(concurring) :
I concur in the result reached by the majority opinion, but respectfully dissent from much of the language used.
Specifically, I disagree with the implication from the statements that the state courts in 1957 installed their own group of trustees “sworn to uphold the literal language of the Girard will” (and similar phrases). Such characterizations given to the actions of the Pennsylvania courts by the majority opinion seem to me unnecessary to the proper decision in this appeal. There is no necessary basis in this record to so criticize either the able Pennsylvania judges, who have so conscientiously handled the litigation arising from the Girard Trust, or the distinguished and dedicated trustees, who have contributed unselfishly so much to this important charitable enterprise, acting under the advice of their able counsel, for many years. This appeal is being decided on the basis of the present decisions of the United States Supreme Court in a field where the “federal role” is more “pervasive” and “intense” today than it was several years ago. United States v. Price, 383 U.S. 787, 806, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966). Recent decisions of the Supreme Court, particularly in light of forceful dissents by Mr. Justice Harlan, make clear that the Fourteenth Amendment does not now permit the discriminatory operation of a charity like Girard College if the operation of that discrimination receives support from certain types of “state action.”
Of the forms or types of “state action” in aid of discrimination that the Supreme Court has held render the discrimination unconstitutional, that in Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967), seems most clearly apposite to the facts of this case.
The decision of the United States Supreme Court in 1957 (353 U.S. 230, 77 S.Ct. 806, 1 L.Ed.2d 792) settled the question of whether the discrimination at Girard College was then unconstitutional state action. The same discrimination exists today and this appeal asks whether the uneonstitutionality also remains because prohibited state action supports the discrimination. The answer is yes. When the Orphans’ Court, on its own motion and without formal hearing, removed the Board of Directors of City Trusts and appointed “private” trustees in their place, such affirmative state action constituted the “encouragement” of discrimination held to violate the Fourteenth Amendment in Reitman v. Mulkey, supra, 387 U.S. at 376, 87 S.Ct. 1627. The state did not make itself merely neutral. Just as the California court did in Reitman .v. Mulkey, this court can examine the constitutionality of such state action “in terms of its ‘immediate objective,’ its ‘ultimate effect’ *128and its ‘historical context and the conditions existing prior to its enactment,’ ” 387 U.S. at 373, 87 S.Ct. at 1630. Cf. Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). The record of the discrimination at Girard College after the 1957 United States Supreme Court decision makes it clear that the further “state actions” of the Pennsylvania courts did not “cure” the unconstitutionality, but perpetuated it by affirmatively encouraging continued discrimination. With hindsight it is clear that no reason exists for the deviation from Girard’s will to appointing private trustees, except for its allowing compliance with the “white orphans” provision. And it is likewise an inescapable conclusion that the substitution of trustees in 1957 encouraged compliance with the “white” provision that has lasted for over 10 years. The state action that continues today in the Orphans’ Court-trustee relationship is the “encouragement” of discrimination first given by the original appointment of the individual trustees.
Even clearer state action of “encouragement” is found in the statute passed by the Pennsylvania Legislature after the Supreme Court of Pennsylvania approved the substitution of private trustees. The Act of November 19, 1959, P.L. 1526, authorized ex post facto the Orphans’ Courts’ actions, and further implemented the change-over by fully empowering the new private trustees to serve in place of the Board of City Trusts as guardians of the boys attending Girard College and to set up a common trust fund for their property. The same Act also repealed several prior laws passed to aid Girard College. Such affirmative legislative action, as an attempt to render a state neutral with respect to otherwise unconstitutional discrimination, makes Reitman v. Mulkey still more apposite.
When Stephen Girard deliberately and pointedly chose to involve the State in the “private” charitable conduct of his school (as was decided at 353 U.S. 230, 77 S.Ct. 806), he ran the risk that Philadelphia might not accept the trust, or might be unable to administer it, or might be subsequently unable to act because the federal constitution was changed (as occurred when the Fourteenth Amendment was passed). It is in this unique situation of a testator’s deliberate provision for a major role for the state in his charitable scheme, that the action of the state courts rises to the level of unconstitutional state action. The charitable scheme chosen by Girard might as easily have become invalid due to a change in the rule against perpetuities or some other limitation imposed by society on the unlimited rights of private property at death. See Commonwealth of Pennsylvania v. Brown, 260 F.Supp. 323, 357 (E.D.Pa.1966).