Evans v. Newton Brief for Petitioners

    I n  t h e

Supreme (Emrrt of %  States
O ctober T erm , 1965

No. 61

E . S. E vans , et al..
Petitioners,

—v.—

Charles E . N ew ton , et al.

ON W R IT  OF CERTIORARI TO T H E  SU PRE M E  COURT OF GEORGIA

BRIEF FOR PETITIONERS

J ack Greenberg 
J ames M. N abrit, III 
M ich ael  M eltsner 
C harles S teph en  R alston 
F ran k  H , H effron

10 Columbus Circle 
New York, New York 10019

D onald L. H ollowell 
W illiam  H . A lexander 
H oward M oore, J r .

859% Hunter Street, N.W. 
Atlanta, Georgia 30314

Attorneys for Petitioners



I N D E X
PAGE

Opinion Below ......................................................   1

Jurisdiction ...........................   1

Question Presented ............................................................ 2

Constitutional and Statutory Provisions Involved.......  2

Statement .............................................................................  4

Summary of Argument ....................................................  7

A rgument

I. A Park Established by Testamentary Trust, 
in Conformity With a Statute Authorizing and 
Encouraging Eacial Restrictions, Cannot Ex­
clude Negroes as a Class ..................................  9

II. City Officials Are Directly Responsible for Ex­
clusion of Negroes Prom Baconsfield................. 15

III. In Deciding an Issue of State Law, the Courts 
of Georgia Accorded the Racial Limitation in 
Bacon’s Will a Deference Inconsistent With
Supreme Federal Law ........... .............................. 19

IV. Baconsfield Is a Public Facility From Which
Negroes Cannot Be Excluded..............................  22

V. The Charitable Trust in This Case Is so Much 
the Creature of the State and so Related to 
an Inherently Public Aspect of Community 
Life as to Be Governed by the Fourteenth 
Amendment Prohibition of Racial Discrimina­
tion  ....................................................................... ..............  26

C onclusion   ................................... ............... .............................  31



T able of Ca se s :
p a g e

Anderson v. Albany, 321 F. 2d 649 (5th Cir. 1963) 
Anderson v. Martin, 375 U. S. 399 ................

Barrows v. Jackson, 346 U. 8. 249 ........... ............. ...... .
Bell v. Maryland, 378 IT. S. 226 ...................... ........... .
Brown v. Board of Education, 347 IT. S. 483 
Burbank v. Burbank, 152 Mass. 254, 25 N. E. 427

(1890) ............................. ........... .... ......... ....... ........ ......
Burton v. Wilmington Parking Authority, 365 IT. S. 

715 ..............- .................................................. 7, 13,14,18,

Cooper v. Aaron, 358 IT. S. 1
Cox v. De Jarnette, 104 (la. App. 664, 123 S. E. 2d 16

(1961) ........ ........................... ..................... .................
Cresson’s Appeal, 30 Pa. 437 (1858) ........ ..........

Derrington v. Plummer, 240 F. 2d 922 (5th Cir. 1956), 
cert, denied sub nom. Casey v. Plummer, 353 U. S.
924 ......... .......................... ...... ................. .......................IS.

Eaton v. Grubbs, 329 F. 2d 710 (4th Cir. 1964) ...........8,
Emory University v. Nash, 218 Ga. 317, 127 S. E. 2d

798 (1962) .............. ..... ............. .......... ........... ...........
Estate of Stephen Girard, 391 Pa. 434, 138 A. 2d 844 

(1958), appeal dismissed and cert, denied, 357 U. S. 
570 ....................................... ........... ........ ...... .............. .

Fox v. North Carolina, 378 IT. S. 587 ________________

Gantt v. Clemson Agricultural College, 320 F. 2d 611
(4th Cir. 1963) ................. .............. ........ ............ .........

Goree v. Georgia Industrial Home, 187 Ga. 368, 200 
S. E. 684 (1938)

23
13

13
24
23

12

,30

21

29
12

19

25

18

19

13

13

27



PAGE

Griffin v. School Board, 377 U. S. 218 ........................... 19
Guillory v. Administrators of Tulane University, 212 

F. Supp. 674 (E. D. La. 1962) ..................................  17

Hague v. CIO, 307 U. S. 496 ....... ..................... .............  25
Holmes v. Atlanta, 350 U. S. 879 ............................ . 23
Hampton v. Jacksonville, 304 F. 2d 320 (5th Cir. 1962), 

cert, denied sub nom. Ghioto v. Hampton, 371 U. S.
911 .....................................................................................  19

Jones v. Atlanta, 35 App. 376, 133 S. E. 521 (Ga. Ct.
App. 1926) ............ ............ ....... .......................... ............  29

Jones v. Habersham, 107 U. S. 179 .............................. . 12

Lackland v. Walker, 151 Mo. 210, 52 S. W. 414 (1899) 12
Law v. Jekyll Island State Park Authority, C. A.

No. 8579 (N. D. Ga., July 27, 1964) ........ ..................  23
Lester v. Jackson, 69 Miss. 887, 11 So. 114 (1892) ------ 12
Lombard v. Louisiana, 373 U. S. 267 ........................ ..13, 24

Marsh v. Alabama, 326 U. S. 501 ........................ .8, 23, 24, 26
Morehouse College v. Russell, 219 Ga. 717, 135 S. E.

2d 432 (1964) ........................... ...................................... 29
Morehouse College v. Russell, 109 Ga. App. 201, 136

S. E. 2d 179 (1964) ............ ................... ........ .............  29
Muir v. Louisiana Park Theatrical Ass’n, 347 U. S.

971 ............................................................................. -......  23
Murphy v. Johnston, 190 Ga. 23, 8 S. E. 2d 23 (1940) .... 29

N A A CP v. Alabama ex rel. Patterson, 357 U. S. 449 .... 11 
New Orleans City Park Improv. Ass’n v. Detiege, 358 

U. S. 5 4 .............................................................................  23

Pace v. Dukes, 205 Ga. 835, 55 S. E. 2d 367 (1949) ..... 29
Parrot v. Tallahassee, 381 U. S. 129 ............. ..... ........  13

iii



I V

Pennsylvania v. Board of Directors of City Trusts, 353
r . s. 230 ............. ......................... .............. ................ 8,15, 20

Peterson v. Greenville, 373 U. S. 244 ......... ......... .7,13, 26

Regents of University System v. Trust Co. of Georgia,
186 Ga. 498, 198 S. E. 345 (1938) ............. .................  29

Rice University v. Carr, 9 Race Rel. L. Rep. 613 (D. G. 
Harris County, Tex. 1964), appeal dismissed, No.
14,472 (Tex. Ct. Civ. App. 1965) ..............................  17

Robinson v. Florida, 378 U. S. 153 .................. .7,10,13, 26

Shelley v. Kraemer, 334 U. S. 1 .......................... 8,16, 20, 26
Simkins v. Moses H. Cone Memorial Hospital, 323 F. 2d 

959 (4th Cir. 1963), cert, denied, 376 U. S. 938 ....8, 24, 25 
Simpson v. Anderson, 220 Ga. 155, 137 S. E. 2d 638

(1964) ...................... ............... .............. ........ ........... ......  27
Smith v. Holiday Inns of America, Inc., 336 F. 2d 630

(6th Cir. 1964) ......... .......... ........ .............. .......... ........  19
Stubbs v. City of Macon, 78 Ga. App. 237, 50 S. E. 2d 

866 (1948) ..................... ............... ...... ....................... . 29

PAGE

Tate v. Department of Conservation and Development,
231 F. 2d 615 (4th Cir. 1956) _____ _______________  19

Turner v. Memphis, 369 U. S. 350 ...... ............................  18

Watson v. Memphis, 373 U. S. 526 ........................ .........  23
Williams v. North Carolina, 378 U. S. 548 ............... 13
Wright v. Georgia, 373 U. S. 284 ...... ....... ....................  23



V

S t a t u t e s :

28 U. S. C. §1257(3) ............................................ -...... . 1

Georgia Constitution 1877, Art. 7, See. 2, Par. 1, (Ga. 
Code §2-5001) ................................................................. 28

Georgia Constitution 1945, Art. 7, See. 1, Par. 4, (Ga. 
Code §2-5404) .... .................. ..................... .....................  28

Georgia Code:
§69-301 ............................................................................ 29
§69-502 (Acts 1892, p. 104) ....... .............. ............. . 12
§69-504 (Acts 1905, p. 117) ............ 3,10,11,12,13,14,

22, 24, 25, 27, 29
§69-505 (Acts 1905, pp. 117-18) ...................3,10,11, 22
§69-601 to 69-616..........................................................  24
§85-707 ................................................................    29
§92-201 ...................     28
§108-201 ............          27
§108-202 ................................................. ........................  27
§108-203 ................................................................    12
§108-204 .................................................     27
§108-212.................................... ..................................... 28

Georgia Acts:

1870, p. 398 ...............     11
1874, p. 109 ...... ..................... ......................... ............  11
1887, p. 68 ................................. .......... ................ - ....  11
1889, p. 124 ......... ............. ............... .................. ........  11
1890-91, p. 213 ..................       11
1890-91, Yol. I, p. 114 ........................ .......... ........... . 11
1894, p. 31 .................... ........ .....................................  11
1894, pp. 115, 117 ..... ............. ....... ........................... 11
1897, pp. 71, 73 ................................. .................. .....  11
1908, p. 58 ........................... .......... ............... ........... . 11
1956, No. 20, Yol. I, p. 22 .......................................   23

PAGE



VI

O th er  A u t h o r it ie s :
p a g e

Clark, Charitable Trusts, the Fourteenth Amendment 
and the Will of Stephen Grirard, 66 Yale L. J. 979
(1957) ................................................................... ........ . 30

4 Scott, Trusts (2d ed. 1956) ..................... ...... .......  \2



I n  t h e

£htprm? (ta rt of tlrr Initrti i ’tatro
O ctober T erm , 1965 

No. 61

E. S. E vans, et al.,

—v.—

Charles E . N ew to n , et al.

Petitioners,

ON W R IT  OP CERTIORARI TO T H E  SU PRE M E  COURT OF GEORGIA

BRIEF FOR PETITIONERS

Opinion Below

The opinion of the Supreme Court of Georgia (R. 81) 
is reported at 220 Ga. 280, 138 S. E. 2d 573.

Jurisdiction

Judgment of the Supreme Court of Georgia was entered 
on September 28, 1964 (R. 81). Rehearing was denied 
October 8, 1964 (R. 92). On December 22, 1964, Mr. Justice 
Stewart extended the time for filing the petition for writ 
of certiorari to and including March 5, 1965. The petition 
for writ of certiorari was filed March 5, 1965, and granted 
April 26, 1965 (R. 93-94).

The jurisdiction of this court is invoked pursuant to 
28 IT. S. C. §1257(3), petitioners having asserted below



2

and asserting here denial of rights, privileges and immuni­
ties secured by the Fourteenth Amendment to the Consti­
tution of the United States.

Question Presented

Where (a) Georgia’s Legislature expressly authorized 
the establishment of racially restricted public parks 
through testamentary charitable trusts;

(b) following creation of such a park and continuous 
ownership and management by the City of Macon and its 
agents, city officials took all necessary steps to place the 
park in private hands for the express purpose of continuing 
operation of the park on a segregated basis;

(c) the courts of Georgia enforced the will provision 
directing exclusion of Negroes in preference to a conflict­
ing provision directing perpetual ownership by the city;

(d) the park established by charitable trust is in all 
respects a public facility and part of the public life of the 
community; and

(e) the charitable trust is endowed by the state with 
judicial administration, tax exemption, perpetual existence, 
and tort immunity:

can the substitution of private trustees to operate the park 
for white persons only be reconciled with the Fourteenth 
Amendment ?

Constitutional and Statutory Provisions Involved

This case involves Section 1 of the Fourteenth Amend­
ment to the Constitution of the United States.

This case also involves the following statutes of the 
State of Georgia:



3

Ga. Code §69-504 (1933) (Acts, 1905, p. 117):

Gifts for public parks or pleasure grounds.-—Any 
person may, by appropriate conveyance, devise, give, 
or grant to any municipal corporation of this State, in 
fee simple or in trust, or to other persons as trustees, 
lands by said conveyance dedicated in perpetuity to 
the public use as a park, pleasure ground, or for other 
public purpose, and in said conveyance, by appropriate 
limitations and conditions, provide that the use of 
said park, pleasure ground, or other property so 
conveyed to said municipality shall be limited to the 
white race only, or to white women and children only, 
or to the colored race only, or to colored women and 
children only, or to any other race, or to the women 
and children of any other race only, that may be 
designated by said devisor or grantor; and any person 
may also, by such conveyance, devise, give, or grant 
in perpetuity to such corporations or persons other 
property, real or personal, for the development, im­
provement, and maintenance of said property.

Ga. Code §69-505 (1933) (Acts, 1905, pp. 117, 118) :

Municipality authorised to accept.—Any municipal 
corporation, or other persons natural or artificial, as 
trustees, to whom such devise, gift, or grant is made, 
may accept the same in behalf of and for the benefit 
of the class of persons named in the conveyance, and 
for their exclusive use and enjoyment; with the right 
to the municipality or trustees to improve, embellish, 
and ornament the land so granted as a public park, 
or for other public use as herein specified, and every 
municipal corporation to which such conveyance shall 
be made shall have power, by appropriate police 
provision, to protect the class of persons for whose 
benefit the devise or grant is made, in the exclusive 
used (sic) and enjoyment thereof.



4

Statement

The will of Augustus Octavius Bacon, a United States 
senator from Georgia, executed March 28, 1911 (R. 10-28), 
provided for a gift of real property to the City of Macon 
as owner and trustee to maintain a public park for the 
white women and children of the City of Macon.1 A Board 
of Managers appointed by the mayor and council (E. 19) 
was to operate the park. The will set aside a separate 
fund in trust to defray expenses of administering the park 
(R. 20). The park, named Baconsfield, was operated in 
accordance with the racial limitation in Bacon’s will until 
the spring of 1963, when Negroes began using it (R. 8, 33). 
Shortly thereafter, the present suit was instituted by some 
of the respondents to enforce the racial limitation and to 
exclude Negroes again from the park.

May 4, 1963, Charles E. Newton and other members of 
the Board of Managers of Baconsfield filed a petition in 
the Superior Court of Bibb County, Georgia, requesting 
removal of the City of Macon as trustee, appointment of 
new trustees, and transfer of title in Baconsfield to the 
new trustees. Named as defendants were the City of Macon 
and the trustees of certain residuary legatees of Bacon’s 
estate, the Curry heirs. Plaintiff's sought expressly to 
enforce the racially discriminatory terms of Bacon’s will 
(R. 5-10).

The Ctiy of Macon answered (R. 32) admitting most 
allegations of the petition, but claiming “no authority to 
enforce racially discriminatory restrictions with regard to 
property held in fee simple or as trustees for a private 
or public trust and, as a matter of law, [being] prohibited

1 The Board of Managers was given discretion to open the park to white 
men and white non-residents of Macon (R, 20), and this power was exer­
cised (R. 7-8).



5

from enforcing such racially discriminatory restrictions” 
(R. 33). Defendant trustees for the Curry heirs answered 
admitting all allegations of the petition and joining in 
“each and every prayer of said petition” (E. 34-35); these 
defendants were represented by the same counsel as plain­
tiff members of the Board of Managers (R. 10, 35). Plain­
tiffs then filed a motion for summary judgment (R. 35).

May 29, 1963, petitioners here, Rev. E. S. Evans and 
five other Negro citizens of Macon, moved to intervene. 
For the first time a diversity of interest appeared in the 
lawsuit (R. 36). The intervenors alleged that to appoint 
new trustees to comply with the racial limitation in Bacon’s 
will would violate the Fourteenth Amendment (R. 40). 
They requested that the Superior Court “ effectuate the 
general charitable purpose of the testator to establish and 
endow a public park within the City of Macon by refusing 
to appoint private persons as trustees” (R. 41).

January 8, 1964, plaintiff members of the Board of 
Managers amended their original petition, requesting that 
all Negroes be enjoined from using the park (R. 42-43). 
The amendment also requested that four previously un­
represented residuary legatees under Bacon’s will, the 
Sparks heirs (R. 44), be added as plaintiffs and that the 
trustees of the Curry heirs, originally joined as defendants, 
be permitted to assert the Curry heirs’ interests as plain­
tiffs (R. 44). Simultaneously, the Sparks heirs intervened, 
asking that all relief requested by the original plaintiffs 
be granted (R. 45-46). At the same time, the trustees for 
the Curry heirs concurred in asking to be allowed to assert 
their interests as plaintiffs, and joined in all of plaintiffs’ 
prayers for relief (R. 47-48). The Sparks heirs and the 
trustees for the Curry heirs, all of whom were represented 
by counsel for the plaintiff board members, asked for 
reversion of the trust property into Bacon’s estate if other 
relief were denied (R. 47, 49).



6

February 5, 1964, the City of Macon, the only defendant 
making any pretense of defending the suit, amended its 
answer to state that it had resigned as trustee of Bacons- 
field (R. 50) pursuant to resolution of the mayor and 
council on February 4, 1964 (R. 51-61), and requesting the 
court’s acceptance of its resignation and the appointment 
of substitute trustees (R. 50-51).

On May 5, 1964, the Negro intervenors amended their 
petition, alleging that the Fourteenth Amendment would 
be violated if the relief sought by the other parties were 
granted (R. 62-63). Intervenors asked the court to “with­
hold approval of the attempted resignation of the City of 
Macon as trustee under the will of A. 0. Bacon, [and] 
direct the City of Macon to continue to fulfill this para­
mount constitutional obligation to administer the park on 
a racially non-discriminatory basis . . . ” (R. 63).

No evidentiary hearing was held. The Superior Court 
issued its decree2 March 10, 1964, allowing intervention

2 The Superior Court also issued a letter opinion, reprinted in the Peti­
tion for Writ of Certiorari, pp. lla-12a, which was as follows:

After careful consideration of the Motion for Summary Judgment 
in the above stated ease, I have reached the following conclusions:

The racial limitation in Senator A. 0. Bacon’s will is not unlawful 
for any reason as contended by the intervenors, Reverend E. S. Evans, 
et al.

The inability of the City of Macon, as Trustee, to apply constitu­
tionally the racial criterion prescribed by the testator for use of the 
property as a park for white women and white children affected the 
trustee and not the trust, and the City having tendered its resigna­
tion as trustee, it is proper that the Court accept the resignation and 
appoint private trustees who can carry out the purpose and intent 
of the testator as set forth in the will.

It is my opinion that the doctrine of Cy Pres cannot be applied to 
Baconsfield. There is no general charitable purpose expressed in the 
will. It is clear that the testator sought to benefit a certain group of 
people, i.e., “ the white women, white girls, white boys and white 
children of the City of Macon” , and it is clear that he sought to 
benefit them only in a certain way, i.e., by providing them with a 
park or playground. Senator Bacon could not have used language 
more clearly indicating his intent that the benefits of Baconsfield 
should be extended to white persons only, or more clearly indicating



nt

by all who requested it, accepting the resignation of the 
City of Macon as trustee of Baeonsfield, appointing three 
private individuals as new trustees, and retaining jurisdic­
tion (R. 64-65). No ruling was made on the requests that 
Negroes be enjoined from using the park. The conditional 
prayers for reversion of the trust property were held moot 
(R. 65).

Negro intervenors, petitioners here, appealed to the Su­
preme Court of Georgia. On September 28, 1964, the 
Supreme Court of Georgia affirmed the judgment of the 
Superior Court of Bibb County (R. 81, 89). A  motion for 
rehearing was denied on October 8, 1964 (R. 92).

Summary of Argument

Before Senator Bacon wrote his will creating Bacons- 
field for white persons only, Georgia enacted Ga. Code 
§69-504, expressly authorizing gifts of land to public or 
private trustees for the establishment of racially restricted 
public parks. The natural tendency of the statute was to 
encourage if not to force testators to specify segregation, 
and under the principles announced in Peterson v. Green­
ville, 373 U. S. 244 and Robinson v. Florida, 378 U. S. 153, 
the testator’s personal preference for segregation, if any, 
must be disregarded. By placing its authority behind dis­
criminatory classification based solely on color, the state 
denies equal protection of the laws. Burton v. Wilmington 
Parking Authority, 365 IT. S. 715, 726, 727 (concurring and 
dissenting opinions).

that this limitation was an essential and indispensable part of his plan 
for Baeonsfield.

The Court has, therefore, this day signed and filed with the Clerk 
of this Court an order and decree, a copy of which is herewith 
enclosed.



8

The actions of the Board of Managers of Baconsfield 
and the Mayor and Council of the City of Macon repre­
sent a glaring illustration of state action to enforce segre­
gation. As owner and trustee, the city through the board 
operated Baconsfield for white persons in violation of 
Pennsylvania v. Board of City Trusts, 353 U. S. 230. In 
1963, when Negroes went on the property, rather than 
treat the racial limitation as absolutely void, the city and 
board went to court to enforce it. This contravened Shelley 
v. Kraemer, 334 U. S. 1, and Bacon’s stated intent that the 
city retain perpetual control. By submitting its resigna­
tion, the city transferred public property to private persons 
for the invidious purpose of assuring continued segrega­
tion.

Georgia’s courts violated the Fourteenth Amendment by 
enforcing the racial limitation in Bacon’s will. Shelley v. 
Kraemer, supra. Under Pennsylvania v. Board of City 
Trusts, supra, that limitation was null and void, but the 
courts below gave it effect although it was in direct conflict 
with another provision of Bacon’s will directing perpetual 
ownership by the city. In doing so, the courts acted in 
defiance of the Constitution which forbids a state to imple­
ment segregation.

As a public facility operated for the benefit of the com­
munity, Baconsfield cannot be restricted to white persons 
under the Fourteenth Amendment. Like the company town 
in Marsh v. Alabama, 326 U. S. 501, Baconsfield, even if 
owned by private trustees, is similar in all respects to 
facilities owned and operated by the state. Like the hos­
pitals in Simkins v. Moses H. Cone Memorial Hospital, 
323 F. 2d 959 (4th Cir. 1963) cert, denied 376 U. 8. 938 
and Eaton v. Grubbs, 329 F. 2d 710 (4th Cir. 1964), 
Baconsfield fulfills an essential public function that might 
othex*wise have to be performed by the state. Moreover,



9

Baconsfield is so much a part of the public life of the 
community that whether owned by public or private in­
terests, exclusion of one. race is inconsistent with the Four­
teenth Amendment.

As a charitable trust given significant state protection 
in the form of judicial administration, tax exemption, 
perpetual existence and tort immunity, Baconsfield must 
be subjected to special scrutiny before being permitted 
to exclude Negroes. While all charitable trusts are simi­
larly favored the court need not deeide whether all arbi­
trary discriminations are forbidden in all such trusts. But 
when a charitable trust receiving these advantages has 
been created pursuant to a state policy of segregation, 
has been operated by the state on a segregated basis, 
has been turned over to private control to continue segre­
gation, and has created a facility of an inherently public 
nature, that trust cannot be allowed to perpetrate the very 
type of arbitrary discrimination proscribed by the Four­
teenth Amendment.

ARGUMENT

I.

A Park Established by Testamentary Trust, in Con­
form ity With a Statute Authorizing and Encouraging 
Racial Restrictions, Cannot Exclude Negroes as a Class.

The Bibb County Superior Court accepted the City of 
Macon’s resignation and appointed private trustees, be­
lieving they could enforce the racial restriction in Bacon’s 
will forbidden to the city by the Constitution. Finding 
the racial limitation “ essential and indispensable,” (supra 
p. 7) the court approved the change in trustees as the 
way to preserve the limitation without violating the Con­



10

stitution. The court’s conclusion that private trustees 
could do what the city might not does not stand the test 
of examination. The state’s encouragement and sanction­
ing of segregated parks through passage of Ga. Code 
§69-504 invalidates enforcement of the racial restriction 
whether Baconsfield is operated by public or private 
trustees. Cf. Robinson v. Florida, 378 U. S. 153.

In 1905 Georgia’s Legislature enacted what is now Ga. 
Code §69-504 (Acts 1905, p. 117), authorizing the convey­
ance of land to be “dedicated in perpetuity to public use 
as a park, pleasure ground, or other public purpose . . . ” 
The conveyance could be by “devise, gift, or grant,” in 
fee simple to a municipal corporation or in trust to a 
municipal corporation or other persons. The statute ex­
pressly authorized limitation of use of conveyed property 
“to the white race only, or to white women and children 
only, or to the colored race only, or to colored women and 
children only, or to any other race, or to the women and 
children of any other race only.” A companion statute 
empowered municipalities to accept such gifts and “by 
appropriate police provision, to protect the class of persons 
for whose benefit the devise or grant is made, in the ex­
clusive use and enjoyment thereof.” Ga. Code §69-505 
(Acts 1905, pp. 117-18).

In 1911 Senator Augustus Octavius Bacon followed the 
provisions of §69-504, providing in his will a gift of land 
to the City of Macon

in trust for the sole, perpetual and unending, use, 
benefit and enjoyment of the white women, white 
girls, white boys and white children of the City of 
Macon to be by them forever used and enjoyed as a 
park and pleasure ground, . . . (R. 19).



11

The similarity between the statute and the will leaves 
no doubt that Senator Bacon was seeking to assure per­
petual enforcement of the trust by strict compliance with 
every aspect of §69-504. Bacon was taking no chances that 
there might be a failure of the trust. The close connection 
between Georgia’s statute and Senator Bacon’s carefully 
drawn will defeats any possible argument that Baconsfield 
is the product of purely private action. As in NAACP v. 
Alabama ex rel. Patterson, 357 U. S. 449, 463, “ the crucial 
factor is the interplay of governmental and private action.”

It is argued that §69-504 had nothing to do with Bacon’s 
decision to limit use of the park to one race, and Bacon’s 
will did express his view that “in their social relations 
with two races . . . should be forever separate” (R. 21). 
But the statute obviously encouraged racial restrictions 
and strongly implied that a trust for unrestricted parks 
would not be upheld. In 1911 there was no judicial con­
struction of the act, and nothing in the statute itself in­
dicated it was permissive rather than mandatory. The 
statute was passed at a time when Georgia was requiring 
segregation in many other areas.3 Its companion statute 
expressly authorized use of the police power to enforce 
racial limitations in municipal parks, Ga. Acts 1905, pp. 
117-18, now Ga. Code §69-505. Certainly, §69-504’s listing 
of six types of authorized racial limitations, considered in 
light of the maxim inclusio unius est exclusio alterius, was 
an awesome portent that Georgia would not tolerate un­
segregated parks.

3 E.g’., Ga. Acts 1870, p. 398 (segregation on railroads and other common 
carriers); Ga. Acts 1887, p. 68, and Acts 1889, p. 124 (school segrega­
tion) ; Ga. Acts 1890-91, Vol. I, p. 114 (segregation in state university); 
Ga. Acts 1894, pp. 115, 117 and Acts 1908, p. 58 (segregation of names 
on voting lists); Ga. Acts 1894, p. 31 and Acts 1874, p. 109 (segregated 
tax returns); Ga. Acts 1897, pp. 71, 73 and Acts 1890-91, p. 213 (segrega­
tion of prisoners).



12

The significance of §69-504 is best understood when 
considered against the background of prior Georgia law. 
As respondents concede, Georgia had long enforced charita­
ble trusts, see Jones v. Habersham, 107 U. 3. 179, and mu­
nicipalities had been authorized to act as trustees of such 
trusts in 1892. Ga. Acts 1892, p. 104, now Ga. Code, §69-502. 
There were thus only a limited number of possible reasons 
for enactment of §69-504: to make it plain that creation 
of a park was a valid charitable purpose, to require that 
parks established under charitable trusts be restricted to 
one race, or to encourage racial restrictions by making it 
clear that segregated parks would be acceptable. It is 
unlikely that §69-504 was passed merely to validate parks 
as charitable trusts. An old Georgia law, now Code §108- 
203, defining charitable purposes does not expressly men­
tion public parks, but no previous Georgia cases had re­
fused to recognize them as charitable, and courts in several 
other states had accepted them.4 * However, it was far 
from clear that a park restricted to one race would be 
considered charitable. Traditionally, only trusts for edu­
cational or religious purposes, or for aid of the poor, 
could be limited to a restricted class; trusts for other, or 
“community benefit,” purposes would not be recognized 
unless their facilities were open to all members of the 
community. See 4 Scott, Trusts, p. 2715, §375.2 (2d ed. 
1956). See also id., p. 2650 (§371) and p. 2660 (§371.6). 
Section 69-504 turned the law of trusts upside down, creat­
ing serious doubts that trusts for parks open to the whole 
community would be enforced, and establishing that ra­
cially restricted parks were acceptable to the state. 
Whether the racial provision of §69-504 is viewed as manda­

4 Cresson’s Appeal, 30 Pa. 437 (1858) ; Lackland v. Walker, 151 Mo.
210, 52 S. W. 414 (1899) ; Burbank v. Burbank, 152 Mass. 254, 25 N. E. 
427 (1890) ; cf. Lester v. Jackson, 69 Miss. 887, 11 So. 114 (1892).



13

tory or permissive, Georgia’s legislature obviously served 
the cause of segregation by enacting it.

Whatever the construction eventually placed upon it, 
§69-504 could only encourage testators to encumber their 
charitable trusts with racial restrictions. Thus Georgia 
shares with Senator Bacon the responsibility for exclusion 
of Negroes from Baconsfield. When segregation by private 
persons is required by statute or ordinance, Peterson v. 
Greenville, 373 U. S. 244, 248; or executive command, 
Lombard v. Louisiana, 373 U. S. 267; or encouraged5 by 
administrative regulation, Robinson v. Florida, 378 U. S. 
153, private motivation is overshadowed by the state’s 
intervention. See also Parrot v. Tallahassee, 381 U. S. 
129; Fox  v. North Carolina, 378 U. S. 587; Williams v. 
North Carolina, 378 U. S. 548.

The state’s encouragement of private discrimination is 
much more effective here than in Robinson, where the 
state required racially separate restrooms if both races 
were served or employed. A private decision to integrate 
a restaurant could easily be effectuated in Florida by 
installing separate restroom facilities, if indeed the restau­
rant did not already have them for Negro employees. But 
there was no way for a testator in Georgia to be assured 
that his trust would be upheld if he did not direct the 
exclusion of one race from the park.

Support for petitioners’ position can be also found in 
the views expressed by several members of this Court in 
Burton v. Wilmington Parking Authority, 365 U. S. 715. 
Justice Stewart, concurring, 365 U. S. at 726, read the 
decision below as construing a Delaware statute to au- 6

6 In other contexts, this Court has proscribed encouragement of discrim­
ination by the state. Anderson v. Martin, 375 U. S. 399; Barrows v. Jack- 
son, 346 U. S. 249, 254. See also Gantt v. Clemson Agricultural College, 
320 F. 2d 611, 613 (4th Cir. 1963).



14

thorize “discriminatory classification based exclusively on 
color,” and thus “clearly violative of the Fourteenth 
Amendment.” 365 U. S. at 727. Justices Frankfurter, 
Harlan, and Whittaker could not accept the premise but 
agreed with the conclusion. 365 IT. S. at 727, 728. As 
Justice Frankfurter wrote, “For a State to place its au­
thority behind discriminatory treatment based solely on 
color is indubitably a denial by a State of the equal pro­
tection of the laws.” 365 U. S. at 727 (dissenting opinion). 
Here, certainly, is a statute authorizing discriminatory 
classification based exclusively on color and thus violative 
of the Constitution.6

It has been noted above that §69-504 authorized gifts to 
private trustees, as well as municipalities, for establish­
ment of public parks. Had Bacon given his land to private 
trustees rather than the city it is just as clear that the 
racial limitation, inspired and sanctioned by the state, 
could not be enforced. Thus, contrary to the reasoning 
of respondents and the courts below, the transfer of 
Baeonsfield from public to private trustees had no effect 
whatever on the enforceability of the racial clause in 
Bacon’s will, and to effect that transfer was erroneous. 
Petitioners, who resisted that transfer in the courts below, 
complain not only because the court’s action was erroneous, 
but also because it was injurious to them and all Negroes 
in Macon. The Superior Court transferred ownership in 
Baeonsfield from the city, which had acknowledged an in­
ability to enforce the limitation, to private trustees whose 
very existence is dependent upon an understanding—albeit 
erroneous—that they could exclude Negroes with impunity. 6

6 In Burton, the dissenting justices thought Delaware’s statute might be 
merely declaratory of the common law which allowed a restaurant to ex­
clude any person for any reason. In this case the statute is not ambiguous. 
It speaks in terms of white and colored. Delaware’s statute made no refer­
ence to race, nor did its Supreme Court in stating the common law.



15

II.

City Officials Are Directly Responsible for Exclusion 
of Negroes From Baconsfield.

This lawsuit is a superb example of concerted action by 
state officials to enforce segregation. Compliance with 
Senator Bacon’s racial restriction by the City of Macon as 
owner and trustee, and by the city-appointed Board of 
Managers, was precluded by the decision in Pennsylvania. 
v. Board of Directors of City Trusts, 353 U. S. 230. But 
rather than comply with the Constitution and treat the 
racial restriction as pro non scripto, just as segregation 
statutes are dead letters today, city officials devised means 
of warding off Negro use of the park.

First, the Board of Managers of Baconsfield petitioned 
the Superior Court to replace the city as trustee. Its case 
was bottomed on the racial language of Bacon’s will; no 
reason was offered except that the city was not limiting 
the park to white persons. The ultimate power of appoint­
ing board members resided with the city. Thus, a state 
agency was petitioning a court to effect a change in a 
charitable trust to exclude Negroes from a place of public 
recreation.

The defendant City of Macon could find no reason to 
object to its displacement. Its answer merely admitted the 
petition’s allegations and apologized for the city’s consti­
tutional disability to eject Negroes. Raising no defenses, 
the city placidly acquiesced in divestment of its title to the 
property and its power to appoint members of the Board 
of Managers, despite Senator Bacon’s stern injunction that 
the property was “under no circumstances, or by any au­



16

thority whatsoever, to be sold or alienated or disposed of. 
. . . ” (R. 19). Apparently, the city decided not to assert the 
defense that transfer of its property to discriminate racially 
would violate the Fourteenth Amendment.

Following Negro petitioners’ intervention, the city 
adopted another stance and submitted its resignation to the 
court. In its resolution authorizing the resignation, the city 
offered as its principal reason that the city deemed “ it to 
be in the public interest that Baconsfield be operated and 
maintained for the benefit of the public rather than for 
private benefit or profit” and without the city’s withdrawal 
“the property may revert” to Bacon’s heirs “in which case 
Baconsfield would become commercial or residential prop­
erty or property wherein no part of the public would have 
the enjoyment of the property . . . ” (B. 60). Thus, the city 
was taking affirmative action, in the name of “the public 
interest,” to preserve a park for “part of the public”—the 
white part. Assuming that the city was faced with a hard 
choice between no park at all and one for whites only, it 
takes a weird construction of the Fourteenth Amendment to 
say a subdivision of the state can opt for the latter.

The city had several alternatives consistent with the 
Fourteenth Amendment and in harmony with the interests 
of its white as well as Negro citizens. It could have resisted 
the board’s petition with a powerful argument that destruc­
tion of its title by the Superior Court for purposes of en­
forcing segregation would violate the Fourteenth Amend­
ment under the rule established in Shelley v. Kraemer, 334 
U. S. 1. The city also should have urged that the racial 
limitation in Bacon’s will must fall for its inconsistency 
with other provisions of the will manifesting Bacon’s intent 
that the city never surrender control of Baconsfield.

Bacon had described the city’s interest in the property 
as comprehending:



17

all right, title and interest in and to said property 
hereinbefore described and bounded, both legal and 
equitable, including all remainders and reversions and 
every estate in the same of whatsoever kind. . . . (R. 19).

The property was “under no circumstances, or by any au­
thority whatsoever, to be sold or alienated or disposed 
of. . . .” (R. 19). The will went on to say:

. . .  I further specifically provide and direct that the 
said trustees hereinbefore named and their successors 
shall not have power or authority to sell o:r otherwise 
alienate or dispose of the tract of land thus described, 
bounded and platted or any part thereof during the 
continuance of said trust or trusts or at any other 
time, under any circumstances and upon any account 
whatsoever, and all such power to make such sale or 
alienation is hereby expressly denied to them, and to 
all others (R. 22).

By resigning the city ignored Bacon’s intent. Had the city 
resisted the Board’s petition in an attempt to retain the 
property, the court would have been much more likely to 
choose to follow Bacon’s language concerning ownership 
rather than that concerning racial limitation. (See Argu­
ment III, infra). In a recent Texas case the court held that 
the intent of the donor of Rice University to maintain a 
first-class educational institution, which could no longer be 
accomplished without foundation grants stipulating non- 
discrimination, outweighed the intent to exclude Negroes. 
Rice University v. Carr, 9 Race Rel. L. Rep. 613 (D. C. 
Harris County 1964), appeal dismissed, No. 14,472 (Tex. 
Civ. App. 1965). Cf. Guillory v. Administrators of Tulane 
University, 212 F. Supp. 674, 687 (E. D. La. 1962). More­
over, in an analogous situation, the Georgia Supreme Court



18

allowed Emory University to admit Negroes without for­
feiting tax exemption because the statute conditioning uni­
versity tax exemption on the maintenance of segregation 
was construed to conflict with another clause of the same 
statute. Emory University v. Nash, 218 Ga. 317, 127 S. E. 
2d 798 (1962). There was, therefore, reason to believe that 
the argument here suggested might have been well received 
by the State Supreme Court.

Spurning the opportunity to contest the suit and pre­
serve Baconsfield for all of its constituency, the city pre­
sented its resignation to the Superior Court. If one accepts 
respondents’ notion that the Superior Court had no choice 
but to relieve the unwilling trustee of the burden of office 
(see Brief in Opposition, p. 12), the city is solely respon­
sible for turning a piece of public property over to pri­
vate persons for the purpose of maintaining racial segrega­
tion.

There are many ways of manipulating property interests 
so that official discrimination can be continued under the 
guise of private discrimination, but they are all fruitless 
because the Fourteenth Amendment is notably intolerant 
of technical evasions. The most common method is to lease 
public property to private interests, but it is now well set­
tled that the private lessee is governed by the constitutional 
standards limiting the state, if the state retains any sig­
nificant involvement or control. See Burton v. Wilmington 
Parking Authority, 365 IJ. S. 715; Turner v. Memphis, 369 
U. S. 350; Derrington v. Plummer, 240 F. 2d 922 (5th Cir. 
1956), cert, denied sub nom. Casey v. Plummer, 353 U. S. 
924. Where substantial state involvement or control re­
mains it is, of course, immaterial whether the property was 
conveyed for the purpose of perpetuating discrimination. 
Where there is such a purpose, the Fourteenth Amendment 
restricts the actions of the lessee whether or not the state



19

continues to be involved. See Tate v. Department of Con­
servation and Development, 231 F. 2d 615 (4th Cir. 1956); 
Herrington v. Plummer, supra, 240 F. 2d at 925. Similar 
considerations govern the applicability of the Fourteenth 
Amendment when public land is sold to private interests. 
The sale does not alter the constitutional obligations of the 
owner if significant control is retained by the state, see 
Hampton v. Jacksonville, 304 F. 2d 320 (5th Cir. 1962), 
cert, denied sub nom. Ghioto v. Hampton, 371 U. S. 911; 
Smith v. Holiday Inns of America, Inc., 336 F. 2d 630 (6th 
Cir. 1964), or if the purpose was to continue discrimination, 
see Hampton v. Jacksonville, supra, 304 F. 2d at 331 (Jones, 
J., concurring). A fortiori, the state may not give land away 
to private persons for the purpose of perpetuating racial 
segregation. Cf. Griffin v. School Board, 377 U. S. 218, 231. 
The City of Macon therefore could not transfer property 
without consideration for the explicit purpose of promoting 
segregation and in the knowledge that segregation would 
be required.

III.

In Deciding an Issue of State Law, the Courts of 
Georgia Accorded the Racial Limitation in Bacon’s Will 
a Deference Inconsistent With Supreme Federal Law.

No one branch of government can claim full credit for 
keeping Baconsfield white. Each made a unique contribu­
tion, the Superior Court of Bibb County no less than the 
others. It issued the order accepting the city’s resignation 
and appointing three new trustees.7

7 In the second Girard College Case, the Supreme Court of Pennsyl­
vania approved the appointment of private trustees to continue discrim­
inatory operation. Estate of Stephen Girard, 391 Pa. 434, 138 A. 2d 844 
(1958), appeal dismissed and cert, denied, 357 U. S. 570. Denial of review 
by this Court was not a ruling on the merits, and petitioners submit that 
the Pennsylvania Supreme Court ruled erroneously.



20

If the principle of Shelley v. Kraemer, 334 U. S. 1, is not 
to be strictly limited to restrictive covenants, the Superior 
Court’s order was invalid. Accepting the arguments of the 
board and the city, the court replaced the city in order that 
Baconsfield might continue to be operated on a segregated 
basis in accordance with the terms of Bacon’s will. This is, 
if anything is, enforcement by the judiciary of racial sepa­
ration and wholly inconsistent with the equal protection of 
the laws.

The Superior Court held “it is proper that the court 
accept the resignation and appoint private trustees who can 
carry out the purpose and intent of the testator as set forth 
in the will” (supra, p. 6, n. 2). Under Shelley v. Kraemer, 
supra, the Superior Court’s enforcement of the racial limi­
tation would violate the Constitution even if it were un­
equivocally clear that Bacon intended to limit use of his 
park to white persons at the expense of having control of 
the park transferred to private interests. However, that 
issue is not necessarily presented by this record, because 
Bacon’s will manifested contradictory desires. I f Bacon 
intended that the park be restricted to white persons, it is 
no less clear that he intended Baconsfield to be forever 
owned by the City of Macon. The will provisions quoted 
on pages 16, 17, supra, establish this beyond question. 
The decision in Pennsylvania v. Board of Directors of City 
Trusts, 353 U. S. 230, renders impossible the present ef­
fectuation of both desires. What the Superior Court did 
was to ignore Bacon’s intention as to ownership and im­
plement the intention as to racial selection.

Petitioners submit that the courts of Georgia were not 
at liberty to make such a choice. Bacon wanted a park for 
white persons; he wanted the city as trustee. He offered 
no intimation as to which desire should prevail in case of



21

conflict. Faced with the necessity of making the choice that 
Bacon had never contemplated, the Superior Court chose 
segregation, just as the city had done. The court’s action 
is no more compatible with the Fourteenth Amendment. 
No branch of government can require, encourage or partici­
pate in a policy of racial segregation, Cooper v. Aaron, 
358 U. S. 1, 16-17, and certainly a court cannot decide to 
enforce a will provision mandating segregation as against 
another provision that is in harmony with the Constitu­
tion.

The court’s decision cannot be passed off as the resolu­
tion of a will construction problem under traditional rules 
of state law. Overriding federal law steps in and says that 
any term of the will that blatantly violated the Fourteenth 
Amendment is not entitled to consideration by the state 
court. Had the Georgia courts followed this principle, they 
would have had no choice but to implement the provision 
requiring perpetual ownership by the city.

Petitioners requested that the court reject the resigna­
tion and compel the city to fulfill its obligation under the 
will and its constitutional obligation to accord equal treat­
ment to all citizens (R. 63). By rejecting this request, the 
courts of Georgia acted in defiance of the Constitution.



22

IV.

Baconsfield Is a Public Facility From Which Negroes 
Cannot Be Excluded.

Respondents have argued that “ characterization of 
Baconsfield as a ‘public’ park begs the question” (Brief in 
Opposition, p. 7), but calling it public has substantive as 
well as semantic significance. It was created pursuant to 
G-a. Code §69-504, which bears the heading “ Gifts for public 
parks or pleasure grounds.” The statute describes the 
lands conveyed as “dedicated in perpetuity to the public 
use as a park, pleasure ground or for other public pur­
pose.” In every conceivable respect but one Baconsfield 
is and has been a public park. Until this litigation it was 
owned by the city and operated under the management of 
an appointed board of managers. The city and board also 
owned and administered the separate trust fund set aside 
by Bacon for maintenance of the park (R. 22-25). The 
city, through its board, had “complete and unrestricted 
control and management of the said property with power 
to make all needful regulations for the preservation and 
improvement” of the park (R. 3). Ga. Code §69-505 author­
ized the city “ to improve, embellish, and ornament the 
land so granted as a public park,” and so far as the record 
shows, Baconsfield’s appearance is like that of any other 
public park. The great majority of the public are allowed 
to go on the premises of this large,8 open tract of land 
at will and without charge.

8 Baconsfield’s area does not appear in the record, but its dimensions as 
set forth in the legal description are very large. The irregular eastern 
boundary is approximately 4155 feet, the northern boundary is 1662 feet, 
the western and southern boundaries at least 3397 and 437 feet, respec­
tively (R. 17).



23

The only difference between Baeonsfield and any other 
public park is the exclusion of Negroes. But that does 
not differentiate it from other public parks in Georgia, 
where the policy of the state, as expressed in §69-504 and 
as manifested by the actions of all state agencies in this 
suit, has been to have all public parks exclude one race 
or the other. Even after the decisions outlawing racial 
segregation in public schools and other public facilities, 
e.g., Brown v. Board of Education, 347 U. S. 483; Muir v. 
Louisville Park Theatrical Ass’n., 347 U. S. 971; New Or­
leans City Park Improve. Ass’n v. Detiege, 358 U. S. 54; 
Watson v. Memphis, 373 U. S. 526, several Georgia com­
munities have been guilty of requiring segregation in pub­
lic recreational facilities or actually operating segregated 
facilities, see, e.g., Holmes v. City of Atlanta, 350 U. S. 879; 
Anderson v. Albany, 321 F. 2d 649 (5th Cir. 1963); Law 
v. Jekyll Island State Park Authority, C. A. No. 8579 
(N. D. Ga., July 27, 1964); cf. Wright v. Georgia, 373 U. S. 
284.9 This Court’s rulings having rendered unlawful the 
continued operation of public parks on a segregated basis, 
it is an anomaly indeed if this park can be singled out and 
allowed to segregate.

Irrespective of state ownership, past or present, it is 
highly questionable whether any open park land available 
for use by a majority of the people can be segregated. 
By close analogy, this Court’s decision in Marsh v. Ala­
bama, 326 U. S. 501, indicates that even a privately owned 
park which is open to most of the public must admit all 
of the public. In Marsh the court emphasized the similarity 
between the company town of Chicasaw and any other town,

9 In 1956, in an obvious response to Holmes v. Atlanta, 350 U. S. 879, 
Georgia enacted a law allowing public parks to be sold, leased or otherwise 
disposed of without regard to whether the property was unsuitable or 
inadequate for park purposes. Act No. 20, Ga. Laws 1956, Yol. I, p. 22.



24

and refused to accept private ownership as a reason for 
ignoring the Fourteenth Amendment:

.. . Ownership does not always mean absolute dominion. 
The more an owner, for his advantage, 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. . . . Thus, 
the owners of privately held bridges, ferries, turn­
pikes and railroads may not operate them as freely 
as a farmer does his farm. Since these facilities are 
built and operated primarily to benefit the public and 
since their operation is essentially a public function, 
it is subject to state regulation. . . . 326 U. S. at 506.

Petitioners submit that recreational parks are also “ built 
and operated primarily to benefit the public” and “ their 
operation is essentially a public function.” 10 The Legis­
lature of Georgia in 1905 viewed it a public function to 
encourage the establishment of public parks, see Ga. Code 
§69-504, and present Georgia law authorizes municipalities 
to set aside existing public property or acquire new prop­
erty for use as parks, playgrounds, and recreation centers, 
see Ga. Gode Ann. §§69-601 to 69-616. Thus the reasoning 
in Marsh v. Alabama fully supports the contention that 
irrespective of ownership, a public park cannot be operated 
for white persons only. To hold otherwise would be to 
say that the validity of an absolute prohibition on the 
distribution of literature in Baconsfield depends on who 
holds legal title.

The overriding significance of function, as opposed to 
ownership, is also demonstrated by the decisions of the 
Fourth Circuit in Simkins v. Moses H. Cone Memorial

10 See Lombard v. Louisiana, 373 U. S. 267, 274 (concurring opinion); 
Bell v. Maryland, 378 U. S. 226, 286 (concurring opinion).



25

Hospital, 323 F. 2d 959 (4th Cir. 1963), cert, denied, 376 
U. 8. 938, and Eaton v. Grubbs, 329 F. 2d 710 (4th Cir. 
1964), which held that medical facilities owned and oper­
ated by private groups under comprehensive state plans 
are subject to the nondiscrimination requirements of the 
Fourteenth Amendment. These decisions clearly apply to 
those private facilities which the state takes into account 
when deciding whether to provide other facilities. Bacons- 
field is such a facility, for the City of Macon stated its 
concern, in the resolution authorizing resignation, that 
Baconsfield not be lost to public use (R. 60).

Baconsfield is not a hospital with necessary limitations 
on entry and use. It is open park land, inherently a part 
of the public life of the community. “Wherever the title 
of streets and parks may rest, they have immemorially 
been held in trust for the use of the public and, time out of 
mind have been used for purposes of assembly, com­
municating thoughts between citizens, and discussing pub­
lic questions.” Hague v. CIO, 307 U. S. 496, 515 (concurring 
opinion).

The considerations discussed above support the conclur 
sion that Baconsfield would have to be opened to all of the 
public even if it had never been owned and managed by 
the city. Petitioner’s case is strengthened by the history of 
Baconsfield’s ownership and operation by the city and the 
transfer to private trustees for the purpose of allowing 
discrimination.



26

y .

The Charitable Trust in This Case Is so Mach the 
Creature of the State and so Related to an Inherently 
Public Aspect of Community Life as to Be Governed 
by the Fourteenth Amendment Prohibition of Racial 
Discrimination.

The State of Georgia is in so many ways responsible for 
the creation of Baconsfield and its continuous operation 
on a segregated basis that it is difficult to isolate the 
various strands of doctrine supporting petitioners’ consti­
tutional position. Focus has centered on the statute en­
acted in 1905 which puts this case well within the rule of 
Peterson v. Greenville and Robinson v. Florida. Emphasis 
has been placed upon the concerted action of state agencies 
toward the single goal of assuring segregation in Bacons­
field. These factors make Shelley v. Kraemer applicable 
as well as those cases forbidding a state institution to 
transfer public property for the purpose of continuing 
racial discrimination. It has been argued that the courts 
of Georgia violated the Fourteenth Amendment by giving 
weight and preference to an invalid racial limitation over 
another, inconsistent clause in Bacon’s will. And the fourth 
argument was that Baconsfield is inherently a public facility 
like any other public park, which under the doctrine of 
Marsh v. Alabama and the recent hospital cases cannot 
discriminate even when operated by private trustees.

Those arguments are sound, but there is another con­
cerning the unique nature of the charitable trust that should 
be considered by the Court. A charitable trust is so much 
a creature of the state that it ought to be subjected to 
particularly close scrutiny when it calls for discrimination 
against persons according to race or color.



27

The testamentary charitable trust takes effect only when 
the state’s judicial branch upholds its validity and sanc­
tions its enforcement. If in the eyes of the state the 
trust does not serve a permissible public purpose, it will 
not be enforced. The very fact that the Baconsfield trust 
was approved by the state demonstrates, apart from the 
significance of Ga, Code §69-504, that the State of Georgia 
approves the establishment of public institutions for the 
exclusive benefit of white persons. I f  the State of Georgia, 
acting through its legislature or courts, determined that 
the operation of public facilities for one race only was in­
consistent with public policy, Baconsfield would not exist 
in its present form.

The usual purposes of charitable trusts such as support 
of educational and religious institutions, aid for the poor, 
and other goals generally accepted as charitable are ap­
proved by the state because dollars given by the charitable 
donor fulfill needs that, except for religion, would other­
wise be a burden of the state. It is incongruous in the ex­
treme that the state should protect and enforce charitable 
institutions serving the needs of the state but not governed 
by essential principles of fairness which the state itself 
is bound by the Constitution to observe.

Georgia, like other states, has an elaborate legal struc­
ture encouraging and sanctioning the creation of charitable 
trusts. Statutes provide for the enforcement of charitable 
trusts in equity, see Ga. Code Ann. §108-201, continuous 
supervision by the courts, §108-204, and effectuation of 
the testator’s charitable intent under the cy pres doctrine, 
§108-202. Charitable trusts are looked upon with special 
favor, see, e.g., Simpson v. Anderson, 220 Ga. 155, 137 
S. E. 2d 638 (1964); Goree v. Georgia Industrial Home, 
187 Ga. 368, 200 S. E. 684 (1938).



The testamentary charitable trust begins with state ap­
proval by the court of equity. The trustees are bound to 
follow the terms of the trust, and since the beneficiaries 
of charitable trusts by definition constitute a rather broad 
class of individuals, the trustees may be challenged not 
only by members of the favored group, but by the state 
attorney general or, in Georgia, the solicitor general of 
the circuit in which the trust corpus lies. See Ga. Code 
§108-212.

Having encouraged the creation of charitable trusts and 
provided a system of law, both legislative and judicial, for 
their effectuation, the state does not end its aid to charitable 
trusts. It grants them among other things exemption from 
taxation. Georgia’s constitution and statutes are no ex­
ception from the general rule. See Ga. Const. 1945, Art. 7, 
Sec. 1, Par. 4; Ga. Code §2-5404; Ga. Code §92-201. It 
happens that since 1918 Georgia has conditioned tax exemp­
tion on the maintenance of racial restrictions in the opera­
tion of charitable trusts: “all endowments to institutions 
established for white people, shall be limited to white 
people, and all endowments to institutions established for 
colored people, shall be limited to colored p eop leE d itoria l 
note, Ga. Const. 1877, Art. 7, Sec. 2, Par. 1, Ga. Code Ann. 
§2-5002. Tax exemption is a boon to the testator setting 
up a charitable trust. It assures that the resources he 
leaves will not be siphoned off into the state treasury but 
will be devoted exclusively to his purposes. The state ex­
empts charitable trust assets from taxation because the 
trust is doing the work of the state; for the state to tax 
them would be like removing money from one pocket and 
placing it into another.

Probably even more desirable to the testator considering 
the establishment of a charitable trust is that most valuable 
incident, perpetual existence. Private trusts are restricted



29

in duration by the rule against perpetuities, see, Ga. Code 
§85-707, but charitable trusts are not, see Regents of Uni­
versity System v. Trust Co. of Georgia, 186 Ga. 498, 512, 
198 S. E. 345 (1938); Murphy v. Johnston, 190 Ga. 23, 
8 S. E. 2d 23 (1940); Pace v. Dukes, 205 Ga. 835, 55 S. E. 2d 
367 (1949). See also Ga. Code §69-504. The state allows 
dead hand control perpetually on the theory that the public 
will perpetually benefit from a charitable trust. A man 
has some right to exercise his prejudices in the use of his 
private property during his life, and to dispose of his 
property by will, making arbitrary choices about its re­
cipients and uses. But no man has the right to control 
his property through eternity. The state sets temporal 
limits on testamentary encumbrances, and in the excep­
tional situation of the charitable trust it exercises close 
supervision. In this case Georgia has not only given 
Bacon’s trust perpetual existence, but has exercised its 
broad powers to assure the maintenance of segregation to 
the end of time.

Another advantage conferred by Georgia on charitable 
trusts is immunity from tort liability in certain situations. 
An institution’s “charitable assets” cannot be recovered 
for the negligence of employees. Morehouse College v. 
Russell, 219 Ga. 717, 135 S. E. 2d 432 (1964); id., 109 Ga. 
App. 301, 136 S. E. 2d 179 (1964); Cox v. De Janette, 
104 Ga. App. 664, 123 S. E. 2d 16 (1961). Georgia has a 
comparable doctrine of tort immunity for municipalities, 
Ga. Code §69-301, which applies to the operation of public 
parks, Stubbs v. City of Macon, 78 Ga, App. 237, 50 S. E. 
2d 866 (1948) ; Jones v. City of Atlanta, 35 App. 376, 133 
S. E. 521 (Ga. Ct. App. 1926).

The features of state involvement in the creation of 
charitable trusts are so manifold that such trusts are to 
a significant degree creatures of the state and the special



30

beneficiaries of the state even though they begin with a 
private decision and with privately owned property. See 
Clark, Charitable Trusts, the Fourteenth Amendment and 
the Will of Stephen Girard, 66 Yale L. J. 979, 1002-09 
(1957). Without regard to whether other types of chari­
table trusts should, because of these state contacts, be 
subject to the Fourteenth Amendment, the Baconsfield 
trust has features which require that it be subject to the 
Amendment. The Baconsfield trust receives the continued 
support, recognition, and sanction of state law on the 
theory that a park is a benefit to the community and serves 
the community. It is a trust totally involved with the 
public life of the community, the intended domain of the 
Fourteenth Amendment, and is to some degree distinct 
from charitable trusts which because of the nature of their 
enterprises necessarily offer direct benefits to only small 
portions of the community. Baconsfield was established so 
as to offer its beneficial use directly to every member of 
the public, except Negroes. It flies in the face of the Four­
teenth Amendment’s prohibition against the exclusion of 
persons from the benefits and protections of state law on 
the basis of race. This is all the more evident where, as 
here, the initial decision to discriminate racially was en­
couraged by an explicitly racial state statute. An overall 
appraisal of the nature of state involvement in the trust, 
the nature and function of the trust in the community, 
“ the benefits mutually conferred” by the testator and the 
state, and the role of the state legislature and state judi­
ciary in establishing and continuing’ the park on a segre­
gated basis, leads irresistibly to the conclusion that this 
case involves “ that degree of state participation and in­
volvement in discriminatory action which it was the design 
of the Fourteenth Amendment to condemn.” Burton v. 
Wilmington Parking Authority, 365 U. S. 715, 724.



31

CONCLUSION

For the foregoing reasons the judgment below should 
be reversed.

Respectfully submitted,

J ack  Greenberg 
J ames M. N abrit, I I I  
M ich ael  M eltsner 
Charles S tephen  R alston 
F r an k  H . H efpron

10 Columbus Circle 
New York, New York 10019

D onald L. H ollowell 
W illiam  H . A lexander 
H oward M oore, J r .

859% Hunter Street, N W . 
Atlanta, Georgia 30314

Attorneys for Petitioners



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