but solely for the public
*485
benefit, and have only such limited powers as may be necessary for that purpose. They have therefore been said to be corporations of the most limited power known to the law. They are but the agents of the state for the sole purpose of administering the state system of public education, and have only such powers as.are conferred expressly or by necessary implication.” 24 R. C. L. p. 564. “School boards have no powers excepting those expressly granted, and those necessarily implied from those that are granted.”
Crawford
v.
School Board,
(Ore.) 137 Pac. 217 . That principle has been frequently recognized and applied by this Court.
Herald
v.
Board of Education,
65 W. Va. 765 , and cases cited. In the
Herald
case this Court quoted with approval from 3 Abbott Municipal Corporations, section 1080, as follows: “In common with the grant of powers to all subordinate and public
quasi
corporations, the rule of law applies of strict construction and a consequent limitation of the rights which may be exercised by them and the duties which they can legally perform.” In the
Oregon
case,
supra,
it is held that in the absence of authority expressly granted by legislative enactment or necessarily implied, a school board has no authority to establish separate schools for the different races. On the limitations of subordinate tribunals see the following:
Kuhn ex rel. etc.
v.
Board,
(Mich.) 141 N. W. 574 ;
Maddox
v.
Neal,
45 Ark. 121 ;
Baxter
v.
Davis,
(Ore.) 112 Pac. 410 ;
Clark
v.
Board,
24 Iowa 266 ;
Pasadena Sc’l. Dis’t.
v.
City of Pasadena,
(Cal.) 134 Pac. 985 ;
Knox
v.
Board,
(Kan.) 25 Pac. 616 ;
Chase
v.
Stephenson,
71 Ill. 383 ;
Reynolds
v.
Board,
(Kan.) 72 Pac. 274 ;
Board
v.
Tinnon,
26 Kan. 1 ;
People
v.
Board,
(Ill.) 40 Am. Rep. 196 .
In the
Maddox
case, cited, the court said: '“No discrimination on account of nationality, caste or other distinction has been attempted by the law making powers. The boards of directors are only the agents, the trustees appointed to carry out the system provided for. Their powers are no greater than the authority conferred by legislation. They can do nothing they are not expressly authorized to do or which does not grow out of their express powers.” In the
Pasadena
case,
supra,
we find: “School districts are
quasi
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municipal corporations of tlie most limited power known to the law. Their trustees have special powers, and cannot exceed the limit.”
Unless a subordinate governmental agency has authority therefor in the breadth of its legislative grant of power, necessarily incident thereto, as in
Roberts
v.
Boston,
(Mass.) 5 Cushing 196 , and
Hopkins
v.
Richmond,
(Va.) 86 S. E. 139 , or is specifically clothed with such authority, it may not enforce a segregation of the races in the enjoyment of public institutions. Cases
supra.
The police power is an attribute of sovereignty which rests. in the states, and has not been
I
surrenderd by them to the federal government. 12 Corpus Juris, 907; 6 R. C. L. 191. It is to be exercised by the Legislature or by subordinate governmental agencies acting only under legislative authority expressly delegated or necessarily implied. As illustrative of this proposition see
Judy
v.
Lashley,
50 W. Va. 628 , wherein it is stated: “The police power of a municipal corporation depends upon the will of the legislature, and a city, town or village can only exercise such police power as is fairly included in the grant of powers by its charter. ’ ’ Authorities need not be multiplied. On reason, this principle applies to all agencies of government acting under legislative authority.
In the management of the public library authorized by the legislative acts aforesaid the Board of Education does not have the 'authority under the police power of the state, by reason of either general or special authorization, to exclude ^colored citizens therefrom. This is a legislative matter.
It thus follows that the action of the Board cannot be legally justified either on the theory that the library is a part of the public school system or on the basis of the police power of the state.