Dissenting Opinion bt
Mr. Justice Musmanno:Stephen Girard, the testator whose last will and testament is the subject of controversy in this lawsuit, was horn in Bordeaux, France, on May 21, 1750. At the age of 14, he, like his father who was a mariner, took to the sea and made several voyages to the West Indies. When only 23, he became a duly licensed ship’s captain, and sailed into many ports of the world. He first touched at American soil (San Domingo) in February, 1774, and in July of that year brought his ship for the first time to a North American continental port (New Yorlx). Then in May, 1777, he entered the waters of the Delaware and dropped anchor off Philadelphia’s shores. He was never again to return to his original homeland. He rented a store on Water Street of that city and entered into business.
The shifting fates of the Revolutionary War, with the invasion and occupation of Philadelphia by British troops, drove him from the city on occasion but he always returned to Water Street. In this -neighborhood, with.the exception of a voyage to Charleston and the *616Mediterranean, in a brig owned and commanded by himself, and which terminated in July, 17SS, Stephen Girard from then on lived and died a citizen of Philadelphia which he admired and venerated with an ardor which often surpasses the devotion of native sons. During the epidemic of the yellow fever in 1783 and again in 1797-8, Stephen Girard aided the sick, comforted the dying, and made liberal contributions to the funds required in fighting the ravages of the pestilence which gripped Philadelphia in a threatening catastrophe. For his benevolent services in these trying periods of the city’s history he was honored by his fellow-citizens with testimonials and public laudation.
In 1802 Stephen Girard was elected a member of the Philadelphia “city councils.” He had now entered the banking field in which he prospered so signally that upon the expiration of the charter of the first Bank of the United States he took over the building theretofore occupied by that institution, named it the Bank of Stephen Girard, and developed it into one of the foremost financial institutions of the country.
For a period of upwards forty years, although engaged in a most extensive commerce, and the owner of numerous vessels employed in a very large foreign trade, Stephen Girard devoted most of his time to banking pursuits, varied by visits to his farm in Passyunk. As stated by Justice Bead in his Opinion in the case of Soohan v. City of Philadelphia, 33 Pa. 9, from which most of this short biographical sketch is drawn, although Stephen Girard enjoyed a “reputation extending over the United States and Europe, as a wealthy and successful merchant and banker, his habits were so retired, plain, and frugal, that his person was unknown to many of- his fellow-citizens. His fame and his -name are indissolubly connected with the *617great charity which created the subject of this dispute —his “orphan college.” Another dispute over the “orphan college” has now, almost a century later, arisen and it is before this Court for decision.
In the year 1830, fully aware that the sands of life were running fast and that but few grains were left Mm to enjoy, having now reached his 80th birthday, Stephen Girard called in his lawyer and prepared to dispose, by will, of the enormous wealth, which his innate ability and shrewd foresight, cooperating with providential circumstance, had amassed. For several weeks the testator and scrivener toiled together and by February 16, 1830, there came to light a document of 35 pages which, through litigation, commentary, and application to the works announced therein, has inspired tens of thousands of pages of writing. In this document which disposed of his riches, Stephen Girard was just and generous to relatives who would survive Ms death, but he stopped short of the thought that they merited the lion’s share of his financial empire. An avid reader of Voltaire’s writings and other philosophical works, he believed that one’s own community and mankind itself deserved a place in the sunshine of the good fortune which had blessed him in the gilded days of his profitable career. Thus, he bestowed on the City of Philadelphia and its people gifts which were more reminiscent of the largesse of a rich, benevolent city father than the munificence of a private citizen. For instance, he set aside funds with which to establish a competent police force, he bequeathed money for the gargantuan task of removing wooden buildings from the limits of the city, he provided for the paving and widening of certain streets, he supplied means for cleaning and keeping clean the city’s docks on the Delaware, and redistribution of .the waters o.f the Schuylkill Biver within the city limits. He made *618available facilities to “improve the city property, and the general appearance of the city itself; and, in effect to diminish the burden of taxation, now most oppressive especially on those, who are the least able to béar it.”
If anyone was entitled to be called “Mr. Philadelphia” in those days, it was Stephen Girard. In addition to the legacies above enumerated, he opened the flood of his generosity to such institutions as the Philadelphia Hospital, the Pennsylvania Institution for the Deaf and Dumb, the Orphan Asylum of Philadelphia, and various other organizations for relief of the poor and the distressed.
Grateful to the city which had made Mm rich, Girard was not unmindful of the opportunities afforded by a State government which allowed amplitude to the unfoldment of his business genius. Thus he bequeathed $300,000 to the Commonwealth of Pennsylvania for purposes of internal improvement by canal investigation.
While all these bequests evinced a warm disposition toward physically improving his city, bettering the general welfare of the people, and mitigating the hardships of the unfortunate, proving the truth of his statement that he had “sincerely at heart the welfare 3f the city of Philadelphia,” — what was even closer to his heart was the desire to aid in “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”: Towards the accomplishment of this desire he set aside $2,000,000 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 *619than they usually receive from the application of the public funds”.
In Clause XX of his will he stated: “Now, I do give devise and bequeath all the residue and remainder of my real and personal estate of every sort and kind and wheresoever situate . . . unto ‘The Mayor, Aider-men and citizens of Philadelphia their successors and assigns in trust to and for the several uses intents and purposes hereinafter mentioned' ”.
In Clause XXI he provided: “And so far as regards the residue of my personal estate, in trust, as to two millions of dollars, part thereof, to apply and expend so much of that sum as may be necessary — in erecting . . .” and maintaining the college which he described in the minutest of detail as to construction, architecture, furnishing, the employment of instructors, the feeding and the clothing of students. As a man of the sea, he could not, with more particularity, have prepared for the construction, maintenance, care, and navigation of a ship, than he directed as to what was to be done to launch his college for orphans. However, before the keel of this vessel of education could be laid, he required that the State do certain things— many things.
Stephen Girard was obviously aware that the enormous project of building a college, selecting and maintaining its students, hiring and paying for instructors, and increasing its capacity, altoays on a non-paying student basis, was one which called for the intervention of the State. However, as appreciative as he was of what the State and City had offered him in the way of opportunity, he was pragmatic enough to realize that even philanthropy calls for rigid organization and supervision. It also in some ways requires sanctions. The fond father who gives his child pennies if he will *620eat spinach is applying a principle which reflects human nature in even lofty and exalted enterprises. It will be recalled that Mr. Girard bequeathed $300,000 to the Commonwealth. This legacy was conditioned upon the Commonwealth’s enactment of the legislation necessary to permit Philadelphia to perform the cleaning, building, paving and other operations he had outlined. Stephen Girard also provided that if the City of Philadelphia did not carry out his wishes with regard to the Girard College, the residue of his estate (the $2,000,000 and accumulations) would go to the Commonwealth of Pennsylvania for internal navigation; and if the Commonwealth of Pennsylvania failed to “apply this or the preceding bequest to the purposes before mentioned,” the money in that event would pass to the United States for the purposes of internal navigation.
It is difficult to imagine a testamentary disposition more completely interwoven with the public’s welfare and responsibilities than the Girard will, all of which renders quite extraordinary the decision of this Court to the effect that the Girard College is simply a private institution. But that will be taken up later. Proceeding with our narrative of events, we arrive at the death of Stephen Girard on December 26, 1831, and the probating of his will on December 31, 1831.
Stephen Girard’s will, as we have seen, envisioned a beautiful dream — a college for the education of the poor. But this dream would have died a-borning without State action. The General Assembly of the Commonwealth of Pennsylvania was required to act, and act within a year’s time, if Philadelphia was to see one brick placed on top of another in the erection of Stephen Girard’s temple of learning for poor children. The General Assembly lost no time in acting. *621On March 24, 1832, it passed an Act directing the constituted authorities of Philadelphia to carry into effect the will of Stephen Girard.
Less than a month later (on April 4, 1832) the General Assembly passed another Act providing that “the select and common council of the City of Philadelphia, shall be and they are hereby authorized to provide by ordinance or otherwise, for the election or appointment of such officers and agents as they may deem essential to the due execution of the duties and trusts enjoined and created by the will of the last Stephen Girard.”
Further State intervention was required before doors could be hung in the portals of Girard College. The Girard will stipulated that no orphan could be admitted unless some authoritative relative or “competent authority” guaranteed that the orphan would not be withdrawn from the school before termination of Ms studies. The Legislature, accordingly, on February 27, 1847, passed a Special Act making the City a guardian of every Girard College orphan and prohibiting interference from any relative. Paragraph 9 of Clause XXI of the Girard will provided that when the orphan students arrived at the age between 14 and 18 they were to be bound out by the City to suitable occupations until they had attained the age of 21. The Act of February 27, 1847, authorized the City to bind out the orphans until they reached their majority.
A fourth Act was passed by the General Assembly on April 30, 1853, meeting another requirement of the Girard will, namely, that the City be allowed to bind Girard College orphans as apprentices.
So much was the Girard will a matter of public business that at Harrisburg a special committee was chosen and entitled: Select Committee of the Pennsyl*622vania House of Representatives on the Estate of Stephen Girard. While the General Assembly was enacting legislation implementing the Girard will and supplying the legal equipment required to put the provisions of the will into effect, the City Councils of Philadelphia (Common and Select) were engaged in preparing for the erection of the college buildings. On March 21, 1833, the Philadelphia Council passed an ordinance providing for the construction of the school, entitling it the Girard College for Orphans, all building plans to be approved by Council. On July 14, 1836, an ordinance was adopted making provision for the purchase of books and paraphernalia. On January 28, 1841, the Council ordered that contracts entered into by the College had to be validated by Council. The Council appointed committees to handle the innumerable details connected with maintaining, creating, and running a college.
The cornerstone of the institution was laid on July 4, 1832, and it was officially opened for student occupation on January 1, 1848. On November 9, 1848, Council appointed a visitation committee to visit the college once a month and report on its findings to Council. That the Girard College was an object of continuous solicitude, care, and managership on the part of the City fathers is evidenced by the fact that between September 15, 1832 and December 18, 1869, the Council enacted 48 different ordinances devoted exclusively to the Girard College.
In 1869 the management and direction of Girard College was placed in the hands of a Board of Directors of City Trustees, created by the General Assembly (Act of June 30, 1869, P. L. 1278). This Board (hereinafter called the Board of City Trustees) was composed of the Mayor, the presidents of the Select and *623Common Councils, and 12 other citizens to he appointed by the Court of Common Pleas of Philadelphia County. That Board is the governing body of Girard College today, administers the trust in all its ramifying particulars and selects the student body. The Treasurer of the City of Philadelphia serves as the Treasurer of the Board, Through this Board and through periodical examinations, visits, and audits the General Assembly maintains a direct supervision over the College and its activities. The Board is required to report annually to the City Council, to the State Legislature, and to the Court of Common Pleas, publishing its reports in the Philadelphia newspapers. The City Controller is required to audit the accounts. The Act makes the members of the Board city officers.
We have related how Stephen Girard declared in his will that the student body of Girard College was to be made up of “poor white male orphans.” On February 1, 1954, William Ashe Foust and Robert Felder, two Negro fatherless boys, aged 8 and 7 years respectively, applied for admission to the Girard College, but were refused enrollment by the Board of City Trusts. In refusing the admission, the Board stated that it had been “advised by its solicitor that it has no power to admit other than white boys to Girard College”.
On September 24, 1954, the rejected Negro applicants and the City of Philadelphia, acting through the Mayor and the Commission on Human Relations, filed separate petitions in the Orphans’ Court of Philadelphia County for a citation upon the Board to show cause why the applicants should not be admitted. The Board admitted in its answer that the applicants had been denied admission solely on the basis of race. After hearing, the Court below upheld the action of the Board and the applicants appealed to this Court. *624Since the Commonwealth of Pennsylvania was named the remainderman under the will of Stephen Girard, the Attorney General of the Commonwealth intervened to protect its rights as remainderman as well as its rights as parens patriae to supervise and enforce the provisions of a charitable trust. The Commonwealth upholds the position of the applicants that the Girard trust is a public charitable trust and as such is controlled by the Fourteenth Amendment. The City of Philadelphia, through the City Solicitor’s office, takes the same position.
At the oral argument before this Court the Commonwealth, the City, the applicants, and the Board of Directors were all represented by able counsel who also filed informative briefs. The Court took the case under advisement and the Majority has now affirmed the decision of the lower Court. In its Opinion the Majority well stated the issue brought before us for decision:
“The question then, is whether the limitation in Girard’s will to white children as the beneficaries of his college or orphanage, although undoubtedly lawful at the time of the execution of his will and of his death, has become invalid as a result of the adoption of the Fourteenth Amendment which prohibited any State from denying to any person within its jurisdiction the equal protection of the laws. No such question could possibly arise in the case of a private charitable trust for the Fourteenth Amendment applies only to agencies of the State or of a municipality within the State; it is directed solely against State, not individual, action.”
Is then the action of the Board of City Trusts an action of the State? The Supreme Court of the United States said in the case of Ex Parte Virginia, 100 *625U. S. 339, 347, that when one “acts in the name and for the State, and is clothed with the State’s power, his act is that of the State.” How can there be any doubt that the State of Pennsylvania speaks in the administration of the Girard trust? We have seen the State passing five different statutes devoted to the Girard trust. We have witnessed the State setting-up the machinery for running the Girard College. We have noted that the House of Representatives formed a special committee to consider the Girard estate. And it must particularly be observed and emphasized that the State’s concern for the Girard trust is not a matter of past tense. It today expresses a direct supervision over the administration of Girard College. Members of the Legislature visit it officially. The City of Philadelphia is required to submit periodical reports on the College to the Legislature. The accounts of the College are open to the State’s inspection.
It is a matter of no little weight in determining whether the Girard trust is a public or private charity to note that the City itself makes no effort to conceal the governmental character of its involvement in the direct management of the College. The rejection by the Board of City Trusts of the applications of Felder and Foust was written on official stationery of the City bearing in large type the words City of Philadelphia.
How can it be doubted that in creating the Board of City Trusts the General Assembly intended to bring into being a governmental agency? The enabling Act provided that all duties, rights and powers of the City of Philadelphia with respect to property dedicated to charitable uses or trusts are to be discharged by the City “through the instrumentality of a Board com*626posed of fifteen persons including the mayor of said city, the presidents ” etc., “who shall exercise and discharge all the duties and powers of said city . . .” The Board is directed “in the name of the . . . City ... to make all necessary agreements”, and “for and in the name of the said City to do, perform and discharge,” all necessary acts in the discharge of the trust. And then, as if to eliminate the possibility of questions in the future as to the authority of the Board, the Act specifically declares that “The said directors, in the discharge of their duties, and within the scope of their powers aforesaid, shall he considered agents or officers of said city . . .”*
The State could have refused to accept, had it chosen to do so, the largesse of Stephen Girard, but it did not so refuse. On the contrary, it eagerly and enthusiastically accepted every proposition advanced by Mr. Girard in his will. The testator spelled it out clearly that if the State was to receive the $300,000 he bequeathed to it, it had to enact certain enabling laws. By accepting the legacy and by passing the requested legislation the State has entered into a contractual obligation which it cannot ignore.
The Majority of the Court seems to have difficulty in finding that the Girard College is a public institution. The job, as I see it, is not how to find that the Girard College is a public charity, but to ascertain by what processes of search, reasoning, and logic it is possible to declare it is a private charity. With the exception of the fact that Stephen Girard originally supplied the funds for the founding of the institution there is not one item in the whole 125-year history of Girard College to support the contention that it is a private institution. The $2,000,000 originally be*627queatheu for tbe college was exhausted with the final construction of the buildings. Had it not been for the able managership of the City of Philadelphia and the guiding hand of the State of Pennsylvania, the Girard College would most likely have remained a group of empty buildings unenlivened by the shouts of happy children within. Because of the pains taken, the time spent, and the wisdom exercised by the City of Philadelphia acting through its designated officials, the Girard estate, after a perilous escape from a near-foundering, has sailed on to fortune, having now an appraised value of $98,000,000. Its real property alone is worth over $10,000,000. And it must not be overlooked in this connection that the Girard estate did not have to pay commissions on income and capital gains, which it most assuredly would have had to do if the trustees had been private trustees instead of governmental agencies.
Stephen Girard planned well. He knew that without the power, the authority, and the ceaseless supervision of the State, it would have been impossible to crystallize into reality his cherished hopes for a college for non-paying poor children. If, by some dreadful retroactive cataclysm, there would fall out of present reality, all the governmental authority, direction, control, and guardianship which have gone into the Girard College for the last 125 years, the college would today be but a withered dream hanging disconsolately on the melancholy vine of unrealized hopes.
-• The only question in this case is whether the Girard College is a public-institution. If it is, it cannot avoid the Fourteenth. Amendment and it must therefore admit-the applicants in this case. Instead of considering- this issue, which’- the Majority itself lias pointed but, the Majority goes on to discuss at great length a *628matter that is not in dispute at all, namely, that a testator has the right to leave his property to whomsoever he wishes. Certainly a testator is entitled to choose the beneficiaries of his bounty, but if he asks the government to administer his estate he cannot expect the government to ignore the very law it symbolizes. Parents who consent to have their child adopted by others cannot complain if the adopting parents, raising him in another state, follow the law of that State instead of the law of the State in which he was born. If a testator should today leave his property in trust to the State for the training of destructive atom bomb engineers, and then later on the destructive atom bomb should be proscribed, the government could not be compelled to go on instructing students in a sphere of education beyond the pale of the law.
In 1870, this Court had before it for consideration the Act of June 30, 1869, P. L. 1276, which created the Board of Directors of City Trusts. Referring to that case the Majority Opinion says: “The Act was upheld as to its validity in Philadelphia v. Fox, 64 Pa. 169, where the policy it represented was described (p. 183) as 'having such a board dissociated from the general government of the city’ But the Majority only released part of the quotation. The whole passage reads as follows: “We have nothing to do with the wisdom of the measure — with the policy of having such a board dissociated from the general government of the city, or with the mode of its selection. Those are questions exclusively for the legislature. No one I think can doubt that it was entirely competent for that authority to vest the entire management and control of all municipal affairs in just such a body as that constituted by this act. If they could do the gréater, they can do the less. They could make a similar provision for any other department of the municipality. They might es*629tablish a board of police, of highways, of sewerage, of cleansing.” It will be seen that in the Fox case the Court equated the Board of City Trusts with a municipal board of police or a board of highways. How can one fail to see that when the Court there spoke of a board “dissociated from the general government,” it meant something dissociated from sovereign authority? If it had meant what the Majority here wants to try to have it mean, the Court would never have included a board of police as an illustration because a board of police is certainly part of the municipal government.
The Majority picked up from the Fox case a mere fragment and then dropped it. If it had lingered a little longer in discussion with that epochal decision, it might have concluded that in reality it is decisive of the question before us. For Instance, Justice Sharswoop, who wrote the decision, said: “Such a municipal corporation may be a trustee, under the grant or will of an individual or private corporation, but only as it seems for public purposes, germane to its objects . . . I am aware that it has been said by high authority in England that it may take and hold in trust for purposes altogether private . . . But the administration of such trusts, and the consequent liabilities incurred, are altogether inconsistent with the public duties imposed upon the municipality.” If this Court follows the Fox case, and it is bound to do so since the Majority cites it favorably, it cannot possibly declare the Board of City Trusts to be engaged in administering a private trust. A municipal corporation, as Justice Siiarswood stressed, may only be a trustee where the grant has to do with a public purpose, germane to the object of the corporation. Justice Siiarswood said further: “When, therefore, the donors or testators of these charitable funds granted or devised them in trust *630to the municipality, they must be held to have done so with the full knowledge that their trustee so selected was a mere creature of the state, an agent acting under a revocable power ... It is surely not competent for a mere municipal organization, which is made a trustee of a charity, to set up a vested right in that character to maintain such organization in the form in which it existed when the trust was created, and thereby prevent the state from changing it as the public interests may require”.
It is obvious from the above that the City of Philadelphia, as a branch of the State government, cannot entertain a right which would prevent the State from changing it as public interests may require, for instance, as the Fourteenth Amendment requires.
Counsel for the applicants put it very well in their brief when they say: “If Girard had been able to set up and maintain Girard College in the manner described in his Will without any special state and municipal legislation, and without the use of public officials, we might be dealing with the situation envisioned by the Orphans’ Court, to wit: purely private arrangements enforced and observed without any State action. But this was not the case.” Indeed it was not the case. As already pointed out, in effectuating the objectives of his will, Stephen Girard called on the Legislature of Pennsylvania, the City Council of PhiL adelphia, the Mayor of Philadelphia, and the Treasurer' of Philadelphia. Then the General Assembly of the Commonwealth added for his benefit the services of the judges of the Courts of Common Pleas (how 21) in- appointing the Board of City Trusts administering his estate. If such a plethora of governmental activity does nót make Girard’s trust a public trust, then the word “public” has undergone a mysterious transforma*631tion which is not recorded in the dictionaries of the English language or the lexicon of the law.
Counsel for the Board of City Trusts in their brief tell how the $2,000,000 set aside for the erection of the college was not sufficient for the purpose because of a great depreciation in the value of some of the investments due to the financial panic of 1S37. After this statement, counsel go on to make this significant declaration: “Not only was there a depreciation in the value of some of the investments, and consequently insufficient revenue for the completion of the buildings of the college (Soohan v. City, 33 Pa. at page 23), but the Councils used income from the Girard Estate for municipal purposes other than the College, amounting to $571,958.42, in the years 1833 to 1848 inclusive”. Is it necessary to expatiate on that disclosure? “Councils used incomes from the Girard Estate for municipal purposes”! Can anything be more public than municipal purposes? Incidentally these revealing statistics are drawn from the Report by Hon. George 'Wharton Pepper, Auditor.
The Majority attempts to draw a distinction between the City of Philadelphia and the Board of City Trusts, in spite of the fact that the Board of City Trusts has in the very heart of its organization the chief executive officer of the city, the Mayor; and its chief financial officer, the Treasurer. In support of its strange conclusion the Majority says that the fact the Board filed an answer to the City’s petition is evidence of “the complete severance between the city in its ordinary municipal or governmental capacity and the Board of Directors of City Trusts administering the trusts confided to the city as trustee.” But the action of the Board in this respect is merely self-serving. It is not the first time in the history of government *632that a subsidiary body presumes to question the authority of its parent body.
If the bland affirmation of the Board makes the Board something removed from the City, then the whole present litigation is moot, and this Court is engaged in static academic philosophizing. But it is not enough for the Board to say that it forms no part of the City. This is something it must prove and I submit it can no more prove such severance than the tentacle of any invertebrate can, by mere assertion, make itself independent of the body from which it draws life. While not of any great importance, it is a matter of human interest at least to point out that the attorneys for the Board, in a moment of factual realism, detached from the part they are enacting in this litigation, referred to themselves as “Attorneys for the City of Philadelphia.” On the cover of their brief they sign themselves: “Attorneys for The City of Philadelphia, Trustee Under the Will of Stephen Girard, Deceased, Acting by the Board of Directors of City Trusts.”
In their brief the Board attorneys concede that the Board is a governmental agency but maintain it does not act as a governmental body. But if it is a creature of the law, which it is, it must respond to the law, and, acting according to the law, it cannot possibly ignore the provisions of the Fourteenth Amendment.
The Board’s attorneys state further in their brief: “No one doubts that the Board is an agent of the City, but the City and the Board together are agents of Stephen Girard to carry out the terms of the will.” But can the City be the agent of a private individual? The City may no more be an agent of a deceased citizen than it can do the bidding of a living private person. Our whole democratic form of government is *633founded on the proposition that public officials have but one master and that is the public.
In contending for their position the attorneys for the Board argue that it is not the State or the City which offers educational facilities of Girard College to anyone, but that it is Stephen Girard who does so on his own terms. And then the writer of the Board’s brief enunciates in epigram and in italics: “Since the State offers nothing to anyone, it can scarcely be said to deny something to someoneBut one could reply with en equal economy of language to this apothegm by saying that: In the exercise of its sovereign powers the State offers all opportunities to everybody, and when it denies anything to anybody it denies something to everybody.
The Majority Opinion makes reference to the Philadelphia City Charter and seems to find therein support for its thesis by declaring that the Charter says it does not apply to the Board of City Trusts. However, it seems to me that this exclusion does not mean that the Board is any less governmental. On the contrary, it could mean just the reverse because the Board, being a distinct creature of the Legislature, is under the control of the Legislature and must, as we have seen, report to the Legislature as well as to the City.
In the case of Girard’s Appeal, 4 Pennypacker 347, 361, this Court specifically stated that “the directors of city trusts are a department of the municipality which the Legislature had a constitutional right to establish.” This Court said further in that case: “A man who constitutes such a municipality his trustees, does so subject to all the changes which the sovereign power may make in its character and organization.” Thus, it is futile to reason that the Board of City Trusts has no power to do anything which seems to be in opposition to the testator’s words. The Board, *634being a child of the Legislature, is a public agency and, regardless of apparent prohibition in the provisions of the trust document it is carrying out, cannot avoid enforcing the law of the State which is its master.
The Majority introduces the statement that the City is administering some 89 charitable trusts at this time. I do not know what are the provisions of these trusts, nor do I think the Majority knows either. In any event it is entirely irrelevant to speak of these other 88 trusts, for it is safe to assume that not one of them is so interlocked with the State and City as is the Girard trust. And it is not unfair to assume, since the matter has not been called to our attention, that none of those trusts contains provisions in opposition to the Fourteenth Amendment.
The Majority advances the idea that if the Board of City Trusts is engaged in “State action”, the petitioners would still not be entitled to the remedy they seek because the Orphans’ Court could appoint another trustee. The Girard will provides in Article XXIV that if the City wilfully and knowingly violates any of the conditions in the will, the remainder and accumulations will go to the Commonwealth of Pennsylvania. The Majority seems to be of the impression that the college could go on operating just the same even if it were deprived of these enormous resources because it would always have the income from the real estate. But there is no evidence whatsoever that with the City withdrawn from the administration, and the remainder and accumulations paid over to the Commonwealth, the Girard College could continue with the large student body it now accommodates, if indeed it could live at all. The Majority feels that it could, and says that on this point the testator “speaks from the grave.” Being dead since 1831, I would think that on all points the testator speaks from the grave, — and *635that on all points it is clear that Stephen Girard’s primary objective ivas to dedicate his entire estate to the public in one form or another. In paragraph 9 of Article XXI, he said: “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 for their City Councils and other agents
The polar star of Stephen Girard’s entire testamentary disposition was the welfare of Philadelphia. He specifically provided for municipal improvements, assistance to charitable institutions, and education for children, all objects of governmental concern.
The lower Court, in affirming the rejection by the Board of City Trusts, emphasizes that Stephen Girard made it very clear that the students for Girard College were to be limited to “poor white male orphans,” and that since the language was very specific, there was therefore no need of interpretation or construction. The Court highly praised the unequivocality of Girard’s language: “'Among the outstanding characteristics of this will is the meticulous use of plain, unequivocal and unambiguous language. A reading of the will, from its beginning to end, leaves no doubt that Girard knew exactly what he intended, and expressed his many intentions with clarity and simplicity.”
Because of this clarity and simplicity the Court resolved that no canons of construction ai*e to be used, that the words in Girard’s will mean what they say and nothing else, and must therefore not be altered to mean something else. The fact, however, remains that.various words and phrases in Girard’s will have *636been interpreted to conclude something different from their literal purport. In all verity, in at least one instance, the interpretation was made to mean exactly the antithesis of the plain declaration of the language. Stephen Girard specifically announced in Article XX of his will: “So far as regards my real estate in Pennsylvania, in trust, that no fart thereof shall ever be sold or alienated”. But real estate belonging to the Girard estate has been sold. The Majority Opinion here, in affirming the lower Court’s Opinion, seeks to explain this diametrical defiance of Mr. Girard’s specific request by saying: “It is true that there were some sales made under the authority of the Orphans’ Court but only because the income of the trust had shrunk to a point where the college could not be efficiently maintained and therefore the sales were the only recourse open in order to preserve the purposes of the trust; this was purely an administrative matter, sanctioned by law”. This may explain away for the Majority the alteration in the will, but it cannot be denied that the will was made to say something which Mr. Girard did not say.
Stephen Girard also declared that the terms of leases of his real estate were not to exceed 5 years. Despite this precise limitation of 5 years, the Board of City Trusts has, under the authority of the Court, executed leases for 15 years. The Majority also excuses this change with the remark that it was impossible “to secure good tenants on shorter term leases.” But it cannot be gainsaid that liberties were taken with the plain, unequivocal, and unambiguous language of Stephen Girard.
’' It is strange that the Majority makes no reference to the most drastic change of . all in Girard’s will. If anything was made clear in the Girard will it was that he was creating a trust estate for the benefit of or*637phans. The question lias arisen as to whether the term “orphan” should mean orphans regardless of race, but there can be no question that the beneficiaries had to be orphans, that is, children who have lost both father and mother. We know, however, that the Board of City Trusts admits to Girard College fatherless children who have living mothers.
Webster’s Unabridged International Dictionary defines an orphan as: “A child bereaved by death of both father and mother, or less commonly of either parent —in the latter case sometimes called half-orphan.” But the Girard will did not speak of half-orphans. It spoke of orphans. In any event, if the word orphan is intended to include fatherless children, why does it not also embrace motherless children? Are children of 6 to 10 years in less need of a mother than a father? I believe that this Court in the case of Soohan v. City of Philadelphia, 33 Pa. 9, was entirely justified in including fatherless children under the term orphan because it was interpreting the spirit of the Girard will which was directed toward taking care of children who were poor and in need of attention and care.
But if the word orphan, for reasons of benevolence and humanity, was to be enlarged to encompass children who have lost their father but not their mother, why did the interpretation not include those children who have lost a mother but still have their father? Charity should not strain at mere words nor Avalk on the stilts of syntax. Stephen Girard’s primary objective was to befriend poor children without adequate care. Since this. Court allowed Girard’s meaning to break through the. imprisoning syllabic Avails, of orphan, why did it then limit the freed meaning to fatherless children? .
The Majority, quoting from the case of Franklin’s Administratrix v. City of Philadelphia, 2 D. R. 435, *638said that despite various “onslaughts” on the Girard will, the Girard charity was left “fixed, firm and immovable as a rock.” It has been shown, however, that the granitic stability of the will did not prevent a softening of its provisions to allow the sale of real estate, it did not hamper the augmenting from 5 to 15 years of leases, it did not interfere with the humanitarian enlargement of the term orphan to include children with a mother living. Why must it then remain implacable in the presence of the Fourteenth Amendment to the Constitution of the United States?
The Majority indicates that Girard’s purpose in deeding his estate over to the City of Philadelphia as a perpetual trustee was due to the fact that there were no trust companies in existence at the time with facilities for perpetual administration. In this respect the Majority writes: “James G. Smith, in his book on ‘Trust Companies in the United States,’ speaks (p. 233) of the age-long ‘search for a continuous trustee.’ ” But this does not say that the search was unsuccessful. There was an age-long search for a route to India also, but it was finally successful.
The full sentence, from which the Majority quotes five words, reads: “Another interesting example of this search for a continuous trustee is the board of trustees in charge of the Delaware General Loan Offices which were first established in 1759.”
Seventy-one years were to pass, after 1759, before Stephen Girard sat down to compose his long will. In the meantime a continuous trustee was not the faraway Indian pearl suggested by the Majority. An advertisement in the .New York Evening Post, August 6, 1822, of. a. corporation seéking. trust business (and quoted in the same book cited by the Majority, p: 247), proclaimed: “The public will readily perceive, that the advantages of, this company to protect, property for *639the benefit of infants or others, are far greater than those of individual executors or other trustees, who are always liable to casualties . . . By placing such property in the charge of this company, who have continued succession, there can be no danger whatever of any such casualties.” (Italics in original advertisement)
In seeking to interpret Stephen Girard’s intent in the matter just discussed, the Majority says: “If speculation were to be indulged in — ”. But why indulge in speculation when the 35-paged will of the testator demonstrates on almost every page that Girard wished the government to handle his estate because he was making the public his beneficiary and he particularly wished the government to stand behind his college? He desired a government trustee because he knew that government activities are more exposed to public scrutiny than private enterprises and that, under the spotlight of public attention, there would be less chance for corruption, inertia, and mismanagement to worm their way into the trust estate and eat out its substance. Girard was so determined that the whole project be governmental that he directed that if the City of Philadelphia failed to carry out his instructions, the Commonwealth of Pennsylvania would become the successor in title, and if the Commonwealth was also indifferent to its obligations under the will, the estate would then become the property of the United States of America. What more could a person do to demonstrate the undeviating public character of the trust?
The Majority Opinion quotes over and over the line which is slightly revolting to me that a man’s preju-. dices are part of his liberty. From a philosophical point of view I would say that a prejudiced person may have the right to hurt himself through the indulgence Of his prejudices, but he has no right to affect *640the liberty of others. But be that as it may, no testator has the right to ask the government to do something which is prohibited by the Constitution. All this, however, is beside the point. There is no evidence that in writing his will, Stephen Girard was motivated by prejudice. In 1S30 the Federal Constitution sanctioned slavery.
As evidence of Mr. Girard’s lack of prejudice it is to be noted that although he forbade clergymen to enter the college he did not prohibit religious instruction in the college. Justice Story in the famous case of Vidal v. Philadelphia, 43 U. S. 127, spoke to this subject as follows: “The Testator does not say that Christianity shall not be taught in the college. But only that no ecclesiastic of any sect shall hold or exercise any station or duty in the college. Why may not the Bible, and especially the New Testament, without note or comment, be read and taught as a divine revelation, in the College — its general precepts expounded, its evidences explained, and its glorious principles of morality inculcated?” In fact, Stephen Girard specifically declared in his will: “My desire is, that all the instructors and teachers in the college shall take pains to instil into the minds of the scholars the purest principles of morality, so that, on their entrance into active life, they may, from inclination and habit, evince benevolence towards their fellow creatures, and a love of truth, sobriety and industry, adopting at the same time such religious tenets as their matured reason may enable them to prefer.”
Supporting .the decision of the Board of Directors of City Trusts which-excluded.the applicants, the Majority argues: “Stephen Girard naturally must have realized. that he could n.ot create an institution large enough to .furnish both sustenance and education- to. any and all the children of Philadelphia, Pennsylva*641ni a, New York and New Orleans wlio might desire to be admitted; he could provide for only a small minority of such children and accordingly he prescribed a method of selection as he had both a legal and moral right to do unless there were involved a violation of some affirmative provision of law.” But this is an argument which crumbles at the slightest touch of logic. It cannot seriously be maintained that Stephen Girard himself could build a college large enough to house all the poor white orphan boys in Philadelphia, New York, and New Orleans. Even if he limited himself to the numbers suggested by the Majority, there would still be left countless numbers of boys that could not enjoy his limited fortune. Stephen Girard’s restriction, therefore, was not based on the proposition of accommodating numbers of children to quantity of dollars. The limitation indicated was merely an expression of Mr. Girard’s determination to help as many as he could on the thoroughfare of life, just as one might build a fountain along the road to refresh such travellers who came that way, without intending that the whole world should bend its steps toward that particular highway in order to obtain a draught of water.
The Majority Opinion quotes from the case of Rice v. Sioux City Cemetery, 349 U. S. 70, 72, that: “Only if a State deprives any person or denies him enforcement of a right guaranteed by the Fourteenth Amendment can its protection be invoked.” But it is specifically a State deprivation which is involved here. In administering the Girard trust, the Board of City Trusts is acting for the City of Philadelphia which is a branch of the State; and, by failing to invoke the Fourteenth Amendment, it is guilty of a State depriva-, tion. • . . ..
The Majority declares. that “It is perfectly clear, therefore, that private trusts for charitable purposes, *642not being subject to or controlled by ‘State Action/ are wholly beyond the orbit of the Fourteenth Amendment.” But this assumes what the Majority has not established, what the lower Court has not established, and what the Board of City Trusts has not established, namely, that the Girard trust is a private trust for charitable purposes. On the contrary, it is impossible to conjure up a more obvious public trust than this one. It was baptized by the State, it was confirmed by the State, the State guided it by the hand in its infancy, and the State stands beside it today in direction, counsel, management, and supervision.
The Majority reasons further that: “Such trusts [private charitable trusts] abound in overwhelming numbers and there can be no question as to their legality however limited be the class of their beneficiaries or whatever be the nature or basis of their restrictions; charitable trusts for limited groups, whether racial or religious, are as valid as if for all the people of the world.” But here the Majority shoots wide of the target. We are speaking here, not of private charitable trusts; we are speaking of public charitable trusts administered by the government! In every reference to the Girard charity trust, there must be added in assumed parentheses the limitation: Charitable Trust administered, controlled and directed by the State, which of course, makes the trust something quite different from the charity which the Majority is defending, but which needs no defense because it is not being attacked by anyone.
The Majority says that: “We have charitable trusts for ministers of various church denominations, for -foreign missions, for churches, priests, Catholics, Protestants, Jews, whites, negroes, for relief of the Indians, for widows or orphan children of Masons or other fraternities, for sectarian old folks homes, or*643phans, and so on”. But in the illustrations given the government does not administer, the government does not audit, the government does not direct, the government does not control — as it does in the Girard charitable trust. The Majority Opinion defends, defends and defends a cathedral in the wilderness near which, in the whole century-old litigation over the Girard estate, not a hostile arrow has fallen. Certainly there can be a charitable trust for Indians, but to say that such a trust administered by the government may legally and constitutionally deny Indians any of the provisions of the Bill of Eights or of the Fourteenth Amendment is to pose what everyone knows to be insupportable.
The Majority adds: “It is true that Girard appointed the City of Philadelphia as the trustee to administer the trust according to the terms of his will, but he certainly did not intend thereby to empower it to conduct such administration in its public or governmental capacity, or to bring into play any of its proprietary rights since it is merely the title holder of Girard’s property and not its beneficial owner.” (Italics in original). But how else can a City act except in its public or governmental capacity? A City is not like an individual citizen. It is the composite of all the citizens: it speaks and acts for everyone within its boundaries. The Majority says that the City is not the beneficial owner of the trust estate. It is indeed a beneficial owner. It is accepting the benefits of an obligation which otherwise it would have to discharge, namely, educating the children who are actually in Girard College.
The Majority asserts that the City is acting only as a fiduciary, but what is meant by acting as a fiduciary? The City does not have a fiduciary existence. *644It lias only a municipal existence. The fact that it owns and operates a golf course does not make it a country club; the fact that it stages open air light opera does not make it an entertainment entrepreneur; the fact that it owns and operates swimming pools does not make it a recreation park promoter. There is not a private school in the. whole State of Pennsylvania which is controlled and managed by a City or any municipality as is the Girard College.
The Majority declares itself unable to perceive any difference between the legal principles which apply to Girard College which “is a comparatively large institution,” and those which govern “the smallest of private schools.” The difference, however, is one which requires no microscope to detect. The Girard College has a board of directors made up of the Mayor of Philadelphia, the President of City Council, and twelve members appointed by the Courts of Common Pleas. This Board thus represents the body politic, the public, the citizenry of the County of Philadelphia, a sovereign subdivision of the sovereign State. Since our judges are elected by the people, as are the Mayor and President of City Council, the Board of City Trusts is therefore an expression of the people themselves. The private school, on the other hand, is strictly a private commercial enterprise run for profit. The legal principles which control Girard College are separated by a chasm as wide as the constitution itself from a private school owned by private individuals, and run by private individuals, all for the monetary advantage of private individuals. Private schools receive no tax exemption. For that reason alone the legal principles which guide their destiny are quite different from those which apply to Girard College which enjoys a tax exemption annually of §550,700. (Ogontz School *645Tax Exemption Case, 361 Pa. 234). No private school in the State can boast the governmental direction, control, and privileges which are as much a part of Girard College as the buildings themselves.
The Majority makes the statement that the Girard College “has been supported and maintained for now over a century by Girard’s estate; not a penny of State or City money has ever gone into it.” The obvious answer to that observation is that the State and the City have spent “not a penny” but countless tens of thousands of dollars in making Girard College the institution it is today. Who can calculate the cost to the State of the printing, clerk hire, and secretarial service which went into the actions of the General Assembly in holding hearings, conducting investigations, drafting bills and enacting them into law? Who knows how much it cost the City of Philadelphia for the hearings on and the printing of the 48 ordinances passed by the Council of Philadelphia in organizing and directing the establishment of Girard College? Who knows how much it cost for all the special visitations, for the audits, for the inspections and examinations conducted by the State of Pennsylvania and the City of Philadelphia in behalf of Girard College? Who knows what it cost the City to work out the investments which have increased the capital of Girard College from near-extinction to $98,000,000?
The Majority reminds us that: “. . . it must also be remembered that the city in its own right was a second beneficiary of part of Girard’s residuary estate, so that it had an independent interest of its own to protect, wholly apart from its status as fiduciary.” But the fact that the City had an independent interest of its own to protect proves all the more the public nature of the City’s interest in the Girard estate; and that is *646the only question before us in this appeal, namely, is Girard College a public institution or a private charity?
The theory advanced by the appellees that if the decision of the lower Court is reversed, testators in the future will not be permitted to leave their property to whomsoever they wish is sheer chimera. The freedom of jus disponendi will never be curtailed in America; it is part of our American liberties. What the Commonwealth, the City, and the appellants contend, and properly so, is that if a testator, for benefits which accrue to his estate and to the accomplishment of his desires, wills his property to the government in trust, he may not ask the government to do anything which is contrary to the objectives of the government.
The whole history of Stephen Girard’s life and the wording of his will demonstrate that he never intended, desired, or wished that the government should administer his trust in any way which would run counter to the intendment of the Constitution. In fact among his last words appeared the following: “And, especially, I desire, that by every proper means a pure attachment to our republican institutions, and to the sacred rights of conscience, as guaranteed by our happy constitutions, shall be formed and fostered in the minds of the scholars.”
The phrase “happy constitutions” undoubtedly refers to the Constitution of Pennsylvania and the Constitution of the United States. Adherenees to those Constitutions requires the reversal of the decision of the Court below.
Italics throughout, mine.