KALODNER, Circuit Judge.

The defendants, Trustees of the Estate of Stephen Girard, refused to admit the seven minor plaintiffs, Negro male orphans, to Girard College, a charitable educational establishment created under the Will of Stephen Girard, on the sole ground that Girard's Will expressly restricts admission to the College to "poor male white" orphans.

The guardians of the minor plaintiffs, the Commonwealth of Pennsylvania and its Attorney General, and the City of Philadelphia, filed a complaint in the District Court praying for an injunction restraining the defendants from denying the minor plaintiffs, and others similarly situated, admission to the College simply because they are Negroes.

The complaint consists of three counts. Count I charges in sum that Girard College "is so impressed with state involvement and state action" that its acts must be imputed to the state itself, and thus the denial of admission to the College on racial grounds violates the Fourteenth Amendment; Count II seeks application by the District Court of the cy pres doctrine to benefit all poor male orphans, irrespective of race or color, in accordance with Girard's alleged testamentary intent to benefit the City of Philadelphia and its citizens; Count III alleges that denial of admission to the seven minor plaintiffs solely because they are Negroes violates the Pennsylvania Public Accommodations Act, 18 P.S. § 4654.

The defendants moved to dismiss the complaint on these grounds: (1) the District Court lacked jurisdiction over the subject matter; (2) the issues were res adjudicata by reason of prior related proceedings in the state courts; (3) the complaint failed to state a claim upon which relief could be granted; and (4) the Commonwealth of Pennsylvania, its Attorney General, and the City of Philadelphia lacked the requisite standing or capacity to bring the action.

The District Court in its opinion, reported at 260 F. Supp. 323 (E.D.Pa. 1966), held that it had jurisdiction with respect to all three counts of the complaint. It based its jurisdiction as to Count I under 28 U.S.C.A. § 1343(3) and 42 U.S.C.A. § 1983, because "the complaint sufficiently raises substantial questions of whether the defendants are, `under color of' state authority, depriving the individual plaintiffs of their right to the equal protection of the laws". It further ruled that it had pendent jurisdiction as to Counts II and III, because "the three counts of the complaint constitute a single `case' for a single trial * * * [t]he proof required on the several counts is overlapping, the constitutional issues are at least as significant as the state law questions, and the relief sought is unitary and identical".

The District Court made this further specific deposition with respect to the defendants' motion to dismiss:

It denied the motion insofar as it related to Counts I and II "without prejudice to the rights of the defendants to renew it at the appropriate time"; it denied the motion as to Count III "insofar as the seven individuals are parties-plaintiff", and granted it as to Count III "insofar as the Commonwealth of Pennsylvania, the Attorney General of Pennsylvania, and the City of Philadelphia are parties-plaintiffs", on the ground that they "are precluded by res judicata from claiming that Girard College is violating the Pennsylvania Public Accommodations Act".

The District Court further ruled that "decision on the merits of counts one and two will be deferred" ( 260 F. Supp. 357), stating that, "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 * * * [and] 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)".

After this disposition "of the liminal questions of jurisdiction and standing", the District Court held that the question presented by Count III of the applicability of the Pennsylvania Public Accommodations Act ("Act") was one of first impression, since "[T]he issue was not decided by the Pennsylvania courts in any of the former proceedings", which had challenged the exclusion of Negro male orphans from Girard College for the assigned reason that the Will of Stephen Girard, the creator of the College, limited admission to the institution to "poor male white orphans". It further held, after extended discussion of the Act, which makes it a misdemeanor to practice racial discrimination in places of public accommodation and educational institutions generally, except where they are "in * * * their nature distinctly private", that "This statute forbids discrimination in schools such as Girard", and, "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".

Having thus ruled, the District Court granted leave to the defendants to answer the complaint within 30 days of the filing of its opinion on September 2, 1966. The answer was filed on September 21, 1966. Prior thereto, the individual plaintiffs, on September 16, 1966, filed a motion for an early hearing at which evidence could be adduced as to any disputed factual issues with respect to Count III, and for a preliminary injunction "enjoining defendants from discriminating against plaintiffs and all others similarly situated in admission to Girard College on the basis of race".

Hearing was had on the motion for a preliminary injunction on October 3, 1966. Evidence was then adduced bearing on Count III. Upon counsel's advice that no additional evidence on that Count would be offered on final hearing, the District Court ordered, without objection by counsel, that the preliminary hearing be treated as on final hearing.

In an Adjudication filed November 2, 1966, reported at 260 F. Supp. 358, the District Court ruled that Girard College "is covered" by the Pennsylvania Public Accommodations Act; that "Said Act prohibits defendants from refusing plaintiffs admission to Girard College on the ground that they are not white, if they are otherwise qualified"; and that the minor plaintiffs "are entitled to a permanent and final injunction", which would give effect to its holding.

The District Court specifically stated in its "Discussion" of its disposition that " This adjudication, of course, reaches and disposes of finally only count three of the complaint. * * * We believed that a single trial would have disposed of the common issues of fact involved in all counts of the complaint. However, plaintiffs' insistence upon proceeding preliminarily (as it turned out, finally) on count three has made this an impossibility". (Emphasis supplied.)

In the Decree accompanying the Adjudication, the District Court stated in part in Paragraph 1: "Defendants are permanently enjoined from denying to minor plaintiffs admission to Girard College on the sole ground that they are not white, provided that they are otherwise qualified for admission". Paragraph 4 of the Decree provided that "Plaintiffs may institute an action in the Orphans' Court of the County of Philadelphia, in order that the courts of the Commonwealth of Pennsylvania may have due opportunity to decide promptly and expeditiously all issues involved in count two of the plaintiffs' complaint [the cy pres count]". In Paragraph 5 of the Decree the District Court stated that it "will retain jurisdiction over all allegations of the complaint, pending a final determination of plaintiffs' right to the relief granted * * *."

The defendants appealed. In their brief they state the issues presented to be as follows:

1. Did the District Court err in holding that a substantial federal question was presented in Count I?

2. Did the District Court err in holding that it had pendent jurisdiction over Counts II and III and cy pres jurisdiction over Count II?

3. Did the District Court err in refusing to abstain from deciding Count III and in retaining jurisdiction over Count II after abstaining from deciding it?

4. Did the District Court err in holding that the orphanage is a place of public accommodation within the meaning of the state Public Accommodations Act?

This must immediately be said with respect to the stated issues.

As earlier established, the District Court specifically said that "this adjudication, of course, reaches and disposes of finally only count three of the complaint". (Emphasis supplied.)

In paragraph 3 of its Decree it stated "The court determines expressly that there is no just reason for delay and expressly directs the entry of final judgment for plaintiffs and against defendants on count three of the complaint". 260 F. Supp. 367. This disposition, made in accordance with the provisions of Rule 54(b), F.R.Civ.P., made the judgment as to Count III "a final decision" required by 28 U.S.C.A. § 1291.

Rule 54(b) permits entry of a final judgment as to one or more of multiple claims when "there is no just reason for delay and upon an express direction for the entry of judgment".

The complaint here asserts multiple claims, since the violations charged in its three counts are factually "separate and independent". Count I charges that the defendants' denial of admission to Girard College is in substance in the exercise of State authority, viz., "under color of" State authority; Count III charges violation by individuals of the Pennsylvania Public Accommodations Act, independent of the "color of" State authority; Count II merely asserts a basis for the application of the cy pres doctrine.

The District Court's holding that it had jurisdiction as to Count I under the federal statutes earlier cited, and pendent jurisdiction as to Count II, and its retention of jurisdiction with respect to these counts, do not achieve the proportions of "a final decision" within Section 1291 so as to make them appealable.

Moreover, with respect to the denial of the motions to dismiss Counts I and II, it is settled that "denial of a motion to dismiss, even when the motion is based on jurisdictional grounds, is not immediately reviewable". Catlin v. United States, 324 U.S. 229, 236, 65 S.Ct. 631, 635, 89 L.Ed. 911 (1945).

The sum of the foregoing is that the sole appealable action of the District Court is its judgment, premised exclusively on Count III, and that our review here is limited to determining whether the District Court erred in entering that judgment.

The threshold question presented is whether the District Court erred in ruling that "the issue" of the "applicability" of the Pennsylvania Public Accommodations Act "was not decided by the Pennsylvania courts in any of the former proceedings", which had challenged the exclusion of Negro male orphans from Girard College, and that consequently the issue was one of first impression which it was free to resolve ab initio.

It arises by reason of the fact that having so decided, the District Court proceeded (1) to construe the Pennsylvania Act as prohibiting the exclusion referred to; (2) to find that the defendants had violated that prohibition; and (3) to enjoin the defendants from denying the minor plaintiffs admission to Girard College.

We direct our attention to the stated threshold question because a determination that the District Court erred in its view that the Pennsylvania courts had "not decided" the applicability of the Public Accommodations Act "in the former proceedings" would make unnecessary discussion and resolution of the District Court's construction of the Act.

It must be noted that the District Court correctly stated in its opinion at 260 F. Supp. 323, 339 that "Had the applicability of the act to Girard College been settled in the prior proceedings * * * we would be bound to adhere to the Pennsylvania courts' interpretation of the statute. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)".

In Beilan v. Board of Public Education, 357 U.S. 399, 404, 78 S.Ct. 1317, 1321, 2 L.Ed.2d 1414 (1958), it was specifically held: "We are bound by the interpretation thus given to the Pennsylvania statutes by the Supreme Court of Pennsylvania". Again, in Barsky v. Board of Regents, 347 U.S. 442, 448, 74 S.Ct. 650, 98 L.Ed. 829 (1954), it was held that the interpretation of a New York statute by the Court of Appeals of New York "is conclusive here". This Court in McClaskey v. Harbison-Walker Refractories Co., 138 F.2d 493, 496 (1943), in a non-diversity case, held that the Pennsylvania Supreme Court's construction of a Pennsylvania statute is "binding upon us in determining rights accruing under Pennsylvania law".

It is settled too, that matters pertinent to an issue before a court and which were clearly presented to it, by brief or appendix thereto, are to be taken as covered by the court's decision though not mentioned in the opinion. Bingham v. United States, 296 U.S. 211, 218-219, 56 S.Ct. 180, 80 L.Ed. 160 (1935); Seward v. Heinze, 262 F.2d 42, 44 (9 Cir. 1958).

It has been specifically held that where a state statute is referred to and discussed in briefs, its consideration by the court must be assumed, although it "was not referred to in the court's opinion". Dostal v. Magee, 273 Wis. 228, 77 N.W.2d 604, 606-607 (1956).

In Irving Nat. Bank v. Law, 10 F.2d 721, 722 (2 Cir. 1926), where Judge Learned Hand spoke for the Court, it was held that construction of a statute assumed sub silentio in an opinion by a state court of last resort, is conclusive on a federal court.

In Steel Tubes, Inc. v. Clayton Mark Co., 21 F. Supp. 326 (D.C.Del. 1937), it was held that where the sufficiency and propriety of a patent disclaimer under a statute had been before the court, and its opinion upheld the validity of the disclaimer without reference to the questions of sufficiency and propriety of the disclaimer, "The legal inference is that it passed upon them".

To the foregoing must be added the settled principle that where the applicable rule of decision is the state law, it is the duty of the federal court to ascertain and apply that law, even though it has not been expounded by the highest court of the state. Fidelity Union Trust Co. v. Field, 311 U.S. 169, 61 S.Ct. 176, 85 L.Ed. 109 (1940). It was there said at pages 177-178, 61 S.Ct. at page 178:

"The highest state court is the final authority on state law, (citing cases) but it is still the duty of the federal courts, where the state law supplies the rule of decision, to ascertain and apply that law even though it has not been expounded by the highest court of the State. (citing cases). An intermediate state court in declaring and applying the state law is acting as an organ of the State and its determination, in the absence of more convincing evidence of what the state law is, should be followed by a federal court in deciding a state question. * * *

"Here, the question was as to the construction and effect of a state statute. The federal court was not at liberty to undertake the determination of that question on its own reasoning independent of the construction and effect which the State itself accorded to its statute. That construction and effect are shown by the judicial action through which the State interprets and applies its legislation. That judicial action in this instance has been taken by the Chancery Court of New Jersey and we have no other evidence of the state law in this relation. * * * We have held that the decision of the Supreme Court upon the construction of a state statute should be followed in the absence of an expression of a countervailing view by the State's highest court, (citing cases) and we think that the decisions of the Court of Chancery are entitled to like respect as announcing the law of the State."

In Brown v. Moore, 247 F.2d 711, (1957), we applied the doctrine stated, saying at page 721:

"It is the duty of the federal courts where, as here, the State law supplies a rule of decision to ascertain and apply that law `even though it has not been expounded by the highest court of the State, (citing Fidelity Union Trust Co. v. Field, supra)'."

Applicable to our consideration here is the further rule that a federal court may take judicial notice of matters of record in state courts within its jurisdiction. Berkowitz v. Philadelphia Chewing Gum Corporation, 303 F.2d 585, 587 (3 Cir. 1962). Some of the briefs filed by the appellants in the former proceedings before the Pennsylvania Supreme Court have been made part of the record in the instant case in "Court's Exhibit `A'". We have taken judicial notice of other briefs filed by the parties in the Supreme Court cases, as well as the pleadings and briefs in the various Orphans' Court proceedings which led to the appeals to the Pennsylvania Supreme Court.

The principles above stated will guide us in our consideration and disposition of the question as to whether the Pennsylvania Supreme Court and/or the Orphans' Court of Philadelphia "decided" the issue of applicability or non-applicability of the Pennsylvania Public Accommodations Act to the denial of admission to Girard College of Negro male orphans in the former proceedings in the state courts, where the denial was challenged.

We come now to the earlier proceedings.

Their consideration must be prefaced by this statement of the background of those proceedings.

Stephen Girard died in 1831. In his Will, he left a portion of his estate in trust for the erection, maintenance, and operation of a "College". The Will provided that the College was to admit "as many poor white male orphans, between the ages of 6 and 10 years, as the said income shall be adequate to maintain". The City of Philadelphia was named as Trustee.

The City accepted the Trust, and the institution was opened in 1848. Later, by virtue of an Act of the Pennsylvania General Assembly (Act of June 30, 1869, P.L. 1276 § 1, 53 P.S. § 16365), the trust's administration and the operation of the College were transferred from the City of Philadelphia to the "Board of Directors of City Trusts of the City of Philadelphia".

From the institution's opening to the present day, Stephen Girard's testamentary direction restricting admission to the College to "white male orphans" has been strictly adhered to. This restriction was first challenged in September 1954 when two Negro boys, William Ashe Foust and Robert Felder, whose applications for admission to Girard College had been rejected because they were not white, joined in a Petition for Citation in the Orphans' Court of Philadelphia County, for orders directing "the City of Philadelphia, acting by the Board of Directors of City Trusts, to show cause why petitioner should not be admitted to Girard College without discrimination as to race or color". Foust and Felder subsequently filed separate petitions for Citation.

The petitions alleged in paragraph 8 that:

"The rejection by the Board of Directors of City Trusts of your petitioner for admission to Girard College solely because of his race or color violates the 14th Amendment of the United States Constitution and the Constitution of the Commonwealth of Pennsylvania and the statutes of our Commonwealth, and is contrary to the public policy of the City, State and Nation". (Emphasis supplied.)

The Commonwealth of Pennsylvania and the City of Philadelphia which intervened in the litigation in the Orphans' Court filed similar petitions.

In paragraph 8 of the Commonwealth's petition it was alleged:

"The Constitution and laws of the United States and the Constitution and laws of the Commonwealth of Pennsylvania prohibit the City of Philadelphia from administering a segregated school". (Emphasis supplied.)

The City of Philadelphia in its intervening petition alleged in paragraph 7 that:

"Denial of admission to Girard College to otherwise qualified male orphan children because of their race or color is contrary to the public policy of the City of Philadelphia, the Commonwealth of Pennsylvania and the United States of America". (Emphasis supplied.)

These allegations did not go unanswered by the Board of City Trusts. In the 8th paragraph of each of its two answers filed in reply to the petitions of the two applicants, it was stated:

"Respondent denies, as aforesaid, that the rejection of the petitioner for admission into Girard College, he not being white, was solely because of his race or color. Upon advice of counsel, Respondent denies petitioner's rejection being based specifically and solely, as above set forth, upon the fact that he did not meet all of the requirements specified in the Will of Stephen Girard, deceased, viz., that he be a poor, white, male orphan between the ages of six and ten years, violates the 14th Amendment of the United States Constitution, or the Constitution of the Commonwealth of Pennsylvania, or the statutes of our Commonwealth, or that it is contrary to the public policy of the City, State and Nation. On the contrary Respondent avers that the 14th Amendment of the Constitution of the United States is not in anywise involved in this proceeding. The sole issue here is whether The City of Philadelphia, Trustee under the Will of Stephen Girard, deceased, shall continue to execute the trusts, which it accepted, in the manner prescribed in said Will. Said execution being in complete accord with the Constitutions of the United States and the Commonwealth of Pennsylvania, the Statutes of Pennsylvania, and as well as the public policy of the City, State and Nation." (Emphasis supplied.)

In dismissing the various petitions, Orphans' Court Judge Bolger in his opinion, Girard Estate, 4 Pa.Dist. Co.R.2d 671 (1955), specifically ruled on the asserted violation of Pennsylvania statutory law. At pages 702-703 of his Opinion Judge Bolger said:

" It has also been decided herein that the operation of the College in accordance with the language of the will does not offend the Constitution of the United States, any Acts of Assembly or any decisional law. * * * The chancellor having construed the applicable constitutional provisions, the pertinent Acts of Assembly and court decisions, decides that the operation of this trust does not offend public policy as so determined." (Emphasis supplied.)

Following filing of the above opinion and decrees, all petitioners filed "exceptions" to the decrees which, like their original petitions, alleged that the barring of Negroes from Girard College was contrary to the laws, statutes and public policy of Pennsylvania. The City of Philadelphia and the Commonwealth of Pennsylvania each contended that the Orphans' Court had erred in concluding:

"That the operation of the College in accordance with the language of the Will does not offend the constitution of the United States, any statute or decisional law; and that the operation of the Trust does not violate public policy." (Emphasis supplied.)

In their "Exceptions", the individual petitioners contended that the Orphans' Court erred in concluding:

"That `* * * the operation of the College in accordance with the language of the Will does not offend the Constitution of the United States, any Acts of Assembly or any decisional law.' * * *

"That `* * * the operation of this Trust does not offend public policy. * * *' * * *" (Emphasis supplied.)

In the portion of their brief filed in support of their Exceptions captioned "The racially restrictive clause conflicts with the present public policy of the City of Philadelphia and the Commonwealth of Pennsylvania", the individual petitioners (Foust and Felder) stated:

"Summarized briefly are the statutes which express the present public policy of the Commonwealth of Pennsylvania with reference to racial exclusion even though said exclusion is by private arrangement:

"(1) The Civil Rights Statute of June 24, 1939, P.L. 872, 18 PS § 4653, prohibiting discrimination against persons on account of race or color in restaurants, movies and theatres privately owned and in swimming pools even though purporting to be private membership clubs. Everett v. Harron, 380 Pa. 123 [ 110 A.2d 383] (1955);

"(2) The Fair Employment Practice Act of October 27, 1955, prohibiting discrimination in private employment;

"(3) The Urban Redevelopment Act of May 24, 1945, P.L. 991, section 11, 35 PS § 1711, prohibiting racial discrimination by private developers who use the provisions of the Urban Redevelopment Act;

"(4) The Public Contracts Act of May 1, 1933, P.L. 103, article VIII, section 808, 53 PS § 19093-808, prohibiting private contractors to discriminate in employment when working on public contracts.

"Other statutes dealing with restrictions on governmental policies with reference to race give an additional source of public policy:

"(5) Racial discrimination in public schools was abolished in 1881. Act of June 8, 1881, P.L. 76, reënacted by Act of May 18, 1911, P.L. 309, section 1405, as amended, 24 PS § 13-1310;

"(6) Racial discrimination has been forbidden in public assistance, Act of July 25, 1941, P.L. 509, section 3, as amended by Act of August [22] 24, 1953, P.L. 1361, section 9, 62 PS § 2513(f);

"(7) Public housing, Act of July 7, 1947, P.L. 1414, section 12, 35 PS § 1590.12;

"(8) Public employment, Act of August 6, 1941, P.L. 861, section 13, 61 P.S. § 331.13, Act of June 5, 1941, P.L. 84, section 23, 53 PS § 351.23, Act of July 10, 1947, P.L. 1621, section 39, 53 PS § 13300.23."

On page 39 of their brief sur Exceptions the individual petitioners stated as follows with respect to the statutes which it had enumerated:

"The above statutes and other collective actions clearly reveal the public policy of the City, Commonwealth and Nation to be against racial exclusion particularly where any aspect of governmental power is concerned. Totally apart from constitutional consideration, therefore, this Court should declare the racially restrictive clause in Girard's will as being inoperative as against public policy. * * *

"This Court has the power and duty to declare invalid the racially restrictive clause as contrary to public policy as indicated by the statutes of Pennsylvania". (Emphasis supplied.)

Again, at page 41 of this brief, it was said:

" The above statutory material affords, furthermore, a more explicit basis for this Court to declare that the public policy of Pennsylvania and Philadelphia is against racial exclusion even in private charitable institutions especially when the City is trustee. * * *" (Emphasis supplied.)

The Orphans' Court, after en banc consideration, speaking through Judge Lefever, dismissed the exceptions to Judge Bolger's adjudication. 4 Pa.Dist. Co. R.2d 708 (1956). Judge Lefever's opinion made no reference to the Pennsylvania statutes cited in the exceptions, simply stating at page 721, that "no legal reason has been shown why the trust should not be continued in accordance with Girard's directions". (Emphasis supplied.)

The individual and intervening petitioners then appealed to the Supreme Court of Pennsylvania. In that appeal, Girard Will Case, 386 Pa. 548, 127 A.2d 287 (1956), the individual appellant-petitioners cited the Pennsylvania Public Accommodations Act and the other Pennsylvania anti-discrimination statutes which they had cited in their brief sur exceptions to the Orphans' Court adjudication, earlier detailed in this opinion. They prefaced the stated citation of the other Pennsylvania anti-discrimination statutes with this statement:

"The people of Pennsylvania now have spoken often and with a vengeance about racial discrimination in private activities and a court should be as keen and meticulous to find and apply the 1956 notions of public policy with reference to racial exclusion in private activities as it was to find an absence of such policy in 1844 — one hundred and twelve years earlier.

"Summarized briefly are the statutes which express the present public policy of the Commonwealth of Pennsylvania with reference to racial exclusion even though said exclusion is by private arrangement:

"(1) The Civil Rights Statute of June 24, 1939, P.L. 872, 18 PS § 4653, prohibiting discrimination against persons on account of race or color in restaurants, movies and theatres privately owned and in swimming pools even though purporting to be private membership clubs and even though swimming pools were not listed in the statute. Everett v. Harron, 380 Pa. 123 [ 110 A.2d 383] (1955)" (Emphasis supplied.)

The brief further called the Supreme Court's attention to the appellants' reliance on the cited Pennsylvania statutes in this statement:

"The above statutes and other collective actions clearly reveal the public policy of the City, Commonwealth and Nation to be against racial exclusion in education particularly where any asspect of governmental activity is concerned". (Emphasis supplied.)

Again, at another point in the brief referred to these statements appear:

"This Court has the power and duty to declare invalid the racially restricted clause as contrary to public policy of Pennsylvania," and

"The Pennsylvania statutory materials cited above afford, furthermore, a more explicit basis for this Court to declare that the public policy of Pennsylvania and Philadelphia is against racial exclusion even in private charitable institutions. * * *" (Emphasis supplied.)

The City of Philadelphia in its brief also cited the Pennsylvania Public Accommodations Act as one of the many Pennsylvania statutes supporting its contention that "the public policy of Pennsylvania prohibits exclusion of Negro orphan boys from Girard College". In doing so it stated:

"The Commonwealth of Pennsylvania has also expressed its anti-discrimination policy. A long series of statutes forbid discrimination on account of race or color, by public bodies as well as by private persons". (The Public Accommodations Act was cited, along with other Pennsylvania statutes in a footnote to that statement.)

At another point in its brief the City stated:

"We therefore submit that as a matter of State law and public policy the Board [of City Trusts] may not administer the trust in a manner which requires racial discrimination among applicants for admission to Girard College". (Emphasis supplied.)

The appellee Board of Directors of City Trusts, in its brief, squarely challenged the appellants' contention that Pennsylvania statutory law and public policy made illegal the Board's denial of admission to Girard College on racial grounds.

In doing so it stated:

"A bequest to establish a school for children of one race only does not violate any public policy of Pennsylvania. * * * There is no express statute outlawing private schools that admit only one race * * *. There is no statute affecting the problem before this Court. It should be slow to find public policy in an area where the Legislature has not spoken." (Emphasis supplied.)

The Pennsylvania Supreme Court affirmed the Orphans' Court. In doing so it stated at the very outset of its opinion:

"* * * the Court is clearly of opinion that the unanimous decision of the Orphans' Court, supported by the learned and comprehensive opinions of Judge Bolger and Judge Lefever, must be affirmed, it being clearly understood at the outset that the beneficiaries of the charity of Stephen Girard are not being determined by the State of Pennsylvania, nor by the City of Philadelphia, nor by this Court, but solely by Girard himself in the exercise of his undoubted right to dispose of his property by will, and, in so doing, to say, within the bounds of the law, who shall enjoy its benefits." (Emphasis supplied.) 386 Pa. 550-551, 127 A.2d 288.

The Supreme Court did not at any point in its opinion make reference to the Pennsylvania Public Accommodations Act nor to any other Pennsylvania statute cited in the appellants' briefs, nor to the State's public policy. It discussed at length the issue bearing on alleged violation of the Fourteenth Amendment and ruled that the denial of admission to the individual appellants, on the ground that they were not white, was not prohibited "state action" under the Amendment.

The appellants appealed to the Supreme Court of the United States which, treating the appeal as a petition for writ of certiorari, ruled, in a per curiam opinion that:

"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, 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". Commonwealth of Pennsylvania v. Board of Directors of City Trusts, 353 U.S. 230, 231, 77 S.Ct. 806, 807, 1 L.Ed. 2d 792 (1957).

The Supreme Court of Pennsylvania subsequently vacated the decrees of the Orphans' Court in the Foust and Felder cases and remanded the causes to that Court "for further proceedings not inconsistent with the opinion of the Supreme Court of the United States as set forth in its said mandate".

The Orphans' Court, on the remand, on September 11, 1957, entered a decree dismissing the petitions of Foust and Felder for admission and removing the Board of Directors of City Trusts "effective upon the appointment of a substituted trustee by this court".

The Orphans' Court, in the opinion accompanying its decree, held that "the sole issue decided by" the Supreme Court of the United States was "federal constitutional law" and that consequently it was free under state law, via the appointment of substituted trustees, to give effect to the exclusionary clause of Girard's will.

Petitions for reconsideration and vacation or modification of the September 11th decree were filed by Foust and Felder, jointly, the Commonwealth of Pennsylvania and the City of Philadelphia.

The Foust-Felder petition averred, inter alia, that:

"Said decree is contrary to the public policy of Pennsylvania and the United States of America". (Emphasis supplied.)

The Commonwealth's petition challenged the decree on other grounds; the City of Philadelphia's petition also did so and further charged that:

"The decree is contrary to the public policy of the Commonwealth of Pennsylvania and the United States of America as set forth in numerous statutes and the Philadelphia Home Charter". (Emphasis supplied.)

The Orphans' Court dismissed all the petitions and the petitioners appealed to the Supreme Court of Pennsylvania.

Foust and Felder, in their briefs on this appeal, In re Girard College Trusteeship, 391 Pa. 434, 138 A.2d 844 (1958), urged that:

" The statutes set out in the footnote show that the Legislature and the courts have increasingly held invalid acts of racial exclusion, even though said racial exclusion is by private arrangement." (Emphasis supplied.)

In the footnote referred to, the brief specifically referred to "Title 18, § 4654" (the Public Accommodations Act), several other Pennsylvania anti-discrimination acts, and Everett v. Harron, 380 Pa. 123, 110 A.2d 383 (1955), "where this Court [the Pennsylvania Supreme Court] fashioned an equitable remedy to aid in the enforcement of the provisions in the Civil Rights Act [Public Accommodations Act] prohibiting racial discrimination in a private swimming pool operated for profit".

Again, in the "Conclusion" of the Foust-Felder brief this statement was made:

"Moreover, as a matter of state law the principle of freedom of will is not here involved, and must, in any event, give way to state and federal public policy". (Emphasis supplied.)

The substituted trustees, in their reply brief, met head-on the contention that the Pennsylvania statutory law or public policy made their denial of admission to Girard College on racial grounds illegal, in this statement:

"Appellants have urged throughout this litigation that public policy requires, either explicitly or implicitly, expansion of the class of beneficiaries selected by Stephen Girard. Yet appellants have failed to cite any constitutional provisions, legislation, or court decision which restricts a testator's right to nominate the group which is to receive the benefits of his charity". (Emphasis supplied.)

The Supreme Court of Pennsylvania affirmed the decree of the Orphans' Court in its opinion at 391 Pa. 434, 138 A.2d 844. As in its first opinion at 386 Pa. 548, 127 A.2d 287, the Court's opinion made no reference to the Pennsylvania Public Accommodations Act nor any other of the state's anti-discrimination acts, although it did say at page 441, 138 A.2d at page 847:

"The appellants' effort to make a `segregation' issue out of Stephen Girard's private charity * * * serves only to confuse and obscure the real issue involved as to the right of a private individual to bequeath his property for a lawful charitable use and have his testamentary disposition judicially respected and enforced". (Emphasis supplied.)

The foregoing detailed review of the prior proceedings in the State courts establishes that the District Court erred in determining that:

"The issue [with respect to the Pennsylvania Public Accommodations Act] was not decided by the Pennsylvania courts in any of the former proceedings * * *. The reason seems to be that the argument [as to "possible application" of the Public Accommodations Act] was simply never made. * * * Never was it suggested that the continued exclusion of Negroes from Girard College would violate the express terms of this statute [the Public Accommodations Act]; never was the statute so much as quoted; never was the court apprised of its terms. References to it were not only obscure but oblique."

and

"It is universally recognized that `[q]uestions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.' Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 149, 69 L.Ed. 411 (1925). Accord, United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37-38, 73 S.Ct. 67, 97 L.Ed. 54 (1952) * * * (citing other cases)".

With respect to this determination, the quoted portions of the record in the former proceedings, establish conclusively that (1) Orphans' Court Judge Bolger, to whom had been presented Foust and Felder's contention in their petitions that "The rejection * * * of your petitioner * * * violates * * * the statutes of our Commonwealth, and is contrary to the public policy of the * * * State * * *", had specifically ruled in his opinion denying the various petitions for citation that "It has also been decided herein that the operation of the College * * * does not offend * * any Acts of Assembly or any decisional law. * * * The Chancellor having construed * * * the pertinent Acts of Assembly and court decisions, decides that the operation of this trust does not offend public policy as so determined" (emphasis supplied); (2) Judge Lefever, speaking for the Orphans' Court en banc, in dismissing the exceptions to Judge Bolger's adjudication said "* * * no legal reason has been shown why the trust should not be continued in accordance with Girard's directions", (emphasis supplied) although the brief of the exceptants (Foust and Felder) had called to the court's attention the Pennsylvania Public Accommodations Act (see footnote 21) among other Pennsylvania anti-discrimination acts in support of the contention that Judge Bolger had erred in ruling that the operation of Girard College "does not offend * * * any Acts of Assembly" of Pennsylvania; (3) the Supreme Court of Pennsylvania, at 386 Pa. 548, pages 550-551, 127 A.2d 287, page 288, affirmed the decree of the Orphans' Court, stating, "the Court is clearly of opinion that the unanimous decision of the Orphans' Court, supported by the learned and comprehensive opinions of Judge Bolger and Judge Lefever, must be affirmed", and that Girard's disposition in his will was "within the bounds of the law". (emphasis supplied), although, in their briefs, Foust and Felder had cited the Pennsylvania Public Accommodations Act in support of their contention that the Orphans' Court had erred in ruling that Girard College's exclusionary policy did not violate any Pennsylvania statutes; and (4) the Pennsylvania Supreme Court in the appeal, at 391 Pa. 434, 138 A.2d 844, which followed the dismissal of the Foust-Felder petitions in the remanded proceedings directed by the Supreme Court of the United States, again affirmed the Orphans' Court, stating, in doing so that this was not a "segregation" case, and that Girard had bequeathed his property "for a lawful charitable use", page 441, 138 A.2d 844 (emphasis supplied). Again, this ruling was made in the face of the fact that the appellants had urged that the Public Accommodations Act and other Pennsylvania anti-discriminatory acts had made "invalid acts of racial exclusion, even though said racial exclusion is by private arrangement".

Applying the principles earlier stated, we are of the opinion that (1) the District Court erred in holding that the issue as to the applicability of the Pennsylvania Public Accommodations Act had not been decided in the former state court proceedings; (2) the Pennsylvania courts have decided that the Act does not prohibit the defendants from denying the minor plaintiffs herein admission to Girard College; and (3) the District Court erred in not giving effect to these decisions.

For the reasons stated Paragraphs 1, 2, and 3 of the Decree of the District Court which relate to Count III will be vacated and the cause remanded for further proceedings not inconsistent with this opinion.

This disposition will permit the District Court to proceed forthwith with further proceedings relating to Count I which presents by its allegations, significant and challenging grave questions of federal constitutional proportions. See Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966).