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July 5, 1967

COMMONWEALTH OF PENNSYLVANIA, Attorney General of the Commonwealth of Pennsylvania, City of Philadelphia, and Alan Levi Bond, by his mother, Mrs. Ruby Bond, Charles William Hicks and Theodore Lewis Hicks, by their mother Mrs. Marie Hicks, James Scruggs and Henry Scruggs, by their mother, Mrs. Ardella Scruggs, and Tyrone Karl White and Terry Sherwood White, by their mother, Mrs. Charlotte L. White, on behalf of themselves and all others similarly situated, Plaintiffs,
Revelle W. BROWN et al., Trustees of the Estate of Stephen Girard, Defendants

The opinion of the court was delivered by: LORD, III

 This action *fn1" arises out of a claim by seven Negro male orphans, *fn2" the City of Philadelphia, the Commonwealth of Pennsylvania, and the Attorney General of Pennsylvania that the continued exclusion of non-white applicants to Girard College by the defendant Trustees is constitutionally impermissible under the Equal Protection Clause of the Fourteenth Amendment. We earlier determined that this Court has jurisdiction. This ruling was in no way disturbed by the Court of Appeals.

 We now hold that the plaintiffs have sustained their burden of proving unconstitutional State action and that, accordingly, the relief requested must be granted.

  Plaintiffs' primary contention *fn3" centers on the appointment by the Orphans' Court in 1957 of substitute trustees to administer Girard College. The constitutional question which is presented is both substantial and troublesome. The facts themselves are not in dispute. Stephen Girard appointed the City of Philadelphia to be trustee of the College established under the terms of his will. The trusteeship eventually passed to the Board of Directors of City Trusts, an agency of the City. In 1957, the United States Supreme Court held that this trusteeship constituted governmental discrimination barred by the Fourteenth Amendment. Com. of Pennsylvania v. Board of Directors of City Trusts, 353 U.S. 230, 77 S. Ct. 806, 1 L. Ed. 2d 792 (1957). The Supreme Court did not, however, order the admission of the Negro plaintiffs in that case to the College. Instead, it remanded "for further proceedings not inconsistent with this opinion."

 In supposed conformity to that mandate, the Orphans' Court of Philadelphia County removed the Board of Directors of City Trusts as trustee and appointed private persons, styled "Trustees of the Estate of Stephen Girard." The sole function of these substitute trustees was and is to administer Girard College, and they have continued in force the discriminatory policies prescribed by the will. The Supreme Court of Pennsylvania held that the Orphans' Court had acted properly, both in light of the U.S. Supreme Court's mandate and State law. Girard College Trusteeship, 391 Pa. 434, 138 A.2d 844 (1958), appeal dismissed and cert. denied sub nom. Com. of Pennsylvania v. Board of Directors of City Trusts, 357 U.S. 570, 78 S. Ct. 1383, 2 L. Ed. 2d 1546 (1958). Since the only way the testator's will, as interpreted by the State courts, could be effectuated was by the appointment of non-public trustees, the Orphans' Court action was obviously the only remaining alternative to the admission of non-white applicants to the College.

 Plaintiffs rely on the Supreme Court's recent decision in Evans v. Newton, 382 U.S. 296, 86 S. Ct. 486, 15 L. Ed. 2d 373 (1966). That decision is controlling in this case, and we believe that its proper application requires that we sustain plaintiffs' claims for relief. In Evans, the testator devised land to the City of Macon, Georgia, to be used as a park for white persons only. The City eventually decided that it could not constitutionally deny access to Negroes and it permitted the multiracial use of the facilities, even though this was clearly proscribed by the restrictive terms of the will. Thereafter, individual members of the Board of Managers of the park brought suit in the State courts, demanding the appointment of substitute "private" trustees who could administer the will as it was written. The City next resigned as trustee, and the Georgia court accepted this resignation and appointed new trustees. The Supreme Court of Georgia affirmed this action, holding that State law required the appointment of new trustees so that the restrictive purpose of the trust would not fail.

 The United States Supreme Court reversed, emphasizing that, "Conduct that is formally 'private' may become so entwined with governmental policies or so impregnated with a governmental character as to become subject to the constitutional limitations placed upon state action. The action of a city in serving as trustee of property under a private will serving a segregated cause is an obvious example. See Com. of Pennsylvania v. Board of Directors of City Trusts, supra." 382 U.S. at 299, 86 S. Ct. at 488. Expanding on this notion of "governmental character," the Court cited as other examples a privately owned and managed town, Marsh v. State of Alabama, 326 U.S. 501, 66 S. Ct. 276, 90 L. Ed. 265 (1946), and the elective process, Terry v. Adams, 345 U.S. 461, 73 S. Ct. 809, 97 L. Ed. 1152 (1953). It is apparent that discrimination in these instances is per se constitutionally prohibited.

 Apparently excluded from this " per se " category of quasi-public facilities are schools, for the Court was at pains to point out that, "If a testator wanted to leave a school or center for the use of one race only and in no way implicated the State in the supervision, control, or management of that facility, we assume arguendo that no constitutional difficulty would be encountered." 382 U.S. at 300, 86 S. Ct. at 489.

 Of course, Stephen Girard, like the testator in Evans, did implicate the State in the administration of Girard College: the only questions are whether the College could have been and in fact was subsequently disassociated from the organs of State control, direction, and supervision, and whether, in consequence, the school was effectively cleansed of its "governmental character." Perhaps more to the point, the question is whether the State has purged itself of the discriminatory connection.

 Plaintiffs, citing Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161 (1948), contend that the appointment of substitute trustees by the Orphans' Court was unconstitutional per se. We do not agree. In Shelley, the Supreme Court held that a State court could not enforce a racially exclusive restrictive covenant which would have impeded a sale of property by one consenting party to another consenting party. The Court did not hold, as would have been analogous to the case before us, that a prospective purchaser of property can force the owner to sell to him when the latter wishes to adhere to a restrictive covenant which purports to bar such sales. On the contrary, the Supreme Court stressed the fact that "the restrictive agreements standing alone cannot be regarded as violative of any rights guaranteed to petitioners by the Fourteenth Amendment. So long as the purposes of those agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been no action by the State and the provisions of the Amendment have not been violated." 334 U.S. at 13, 68 S. Ct. at 842. The distinguishing feature of the Shelley case was that the State courts had undertaken to enforce the restrictive terms of the agreements in a situation where "petitioners were willing purchasers of properties upon which they desired to establish homes. The owners of the properties were willing sellers; and contracts of sale were accordingly consummated. It is clear that but for the active intervention of the state courts, supported by the full panoply of state power, petitioners would have been free to occupy the properties in question without restraint." 334 U.S. at 19, 68 S. Ct. at 845.

 In the case before us, we find no consensual understanding among the parties; Stephen Girard did not provide for non-white male orphans and the trustees have refused to depart from the terms of the will.

 All matters involving decedents' estates necessarily implicate the Orphans' Court, whose responsibility it is to effectuate the intent of the testator, to guard zealously against unwarrantable interferences with the testamentary property itself or the purposes to which the property has been pledged. Though a testator evidence the most blatant racial animus, the Orphans' Court, although admittedly an agency of the State, is duty bound to supervise his testamentary affairs as long as it does not directly associate or implicate itself in the discriminatory purpose.

 The justification for this rule lies in the importance which our society attaches to a testator's will, to a man's right to dispose of his property in a manner which conflicts with neither explicit federal nor state law at the time of the bequest or at the time of its subsequent administration. That justification is especially prominent where a charitable trust is involved. Pennsylvania has determined that the dominant intent of Stephen Girard was to benefit poor, male, white orphans. See Girard College Trusteeship, 391 Pa. 434, 138 A.2d 844 (1958). Such determination represents a matter of State law, completely within Pennsylvania's sphere, and one by which we are bound. Erie Railroad v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). In substituting new individual trustees in place of the City agency, the Orphans' Court was merely performing its traditional supervisory and administrative function of assuring the effectuation of the testator's intent as previously determined by Pennsylvania courts.

 Mere supervision of and, if necessary, appointment of trustees by a probate court does not alone amount to a proscribed State entanglement. This is not to say that the nexus between the Trustees and the Orphans' Court is totally without significance, as we shall later point out. It is only to say that the substitution does not, in and of itself and standing alone, involve constitutional implications.

 We are buttressed in our conclusion by the Court's studious avoidance in Evans of any reference to Shelley. By its silence, the Court seems to indicate that the mere substitution of trustees without more is not constitutionally objectionable. Something more is required; something which transforms the purportedly private activity into a public function. In Evans, it was the nature of the park as "an integral part of the City of Macon's activities" which worked the essential alchemy. "From the pleadings we assume it was swept, manicured, watered, patrolled, and maintained by the city as a public facility for whites only, as well as granted tax exemption * * *. The momentum it acquired as a public facility is certainly not dissipated ipso facto by the appointment of 'private' trustees." 382 U.S. at 301, 86 S. Ct. at 489. In effect, the openness of the park, its "public" facade and function rendered it public as a matter of constitutional law, in the absence of record proof of a "change in municipal maintenance and concern over this facility." Id. As the Court concluded, "We only hold that where the tradition of municipal control had become firmly established, we cannot take judicial notice that the mere substitution of trustees instantly transferred this park from the public to the private sector." Id.

 Evans represents a rather new departure from existing theories of State action; its own theoretical basis is, unfortunately, somewhat obscure. In essence, Evans holds that where actual State operation has transformed a public service-type enterprise into a governmental function, or where state control has confirmed the fact of such a subsisting function, the subsequent transfer of operating responsibility to private hands will not necessarily terminate the impetus of State involvement. This formula makes sense in the Evans case itself, which concerned a quasi-public park, open without restriction to all white members of the community and from all appearances no different from any other city park except in respect to the racial limitation. *fn4" But it is impossible ...

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