The opinion of the court was delivered by
Smith, J.:There was some attempt to show that the child was denied admittance to Mr. Werner’s room for the reason that there was no unoccupied seat there, *34while in Dodd’s room there was an abundance of seats; also, that the teacher did not reject the pupil by direction of the board of education. The teacher testified that he received more white pupils soon after this girl was rejected, and we think the evidence shows that the board of education maintained separate schools for white and colored children of the same grade, and that they were separated by reason of color; that this girl was refused admission to the school where she applied for admission for really the sole reason that she was colored; and that the act of the teacher in excluding her was done in carrying out the plans of the board of education in accordance with his- employment.
It is contended that the plaintiff is not the real party in interest, and hence is not entitled to maintain this action. In this state a parent is required by law to send his children of certain ages to school, and may be prosecuted criminally for his failure so to do. While several similar cases have been maintained in the name of the parent in this court, it does not appear that this question was raised therein. (Billard v. Board of Education, 69 Kan. 53, 76 Pac. 422, 66 L. R. A. 166, 105 Am. St. Rep. 148; Board of Education v. Tinnon, 26 Kan. 1; Knox v. Board of Education, 45 Kan. 152, 25 Pac. 616, 11 L. R. A. 830.)
Authority is not wanting for this procedure. (See The People v. The Board of Education of Detroit, 18 Mich. 400; State ex rel. Bowe v. Board of Education of the City of Fond du Lac, 63 Wis. 234, 23 N. W. 102, 53 Am. Rep. 282.)
. It is not contended that there is any statute in this state authorizing boards of education of cities of the second class to establish separate schools for the education of white and colored children. In the absence of such a statute it has been decided by this court that no such power exists, and we adhere to these decisions as expressing the law of this state. (Board of Education v. Tinnon, supra; Knox v. Board of Education, supra,) *35The board of education has no power to exclude colored children from schools established for white children for the reason solely that they are colored, in the absence of a statute conferring such power.
The peremptory writ of mandamus is allowed, as prayed for, with costs.
All the Justices concurring.