But it is not necessary in the case at bar to read the proviso so narrowly. It is possible to concede that subsection (d) may withdraw from the operation of subsection (a) some varieties of some of the accommodations specifically named in subsection (c). But not schools. No rational distinction can be drawn between schools which would be in their nature distinctly private and all other private schools, bearing in mind that any such distinction would have to be supportable in terms of the respective legislative purposes of subsections (a) and (c) and subsection (d).
The Pennsylvania statute borrowed the "in its nature distinctly private" terminology from the comparable New York and New Jersey statutes, N.Y. Civil Rights Law, §§ 40, 41; 18 N.J.S.A. §§ 25-1 et seq. See Note, 84 U.Pa.L.Rev. 75, 82 (1935). In interpreting statutes similar to or adopted from the laws of other states, courts appropriately look to the construction given to those statutes by the courts of those states. Such decisions, while not conclusive, are certainly persuasive. See the authorities collected in 3 SUTHERLAND, STATUTORY CONSTRUCTION § 6105 (Horack ed. 1943); 20 AM.JUR.2d, COURTS, § 204 (1965); 50 AM.JUR., STATUTES, § 460 (1944); 82 C.J.S. Statutes § 373b (1953). For recent cases in which the Supreme Court of Pennsylvania has looked to foreign interpretation of similar statutes, see Thornton Estate, 420 Pa. 521, 526-527, 217 A.2d 746 (1966); Rufo v. Bastian-Blessing Co., 405 Pa. 12, 20-21, 173 A.2d 123 (1961); Ayers v. Morgan, 397 Pa. 282, 292-294, 154 A.2d 788 (1959). See also Consumers Time Credit Co. v. Remark Corp., 248 F. Supp. 158, 160-161 (E.D.Pa.1965). It is therefore instructive to consider how the New York and New Jersey courts have approached the reconciliation of the various statutory provisions.
Reference has already been made to McKaine v. Drake Bus. School, Inc., 107 Misc. 241, 176 N.Y.S. 33 (App.Term 1st Dept. 1919), the only New York case in which the private school question appears to have been litigated. In New Jersey, too, relatively few cases have considered this problem, but two recent decisions are especially illuminating. In Fraser v. Robin Dee Day Camp, 44 N.J. 480, 210 A.2d 208 (1965), an applicant was denied admission because of his race to a day camp run in conjunction with a private school and a nursery school. The New Jersey Supreme Court concluded that the denial violated the Public Accommodations statute. "A day camp is essentially an educational-recreational accommodation for children," which the court found to be "the type of accommodation which the Legislature intended to reach." 44 N.J. at 487, 210 A.2d at 212.
The New Jersey statute is substantially the same as the Pennsylvania statute. Both have the same exception for institutions, clubs and accommodations in their nature distinctly private. So far as schools are concerned, the provisions are virtually identical, except that the New Jersey act contains additional provisions exempting "bona fide religious or sectarian" institutions from the operation of the statute and permitting secondary and post-secondary schools to use criteria other than race, creed, color, origin or ancestry in making admissions decisions. Of course, neither statute remotely purports to impede the operation of religious schools
or to prohibit the denial of admission on non-discriminatory grounds with or without the additional provisos; they only make explicit what the statutes did not intend. They are significant for present purposes only as further evidence of the intention to cover private schools in the main subsections.
The meaning of "in its nature distinctly private" was resolved in New Jersey by the recent case of Clover Hill Swimming Club v. Goldsboro, 47 N.J. 25, 219 A.2d 161 (1966). There a swimming club operated for profit and having facilities for only a limited number of members was deemed beyond the proviso. As in Fraser, the nature and purpose of the institution was controlling. The precise reasoning is particularly apposite in the present context. While the court relied on the subtle invitation to the public it found implied in the club's unobtrusive advertising, the principal reason for finding the club non-private was that:
"The statutory exemption for distinctly private organizations is designed to protect the personal associational preferences of their members. However, Clover Hill does not owe its existence to the associational preferences of its members but to the coincidence of their interest in the facilities offered by the owners." 47 N.J. at 34, 219 A.2d at 166.
We think that Clover Hill settles the proper construction of the Pennsylvania Public Accommodations Act as applied to Girard College.
The purpose of subsections (a) and (c) was to create equal opportunity in the broad sense - to permit everyone to enjoy the facilities afforded in the community, including schools, without regard to race. It was designed to expand the scope of the accommodations considered to be public beyond the governmentally-owned, -operated or -assisted facilities already embraced by the equal protection clause of the Fourteenth Amendment. The exception of subsection (d) was carved out to protect the associational preferences of individuals where those preferences go to the reasons for the institution's continuing existence and where enforcement of the preferences is not likely to work a substantial interference with the equal opportunity goals of the main provisions.
In terms of its purposes, the application of the statute to Girard College becomes clear. A school, such as Girard, does not have as its primary goal the furtherance of the private preferences of its students. In Clover Hill reliance was placed on the fact that the swimming club did not "owe its existence to the associational preferences of its members * * *." Any school - and especially a school conceived as Girard conceived his
- owes its existence to the predominant purpose of education. If equal opportunity is the purpose of the main portion of the statute, then there is obviously special reason to include schools,
as the legislature in no uncertain terms has done. To allow the uncertain and general language of the proviso to take a substantial number of private schools out of the coverage of the main subsections would pose a serious threat to the full attainment of the social goals the statute seeks to achieve and would only protect privacy of association in a relatively marginal area. Education is too close to the central purpose of the act and not close enough to the central purpose of the proviso to permit any such reading without a more precise mandate in the wording of the proviso. Compare A. H. Phillips, Inc. v. Walling, 324 U.S. 490, 493, 65 S. Ct. 807, 89 L. Ed. 1095 (1945) The language of the main portion of the statute, which embraces with precision "all educational institutions under the supervision of this Commonwealth," compels the opposite construction.
So viewed, it is also plain that no purposeful distinction can be drawn either between schools that advertise and those that do not, or between schools that make a profit and those that do not. The instant complaint does not allege that Girard advertises or otherwise solicits students or that it makes a profit. Those questions are beside the point. They have nothing to do with the College's purposes or the facilities it affords. It would not further the purpose of either subsections (a) and (c) or (d) to draw the line between schools that may and may not discriminate according to whether or not they solicit patronage or make money. The associational interests of students (or their parents) are not any greater if they attend a school that does not advertise or is a non-profit venture than if they attend one that does or is not.
The Clover Hill case did not turn on any such distinction.
The court noted that Clover Hill made a profit, not because that was in itself dispositive, but because it showed that Clover Hill was not organized to further its members' desires to share the companionship of others like themselves. The facility preceded the "club." Likewise, its advertising and routine admission policies demonstrated that Clover Hill was more a pool than a club. The same was true in Everett v. Harron and Lackey v. Sacoolas, supra.
Another possible distinction which must be rejected, at least in this case, is that between boarding and non-boarding schools. There is closer contact among students at a boarding school, but that does not change its function. Certainly in the case of Girard College the reasons for having the students board-in were to facilitate their thorough and intensified education and alleviate their poverty.
It cannot be emphasized too strongly that the phrasing of the proviso is emphatically narrow. To be exempted by subsection (d), an accommodation would have to be, not just private, not merely distinctly private, but "in its nature" - that is, inherently or intrinsically - distinctly private. For this reason, we find it unnecessary to decide whether the statute contemplated public (and covered) and distinctly private (and excepted) prototypes of the same kind of facility or service. For whether or not there can ever be, for example, a distinctly private ice cream parlor, we have concluded that once some private schools were labelled public accommodations, it is difficult to think of a ground on which other private schools could rationally be categorized as "in their nature distinctly private."
Or, to put it more precisely, if there could be a private school which, in view of the scope to be accorded the purposes of the various subsections of the statute, would fall within the proviso, as we read the complaint
Girard College does not possess the requisite attributes.
With regard to schools, there is little of the ambivalence that surrounds clubs. As Clover Hill shows, there are several varieties of clubs which must be distinguished if the statute is to be implemented effectively. The teaching of Clover Hill is that clubs which are organized merely or mainly to take advantage of common facilities have an insufficient associational interest in enforcing their exclusionary preferences to defeat the anti-discriminatory policy of the statute. The burden of this opinion has been to show that schools inevitably partake of the same quality as such clubs: they too, are organized around the facilities they offer - their staffs, curricula and equipment - and their interest in racial exclusion is equally illegitimate under the proviso. Even the most exclusive private school is probably not, in the view of this statute, a social club. We, however, are not called upon to settle definitively the applicability of the Public Accommodations Act to each and every private school in Pennsylvania. We would not do that even if we could. All we need and do decide now is that - on any fair reading of the statute - Girard College, conceived by its founder as a charitable establishment for training, education and maintenance, see Girard College Trusteeship, 391 Pa. 434, 444, 138 A.2d 844 (1958), appeal dismissed and cert. denied sub nom. Commonwealth of Pennsylvania v. Board of Directors of City Trusts, 357 U.S. 570, 78 S. Ct. 1383, 2 L. Ed. 2d 1546 (1958), and presently performing these functions for about 700 orphans, is an educational institution under the supervision of the Commonwealth and is not in its nature distinctly private.
It may be pointed out that the Public Accommodations Act is penal, and penal statutes are strictly construed. See, e.g., Commonwealth v. Derstine, 418 Pa. 186, 210 A.2d 266 (1965). But it need hardly be said that this statute embodies objects beyond those contained in the conventional criminal enactment. The Pennsylvania courts explicitly recognized that when they found civil remedies, as well as criminal penalties, embedded in the statute.
The maxim of strict construction reflects notions of fair warning to potential criminal violators. See United States v. Standard Oil Co., 384 U.S. 224, 234-236, 86 S. Ct. 1427, 16 L. Ed. 2d 492 (1966) (Harlan, J., dissenting); HALL, STRICT OR LIBERAL CONSTRUCTION OF PENAL STATUTES, 48 Harv.L.Rev. 748, 765-66 (1935). It is a cognate of the constitutional prohibition of vagueness in criminal statutes. Cf. Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S. Ct. 618, 83 L. Ed. 888 (1939). It does not give carte blanche to ignore legislative intent. United States v. Cook, 384 U.S. 257, 262-263, 86 S. Ct. 1412, 16 L. Ed. 2d 516 (1966); Commonwealth v. Shafer, 414 Pa. 613, 620, 202 A.2d 308 (1964).
This is an injunction action, not a criminal prosecution. Even a statute too ambiguous on its face to sustain a criminal prosecution may still be definite enough to support an injunction, which operates prospectively only. The Commonwealth has been cautious in bringing prosecutions under the Public Accommodations Act, and it would be allowing imagination to dictate to judgment to interpret the act more narrowly than intended when there is no immediate prospect of punishing criminally a violator who, lacking expertise in the art of construction, had misread it.
Short of that prospect or some real doubt about the statute's applicability or a serious constitutional question arising from the statute,
it is impossible to find that the legislature, in formulating a rational and effective anti-discrimination policy, must have intended the very opposite of what the evidence overwhelmingly demonstrates it did intend. What Mr. Justice Cardozo wrote for a unanimous Supreme Court in a very different context is equally fitting here:
"* * * 'The Legislature has the power to decide what the policy of the law shall be, and if it has intimated its will, however indirectly, that will should be recognized and obeyed.' Its intimation is clear enough in the statutes now before us that their effects shall not be stifled, without the warrant of clear necessity, by the perpetuation of a policy which now has had its day." Van Beeck v. Sabine Towing Co., 300 U.S. 342, 351, 57 S. Ct. 452, 456, 81 L. Ed. 685 (1937).
Only a word need be said about what this interpretation does and does not do. It does not mean that a testator or settlor may not leave his property as he sees fit. It does mean that dispositions by will or trust must comply with applicable laws extant when the disposition was made and with laws which the legislature may later enact. "If the owner of property transfers it in trust and it is provided that the trustee shall do an act which at the time of the creation of the trust is legal, but which owing to a change of law or owing to a change of circumstances becomes illegal, the provision becomes unenforceable." REST. TRUSTS 2d, § 61, comment b (1959). And it has long been established in Pennsylvania, as elsewhere, that provisions in wills or trusts which contravene statutes or public policies are unenforceable. Scholler Estate, 403 Pa. 97, 169 A.2d 554 (1961); Wanamaker's Estate, 335 Pa. 241, 6 A.2d 852 (1939); Devlin's Trust Estate, 284 Pa. 11, 130 A. 238 (1925); Manners v. Philadelphia Library Co., 93 Pa. 165 (1880); Greenfield's Estate, 14 Pa. 489 (1851); 1 SCOTT, TRUSTS §§ 60-62 (2d ed.1956); see also 2 id. § 166; 4 id. § 377; REST. TRUSTS 2d §§ 60-62, 166, 377 (1959). This statute forbids discrimination in schools such as Girard. Accordingly, if the individual plaintiffs can prove count three of their complaint, continued racial discrimination in the selection of students for admission to Girard College will be enjoined. Everett v. Harron, supra; Lackey v. Sacoolas, supra.
We have approached the task of construction with great circumspection and humility, mindful that in the federal system the state courts are the primary expositors of state law. Deference to the state courts on an important issue of state law might otherwise have been proper. Invocation of the abstention doctrine, however, requires "special circumstances." Baggett v. Bullitt, 377 U.S. 360, 375, 84 S. Ct. 1316, 12 L. Ed. 2d 377 (1964). At the least it requires a state law matter which is not only unresolved but difficult of resolution and susceptible of varying results. It is not properly used when the question becomes, not what the meaning of the state law is, as applied to the case at bar, but only who should declare it. After exhaustive research and thought, it is our view that the chances of displacement of the application we have given the act by subsequent decisions of the Pennsylvania courts are minimal. Not one other state court has interpreted the statute to exempt private schools from its coverage without being overruled by a higher court or a legislature.
We can find no reason to anticipate perversity in Pennsylvania.
VIII. THE DISPOSITION OF THE MOTION TO DISMISS THE COMPLAINT
Since count three states a claim on which relief can be granted, this litigation must proceed. But in its present posture, there is no need to go on to consider whether counts one and two also state valid claims. The primary function of a motion to dismiss is to screen claims for insufficiency. If the individual plaintiffs can prove their claims under count three, then there will never be occasion in this lawsuit to decide the difficult questions underlying the other counts. If it does become necessary to reach them, they can be treated at or after trial. In the interest, therefore, of avoiding the unnecessary decision of sensitive constitutional and testamentary issues, decision on the merits of counts one and two will be deferred, and the motion to dismiss them at this time will be denied. Ample authority exists for the exercise of this discretion. Gibbs v. Buck, 307 U.S. 66, 76, 59 S. Ct. 725, 83 L. Ed. 1111 (1939); Fong v. United States, 300 F.2d 400 (C.A.9, 1962), cert. denied, 370 U.S. 938, 82 S. Ct. 1584, 8 L. Ed. 2d 807 (1962); 2 MOORE, FEDERAL PRACTICE P12.16 (1965). See also F.R.Civ.P. 12(a); Rothberg v. National Banner Corp., C.A. No. 38541, E.D.Pa., Apr. 11, 1966, p. 5; Miller v. Bargain City, U.S.A., Inc., 229 F. Supp. 33, 36 (E.D.Pa., 1964).
So far as count one is concerned, the issues of nonobvious state involvement are probably the kind that courts are rightly reluctant to decide on a motion to dismiss anyway. See Gibbs v. Buck, 307 U.S. 66, 76, 59 S. Ct. 725, 83 L. Ed. 1111 (1939); Polk Co. v. Glover, 305 U.S. 5, 10, 59 S. Ct. 15, 83 L. Ed. 6 (1938); Borden's Farm Prods. Co. v. Baldwin, 293 U.S. 194, 211-213, 55 S. Ct. 187, 79 L. Ed. 281 (1934); Gibbs v. Blackwell, 354 F.2d 469, 471 (C.A.5, 1965). Cf. Dispatch, Inc. v. City of Erie, 364 F.2d 539 (C.A.3, 1966). They require concrete development to evaluate properly by the process of "sifting facts and weighing circumstances." Burton v. Wilmington Parking Auth., 365 U.S. 715, 722, 81 S. Ct. 856, 6 L. Ed. 2d 45 (1961).
Likewise, a decision on the cy pres and will construction questions of count two would no doubt be far more enlightened if preceded by proof of the precise nature and extent of the alleged prior deviations from the will and the changed circumstances on which plaintiffs rely.
For all of the stated reasons, the defendants' motion to dismiss the complaint will be denied as to counts one and two, without prejudice to the rights of the defendants to renew it at the appropriate time. The motion to dismiss will be granted as to count three insofar as the Commonwealth of Pennsylvania, the Attorney General of Pennsylvania, and the City of Philadelphia are parties-plaintiff. The motion to dismiss will be denied as to count three insofar as the seven individuals are parties-plaintiff. If there are disputed issues of fact as to count three, the defendants are granted leave to answer the entire complaint within twenty (20) days. Cf. F.R.Civ.P. 12(a). It is so ordered.