Commonwealth of Pennsylvania v. Brown

Decision Date02 September 1966
Docket NumberCiv. A. No. 39404.
Citation260 F. Supp. 323
PartiesCOMMONWEALTH 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, v. Revelle W. BROWN et al., Trustees of the Estate of Stephen Girard, Defendants.
CourtU.S. District Court — Eastern District of Pennsylvania




William T. Coleman, Jr., of Dilworth, Paxson, Kalish, Kohn & Dilks, Drinker, Biddle & Reath, by Charles J. Biddle, Cuthbert H. Latta, J. Alan Kugle, Special Counsel, Philadelphia, Pa., for Commonwealth of Pennsylvania, Attorney General of Commonwealth of Pennsylvania, and individual plaintiffs.

Morgan, Lewis & Bockius, by Arthur Littleton, John Russell, Jr., Ernest R. vonStarck, Richard P. Brown, Jr., of Morgan, Lewis & Bockius, Thomas J. Gaffney, of Gaffney & Gaffney, Philadelphia, Pa., for defendants.

Edward G. Bauer, Jr., City Sol., Matthew W. Bullock, Jr., Deputy City Sol., Philadelphia, Pa., for City of Philadelphia.

Harrison Kildare, of Rawle & Henderson, Philadelphia, Pa., William D. Valente, Villanova, Pa., Jerome J. Shestack, of Schnader, Harrison, Segal & Lewis, Murray H. Shusterman, Leon I. Mesirov, Philadelphia, Pa., for Philadelphia Fellowship Commission, American Civil Liberties Union, Greater Philadelphia Branch, Jewish Community Relations Council of Greater Philadelphia, Greater Philadelphia Council of Churches, Philadelphia Urban League and Friends Committee on Race Relations, Dominic P. Toscani, Philadelphia, Pa., amici curae parties.


JOSEPH S. LORD, III, District Judge.

This is an action brought by the Commonwealth of Pennsylvania, the Attorney General of the Commonwealth, the City of Philadelphia, and seven minor Negro male orphans, by their guardians. The individual plaintiffs sue in behalf of themselves and all others similarly situated. The defendants are the trustees of the Girard Estate. They are charged with the duty of administering Girard College, a charitable educational establishment created under the will of Stephen Girard.

The complaint alleges that the defendants have refused to admit the individual plaintiffs to Girard College solely because of their race. The relief prayed is an injunction to prohibit defendants' continued refusal to admit the minor plaintiffs and other applicants merely because they are Negroes, and such additional relief as might be necessary.

The complaint consists of three counts and seeks relief from the alleged violation of, respectively, (1) the Constitution of the United States, and particularly the equal protection clause of the Fourteenth Amendment; (2) the testamentary intent of the settlor, Stephen Girard, in the context of previous actions of the trustees and present-day circumstances; and (3) the statutes and public policy of Pennsylvania precluding the denial of admission solely on the basis of a racial criterion.

The defendants have moved to dismiss the complaint for (1) lack of jurisdiction over the subject matter, due to the asserted absence of a substantial federal question presented by the first count of the complaint and diversity or pendent jurisdiction over the second and third counts; (2) res judicata, by reason of a final order of the Orphans' Court of Philadelphia County;1 (3) failure to state a claim upon which relief can be granted; and (4) lack of standing to sue on the part of the Commonwealth, the Attorney General and the City.


For the purpose of deciding a motion to dismiss pursuant to Rule 12 of the Federal Rules of Civil Procedure, the well-pleaded allegations of the complaint must be assumed to be true. Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964); United States v. Shubert, 348 U.S. 222, 75 S.Ct. 277, 99 L.Ed. 279 (1955); Clark v. Uebersee Finanz-Korporation, 332 U.S. 480, 68 S.Ct. 174, 92 L.Ed. 88 (1947); Polk Co. v. Glover, 305 U.S. 5, 59 S.Ct. 15, 83 L.Ed. 6 (1938); Rogers v. American Can Co., 305 F.2d 297, 318 (C.A.3, 1962). On this motion, plaintiffs must also be given the benefit of all the inferences which may fairly be drawn from the complaint. Melo-Sonics Corp. v. Cropp, 342 F.2d 856 (C.A.3, 1965); Valle v. Stengel, 176 F.2d 697 (C.A.3, 1949). See also F.R.Civ.P. 8(f). The sufficiency of the complaint must be considered within the framework of these well-established rules.

The complaint alleges that Girard College, a school for boys between six and eighteen years of age, was constructed in 1848 pursuant to a trust established under the will of Stephen Girard, who died in 1831. Girard left the principal part of his estate to the "Mayor, Aldermen and citizens of Philadelphia their successors and assigns in trust" for the creation and administration of the school, the construction and improvement of certain streets in the City of Philadelphia, neighborhood improvement in the vicinity of the Delaware River and the demolition of the wooden buildings in the city. He left $2,000,000 of the residue of the estate in trust for the College, and substantially the rest for the maintenance of a more adequate police force, the improvement of city property and the appearance of the city.

In 1832, the city accepted the trust by the passage of an ordinance, and administered the College until 1959. The Board of City Trusts consistently refused to admit those applicants for admission to the College whom they deemed not to be "white." This practice, engaged in by an instrumentality of the state, was held by the Supreme Court of the United States to constitute governmental discrimination in violation of the Fourteenth Amendment. Commonwealth of Pennsylvania v. Board of Directors of City Trusts, 353 U.S. 230, 77 S.Ct. 806, 1 L.Ed.2d 792 (1958). Thereafter, on remand from the Supreme Court of Pennsylvania, the Orphans' Court of Philadelphia County, without notice or opportunity for the parties to be heard, removed the Board of City Trusts as trustee and appointed private persons. This action was found by the Supreme Court of Pennsylvania to be inconsistent with neither the mandate of the United States Supreme Court nor the Fourteenth Amendment nor the will of Stephen Girard. Girard College Trusteeship, 391 Pa. 434, 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). The policy of discrimination by race has been carried on by the substituted trustees since they took office.

Girard's will (a copy of which is attached to the complaint) recited in paragraph XX that he was "particularly desirous to provide for such a number of poor male white orphan children, as can be trained in one institution, a better education as well as a more comfortable maintenance than they usually receive from the application of public funds." Pursuant to that aim, Girard provided in paragraph XXI (3) that "as many poor white male orphans, between the ages of six and ten years, as said income shall be adequate to maintain, shall be introduced into the college as soon as possible; and from time to time as there may be vacancies, or as increased ability from income may warrant, others shall be introduced." He specified that if there were "more applicants than vacancies, and the applying orphans shall have been born in different places, a preference shall be given,— first to orphans born in the city of Philadelphia," and then to those born in other enumerated areas of the country. Will, ¶ XXI(6).

The complaint alleges that each individual plaintiff is a poor male orphan (father deceased)2 between the age of six and ten, was born in Philadelphia, and would be eligible for admission to Girard College except that defendants deem him not to be white. The ultimate question, therefore, is the validity of the racial exclusion. The complaint attacks it from numerous angles. The several grounds for relief, which are asserted either by explicit statement or by fair inference from the complaint, follow.


The first count relies principally on alleged violations of the Fourteenth Amendment of the United States Constitution.3 It alleges that the public policies in force in 1830 induced Stephen Girard to discriminate, as these public policies themselves did, against Negroes. This continuing discrimination, if private, is viewed nevertheless as having emanated from earlier state and federal policies especially hospitable to it, which created an environment perhaps unreceptive to anything else. More direct governmental assistance is also averred. It is said that Girard College "is so impressed with state involvement and state action" that its acts must be imputed to the state itself, and the College must accordingly comply with the Fourteenth Amendment.

The state action alleged in the first count includes both laws of general application which have benefitted the College and the passage of numerous statutes, ordinances and resolutions designed to effectuate the terms of the will and accommodate the law of Pennsylvania and of Philadelphia to its implementation. In the former category are the waiver of the rule against perpetuities, immunity from tort liability, and exemption from taxation. In the latter are the acts enabling the city to accept and perform the trust duties, denying the city the power to place a road through the property, authorizing the construction of a boundary road around it, providing the College library with a set of the Colonial Records, and creating a Select Committee of the House of Representatives on the Estate of Stephen...

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