Full opinion text
OPINION JOSEPH S. LORD, III, District Judge. This is an action brought by the Commonwealth of Pennsylvania, the Attorney General of the Commonwealth, the City of Philadelphia, and seven minor Negro male orphans, by their guardians. The individual plaintiffs sue in behalf of themselves and all others similarly situated. The defendants are the trustees of the Girard Estate. They are charged with the duty of administering Girard College, a charitable educational establishment created under the will of Stephen Girard. The complaint alleges that the defendants have refused to admit the individual plaintiffs to Girard College solely because of their race. The relief prayed is an injunction to prohibit defendants’ continued refusal to admit the minor plaintiffs and other applicants merely because they are Negroes, and such additional relief as might be necessary. The complaint consists of three counts and seeks relief from the alleged violation of, respectively, (1) the Constitution of the United States, and particularly the equal protection clause of the Fourteenth Amendment; (2) the testamentary intent of the settlor, Stephen Girard, in the context of previous actions of the trustees and present-day circumstances; and (3) the statutes and public policy of Pennsylvania precluding the denial of admission solely on the basis of a racial criterion. The defendants have moved to dismiss the complaint for (1) lack of jurisdiction over the subject matter, due to the asserted absence of a substantial federal question presented by the first count of the complaint and diversity or pendent jurisdiction over the second and third counts; (2) res judicata, by reason of a final order of the Orphans’ Court of Philadelphia County; (3) failure to state a claim upon which relief can be granted; and (4) lack of standing to sue on the part of the Commonwealth, the Attorney General and the City. I. THE COMPLAINT For the purpose of deciding a motion to dismiss pursuant to Rule 12 of the Federal Rules of Civil Procedure, the well-pleaded allegations of the complaint must be assumed to be true. Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964); United States v. Shubert, 348 U.S. 222, 75 S.Ct. 277, 99 L.Ed. 279 (1955); Clark v. Uebersee Finanz-Korporation, 332 U.S. 480, 68 S.Ct. 174, 92 L.Ed. 88 (1947); Polk Co. v. Glover, 305 U.S. 5, 59 S.Ct. 15, 83 L.Ed. 6 (1938); Rogers v. American Can Co., 305 F.2d 297, 318 (C.A.3, 1962). On this motion, plaintiffs must also be given the benefit of all the inferences which may fairly be drawn from the complaint. Melo-Sonics Corp. v. Cropp, 342 F.2d 856 (C.A.3, 1965); Valle v. Stengel, 176 F.2d 697 (C.A.3, 1949). See also F.R.Civ.P. 8(f). The sufficiency of the complaint must be considered within the framework of these well-established rules. The complaint alleges that Girard College, a school for boys between six and eighteen years of age, was constructed in 1848 pursuant to a trust established under the will of Stephen Girard, who died in 1831. Girard left the principal part of his estate to the “Mayor, Aider-men and citizens of Philadelphia their successors and assigns in trust” for the creation and administration of the school, the construction and improvement of certain streets in the City of Philadelphia, neighborhood improvement in the vicinity of the Delaware River and the demolition of the wooden buildings in the city. He left $2,000,000 of the residue of the estate in trust for the College, and substantially the rest for the maintenance of a more adequate police force, the improvement of city property and the appearance of the city. In 1832, the city accepted the trust by the passage of an ordinance, and administered the College until 1959. The Board of City Trusts consistently refused to admit those applicants for admission to the College whom they deemed not to be “white.” This practice, engaged in by an instrumentality of the state, was held by the Supreme Court of the United States to constitute governmental discrimination in violation of the Fourteenth Amendment. Commonwealth of Pennsylvania v. Board of Directors of City Trusts, 353 U.S. 230, 77 S.Ct. 806, 1 L.Ed.2d 792 (1958). Thereafter, on remand from the Supreme Court of Pennsylvania, the Orphans’ Court of Philadelphia County, without notice or opportunity for the parties to be heard, removed the Board of City Trusts as trustee and appointed private persons. This action was found by the Supreme Court of Pennsylvania to be inconsistent with neither the mandate of the United States Supreme Court nor the Fourteenth Amendment nor the will of Stephen Girard. Girard College Trusteeship, 391 Pa. 434, 138 A.2d 844 (1958), appeal dismissed and cert. denied sub nom. Commonwealth of Pennsylvania v. Board of Directors of City Trusts, 357 U.S. 570, 78 S.Ct. 1383, 2 L.Ed.2d 1546 (1958). The policy of discrimination by race has been carried on by the substituted trustees since they took office. Girard’s will (a copy of which is attached to the complaint) recited in paragraph XX that he was “particularly desirous 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 than they usually receive from the application of public funds.” Pursuant to that aim, Girard provided in paragraph XXI (3) that “[a]s many poor white male orphans, between the ages of six and ten years, as said income shall be adequate to maintain, shall be introduced into the college as soon as possible; and from time to time as there may be vacancies, or as increased ability from income may warrant, others shall be introduced.” He specified that if there were “more applicants than vacancies, and the applying orphans shall have been born in different places, a preference shall be given,— first to orphans born in the city of Philadelphia,” and then to those born in other enumerated areas of the country. Will, if XXI(6). The complaint alleges that each individual plaintiff is a poor male orphan (father deceased) between the age of six and ten, was born in Philadelphia, and would be eligible for admission to Girard College except that defendants deem him not to be white. The ultimate question, therefore, is the validity of the racial exclusion. The complaint attacks it from numerous angles. The several grounds for relief, which are asserted either by explicit statement or by fair inference from the complaint, follow. (a) COUNT I The first count relies principally on alleged violations of the Fourteenth Amendment of the United States Constitution. It alleges that the public policies in force in 1830 induced Stephen Girard to discriminate, as these public policies themselves did, against Negroes. This continuing discrimination, if private, is viewed nevertheless as having emanated from earlier state and federal policies especially hospitable to it, which created an environment perhaps unreceptive to anything else. More direct governmental assistance is also averred. It is said that Girard College “is so impressed with state involvement and state action” that its acts must be imputed to the state itself, and the College must accordingly comply with the Fourteenth Amendment. The state action alleged in the first count includes both laws of general application which have benefitted the College and the passage of numerous statutes, ordinances and resolutions designed to effectuate the terms of the will and accommodate the law of Pennsylvania and of Philadelphia to its implementation. In the former category are the waiver of the rule against perpetuities, immunity from tort liability, and exemption from taxation. In the latter are the acts enabling the city to accept and perform the trust duties, denying the city the power to place a road through the property, authorizing the construction of a boundary road around it, providing the College library with a set of the Colonial Records, and creating a Select Committee of the House of Representatives on the Estate of Stephen Girard to oversee the College’s operation and receive the annual reports which Girard’s will required the trustees to submit to the legislature. It is alleged that municipal management of the estate for longer than a century resulted in a more than fifteen-fold increase in the amount of the trust corpus, because of the provision of administrative services without charge by the city’s personnel, as well as the various pecuniary exemptions in which the estate shares with charitable trusts generally. This, plaintiffs say, is a permanent benefit conferred by the public which cannot be dissipated. It is also contended that the state courts have contributed to the discrimination by failing to correct harmful and racially-motivated deviations by the trustees from the terms of the will and by appointing, sua sponte, substitute trustees to adminster the College when city administration was found to violate the Constitution. The first count thus alleges that Girard himself irretrievably entangled the city and state governments in the administration of the College, that they obligingly became enmeshed, that they have, wittingly and unwittingly, fostered racial discrimination in its operation and, finally, that education is in any event an inherently public function, to which the strictures of the Fourteenth Amendment attach. (b) COUNT II The second count asks for the application of the doctrine of cy pres to fulfill Girard’s alleged intentions to benefit the City of Philadelphia and eradicate poverty. Plaintiffs allege changes in the condition of the city and the College which in their view would warrant a judicially-decreed deviation from the literal terms of the will to effectuate its less literal purposes. The complaint states that at the time of Girard’s death the proportion of Negro to white inhabitants of Philadelphia was less than one to eight, whereas the present ratio is more than one to four. In Girard’s time, poverty and ignorance were widespread among the white population, while now they are far greater among the Negro population. Girard College can best fulfill its functions, it is averred, by the admission of poor male orphans without regard to race. Count two also contains another line of approach. The College is alleged to be able to accommodate 2,000 boys. It presently serves only 700. Capacity, therefore, exceeds enrollment. Notwithstanding the large number of vacancies, the trustees are charged with having deviated from the terms of the will arbitrarily and discriminatorily. They have, according to the complaint, been faced with a dearth of applications from poor white children within Philadelphia and have resorted to accepting, in derogation of the will provisions, boys who are not “poor” but, on the contrary, “come from families of considerable means.” Likewise, they have sought and admitted large numbers of students who were not born in and do not reside in Philadelphia. If circumstances demand deviations from the will, the plaintiffs maintain that, as a matter of proper construction, the deviations may not be motivated by caprice or racial malice. The plaintiffs argue that if the requirement of poverty and the preference to Phila-delphians may partially be dispensed with, then so must the requisite of whiteness, at least to the same extent. (c) COUNT III The third count alleges that denial of admission to applicants for Girard College solely because of their race is vio-lative of the Pennsylvania Public Accommodations Act. Act of May 19, 1887, P.L. 130, § 1, as amended, 18 P.S. § 4654. This statute makes it a misdemeanor to refuse, withhold from, or deny to “any person on account of race, creed, or color” the “full and equal accommodations, advantages, facilities and privileges of any places of public accommodation, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons.” Places of public accommodation include, among other facilities, “kindergartens, primary and secondary schools, high schools, academies, colleges and universities, extension courses, and all educational institutions under the supervision of this Commonwealth ' * Excepted from the application of the statute is “any institution, club or place or places of public accommodation, resort or amusement, which is or are in its or their nature distinctly private * * Count three contains allegations designed to establish that Girard College is an educational institution under the supervision of the Commonwealth in the same manner as all other schools and even beyond, since, as a charity, it is subject to the visitation of the Commonwealth through its Attorney General. The continued enforcement of racial restrictions by those responsible for operating such a school would, it is maintained, contravene the statute and the public policy of Pennsylvania. II. JURISDICTION The threshold question is jurisdiction. The jurisdiction of the federal district court must appear from the face of the complaint, F.R.Civ.P. 8(a), and the court must be satisfied before it proceeds that jurisdiction exists. Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001 (1939). The complaint bases jurisdiction on a number of statutory provisions: (1) 28 U.S.C. § 1331(a), which gives district courts “original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States”; (2) Civil Rights Act of 1870, § 16, 42 U.S.C. § 1981, which insures that all “persons within the jurisdiction of the United States shall have the same right * * * to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens,” and the Civil Rights Act of 1871, § 1, 42 U.S.C. § 1983, which renders liable to the person injured, in suits at law and in equity, any “person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws * * * and (3) 28 U.S.C. § 1343, which confers jurisdiction on the district courts over “any civil action authorized by law to be commenced by any person * * * (3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege, or immunity secured by the Constitution of the United States or any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States” In order for jurisdiction to lie under the first of these three provisions, there must be both a substantial federal question and the requisite amount. See Fuller v. Volk, 351 F.2d 323 (C.A.3, 1965). We are not obliged, however, to determine whether federal question jurisdiction has been properly invoked in the present case, compare Hague v. C. I. O., 307 U.S. 496, 530, 59 S.Ct. 954, 83 L.Ed. 1423 (Stone, J., concurring), because jurisdiction does exist under section 1343(3) of Title 28 and section 1983 of Title 42. See Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943); WRIGHT, FEDERAL COURTS § 32, at pp. 92-93 (1963). The complaint sufficiently raises substantial questions of whether the defendants are, “under color of” state authority, depriving the individual plaintiffs of their right to the equal protection of the laws. Where the question of jurisdiction is so intimately tied to the merits as it is here, the frequent practice has been to assume jurisdiction tentatively and defer final ruling on juridiction until decision on the merits of the federal claim. Campbell v. Glenwood Hills Hosp., 224 F.Supp. 27, 29 (D.Minn., 1963). In the instant case, decision on the ultimate merits of the federal question has, for the present,, been rendered unnecessary. Nonetheless, if those claims are without substance, we have no jurisdiction to decide the state law claims in counts two and three. United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Rogers v. Provident Hosp., 241 F.Supp. 633, 639 (N.D.Ill., 1965). But if the federal claims are substantial, even though ultimately insufficient on their merits, Baker v. Carr, 369 U.S. 186, 199, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); cf. Wheeldin v. Wheeler, 373 U.S. 647, 649, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1963) ; Bell v. Hood, 327 U.S. 678, 682-684, 66 S.Ct. 773, 90 L.Ed. 939 (1948) (both under § 1331), we have original jurisdiction over the federal claims, and jurisdiction, if any, over the state law claims would be pendent jurisdiction. We must therefore examine in limine, not the ultimate merits, but the substantiality of the federal questions involved in count one. If Girard College is indeed an instrumentality of the Commonwealth of Pennsylvania or the City of Philadelphia, its discrimination in the selection of students by race would be forbidden by the Fourteenth Amendment. Commonwealth of Pennsylvania v. Board of Directors of City Trusts, 353 U.S. 230, 77 S.Ct. 806, 1 L.Ed.2d 792 (1957). Racial discrimination is as much prohibited where the state involvement is covert as it is where it is blatant. Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5, 19 (1958). While “private conduct abridging individual rights does no violence to the Equal Protection Clause unless to some significant extent the State in any of its manifestations has been found to have become involved in it”, nevertheless state involvement is not insignificant merely because it is “non-obvious.” Burton v. Wilmington Parking Auth., 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961). The “central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States.” McLaughlin v. Florida, 379 U.S. 184, 192, 85 S.Ct. 283, 288, 13 L.Ed.2d 222 (1964). Some of the constitutional questions presented by this complaint are on the frontier of the Fourteenth Amendment, but their substantiality cannot be gainsaid for that. It is certainly not clear whether, after more than a century of municipal administration, the sustaining cord from the city to the College has been cut by the substitution of trustees. The initial relationship was willed by Girard himself, and it is arguable that whatever benefits it may have brought persist. Recently, in Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966), the Supreme Court dealt with similar issues. A park had been devised to the City of Macon, Georgia, to be used for whites only. The city eventually desegregated the park, and thereafter the members of the park Board of Managers, serving under the will, brought suit to ask that private trustees be substituted, presumably with the object of resegregation in mind. The city resigned as trustee, and the state court appointed new trustees. On certiorari, the Supreme Court reversed, holding that “where the tradition of municipal control ha[s] become firmly established,” the transfer of title to the private trustees did not disentangle “the park from segregation under the municipal regime that long controlled it.” 382 U.S. at 301, 302, 86 S.Ct. at 489, 490. The Court assumed from the pleadings in Evans that the park had been maintained as a public facility, “as well as granted tax exemption * * Id. at 301, 86 S.Ct. at 489. What weight it accorded the latter factor is unclear. Whether the enjoyment of the benefits of tax exemption, immunity from tort liability and waiver of the rule against perpetuities — which accrue alike to all charitable trusts, whatever their policies —would be enough to make the state responsible for the trustees’ discriminatory conduct has not yet been authoritatively decided. Cf. Eaton v. Grubbs, 329 F.2d 710 (C.A.4, 1964). In Evans it was also suggested that a city park, public or private, is “municipal in nature.” 382 U.S. at 301, 86 S.Ct. 486. Evans could therefore be assimilated to the cases holding constitutional limitations applicable to organizations performing irretrievably public functions. See Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953) ; Public Util. Comm’n v. Pollak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068 (1952); Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946). It is true that Terry, Pollak and Marsh involved monopoly positions (white primary, public transportation and company town, respectively), and a private school existing side-by-side with a city school system may be distinguishable. In Evans the case of a testator who “wanted to leave a school or center for the use of one race only and in no way implicated the State in the supervision, control, or management of the facility” was distinguished as arguably involving “no constitutional difficulty.” 382 U.S. at 300, 86 S.Ct. at 489. But the state was involved in Girard College and plaintiffs maintain that Girard has such a “firmly established” tradition of municipal control that it must remain subject to the restraints of the Fourteenth Amendment; or perhaps, irrespective of the tradition, that the College, which opened on a racially-exelusive basis in 1848, is part of the residue of state-encouraged segregation which it was the purpose of the Civil War Amendments to obliterate. Cf. Robinson v. Florida, 378 U.S. 153, 156-157, 84 S.Ct. 1693, 12 L.Ed.2d 771 (1964); Peterson v. City of Greenville, 373 U.S. 244, 248, 83 S.Ct. 1119, 10 L.Ed. 2d 323 (1963). Plaintiffs also argue that the unsolicited action of the Orphans’ Court in choosing the mode of implementing the Supreme Court’s mandate was itself a form of affirmative state action. Compare Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953); Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). On the assumption that the mandate could have been fulfilled by either a change of admission policy or a change of trustee, plaintiffs contend, in effect, that the Orphans’ Court, in deciding to perpetuate the restrictive admissions criteria of the will, unconstitutionally converted a public into a private school. Compare Griffin v. County School Bd., 377 U.S. 218, 231, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964). In Evans it was said: “We may fairly assume that had the Georgia courts been of the view that even in private hands the park may not be operated for the public on a segregated basis, the resignation would not have been accepted and private trustees appointed,” 382 U.S. at 302, 86 S.Ct. at 490, and, to be sure, the Pennsylvania courts were also aware that replacement of the trustees would mean continued exclusion of Negroes from the school, see, e. g., Girard College Trusteeship, 391 Pa. 434, 455, 138 A.2d 844 (1958). The defendants’ response to the charge of judicial state action is that the will, not the courts, compelled the substitution. Cf. Black v. Cutter Labs., 351 U.S. 292, 76 S.Ct. 824, 100 L.Ed. 1188 (1956). Thus, this case presents important questions regarding the ultimate reach of the Shelley principle. What has been said so far suffices to demonstrate the substantiality of the controversy over the alleged deprivation of federal rights. If such denials have in fact occurred, clearly they were committed “under color of law.” Under color of law means under state authority or pretense of it. Cf. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941). The complaint here does not allege that Girard College maintains any open or purported connection with the state. Save for the alleged judicial action, the state action, if any, is “non-obvious.” This distinction is quite immaterial. Cf. Turner v. City of Memphis, 369 U.S. 350, 82 S.Ct. 805, 7 L.Ed. 2d 762 (1962) ; Smith v. Holiday Inns of America, Inc., 336 F.2d 630 (C.A.6, 1964); Eaton v. Grubbs, 329 F.2d 710 (C.A.4, 1964), all brought under section 1343 and all involving nonobvious governmental action. If state action is established, color of law must follow, lest there be an incentive to discreet discrimination. “In cases under § 1983, ‘under color’ of law has consistently been treated as the same thing as the ‘state action’ required under the Fourteenth Amendment.” United States v. Price, 383 U.S. 787, 794 n. 7, 86 S.Ct. 1152, 1157, 16 L.Ed.2d 267 (1966). We have so far put to one side the possible defense of res judicata. To adjudicate the merits of that defense requires jurisdiction. All the discussion to this point merely shows the seriousness of the constitutional questions present in this case. Certainly it could not be said that plaintiffs’ federal claims are “unsubstantial and frivolous.” Baker v. Carr, 369 U.S. 186, 199, 82 S.Ct. 691, 700, 7 L.Ed.2d 663 (1962). Since “no further consideration of the merits of the claim is relevant to a determination of the court’s jurisdiction of the subject matter”, ibid., we find that this court has jurisdiction over the subject matter of count one of the complaint. In the absence of diversity of citizenship among the parties, jurisdiction over counts two and three, which rest on state law, must be pendent jurisdiction. Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933); Osborn v. Bank of United States, 9 Wheat. (22 U.S.) 738, 823, 6 L.Ed. 204 (1824). In United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed. 218 (1966), the Supreme Court clarified the characteristics required for the state claims in a complaint to be considered pendent to the federal claim. The relationship between the state and federal claims must permit “the conclusion that the entire action before the court comprises but one constitutional ‘case.’ The federal claim must have substance sufficient to confer subject matter jurisdiction on the court. * * * The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard for their federal or state character, a plaintiff’s claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole. “That power need not be exercised in every case in which it is found to exist. It has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiff’s right. Its justification lies in considerations of judicial economy, convenience and fairness to litigants; if these are not present a federal court should hesitate to exercise jurisdiction over state claims, even though bound to apply state law to them, Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer footed reading of applicable law. Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well. Similarly, if it appears that the state issues substantially predominate, whether in terms of proof, of the scope of the issues raised, or of the comprehensiveness of the remedy sought, the state claims may be dismissed without prejudice and left for resolution to state tribunals.” Id. at 725-727, 86 S.Ct. at 1138. In terms of these standards, the present case is an appropriate one for the exercise of pendent jurisdiction. The three counts of the complaint constitute a single “case” for a single trial. Their’ “common nucleus of operative fact” is the operation of Girard College on a racially-exclusive basis and the consequent denial of admission to the individual plaintiff-applicants. The defendants point to the different elements of proof necessary to support each of the alternative grounds on which the plaintiffs rely. But that is true in every lawsuit involving a claim arising under more than one law unless the governing principles happen by coincidence to be coterminous. From the standpoint of administration, the considerations which militate against a multiplicity of actions over the same subject matter indicate the exercise of pendent jurisdiction here. Moreover, it cannot be said that the state issues predominate in this lawsuit. The proof required on the several counts is overlapping, the constitutional issues are at least as significant as the state law questions, and the relief sought is unitary and identical. The state claims are by no means the “real body of [the] ease, to which the federal claim is only an appendage”. United Mine Workers of America v. Gibbs, supra at 727, 86 S.Ct. at 1140. Further, in at least one respect there may be a federal constitutional question lurking in the background of one of the state claims. In count two plaintiffs ask for a construction of the will’s admission requirements in the light of alleged deviations from them by the trustees. If this claim were proved and a court declined arbitrarily to order the trustees to make a further departure, a question of invidious official discrimination might arise. In suggesting this, we do not prejudge either the state or federal issues. It is, however, of the first importance to recognize that a total compartmentalization of the counts into state and federal pigeonholes is difficult to effect. Here, as in Gibbs, “the state claim is so closely tied to questions of federal policy that the argument for exercise of pendent jurisdiction is particularly strong.” 383 U.S. at 727, 86 S.Ct. at 1139. Consequently, federal jurisdiction having properly been invoked, it ought to extend to the entire lawsuit. This course is permissible even though it may be that only state law matters are ultimately decided. Township of Hills-borough, Somerset County, N. J. v. Cromwell, 326 U.S. 620, 66 S.Ct. 445, 90 L.Ed. 358 (1946); Siler v. Louisville & N. R. R., 213 U.S. 175, 29 S.Ct. 451, 53 L.Ed. 753 (1909); cf. United Mine Workers of America v. Gibbs, supra, 383 U.S. at 728, 86 S.Ct. 1130. That very possibility is an additional reason for assuming pendent jurisdiction over the state law claims. “The Court” and, a fortiori, lower courts, “will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.” Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., dissenting in part). If counts two and three were dismissed for want of jurisdiction, the only claims left to adjudicate would involve unsettled constitutional questions. Without any assurance that a suit based on counts two and three would be brought in the state courts, dismissal of them in this court might well force a premature constitutional adjudication. On the other hand, assumption of pendent jurisdiction would leave the state claims here, with the further possibility, discussed hereafter, of abstention by this court as to those claims. Thus, by taking jurisdiction, there are two alternatives: (1) the state questions can be determined by this court; or (2) this court can abstain and leave the determination of state questions to the state courts. Either course may eliminate the necessity of reaching the constitutional questions. Since “pendent jurisdiction is a doctrine of discretion,” United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966), we are convinced that efficient and proper disposition of this lawsuit compels the conclusion that counts two and three are pendent to count one of the complaint. The defendants have also attacked the jurisdiction of this court to consider plaintiffs’ claims under the will. The objection is two-fold. First, defendants contend that the nature of the individual plaintiffs’ claims is such as to require the court to have control over the trust estate before it can adjudicate rights under count two. Secondly, defendants argue that the federal courts lack power to cy pres a trust. These arguments are unconvincing. If jurisdiction otherwise exists, the federal courts may entertain actions to construe wills. Colton v. Colton, 127 U.S. 300, 8 S.Ct. 1164, 32 L.Ed. 138 (1888). An exception in the interest of comity is made where the action is in rem and the property is in the control of a state court. Princess Lida of Thurn and Taxis v. Thompson, 305 U.S. 456, 59 S.Ct. 275, 83 L.Ed. 285 (1939). Princess Lida involved a quasi-in rem proceeding, the subject of which was the administration and restoration of corpus. It was held that in such a case state court jurisdiction, first acquired, was exclusive. It was, however, made clear that the federal courts possess concurrent jurisdiction where the suit is not to “marshal assets, administer trusts, or liquidate estates, and in suits of a similar nature when, to give effect to its jurisdiction, the court must control the property”, but is instead to determine “the right of any person to participate in the res or * * * the quantum of his interest in it.” Id. at 466, 467, 59 S.Ct. at 280. The doctrine of exclusive jurisdiction, “necessary to the harmonious operation of federal and state tribunals. * * * has no application to a case in federal court based upon diversity of citizenship [here pendent jurisdiction], wherein the plaintiff seeks merely an adjudication of his right or his interest as a basis of a claim against a fund in the possession of a state court * * * ” 305 U.S. at 466-467, 59 S.Ct. at 281. If circumstances made it necessary to apply the trust property to new uses or “to award the fund to an eleemosynary institution whose services will most nearly approximate the intention of the donor”, Womens’ Homeopathic Hosp. of Phidadelphia Case, 393 Pa. 313, 318, 142 A.2d 292, 294, (1958), perhaps possession would be important, although in Pennsylvania the cy pres power is given to any orphans’ court or court having equity jurisdiction in the proper county. Id. at 317, 142 A.2d 292. Cf. Foster v. Carlin, 200 F.2d 943, 947 (C.A. 4, 1952). Challenged here, however, is not the application of the estate’s funds to the school, but the standards for admission to it. No pecuniary diversion is requested, only a modification of policy. The same relief is asked in count two as is prayed in counts one and three, but the defendants do not even remotely hint that if a violation of a federal constitutional or state statutory provision were found, a court would need control over the res to enjoin it. As was said in Princess Lida, “an action in the federal court to establish the validity or the amount of a claim constitutes no interference with a state court’s possession or control of a res.” 305 U.S. at 467, 59 S.Ct. at 281. See also Markham v. Allen, 326 U.S. 490, 66 S.Ct. 296, 90 L.Ed. 256 (1946); Waterman v. Canal-Louisiana Bank & Trust Co., 215 U.S. 33, 30 S.Ct. 10, 54 L.Ed. 80 (1909). Defendants’ other argument is that cy pres is a prerogative power which, originating in the Crown, is denied to the federal courts as being “non-judicial” in the contemplation of Article III of the Constitution. This view, however, ignores the long-standing distinction between prerogative and judicial cy pres. While prerogative cy pres in England permitted diversions of the fund to purposes other than those contemplated by the settlor, see 4 Scott, Trusts, § 399.1 (2d ed. 1956), judicial cy pres involves an effectuation of the general charitable intent. Judicial cy pres is part of the “regular and inherent jurisdiction [of] a court of equity in relation to trusts * * Fontain v. Ravenel, 17 How. (58 U.S.) 369, 397, 15 L.Ed. 80 (1855) (Daniel, J., concurring). If count two were to state a valid cy pres claim — and on that we presently intimate no view— this court would have jurisdiction to grant relief. Cf. Fontain v. Ravenel, supra; Vidal v. Girard’s Executors, 2 How. (43 U.S.) 127,11 L.Ed. 205 (1844); Smith v. Moore, 343 F.2d 594 (C.A. 4, 1965). III. STANDING OF THE GOVERNMENTAL PLAINTIFFS The trustees have moved to dismiss this action insofar as the Commonwealth, the Attorney General and the City of Philadelphia are parties plaintiff. Their position is that the governmental plaintiffs have an insufficient interest in the claims presented in count one of the complaint, and also should be denied standing to sue in the federal court to secure what in defendants’ view would be the collateral review of previous state court decisions regarding Girard College. No challenge is made to the standing of the individual plaintiffs. The first objection goes only to the standing to bring the federal claims of count one. Standing to litigate them is a federal question. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed. 2d 663 (1962). It is claimed that the governmental plaintiffs have only an official and not a direct personal interest in the outcome of this litigation. Ordinarily, an official interest is not enough to give rise to an adequately adversary proceeding. County Court of Braxton County v. West Virginia ex rel. Dillon, 208 U.S. 192, 28 S.Ct. 275, 52 L.Ed. 450 (1908); Smith v. Indiana ex rel. Lewis, 191 U.S. 138, 24 S.Ct. 51, 48 L.Ed. 125 (1903). It has consistently been held that “the interest of a state official in vindicating the Constitution of the United States gives him no legal standing” in the federal courts “to attack the constitutionality of a state statute in order to avoid compliance with it.” Coleman v. Miller, 307 U.S. 433, 466, 59 S.Ct. 972, 987, 83 L.Ed. 1385 (1939) (separate opinion of Frankfurter, J.). Under Pennsylvania law, the Commonwealth and its Attorney General have the duty, as parens patriae, to oversee the operation of charitable trusts. Commonwealth v. Barnes Foundation, 398 Pa. 458, 159 A.2d 500 (1960). It is a duty deriving from the nature of charitable trusts, which may lack beneficiaries with interests definite enough to enable them to sue for themselves. Nevil Estate, 414 Pa. 122, 199 A.2d 419 (1964); Pruner Estate, 390 Pa. 529, 136 A.2d 107 (1957) . The representation thus serves a void-filling function, compare NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 458-459, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), and the Attorney General is an indispensable party to all proceedings involving charitable trusts. Garrison Estate, 391 Pa. 234, 137 A.2d 321 (1958) ; Pruner Estate, supra. The Attorney General, then, is not here contesting a practice the constitutionality of which is a matter of indifference to him; on the contrary, his office requires him to scrutinize it. The rule precluding official standing to attack a statute the officer is enforcing cannot be turned around to defeat the standing of an officer whose very obligation is to supervise and challenge. Compare Heckman v. United States, 224 U.S. 413, 32 S.Ct. 424, 56 L.Ed. 820 (1912); see also Ervien v. United States, 251 U.S. 41, 40 S.Ct. 75, 64 L.Ed. 128 (1919); United States v. American Bell Tel. Co., 128 U.S. 315, 9 S.Ct. 90, 32 L.Ed. 450 (1888). The state law of standing is not conclusive. Doremus v. Board of Educ., 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952). But to test the adequacy of the interest it is necessary to look at the nature of the officer’s function, and that derives in this instance from state law. Cf. HART & WECHSLER, THE FEDERAL COURTS AND THE FEDERAL SYSTEM 162-63, 165-66 (1953). Since there is true adversity, the Attorney General is a proper party plaintiff with respect to count one. The Commonwealth’s position is also sufficient to sustain its standing to sue. The education of their citizens “is perhaps the most important function of state and local governments.” Brown v. Board of Educ., 347 U.S. 483, 493, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954). Assuming for the moment, as we must, that count one states a valid claim under the Fourteenth Amendment, the defendants are impeding the effective fulfillment of that basic function by the Commonwelath, cf. Brewer v. Hoxie School Dist., 238 F.2d 91 (C.A. 8, 1956); hindering it in the performance of its obligation to alleviate state-sponsored discrimination, Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed. 2d 5, 19 (1958); and unlawfully limiting the opportunities of its people (whom it represents as parens patriae), State of Georgia v. Pennsylvania R. R., 324 U.S. 439, 451, 65 S.Ct. 716, 89 L.Ed. 1051 (1945). Although “a State is without standing to maintain suit for injuries sustained by its citizens and inhabitants for which they may sue in their own behalf”, id. at 473, 65 S.Ct. at 733 (dissenting opinion), a state has a sufficient interest in the elimination of discrimination for which it would be responsible to enable it to maintain an action in federal court. It is not necessary to decide whether these considerations extend also to the City of Philadelphia, for its standing may be rested on a more narrow ground. The city does not sue merely as a municipal corporation to protect its citizens. It is the named trustee under the will, a status which it contends it will be able to reacquire if the restrictive admissions provision is no longer enforceable. A trustee named by the settlor has standing under state law to contest his removal. See Crawford’s Estate, 340 Pa. 187, 16 A.2d 521 (1940); Neafie’s Estate, 199 Pa. 307, 49 A. 129 (1901); cf. Thompson Will, 416 Pa. 249, 206 A.2d 21 (1965); Fraiman Estate, 408 Pa. 442, 184 A.2d 494 (1962). We see no reason why a removed trustee may not equally sue to regain its position if the condition on which its constitutional disability is founded may be obviated if its suit is successful. The city does not, and probably could not, ask for its reinstatement as trustee by this court. But there is no overlooking the fact that it was removed solely on account of its incapacity to administer the discriminatory trust provision. The basis of its case for reinstatement is the alleged illegality of that provision under, inter alia, federal constitutional law. Determination of the question of legality is a necessary precondition to a request for remstatement. It is, therefore, an understatement to say that the city has a stake in the outcome of this lawsuit, and there is no reason to deny it the federal forum on the federal questions. The defendants also argue that the governmental plaintiffs lack standing to assert the claims of count one here for reasons of comity. This court, they say, should not countenance an “attempt to bypass” the state courts which might ultimately “reflect on the competency, and indeed the fairness, of the courts of Pennsylvania.” The argument is impassioned but inadequate. The premise that plaintiffs seek to “challenge” previous decisions of the state courts prejudges the defense of res judicata, which, if valid, is a complete answer to any such attempted challenge, Moreover, to the extent that the trustees are requesting an exercise of discretion not to hear the federal claims it suffices to say that that discretion is lacking: “There are fundamental objections to any conclusion that a litigant who has properly invoked the jurisdiction of a Federal District Court to consider federal constitutional claims can be compelled, without his consent and through no fault of his own, to accept a state court’s determination of those claims. Such a result would be at war with the unqualified terms in which Congress, pursuant to constitutional authorization, has conferred specific categories of jurisdiction upon the federal courts, and with the principle that ‘When a Federal court is properly appealed to in a case over which it has by law jurisdiction, it is its duty to take such jurisdiction * * *. The right of a party plaintiff to choose a Federal court where there is a choice cannot be properly denied.’ ” England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411, 415, 84 S.Ct. 461, 464, 11 L.Ed.2d 440 (1964). iy THE puBLIC ACCOMMODA-TI0NS ACT: STARE DE-CISIS Having' disposed of the liminal questions of jurisdiction and standing, we now reach the substantive questions _pre-sented by the motion. We turn initially to count three of the complaint, the count that charges a violation of the Pennsylvania Public Accommodations Act, for the questions presented by this count are principally matters of law, well-suited to determination on a motion to dismiss. Had the applicability of the act to Girard College been settled in the prior proceedings, we would not have to reach the res judicata defense to count three, Whether or not the parties or the cause were the same, we would be bound to adhere to the Pennsylvania courts’ interpretation of the statute. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). That, however, is not the case. The issue was not decided by the Pennsylvania courts in any of the former proceedings. A fair reading of the hundreds of pages of opinions in those proceedings discloses nothing but silence on the possible application of the statute to Girard. Nowhere is it mentioned or alluded to. The reason seems to be that the argument was simply never made. While the statute was cited in the many briefs of the appellants in the Supreme Court of Pennsylvania (twice in footnotes and once in a passing textual reference), each time it was included in a list of many statutes collected only to show a general and perhaps etherial disposition on the part of Pennsylvania to frown upon discrimination. Never was it suggested that the continued exclusion of Negroes from Girard College would violate the express terms of this statute; never was the statute so much as quoted; never was the court apprised of its terms. References to it were not only obscure but oblique. In these circumstances, stare decisis does not bar consideration of the application of the statute to Girard College. Stare decisis is founded on considerations of certainty and consistency of interpretation. It is axiomatic that if there has been in fact no interpretation, the doctrine of stare decisis has no bearing. It is universally recognized that “[q]uestions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 149, 69 L.Ed. 411 (1925). Accord, United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 37-38, 73 S.Ct. 67, 97 L.Ed. 54 (1952); KVOS, Inc. v. Associated Press, 299 U.S. 269, 279, 57 S.Ct. 197, 81 L.Ed. 183 (1936); United States v. Mitchell, 271 U.S. 9, 14, 46 S.Ct. 418, 70 L.Ed. 799 (1926); United States ex rel. Arant v. Lane, 245 U.S. 166, 170, 38 S.Ct. 94, 62 L.Ed. 223 (1917); Association of Westinghouse Salaried Employees v. Westinghouse Electric Corp., 210 F.2d 623, 628-629 (C.A. 3, 1954), aff’d, 348 U.S. 437, 75 S.Ct. 488, 99 L.Ed. 510 (1955). It is inconceivable that important questions of public policy could be thought to be settled authoritatively for future cases sub silentio. Faced with the appellate history of the prior proceedings, it is impossible to decide, as defendants urge, that the meaning of the act was fixed forever by two lengthy opinions containing not so much as a single reference to it. Nevertheless, merely because an issue was not raised and decided does not necessarily mean that the same parties are not precluded from raising it and having it decided in a new lawsuit. Accordingly, it becomes necessary to pass to a consideration of res judicata. V. THE PUBLIC ACCOMMODATIONS ACT: RES JUDICATA The defense of res judicata has been raised by motion rather than answer, notwithstanding that it is an affirmative defense. See F.R.Civ.P. 8(c). Although this procedure has been sanctioned, Williams v. Murdoch, 330 F.2d 745, 749 (C.A. 3, 1964); Hartmann v. Time, Inc., 166 F.2d 127, 131, 1 A.L.R.2d 370 (C.A. 3, 1948), cert. denied, 334 U.S. 838, 68 S.Ct. 1495, 92 L.Ed. 1763 (1948), it is usually necessary to attach a documentary record to the motion so that the court can decide whether the action is foreclosed by the prior proceeding. No such record has been presented by the defendants, but the res judicata issue of count three involves only questions of law and the reported opinions of the Supreme Court of Pennsylvania disclose enough about the proceedings and parties to permit an informed decision. The effect of a former state court adjudication on the claim of count three in this action is governed by the law of Pennsylvania. Oklahoma Packing Co. v. Oklahoma Gas & Electric Co., 309 U.S. 4, 60 S.Ct. 215, 84 L.Ed. 447 (1940); Gramm v. Lincoln, 257 F.2d 250 (C.A. 9, 1958); Hartmann v. Time, Inc., 166 F.2d 127, 1 A.L.R.2d 370 (C.A. 3, 1948), cert. denied, 334 U.S. 838, 68 S.Ct. 1495, 92 L.Ed. 1763 (1948), Comment, RES JUDICATA IN THE FEDERAL COURTS: APPLICATION OF FEDERAL OR STATE LAW, 51 Corn.L.Q. 96 (1965). The parties are agreed that the former proceeding was not a class action. There is no contention that the present individual plaintiffs are bound by the earlier judgment because of the participation of the earlier individual petitioners who sought admission to Girard College. Rather it is argued that the individual plaintiffs are barred because they were represented by the Attorney General, who appeared in the prior proceeding. It thus becomes necessary to ascertain precisely whom the Attorney General represents when he sues in his capacity as supervisor of charitable trusts. Under Pennsylvania law, “In the absence of statutory authority, no person whose interest is only that held in common with other members of the public, can compel the performance of a duty owed by the corporation to the public. Only a member of the corporation itself or someone having a special interest therein or the Commonwealth, acting through the Attorney General, is qualified to bring an action of such nature.” Wiegand v. Barnes Foundation, 374 Pa. 149, 153, 97 A.2d 81, 82 (1953). The Pennsylvania courts have followed section 391 of the Restatement of Trusts, and have permitted actions against a charitable trust by “the Attorney General, or by a person having a specific interest in such enforcement * * *.” Miller Estate, 380 Pa. 172, 179, 110 A.2d 200, 203 (1955). They have also made it clear that when the Attorney General sues, “The Attorney General represents the public interest in a charitable trust rather than a particular class of potential beneficiaries * * Thompson Will, 416 Pa. 249, 259, 206 A.2d 21, 27, (1965). In the Thompson Will case, a trustee, representing the interests of undesignated “local charities” who were beneficiaries under a will, was given standing in addition to that conferred on the Attorney General on the ground that the charities’ interests would be protected best by separate representation. Significantly, the court relied on Howard Sav. Inst. of Newark, N. J. v. Peep, 34 N.J. 494, 170 A.2d 39 (1961), in which standing had been conferred on an executor to represent the class of “Protestant Gentile boys” whose interests would be diluted by an application of cy pres to strike the religious restriction. The New Jersey Attorney General was held not to represent the class but the public. If, therefore, the Attorney General does not even represent the interests of the named class of beneficiaries, it certainly cannot be maintained that he represents an unnamed class of potential beneficiaries seeking, as a matter of law, to be treated on the same footing. The Attorney General’s function is distinct. His is the public eye which watches over the exercise of the power that may be agglomerated by charitable trustees, both because quite often there are no sufficiently definite beneficiaries who can do it and because even when there are they may not do it adequately from the public standpoint. See Pruner Estate, 390 Pa. 529, 531-532, 136 A.2d 107 (1957). The Attorney General is not committed to the narrow, parochial interests of a private litigant or class. “Where the party to be bound in a second proceeding is different from the party against whom the original adjudication was made, a close relationship between them is a requirement of fairness and may be necessary to provide due process of law. Thus, the rule that only parties and privies are bound by a prior judgment is unquestionably correct. * * * ” Bruszewski v. United States, 181 F.2d 419, 422 (C.A. 3, 1950), cert. denied, 340 U.S. 865, 71 S.Ct. 87, 95 L.Ed. 632 (1950). The present minor plaintiffs were not represented by the Attorney General in the former proceedings. They have not yet had their opportunity to be heard. Cf. DEVELOPMENTS IN THE LAW-RES JUDICATA, 65 Harv.L.Rev. 818, 858 (1952). To hold that they have might even raise a serious question of due process, cf. Hansberry v. Lee, 311 U. S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940)— quite needlessly in our view, for under the Pennsylvania law of charities the prior judgment is no bar to the suit by the present individual plaintiffs. Cf. Schulz Estate, 374 Pa. 459, 466, 98 A.2d 176 (1953), cert. denied, Schulz v. Flora, 346 U.S. 885, 74 S.Ct. 135, 98 L.Ed. 390 (1953). The effect of the prior proceedings on the ability of the governmental plaintiffs to maintain the instant suit presents entirely different questions. The extent to which the Attorney General is bound by earlier judgments when he sues in his capacity as supervisor of charitable trusts has never been decided by the courts of Pennsylvania, and rarely has it been touched on in other jurisdictions. But cf. Commonwealth ex rel. Marshall v. Beeman, 299 Ky. 26, 184 S.W.2d 117 (1945) . Therefore, “[w]e are required to consider such approach to the problem as may be indicated by the Pennsylvania cases in the general field and to resort to general applicable principles to reach a conclusion consistent with Pennsylvania law.” Makariw v. Rinard, 336 F.2d 333, 334 (C.A. 3, 1964). Confining the discussion to count three, it is, of course, ordinarily true that a party is precluded from raising in a subsequent suit issues which were or might have been raised in the former suit on the same cause of action. Jackson v. Irving Trust Co., 311 U.S. 494, 61 S.Ct. 326, 85 L.Ed. 297 (1941); Jones v. Costlow, 354 Pa. 245, 47 A.2d 259 (1946) . “A decree is not the less conclusive because an argument, afterwards thought to be important, was not, in proper time, urged upon the consideration of the court.” City of Philadelphia v. Heirs of Stephen Girard, 45 Pa. 9, 30 (1863). See REST. JUDGMENTS § 63 (1942). Res judicata aims at the promotion of efficient disposition of lawsuits and the discouragement of repetitious and harassing litigation. Caterpillar Tractor Co. v. International Harvester Co., 120 F.2d 82, 139 A.L.R. 1 (C.A. 3, 1941); Stevenson v. Silverman, 417 Pa. 187, 208 A.2d 786 (1965), cert. denied, 382 U.S. 833, 86 S.Ct. 76, 15 L.Ed.2d 76 (1965); Loughran v. Matylewicz, 367 Pa. 593, 81 A.2d 879 (1951). Although broadly applied, it is a principle which admits of some flexibility. See England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964); Spilker v. Hankin, 88 U.S.App.D.C. 206, 188 F.2d 35 (1950); Larsen v. Larsen, 392 Pa. 609, 141 A.2d 353 (1958); IB MOORE, FEDERAL PRACTICE ¶ 0.405 [11] . In the instant ease, a compelling argument can be made against enforcing res judicata against the Attorney General with all the strictness of dogma. Compare Brown v. Memorial Nat’l Home Foundation, 162 Cal.App.2d 513, 329 P.2d 118, 131, 75 A. L.R.2d 427, cert. denied, 358 U.S. 943, 79 S.Ct. 353, 3 L.Ed.2d 352 (1959). We refrain from taking such a position in this case, however. The parties have not fully argued the need for a less stringent standard when the Attorney General sues as supervisor of charitable trusts. But in any event, this is a question of state law in a federal court, and “we find no persuasive indication in the opinions of the Supreme Court of Pennsylvania that it is prepared to make such an extension of established doctrine. Such a course may be desirable. But it is not now sufficiently foreshadowed in * * * Pennsylvania law * * Jamison v. City of Pittsburgh, 360 F.2d 162, 163 (C.A. 3, 1966). The Pennsylvania courts have given great weight to the principle of finality in litigation. They have sometimes insisted on exact concurrence of the “four identities” of (1) “the thing .sued for”; (2) the cause of action; (3) the parties; and (4) “the quality in the persons for or against whom the claim is made.” Cameron Bank v. Aleppo Township, 338 Pa. 300, 304, 13 A.2d 40, 41 (1940); Fisher Building Permit Case, 355 Pa. 364, 368, 49 A.2d 626 (1946). More often, however, minor differences in the form of the proceedings, in the allegations and in the relief have been disregarded in order to avoid relitigation. See, e. g., Stevenson v. Silverman, 417 Pa. 187, 208 A.2d 786 (1965), cert. denied, 382 U.S. 833, 86 S.Ct. 76, 15 L.Ed.2d 76 (1965); Downing v. Halle Bros. Co., 395 Pa. 402, 150 A.2d 719 (1959); Helmig v. Rockwell Mfg. Co., 389 Pa. 21, 131 A.2d 622 (1957), cert. denied, 355 U.S. 832, 78 S.Ct. 46, 2 L.Ed.2d 44 (1957); Wallace’s Estate, 316 Pa. 148, 174 A. 397 (1934); Havir’s Estate, 283 Pa. 292, 129 A. 101 (1925). Such departures from strict conceptualism serve to point up the pervasive Pennsylvania policy that the purpose of res judicata is to prevent “ ‘ * * * a second trial on the same cause between the same parties. The thing which the court will consider is whether the ultimate and controlling issues have been decided in a prior proceeding in which the present parties actually had an opportunity to appear and assert their rights. If this be the fact, then the matter ought not to be litigated again * * ” Stevenson v. Silverman, 417 Pa. 187, 192, 208 A.2d 786, 788 (1965), cert. denied, 382 U.S. 833, 86 S.Ct. 76, 15 L.Ed.2d 76 (1965) (emphasis omitted). See also Williamson v. Columbia Gas & Electric Corp., 186 F.2d 464, 467 (C.A. 3, 1950), cert. denied, 341 U.S. 921, 71 S.Ct. 743, 95 L.Ed. 1355 (1951). We are not at liberty to dispense with state policies so unequivocally stated, in the absence of any indication whatever that the rules might be different for the Attorney General. Cf. REST. JUDGMENTS §,78, comment d (1942). No such indication can be discerned. Indeed, in Duquesne Light Co. v. Pittsburgh Rys. Co., 413 Pa. 1, 5-6, 194 A.2d 319 (1963), the Pennsylvania Supreme Court held broadly that the defense of illegality is encompassed in the doctrine of res judicata like other defenses. Applying these principles to the instant case, it must be concluded that the Attorney General, the Commonwealth and the City are precluded by res judicata from claiming that Girard College is violating the Pennsylvania Public Accommodations Act. It' is contended by these plaintiffs that the present suit rests on a new cause of action, based on a new wrong consisting of the denial of admission to the individual plaintiffs in December 1965. This position cannot be sustained. The Pennsylvania courts have assiduously avoided exceptions to res judicata based on purely formal differences in causes of action. While the minor plaintiffs’ right to sue may derive from the events of December 1965, the governmental plaintiffs’ rights of action arose from the continuing policy of restrictive admissions which was the very reason for the substitution of trustees. Nothing new has occurred since that would make the operation of Girard College on that basis any more a violation of the statute than it might have been at the time of the substitution of trustees. Plaintiffs argue, however, that