Commonwealth of Pennsylvania v. Brown

• Decision Date: 07 March 1968
• Docket Number: No. 16721.,16721.
• Citation: 392 F.2d 120
• Parties: 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, Tyrone Karl White and Terry Sherwood White, by their mother, Mrs. Charlotte L. White, on behalf of themselves and all others similarly situated, v. Revelle W. BROWN et al., Trustees of the Estate of Stephen Girard, Appellants.
• Court: U.S. Court of Appeals — Third Circuit

392 F.2d 120 (1968)

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, Tyrone Karl White and Terry Sherwood White, by their mother, Mrs. Charlotte L. White, on behalf of themselves and all others similarly situated, v. Revelle W. BROWN et al., Trustees of the Estate of Stephen Girard, Appellants.

No. 16721.

United States Court of Appeals Third Circuit.

Argued November 28, 1967.

Decided March 7, 1968.

Certiorari Denied May 20, 1968.

Ernest R. von Starck, Morgan, Lewis & Bockius, Gaffney & Gaffney, Philadelphia, Pa. (Arthur Littleton, John Russell, Jr., Richard P. Brown, Jr., Philadelphia, Pa., on the brief), for appellants.

William T. Coleman, Jr., Charles J. Biddle, Philadelphia, Pa. (Dilworth, Paxson, Kalish, Kohn & Levy, Robert W. Maris, Drinker, Biddle & Reath, J. Alan Kugle, Henry S. Hilles, Jr., Philadelphia, Pa., on the brief), for appelles other than the City of Philadelphia.

Matthew W. Bullock, Jr., Second Deputy City Solicitor, Edward G. Bauer, Jr., City Solicitor on the brief, for appellee, City of Philadelphia.

Before STALEY, Chief Judge, and McLAUGHLIN, KALODNER, SEITZ and VAN DUSEN, Circuit Judges.

Certiorari Denied May 20, 1968. See 88 S.Ct. 1811.

OPINION OF THE COURT

GERALD McLAUGHLIN, Circuit Judge.

The problem here arises from the will of Stephen Girard, a Philadelphia, Pennsylvania resident who died in 1831. In his will, dated 1830, he laid lown his fundamental thesis that he had "been for a long time impressed with the importance of educating the poor, and of placing them by the early cultivation of their minds and the development of their moral principles, above the many temptations, to which, through poverty and ignorance they are exposed; * *." Continuing, he said "* * * I am 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." He coupled this with his statement of heartfelt interest in the welfare of Philadelphia and his desire to improve it in its Delaware River neighborhood for the benefit of the health of its citizens and so that the eastern part of the city would correspond better with the interior. So inter alia he left the valuable residue and remainder of his real and personal property to "The Mayor, Aldermen and citizens of Philadelphia, their successors and assigns in trust to and for the several uses intents and purposes hereinafter mentioned and declared * * *." The will went into considerable particulars regarding the Girard Philadelphia and Kentucky property. Concerning a personal estate bequest of two million dollars for the College the will outlined at length where it would be located and in great detail the exact construction of the College and outbuildings, etc. The will also gave five hundred thousand dollars to Philadelphia for various public improvements. The Commonwealth of Pennsylvania was bequeathed three hundred thousand dollars for internal improvement by canal navigation. This last bequest was conditioned upon the Commonwealth passing certain laws helpful to the testator's contemplated improvement of Philadelphia and for the desired objectives of Girard College. All the suggested assisting legislation was enacted by the Commonwealth in due course.

Mr. Girard stated specifically in his will:

"In relation to the organization of the college and its appendages, I leave, necessarily, many details to the Mayor, Aldermen and citizens of Philadelphia and their successors; and I do so, with the more confidence, as, from the nature of my bequests and the benefit to result from them, I trust that my fellow citizens of Philadelphia, will observe and evince especial care and anxiety in selecting members of their City Councils, and other agents * *."

He provided that the College accounts be kept separately so that they could be examined by a committee of the Pennsylvania legislature and that an account of same be rendered annually to said legislature together with a report of the state of the College. Philadelphia accepted the bequests and by ordinance set up a plan to administer the College by a Trusts Board. In 1833 a building committee of the City Council was appointed, a president of the College was chosen under an ordinance created for that purpose and the cornerstone of the main building laid. Construction was concluded in 1847 and the College opened the first of the following year. Down to 1869 the City Council operated the College directly, first by way of the trustees until 1851 when the latter offices were abolished, and the Council again took over direct management. In 1869 the Commonwealth enacted a law which gave Philadelphia a local Board of Trusts to take over the control of Girard College. From that date the Board of City Trusts remained in charge of the College until 1958. Broadly summing up the Commonwealth and City's intimate association with Girard College the District Court, with full justification in the record, found as fact that:

"Beginning in 1831 and continuing to date, the Commonwealth of Pennsylvania and the City of Philadelphia, by the enactment of statutes and ordinances, by the use and supervision of public officials, appointed by legislative and judicial bodies, by rendering services and providing tax exemptions, perpetual existence and exemption from tort liability have given aid, assistance, direction and involvement to the construction, maintenance, operation and policies of Girard College."

It is important to note in this sequence that Philadelphia has made a consistently brilliant showing through the years in its management of the funds and real property from the Girard estate for the College. The money bequest amounted to six million dollars. This was increased to ninety million dollars plus by 1959. The various estate properties given the City for the College were not allocated any book value by the estate. These have insurable value at this time of $42,000,000.

In 1954 two applicants requested admission to the College. They were fully qualified but were refused because they were Negroes. They brought their cause to the United States Supreme Court which held in that suit, titled Commonwealth of Pennsylvania et al. v. Board of Directors of City Trusts of City of Philadelphia, 353 U.S. 230, 231, 77 S.Ct. 806, 807, 1 L.Ed.2d 792 (1958):

"The Board which operates Girard College is an agency of the State of Pennsylvania. Therefore, even though the Board was acting as a trustee, its refusal to admit Foust and Felder to the college because they were Negroes was discrimination by the State. Such discrimination is forbidden by the Fourteenth Amendment. Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873. Accordingly, the judgment of the Supreme Court of Pennsylvania is reversed and the cause is remanded for further proceedings not inconsistent with this opinion."

The Supreme Court of Pennsylvania on remand took none of the plainly indicated proceedings called for by the United States Supreme Court. It simply remanded the litigation to the Orphans' Court of Philadelphia County.¹ That court, without notice or opportunity for the plaintiffs to do anything and with no request from the City or other source whatsoever, on its own initiative ousted Philadelphia as trustee and installed in place of the City Board, persons of its own choosing. There is disagreement between the parties with respect to the method used for the selection of the new trustees. But it is conceded by appellants regarding prior notification by the Orphans' Court to its choices that, "Certainly no court would appoint an individual to a position of such responsibility without first affording him an opportunity to refuse." The record does show clearly that one of the court trustees testified that he was telephoned by one of the Orphans' Court judges prior to the appointments order being filed and told that the court had appointed its own trustees of which he was one. It is also in the record that the new trustees, as stated by one of them, were sworn in by at least one of the Orphans' Court judges and that included in their oath was "* * * that we would undertake to manage the will of Stephen Girard in accordance with the way it was written." The said trustee, referring to that part of the oath, further mentioned "That is what we all assumed anyhow." We think the foregoing factual narrative demonstrates that the Orphans' Court of Philadelphia County has been substantially involved with the supervision of the Girard Estate.

The Philadelphia City Trustees took no appeal from their ouster. The children plaintiffs did. The Pennsylvania Supreme Court found that the Orphans' Court action was not inconsistent with the mandate of the United States Supreme Court or the Fourteenth Amendment or the Girard will. Application for certiorari was denied by the United States Supreme Court, 357 U.S. 570, 78 S.Ct. 1383, 2 L.Ed.2d 1546 (1958).

The present litigation was instituted in the United States District Court for the Eastern District of Pennsylvania. The trial judge originally passed solely upon the question of whether Girard College was within the jurisdiction of the Pennsylvania Public Accommodations Act of June 11, 1935, P.L. 297, as amended by the Act of June 24, 1939, P.L. 872. The Court held it was within Sections (a) and (c) of the Act and not within the proviso of Section (d). This Court reversed that finding and returned the suit to the District Court for trial on the merits of Count 1 of the complaint which charges that "The refusal of the trustees of Girard College to admit applicants...