(dissenting). I cannot comprehend how this court can say that there exists no basis for removing the discriminatory religious restriction from this trust when the court has just ruled, as a matter of law, that the racial and sexual restrictions, also present in this trust, must be removed.
In Lockwood v. Killian, 172 Conn. 496, 375 A.2d 998, this court explicitly recognized that the application of the doctrine of cy pres is a power of the court and that in such a situation neither the trustees nor the attorney general have the power to control the disposition of the funds at issue.
In the present case this court has acted to remove two of the three discriminatory restrictions in order to permit the trust to continue to function and to retain its status as a charitable trust. By retaining the religious restriction present in this trust, this court has clearly involved the state in sanctioning and enforcing private discrimination. The failure of this court to remove this religious restriction is thus clearly offensive to the fourteenth amendment of the United States constitution and to article first, § 20 of the constitution of this state. Shelley v. Kraemer, 334 U.S. 1, 14, 68 S. Ct. 836, 92 L. Ed. 1161.
It is beyond dispute that the furtherance of religion has always been regarded as a public good and as a proper purpose for a charitable trust. I concede that if the purpose of the present trust were primarily religious there would be no constitutional difficulty with the maintenance of the restriction in question. The difficulty is that the purpose of the present trust is not the furtherance of religion but is rather the providing of educational assistance to deserving and needy young persons. In a charitable trust, the purpose of which is the furtherance of *74education, discriminatory criteria for eligibility, such as are involved here, are clearly violative of the fourteenth amendment and no distinction can be made between the racial and sexual restrictions on the one hand, and the equally discriminatory religious restriction on the other. Roy M. Adams, “Racial and Religious Discrimination in Charitable Trusts: A Current Analysis of Constitutional and Trust Law Solutions,” 25 Clev. St. L. Rev. 1, 20.
Moreover, the removal by this court of this religious restriction will not inhibit the practice of any person’s religion nor pose any threat to the religious faith involved in this case; neither will the removal of this restriction in any manner interfere with the settlor’s principal intent of fostering education.
Article first, § 20 of the Connecticut constitution, as amended, provides that: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin or sex.” The guarantee of equal protection is “aimed at undue favor and individual or class privilege, on the one hand, and at hostile discrimination or the oppression of inequality, on the other.” Truax v. Corrigan, 257 U.S. 312, 332-33, 42 S. Ct. 124, 66 L. Ed. 254. The equal protection provisions of the federal and state constitutions “have the same meaning and impose similar constitutional limitations.” Karp v. Zoning Board, 156 Conn. 287, 295, 240 A.2d 845; Cyphers v. Allyn, 142 Conn. 699, 703, 118 A.2d 318.
The attorney general is required by § 3-125 of the General Statutes to “represent the public interest in the protection of any gifts, legacies or devises *75intended for public or charitable purposes.” To my mind, the attorney general’s role in this ease is, of itself, sufficient to constitute state action. Of greater significance, however, is the current involvement of the judiciary. “That the action of state courts and judicial officers in their official capacities is to be regarded as action of the State within the meaning of the Fourteenth Amendment, is a proposition which has long been established by decisions of this Court.” Shelley v. Kraemer, 334 U.S. 1,14, 68 S. Ct. 836, 92 L. Ed. 1161. The judicial act of the highest court in the state, in authoritatively construing and enforcing its laws, is the act of the state. Shelley v. Kraemer, supra, 15; Twining v. New Jersey, 211 U.S. 78, 90-91, 29 S. Ct. 14, 53 L. Ed. 97.
The retention by this court in a cy pres action of a discriminatory religious restriction can only be viewed as governmental approval of private discrimination. The claim that private discrimination is constitutionally protected must give way to the no less legitimate claim that the state is constitutionally prohibited from engaging in discriminatory conduct or encouraging private parties to discriminate. That constitutional prohibition ensures that private conduct inconsistent with public policies, while free to continue, will not receive official encouragement.
In the case of In re Estate of Ruth Snively Walker, No. 71095, California Superior Court, Santa Barbara County, April 23, 1965, a testatrix devised her estate to Stanford University School of Medicine for the establishment of a doctoral fellowship subject to the following provision: “Recipients must be of the white race, protestant religion, and citizens of the United States, Canada, England, Scotland, *76Ireland, or Wales.” The university would not accept the legacy and requested the court to delete the religion requirement. The attorney general urged that the race requirement be stricken also. The court ordered removal of all restrictive provisions saying that the court could not lend its hand in aid of discrimination; that, while an individual trustee was constitutionally free, as a private individual, to discriminate, the court is not; and that state courts cannot promote or give effect to private contracts that deny the equal protection of the laws. In re Estate of Ruth Snively Walker, supra; Shelley v. Kraemer, supra.
I note at this point that were the present scholarship fund simply a private trust, the sexual, racial and religious restrictions would be protected from state interference. The scholarship fund here, however, is conceded to be a charitable educational trust. A charitable trust is one which performs some public function and thereby relieves the governmental burden of the state. Because charitable trusts perform such governmental duties, they are accorded state recognition and protection, and receive the benefit of state and federal tax exemptions as well as numerous other special statutory privileges.
Because charitable trusts are dedicated to the public interest, action by both the attorney general and the courts is required before any modification of their provisions can be made. When modifications are sought, as in this case, which involve the retention of a discriminatory restriction, the attorney general and the court, in approving such a modification, would be lending the power of the state in aid of discrimination. Shelley v. Kraemer, supra.
*77The power to dispose of property at death is a privilege granted by law, supervised through probate and administered by courts and judicially appointed fiduciaries. While these incidents of ministerial control, standing alone, have been thought too slight to constitute state action, the state’s role in a charitable trust is all this and much more. The trust becomes operative only after a court has found, either specifically or by inference, that it is charitable. The state bestows privileges, of which tax immunity is only one. It creates and defines charitable trusts, grants them perpetual existence, modernizes them through the ey pres doctrine, appoints and regulates the trustees, approves accounts, construes ambiguous language and sometimes imposes a less stringent standard of tort liability on such trusts than on their private counterparts. 2A Bogert, Trusts and Trustees §401; Clark, “Charitable Trusts, the Fourteenth Amendment and the Will of Stephen Girard,” 66 Yale L.J. 979. These are practical benefits, granted or withheld by action of the state.
The involvement of the state does not, however, end with the conferral of those benefits. Accountability is also required. Some entity is needed to protect the public and bring the trustees before the court for an accounting. All the states in this country, either by statute or decision, have vested that responsibility for enforcement in a governmental official, usually the attorney general. 2A Bogert, Trusts and Trustees § 411.
Accordingly, the administration of a charitable trust is always characterized as state action. Basic to the grant of enforcement powers to the attorney general is the law’s recognition that the words of *78the dead are only as effective as living society, acting through its governmental agents, chooses to make them. While a living person may use his property to indulge his discriminatory purposes, he should not be allowed to force the state to effectuate, post-death, testamentary purposes undermining the standards of society. As Mr. Justice Black once said of the rights of property: “The more an owner . . . opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.” Marsh v. Alabama, 326 U.S. 501, 506, 66 S. Ct. 276, 90 L. Ed. 265.
I must therefore dissent.