Circuit Judge (dissenting).
The District Court, under the Pennsylvania Public Accommodations Act, enjoined the trustees of Girard College from practicing racial discrimination in their'selection of students for admission to Girard College. Specifically, the District Court’s determination was based on Title 18, Purdon’s Pennsylvania Statutes Annotated § 4654 which makes discrimination on account, of race and color in places of public accommodation a misdemeanor. Judge Lord made it clear that had the courts of the Commonwealth interpreted the statute in its relation to Girard College he would be bound by that construction under the doctrine of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Judge Lord, satisfied that “[t]he issue was not decided by the Pennsylvania courts in any of the former proceedings”, 260 F.Supp. 323 at 339, 340, considered the essential facts, weighed the appropriate precedents at his disposal and concluded that the Public Accommodations Act was applicable to Girard College. On appeal to this Court the majority has reversed the District Court, finding, in substance, that the courts of Pennsylvania have decided that the Public Accommodations Act does not prohibit the defendant trustees from denying the minor plaintiffs admission to Girard.
In so reversing the decision below the majority in the utmost of good faith has concluded that this Court is justified in avoiding a decision at this time on the merits in the litigation before us. I cannot go along with such ruling. Whether Girard College is under the Pennsylvania Public Accommodations Act is the key issue in the entire case. Should Girard be within the Act’s scope these plaintiffs, if otherwise qualified, must be admitted to that student body. Therefore if the Pennsylvania courts have not passed upon the problem, it is of paramount importance that we do so now. In that posture the true reason for urgency is the unescapable conclusion, as we shall see in a moment, that the Commonwealth Public Accommodations Act does apply, does embrace Girard College, does give these plaintiffs the vital right they are seeking. It is fitting of course to talk about the Fourteenth Amendment and to see to it that the children concerned are given their full day in court under their Constitutional protection. All that does no more than 'send them back to trial and to appeals thereafter which could very well have them eventually join the forlorn army of lost causes, this time forever. Plaintiffs might win on that second trial but their chances are no better than that., So it seems to me that if they are to be surely given the justice they ask they must obtain it on the issue confronting us. If we are free to pass judgment on that issue, the mechanics of resolving it will be simple. To reach the point we must first see if the Pennsylvania courts have determined it. If they have not, we would be able to readily dispose of the contentions regarding the Act's applicability. The course of the problem in the Pennsylvania courts can be easily followed down to and including the recent period when the instant suit was started in the District Court, decided, and this appeal taken.
What I am saying is, plaintiffs’ best hope, their only firm base, is in the upholding of the District Court judgment. The majority view that nothing final has been determined with respect to plaintiffs’ rights to attend Girard is at best a chancy thing, a very poor gamble not just for the few children themselves but for the whole great reparation that will automatically follow. From both a factual and legal standpoint, the reversal by the majority opinion may well turn out not to have been merely a temporizing measure, but an adverse ruling effectively destroying the sound merits of the entire cause of action.
*787The result of a thorough examination of the various court proceedings regarding the Public Accommodations Act and Girard College fully supports the conclusion reached by the District Judge and rejected by a majority of this Court.
The initial action in the series of cases involving the Girard controversy was commenced in 1954 in the Orphans’ Court of Philadelphia County by two Negro boys, William Ashe Foust and Robert Felder, who were denied admission to Girard because they were not white. The various petitions filed by both sides in that case and the opinion by Judge Bolger, 4 Pa.Dist. & Co.R.2d 671 (1955), lack any reference to 18 P.S. §. 4654 or even the Pennsylvania Public Accommodations Act by name. The matter that was before the Orphans’ Court which is considered relevant by the majority can at best be described as an appeal to public policy, i. e. that the denial of admission to Girard College of qualified Negro boys was contrary to the public policy of the City of Philadelphia, the Commonwealth of Pennsylvania and the United States of America.
Exceptions were taken to Judge Bolger’s dismissal of the petitions and the cause was presented before the Orphans’ Court en bane. In support of their public policy argument the brief of the individual petitioners contained a list of statutes which highlighted their position. The pertinent part of that brief reads as follows:
“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 P.S. 4653 [emphasis supplied], 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);"
The glaring fact is immediately apparent that the statute cited, 18 P.S. § 4653, is not the Pennsylvania Public Accommodations Act, 18 P.S. § 4654, passed upon by the District Court. The majority opinion notes that the reference to Section 4653 was an “obvious error” since the section which prohibits “discrimination against persons on account of race or color” is Section 4654, while Section 4653 prohibits discrimination in public accommodations “on account of religion, creed or nationality”. The majority points out further that the error can be established since the case of Everett v. Harron, 380 Pa. 123, 110 A.2d 383 (1955), cited with reference to Section 4653, was based on a violation of Section 4654 and not Section 4653. What is obvious and the majority opinion fails to note is that the section referred to in the brief is said to prohibit racial discrimination only in “restaurants, movies and theatres privately owned and in swimming pools even though purporting to be private membership clubs.” What is not obvious and what, if anything, should have been brought to the attention of the court, is whether or not the section cited prohibits discrimination in schools. In this respect it is Section 4654, not Section 4653, that applies to “kindergartens, primary and secondary schools, highr schools, academies, colleges and universities, extension courses, and all educational institutions under the supervision of this Commonwealth.”
Nor does the notation of Everett v. Harron, supra, in any way establish that the statute cited was in fact Section 4654. The questions presented for the court’s consideration are set forth in the brief and no reading of the individual petioners brief will show that Everett v. Harron was decided under Section 4654. The brief handed to the court only cited Everett v. Harron, there was no summarization of the holding in that case. But even a reading of Everett v. Harron, would not bring the court’s attention to the relevant area of Section 4654, because the case solely involves discrimination in the operation of a swimming *788pool. There is nothing in that opinion which names the section’s applicability to schools.
In an opinion by Judge Lefever, 4 Pa. Dist. & Co.R.2d 708 (1956), the Orphans’ Court en banc affirmed Judge Bolger, but the court’s decision made no mention of the Pennsylvania Public Accommodations Act. The case was appealed to the Supreme Court of Pennsylvania. The brief of the individual petitioners contained for all practical purposes the same references used before the Orphans’ Court en banc — including the citation to Section 4653. However, the City of Philadelphia in its brief cited, for the first time, the Pennsylvania Public Accommodations Act, 18 P.S. § 4654. But the mention of Section 4654 was by no means clear since it was contained in a footnote, along with other Pennsylvania statutes, to the statement that “[a] long series of statutes forbid discrimination on account of race or color, by public bodies as well as by private persons”. The appeal resulted in an affirmance of the Orphans’ Court, Girard Will Case, 386 Pa. 548, 127 A.2d 287 (1956), and again the court’s opinion contained no reference to the Pennsylvania Public Accommodations Act.
The claim of Foust and Felder was then placed before the Supreme Court of the United States where this country’s highest tribunal reversed the Supreme Court of Pennsylvania, Commonwealth of Pennsylvania v. Board of Directors of City Trusts, 353 U.S. 230, 77 S.Ct. 806, 1 L.Ed.2d 792 (1957). It was found that the refusal to admit the two Negro boys amounted to discrimination by the State and the case was remanded to the courts of Pennsylvania for further proceedings not inconsistent with the Supreme Court’s opinion. Instead of admitting Foust and Felder to Girard the Orphans’ Court, on remand, dismissed their petitions, removed the Board of Directors of City Trusts and substituted private trustees. Petitions for reconsideration and vacation or modification were dismissed by the Orphans’ Court and recourse was again sought before the Supreme Court of Pennsylvania.
The brief of the individual petitioners before the Pennsylvania Supreme Court cited the Public Accommodations Act. This time the reference was specific to Section 4654, but as in the prior brief of the City of Philadelphia, the section was only mentioned, along with other statutes, in a footnote. The Pennsylvania Supreme Court, without acknowledging Section 4654, affirmed the Orphans’ Court, Girard College Trusteeship, 391 Pa. 434, 138 A.2d 844 (1958). Thereafter, the Supreme Court of the United States saw fit, at that time, to deny certiorari, Commonwealth of Pennsylvania v. Board of Directors of City Trusts, 357 U.S. 570, 78 S.Ct. 1383, 2 L.Ed.2d 1546 (1958).
In his determination that the courts of Pennsylvania had not passed upon the relationship of the Public Accommodations Act with Girard College Judge.Lord relied upon the case of Webster v. Fall, 266 U.S. 507, 45 S.Ct. 148, 69 L.Ed. 411 (1925). That case stands for the proposition 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.” 266 U.S. 507 at 511, 45 S.Ct. 148. at 149. The majority feels that Webster v. Fall, supra, “affords no nourishment to the District Court’s position” and relies heavily on Bingham v. United States, 296 U.S. 211, 56 S.Ct. 180, 80 L.Ed. 160 (1935), for the rule 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.”
Webster v. Fall and Bingham v. United States are by no means irreconcilable since both cases deal with whether the disputed questions were clearly, openly and distinctly presented to the court for consideration. Bingham v. United States revolved around a determination of whether certain matters had been passed *789upon by the case of Lewellyn v. Frick, 268 U.S. 238, 45 S.Ct. 487, 69 L.Ed. 934. The Court dealt with the problem in the following manner:
“It is true that questions 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, 69 L.Ed. 411]. That, however, is not the situation in the present case. In Lewellyn v. Frick the policies and assignments, in their entirety, were definitely before the court; and this necessarily included each of the provisions which they contained. Moreover, both in the appendix to the government’s brief and in the main brief of the taxpayers, the attention of the court was distinctly called to all of the provisions which are now invoked. The latter brief summarized and described the provisions of the four classes of policies which were involved * * * We think the points now urged by the government were decided in the Frick Case, and find no reason to reconsider them.” (296 U.S. 211 at 218, 219, 56 S.Ct. 180 at 181).
The proposition for this Court to decide is whether the question of alleged discrimination in the administration of Girard College under the Pennsylvania Public Accommodations Act was clearly, openly and distinctly presented to the courts of the Commonwealth for consideration. The uncontroverted fact is that in the lower courts Section 4654 was never specifically cited.1 The only times Section 4654 was specifically alluded to were on two separate occasions before the Pennsylvania Supreme Court and in both of those the section was only "stated, along with other statutory material, in a footnote. There were five opinions2 delivered by the courts of Pennsylvania in connection with the Girard College controversy, not one of those opinions contained a single acknowledgment or reference to the Pennsylvania Public Accommodations Act. This of itself is overwhelming evidence that the subject was never presented to or passed upon by any court of the State of Pennsylvania.
The stunning though perfectly logical climax to the sorry factual detail of the failure of the Pennsylvania courts to pass upon the question before us when they had both the duty and every opportunity to do so, was spread upon the record in the latest endeavor to have the issue determined by the Commonwealth Supreme Court.
After the Public Accommodations Act branch of the case had been forced upon the District Court by reason of the Commonwealth courts not passing upon that question and after the District Court had heard that issue, the trustees petitioned the Pennsylvania Supreme Court for clarification of its earlier opinions above referred to, involving Girard College “by specific declaration as to the applicability of the Pennsylvania Public Accommodations Act to Girard College:” The Trustees stated as two of the cogent reasons for that action:
“(b) The extent of the applicability of the Public Accommodations Act to institutions such as Girard College, * * * is a matter of great importance which should be declared only *790by the highest court of the Commonwealth and not by a federal court;
“(c) The federal courts in the pending proceedings will be bound by an explicit decision of this, the highest court of the Commonwealth, upon this matter of State law (Erie R.R. v. Tompkins, 304 U.S. 64 [58 S.Ct. 817, 82 L.Ed. 1188]);”
The Pennsylvania Supreme Court filed its opinion on the petition December 6, 1966, Girard Clarification Petition, 423 Pa. 297, 224 A.2d 761 (1966). The opinion is short and we quote it in full:
“The sole issue before this Court is whether we should entertain a petition for clarification of two opinions rendered by this Court in the Girard College Trusteeship, 391 Pa. 484, 138 A.2d 844 (1958), and Girard Will Case, 386 Pa. 548, 127 A.2d 287 (1956), eight and ten years ago respectively. Only two members of the present Court participated in the first Girard decision, and three, in the second.
“Significantly the district court refused to abstain from deciding the state issues involved in this controversy. Commonwealth v. Brown et al., Trustees of the Estate of Stephen Girard, 260 F.Supp. 323 (E.D.Pa. 1966). Due regard for the proper administration of our dual federal-state system of judicial tribunals suggests that it would be highly inappropriate for this Court to entertain the petition for clarification, since the district court’s decision is currently on appeal before the United States Court of Appeals for the Third Circuit.
“It should be emphasized, however, that the determination by this Court not to entertain the petition in no way implies a view on the merits of any issue in the controversy presently before the federal courts.
“The petition for clarification is therefore denied.”
The significance referred to in the above opinion of the District Court’s refusal to abstain from deciding the precise point of whether the State Act governed Girard College lies in the unescapable fact that abstention was no longer discretionary with the District Court or if it was, that there was definitely no abuse thereof by the trial judge. The Commonwealth courts, having the obligation of determining this important state business which was directly before them, had not done so. Finally, on September 21, 1966, while the suit was before the District Court, the Commonwealth Supreme Court was strongly advised by the petition of the Girard trustees that “The extent of the applicability of the Public Accommodations Act to institutions such as Girard College, * * * is a matter of great importance which should be declared only by the highest court in the Commonwealth and not by a federal court” and that “The federal courts in the pending proceedings ukll be bound by an explicit decision of this, the highest court of the Commonwealth, upon this matter of State law (Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188);” (Emphasis supplied). In the face of the vital necessity for the Commonwealth’s highest court to immediately accept its responsibility to rule on the phase of the controversy submitted to it, that court not only flatly refused to do so but in addition declined to be committed to any view whatsoever regarding its merits. It stated that its reason for that attitude was because “it would be highly inappropriate for this Court to entertain the petition for clarification, since the district court’s decision is currently on appeal before the United States Court of Appeals for the Third Circuit.” The entire sense of this, the Commonwealth court’s latest statement- of the situation of the State part of the Girard College dispute, is that those courts have never decided Girard’s status as to the Public Accommodations Act and that they are quite content to let the Federal Courts bear the heat and burden of the necessarily momentous determination with which they are confronted. There are two dissents filed. It is to be regretted that the first, while admitting that the State Supreme Court should pass on the point involved, is fundamentally *791a vehicle for utterly unwarranted attack upon the Federal District Judge who had no alternative but to proceed with this onerous litigation and did so with honor, courage, industry and high judicial competence. The second dissent by a member of the Court who had participated in the two previous Girard actions comments :
“In the long and exhaustively discussing opinions filed in those two cases, not one mention is made of the Public Accommodations Act. Indeed, the petitioners themselves (City of Philadelphia, Commonwealth of Pennsylvania and two applicants for admission to Girard College) made only the slightest reference to the Act in their briefs and did not argue it orally at all.
******
“It now develops, however, that it was a mistake not to have urged on this Court the applicability of the Public Accommodations Act to the facts in the Girard Will Case and it was a grave oversight of this Court not to have sua sponte ruled the Public Accommodations Act controlling.” (423 Pa. 297 at 304, 224 A.2d 761 at 764).
Thh Pennsylvania Public Accommodations Act
The District Judge correctly found that Girard College was subject to the provisions of the Pennsylvania Public Accommodations Act. In construing the Public Accommodations Act the court’s opinion was strictly limited to a finding that the Act, whatever its breadth, was applicable to Girard and there was no holding on the effect of the Act’s provisions with respect to other schools. Judge Lord stated:
“Even the most exclusive private school is probably not, in the view of this statute, a social club [clubs outside the provisions of the Act]. We, however, are not called upon to settle definitely the applicability of the Public Accommodations Act to each and every private school in Pennsylvania. We would not do that even if we could. All we need and do decide now is that —on any fair reading of the statute— Girard College, conceived by its founder as a charitable establishment for training, education and maintenance, * * * and presently performing these functions for about 700 orphans, is an educational institution under the supervision of the Commonwealth and is not in its nature distinctly private.” (260 F.Supp. 323 at 355, 356).
The argument is made on behalf of the trustees that Girard College is not in fact a school or an educational institution under the supervision of the Commonwealth. In support of their position appellants refer to the opinion of the Pennsylvania Supreme Court by the then Chief Justice Horace Stem who characterized Girard as “ * * * not merely a school at all but what Girard himself called in a codicil to his will, an ‘Orphan Establishment,’ * * * ” 386 Pa. 548 at 562, 127 A.2d 287 at 293. It is demonstrable that these points are not well taken.
A place of public accommodation under Section 4654(c) includes, among others, “kindergartens, primary and secondary schools, academies, colleges and universities, extension courses, and all educational institutions under the supervision of this Commonwealth”. Girard College is an institution which maintains an elementary and secondary school with a combined enrollment of approximately 700 students. Girard is accredited by the Middle States Association of Colleges and Secondary Schools and the faculty of its secondary school alone comprised 39 members as of 1965. The pamphlets distributed by Girard College to attract applicants underscore the desirability of a Girard education. The cover of one of these pamphlets reads: “Girard — a free private boarding school for boys who have lost their fathers by death”. Plainly Girard College is an educational institution within the meaning of the Public Accommodations Act -and the circumstance that the school is attended only by fatherless boys does not detract from Girard’s function as an educational insti*792tution. But even if Girard College does not come within the enumerated places of public accommodation of Section 4654 (c) it would be subject to the provisions of the Act since the Supreme Court of Pennsylvania has held in the case of Everett v. Harron, 380 Pa. 123, 127, 110 A.2d 383, 385 (1955), that “* * * the list does not purport to be exclusive of all places other than those specifically named.” The deciding factor is whether the place is one of public accommodation and Girard is such a place.
The only point which warrants further deliberation concerns whether or not Girard College comes within the exclusionary provision of the Public Accommodations Act. Section 4654(d) provides:
“(d) Nothing contained in this section shall be construed to include any institution, club or place or places of public accommodation, resort or amusement, which is or are in its or their nature distinctly private.” (Emphasis supplied.)
The substitution of private trustees by the Orphans’ Court in 1958 has not shorn Girard College of its distinctly public nature. The College, enabled by an act of the Pennsylvania State Legislature, 53 P.S. § 16365, was administered from 1869 to 1958 by the “Board of Directors of City Trusts of the City of Philadelphia”. This Board was comprised in part of elected officials, including the mayor of Philadelphia. In 1957 the Supreme Court of the United States held that “[t]he Board which operates Girard College is an agency of the State of Pennsylvania.” 353 U.S. 230 at 231, 77 S.Ct. 806 at 807, 1 L.Ed.2d 792. Since 1848 Girard College has been developed and nurtured by the City and Commonwealth and the substitution of private trustees cannot at this point separate Girard from its history as a public institution. Girard College currently owes its well deserved acclaim as much to the City of Philadelphia and the Commonwealth of Pennsylvania as to its founder and guiding spirit, Stephen Girard.
The United States Supreme Court in the recent appeal in Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966), has ruled on the standard to be adopted in distinguishing between the public and private sector. The decision, though under the Fourteenth Amendment, was concerned with a situation where the facts were not unlike those before us. In Evans a park was devised to the City of Macon, Georgia to be maintained only for the use of white people. The City, since it could not legally enforce racial segregation in the park, resigned as trustee and three individual trustees were appointed. The Supreme Court reversed the Supreme Court of Georgia which had approved the resignation of the City and the substitution of the private trustees. Mr. Justice Douglas, speaking for the Court, stated:
"We only hold that where the tradition of municipal control had become firmly established, we cannot take judicial notice that the mere substitution of trustees instantly transferred this park from the public to the private sector." (382 U.S. 296 at 301, 86 S.Ct. 486 at 489).
Evans v. Newton is particularly relevant to our appeal because the exclusion of an institution from the provisions of the Public Accommodations Act requires something more than a finding that a school or college is private — it must be distinctly private. In the years since Girard was founded it has acquired plenary public characteristics that set it far apart from a distinctly private place of public accommodation within the purview of Section 4654(d) of the Pennsylvania Public Accommodations Act.
1957 Decree of the United States Supreme Court
When the Girard College controversy was before the United States Supreme Court it was determined that the Philadelphia Board of Trusts was a State agency and that the Board’s refusal to admit the two Negro boys to Girard amounted to “discrimination by the State.” The case after that was remanded to the courts of Pennsylvania for proceedings not inconsistent with *793the Supreme Court’s opinion. It is self evident that the Supreme Court’s decree has never been complied with by the Pennsylvania courts.
At the outset it should be noted that no attempt is made here to decide this appeal on a Constitutional ground not advanced to this Court for review. A determination of whether the decree of the Supreme Court has ever been complied with is one altogether relying on the uncontrovertible facts appearing in the record. Moreover, it is the duty of this Court in dealing with a matter upon which the Supreme Court of the United States has spoken and ordered further proceedings in compliance thereof, to rule as to whether that decree has been followed. There was a holding by the Pennsylvania Supreme Court that the Orphans’ Court in appointing the private trustees had obeyed the order of the United States Supreme Court. However, since this question is one of purely federal stature that ruling has no binding effect on this Court. It has been further asserted that when the Supreme Court of the United States refused to grant certiorari it approved of the action taken by the Orphans’ Court. This charge must be rejected in view of the Supreme Court’s consistent holding that such denial “ * * * does not imply approval of anything that may have been said by the lower court in support of its decision”, Agoston v. Commonwealth of Pennsylvania, 340 U.S. 844, 71 S.Ct. 9, 95 L.Ed. 619 (1950). See also, House v. Mayo, 324 U.S. 42, 65 S.Ct. 517, 89 L.Ed. 739 (1945); Griffin v. United States, 336 U.S. 704, 69 S.Ct. 814, 93 L.Ed. 993 (1949).
In 1954 the Supreme Court of the United States decided the case of Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), holding that segregation in the field of public education is a denial of the equal protection of the laws. Three years later the Supreme Court, citing Brown, found that discrimination by the Board of City 'Trusts was forbidden by the Fourteenth Amendment. The Supreme Court made it quite clear that from that point on the Constitution of the United States afforded protection from any type of State discrimination in public education. This directive applied as much to the courts of Pennsylvania as to the Board of City Trusts. The action by the Orphans’ Court in appointing private trustees to, in the words of the majority, “give effect to the exclusionary clause of Girard’s will” amounted to State discrimination and the type of invidious State action declared unconstitutional in Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), and Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953).
The purpose of the Supreme Court’s order was the elimination of State discrimination not just the removal of the Board of City Trusts. Under no circumstances was that decree effectuated by the substitution of private trustees in order to have the racial restrictions enforced by another State body i. e. the Orphans’ Court. Nor was that decree restricted to the benefit of Foust and Felder, it was meant to protect all those who would bear the brunt of State discrimination. Just as the state courts in Shelley v. Kraemer were prohibited by the Fourteenth Amendment from enforcing the racially oriented restrictive covenants, private agreements, so too the courts of Pennsylvania may not, in their anxiety to make Girard wholly private, act in a manner that would deny the citizens of Pennsylvania the equal protection of the laws. The Orphans’ Court had the power to appoint substituted trustees but it could not do so for the purpose of carrying out the discriminatory policies of the Girard will since it was dealing with public and not private education. The public nature of Girard as an educational institution was beyond the power of the Orphans’ Court to disturb and its attempt to bring about that sort of change was in disregard of the Supreme Court’s decree and the Fourteenth Amendment.
There is nothing before us which can reasonably lend credence to the attempted *794pragmatic accommodation worked out in the majority opinion. The Supreme Court of Pennsylvania from 1954 down to and including the present has steadfastly refused to answer the query whether Girard College comes under the Public Accommodations Act umbrella. The District Court recognizing and fulfilling its duty, heard the matter and held that Girard was subject to the Act. Under the facts and law that judgment was right and just. I think it should be affirmed.
Judge WILLIAM F. SMITH concurs in this dissent.. This fact alone is sufficient to base a conclusion that Section 4654 was never ruled upon in connection with Girard College by a court of Pennsylvania because if, as in this case, the statute was never cited in the lower court no appellate court would consider the problem.
. (1) Orphans’ Court opinion by Judge Bolger, 4 Pa.Dist. & Co.R.2d 671 (1955). (2) Opinion by Judge Lefever for the Orphans’ Court en banc, 4 Pa.Dist. & Co.R.2d 708 (1956). (3) Supreme Court of Pennsylvania’s opinion in, Girard Will Case, 386 Pa. 548, 127 A.2d 287 (1956). (4) Opinion of the Orphans’ Court on remand (not reported). (5) Supreme Court of Pennsylvania’s opinion in, Girard College Trusteeship, 391 Pa. 434, 138 A.2d 844 (1958).