Evans v. Newton Brief in Opposition to Petition for Writ of Certiorari to the Supreme Court of Georgia

    IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1964,

No. 959.

E. S. EVANS, et ai., 
Petitioners,

v,
CHARLES E. NEWTON, et al., 

Respondents.

BRIEF
In Opposition to Petition for W rit of Certiorari 

to the Supreme Court of Georgia.

C. BAXTER JONES,
CHARLES M. CORK,
A. 0. B. SPARKS, JR.,
W ILLIS  B. SPARKS, III,

1007 Persons Build ing,
Macon, Georgia,

Attorneys fo r Respondents, 
Members of the Board of 
Managers of Baconsfield.

St . Louis Law  Printing Co., Inc., 415 N. Eighth Street. CEntral 1-4477



INDEX.

Page

Question Presented ...................................................... 1

Statement .......................................................................  2

Questions Not Previously R a ised ................................  8

Reasons for Not Granting the W r i t ............................. 9

Conclusion .....................................................................  14

Table of Cases.

Barbour v. State of Georgia, 249 U. S. 454, 39 S. Ct.
316, 63 L. Ed. 704 (1919) .....................................  9

Emory University v. Nash, 218 Ga. 317, 127 S. E. 2d 
798 (1962) ..............................................    13

Herndon v. State of Georgia, 295 U. S. 441, 55 S. Ct.
794, 79 L. Ed. 1530 (1935) ......................................  9

Jones v. Habersham, 107 U. S. 174, 2 S. Ct. 336 (1883) 12

Shelley v. Kraemer, 334 U. S. 1, 68 S. Ct. 836, 92 L. Ed.
1161 (1948) ................................................................  12

In Re: Smith Estate, 37 A. 114 (1897) .........................  12

Statutes.

Const. Ga. 1945, Art. 7, sec. 1, par. 4, Ga. Code Ann.
2-5405 ..........................    8

Ga. Code Ann. 69-502 .................................................... 12
Ga. Code Ann. 69-504 ...................................................12,13
Ga. Code Ann. 92-201 .................................................... 8



IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1964,

No. 959.

E. S. EVANS, et a!., 
Petitioners,

v.

CHARLES E. NEWTON, et a!,, 
Respondents.

BRIEF
In Opposition to Petition for Writ of Certiorari 

to the Supreme Court of Georgia.

QUESTION PRESENTED.

Here certain land was devised in trust for a park for 
white persons only. The testator by clear language mani­
fested a disapproval of the idea of any recreation area 
being- open to the members of both the white and negro 
races. The legal title was to be held by the City of Macon 
or its successors in said trust, subject to control by a 
Board of Managers, composed of private citizens selected 
as provided in the will.



When negro citizens began to use the park’s facilities, 
the Mayor and Council of the City by formal resolution 
after institution of suit to remove the City as Trustee re­
solved to resign, declaring it to be “ against good con­
science”  that the City should attempt to remain as title 
holder to the trust property.

Under these circumstances where the City tenders its 
resignation as trustee to a court of equity, whether in the 
midst of litigation seeking its removal or otherwise, is it 
a denial of constitutional rights of negro citizens of the 
community for the court to appoint successor trustees and 
to refuse to command the City to continue to serve where 
it is argued on behalf of these negro citizens that only by 
retaining the City as trustee can it be assured that both 
races will have access to the park area?

STATEMENT.

Respondents, members of the Board of Managers of 
Baconsfield, incorporate by reference the statement of the 
case contained in the opinion of the Supreme Court of 
Georgia and set out in the appendix of the Petition for 
W rit of Certiorari.

These respondents wish to make certain additions to that 
statement as follows:

A. 0. Bacon was a soldier in the service of the Confed­
erate States of America and for nearly twenty (20) years 
a United States Senator from Georgia. The following 
quoted excerpts from Item Ninth of his will are most rele­
vant to the present inquiry (R. 30-33).

“  . . . it is my will that all right, title and interest 
in and to said property hereinbefore described and 
bounded, both legal and equitable, including all re­
mainders and reversions and every estate in the same 
of whatsoever kind, shall thereupon vest in and belong



3

to the Mayor and Council of the City of Macon, and 
to their successors forever, in trust for the sole, per­
petual 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, 
subject to the restrictions, government, management, 
rules and control of the Board of Managers herein­
after provided for; the said property under no cir­
cumstances, or by any authority whatsoever, to be 
sold or alienated or disposed of, or at any time for 
any reason devoted to any other purpose or use ex­
cepting so far as herein specifically authorized. For 
the control, management, preservation and improve­
ment of said property there shall be a Board of Man­
agers consisting of seven persons of whom not less 
than four shall be white women, and all seven of whom 
shall be white persons. The Members of this Board 
shall first be selected and appointed by the Mayor 
and Council of the City of Macon, or by their suc­
cessors in said trust; and all vacancies in said Board 
shall be filled by appointments made by the Mayor and 
Council of the City of Macon, or their successors, upon 
nomination made by the said Board of Managers and 
approved by the said Mayor and Council of the City 
of Macon or their successors. I f  practicable, I  desire 
that there shall be as a member of said Board of Man­
agers at least one male or female descendent of my 
own blood, not only in the Board as at first consti­
tuted, but at all times thereafter. The said Board 
of Managers shall at all times have complete and un­
restricted control and management of the said prop­
erty, with power to make all needful regulations for 
the preservation and improvement of the same, and 
rules for the use and enjoyment thereof, with power 
to exclude at any time any person or persons of either 
sex, who may be deemed objectionable . . . ”



4

“  . . . 1  take occasion to say that in limiting the 
use and enjoyment of this property perpetually to 
white people, I  am not influenced by any unkindness 
of feeling or want of consideration for the Negroes, 
or colored people. On the contrary I  have for them 
the kindest feeling, and for many of them esteem and 
regard, while for some of them I  have sincere per­
sonal affection.”

“ I  am, however, without hesitation in the opinion 
that in their social relations the two races should be 
forever separate and that they should not have pleas­
ure or recreation grounds to be used or enjoyed, to­
gether and in common.”

In accordance with the foregoing quoted provisions of 
the will of A. 0. Bacon the City of Macon until its resig­
nation was the passive title holder, and the Board of Man­
agers created by Mr. Bacon exercised those powers and 
fulfilled those obligations bestowed by the testator.

Contrary to what was stated to be a presumption at 
the bottom of page 12 of the Petition for W rit of Cer­
tiorari the Board of Managers has never been regarded 
by itself or by the City as an agency of the City or as 
a body entitled to the services of the City Attorney. Over 
the years the Board has always employed private counsel, 
in fact, members of the law firm representing it in the 
present litigation. Petitioners attach significance to the 
fact that the Board sued as individuals rather than as a 
body. See pages 12 and 13 of the Petition. The State of 
Georgia having granted the Board no corporate status 
nor given it any power to sue as a, unit, the Board being 
only a creation of the testator could only sue as individual 
fiduciaries, just as does any other trustee, to comply with 
their obligation to control and manage the trust corpus 
in accordance with the terms of the will.

A t the direction of the testator the Mayor and Council 
as trustee appointed the original Board and have “ ap-



proved”  the Board’s “ nomination”  of persons to fill- 
vacancies in its membership when they occurred. (See 
again the will provision in this regard, supra.) Presum­
ably, it is for this reason that petitioners insist that the 
Board as constituted at the time it instituted suit was 
a state agency.

Respondent Board members deny that the Board as con­
stituted at the outset of this litigation could be meaning­
fully viewed as a state or governmental agency. Further, 
after the resignation of the City and the appointment of 
new trustees by the Superior Court of Bibb County, Geor­
gia, the Board serving at that time resigned (R. 115), and 
the three new trustees thereupon appointed a Board of 
seven persons of whom four had not served on the Board 
at any previous time (R. 116).

Members of the Board of Managers have always served 
without compensation.

The following are excerpts from the Resolution of the 
Mayor and Council of the City of Macon dated February 4, 
1964 and attached to the pleading by which the City 
sought to have the Superior Court of Bibb County accept 
its resignation as trustee of Baconsfield (R. 92-93):

“ Whereas the Mayor and Council are greatly con­
cerned that if Baconsfield is not operated and main­
tained in accordance with all of the provisions of the 
will of Senator Bacon, the property may revert to 
private persons who are heirs at lawT of or legatees 
under the will of Senator Bacon, in which case Bacons­
field would become commercial or residential prop­
erty or property of a nature wherein no part of the 
public would have the enjoyment of the property con­
templated by Senator Bacon; and . . . ”

“ . . . Whereas, it is the considered opinion of the 
Mayor and Council that it is against good conscience 
for the City of Macon to continue to serve as trustee



under said will under circumstances where as such 
trustee it cannot carry out the plain and unambiguous 
terms of the trust; and . . . ”

“ . . . Whereas, under certain decisions of the Fed­
eral Courts the City of Macon has realized that it 
could not as a municipal corporation carry out all of 
said provisions; and . . . ”

Having made the foregoing statement of facts, respond­
ents now comment briefly on certain assertions in the 
statement of petitioners lest their acquiescence therein be 
construed as agreement.

Respondents submit that the two “Questions Presented” 
as outlined on page 2 of the Petition contain assertions 
of fact and statements of conclusions not supported by 
the record or by the facts as they exist. In regard to the 
first Question respondents show that the City of Macon 
did not petition a court of equity. It  merely tendered its 
resignation as trustee in pending litigation instituted 
against it. Petitioners in that Question refer to the Supe­
rior Court of Bibb County as appointing new trustees for 
the purpose of excluding Negroes from the park. The 
facts of the case show only that the Court found a trust 
without a trustee and exercised the very normal duty of 
appointing one. Since shortly after Jarndyce v. Jarndyce 
(Dickens’ Bleak House) courts of equity have not made 
a practice of compelling unwilling trustees to serve, nor 
have the courts embarked upon the continuous course of 
supervision which is necessary where a trustee is in fact 
unwilling. Any assertion beyond that as to any motiva­
tion on the part of the Superior Court of Bibb County is 
a mere matter of conjecture.

The first Question further refers to the City as admin­
istering the park through the Board of Managers. Yet 
Mr. Bacon’s will bestows all the powers of management 
upon the Board (R. 31). There is nothing in the record 
to indicate that the City as trustee ever usurped any of

— 6 —



those powers. Indeed, such is not the case. Rather, the 
Board has at all times made policy and exercised control.

There is also a reference to Negroes being “ allowed”  to 
use the park. That phrase would not be accurate if  con­
strued to denote an express grant of permission. No per­
mission was sought or granted, but rather certain Negro 
citizens began using the facilities of the park.

Perhaps the characterization of Baconsfield as a “ pub­
lic” park begs the question.

W ith regard to the second Question on page two of the 
Petition for W rit of Certiorari, respondents deny that 
Georgia statutes properly construed condition tax exemp­
tion on the maintaining of racial “ segregation”  with re­
gard to a charitable trust such as Baconsfield. Further, it 
is the Board of Managers rather than the City of Macon 
which has “ administered” the park.

On page 8 of the Petition it is stated that no evidentiary 
hearing was held in the Superior Court of Bibb County 
after respondent Board members moved for a summary 
judgment. Respondents based their motion solely on the 
pleadings in the belief that no evidence was necessary to 
illuminate the issues. Under Chapter 110-12, Georgia Code 
Annotated (Acts 1959, pp. 234-236) upon the filing of such 
a motion seeking a judgment on the pleadings any party 
who feels that factual issues should be raised may file 
affidavits and depositions. Petitioners intervened in Bibb 
Superior Court on May 29, 1963. That Court entered its 
order granting respondents a summary judgment on 
March 10, 1964. A t no time during the interim did counsel 
for those who are petitioners here express any desire to 
take evidence. It was therefore quite proper for the Supe­
rior Court to rule on the motion on the basis of the plead­
ings before it.



QUESTIONS NOT PREVIOUSLY RAISED.

The Petition for W rit of Certiorari at pages 13 and 14 
discusses at some length the responsibility of the Mayor 
and the Council of the City of Macon for alleged acts of 
discrimination. No such question was raised by petitioners 
in the Superior Court of Bibb County or in the Supreme 
Court of Georgia, but rather the record is entirely silent 
as to any such issue. Respondents respectfully submit 
that petitioners may not properly raise this issue for the 
first time in their Petition for W rit of Certiorari.

Petitioners set out on pages 3 and 4 of their Petition 
Georgia Code Sections 2-5404 and 92-201, which petitioners 
contend condition the tax exemption of charitable trusts 
on racial separation. On page 20 they set out Georgia 
Code Section 69-505 in a footnote. None of these three 
statutes or any issue concerning them was mentioned 
by petitioners in the Superior Court of Bibb County or 
in the Supreme Court of Georgia, but rather the record 
is entirely silent as to any contention that any of these 
statutes is relevant to this case. Petitioners may not 
properly raise the issues they seek to raise involving 
these statutes for the first time in their Petition for W rit 
of Certiorari.

Pages 21 through 24 of the Petition are devoted almost 
entirely to an argument that certain enumerated Georgia 
Code Sections from Titles 69, 85 and 108 of that Code 
bestow upon charitable trusts in Georgia such a govern­
mental nature that such trusts must be regarded as being- 
subject to the inhibitions of the Fourteenth Amendment. 
The statutes referred to grant perpetual existence, a lim­
ited immunity in tort, and certain tax immunity to chari­
table trusts. Further there are among their number sec­
tions providing for supervision of charitable trusts by 
courts of equity, for enforcement of them by the attorney 
general, and for the application under proper circum­
stances of the doctrine cy pres.



— 9 —

No issue concerning the effect of these statutes was 
made by petitioners either in the Superior Court of Bibb 
County or in the Supreme Court of Georgia. Petitioners 
may not properly raise this constitutional question for 
the first time in their Petition for W rit of Certiorari.

The Supreme Court of the United States has recognized 
that under Georgia practice federal constitutional ques­
tions must be raised at the outset in the superior courts. 
Barbour v. State of Georgia, 249 U. S. 454, 39 S. Ct. 316, 
63 L. Ed. 704 (1919), and that such questions must be 
preserved in the bill of exceptions to the Georgia Supreme 
Court. Herndon, v. State of Georgia, 295 U. S. 441, 55 
S. Ct. 794, 79 L. Ed. 1530 (1935). In these cases where 
a federal constitutional question was not raised in a 
timely manner or preserved on appeal as required by 
state law, the Supreme Court of the United States, fol­
lowing a well settled rule of practice, declined review 
as to the said questions.

REASONS FOR NOT GRANTING THE WRIT.

Respondents submit that this Petition for a W rit of 
Certiorari should be denied because the case was cor­
rectly decided by the Supreme Court of Georgia, and be­
cause the decision of that Court does not conflict with any 
decision of the United States Supreme Court or of any 
other court, State or Federal, in this land.

Petitioners complain that in the change in the trustee 
of Baconsfield several different agencies have taken ac­
tions denying them certain constitutional “ rights” . These 
agencies are the Mayor and Council of the City of Macon 
which resigned the trust, the Board of Managers which 
sued the City to force its removal, the Superior Court of 
Bibb County which accepted the resignation of the City 
and the State of Georgia whose legislature passed certain 
statutes complained of by petitioners as fostering racial 
discrimination.



—  10 —

First of all it is the basic position of these respondents 
that none of these agencies denied any “ rights’ " of peti­
tioners, since only those persons falling within certain 
classifications described by Mr. Bacon as persons to be 
benefited have any “ right”  to share in his gift. A  for­
tiori petitioners have no standing to complain of a change 
in trustee.

Having stated this basic position, these respondents will 
deal further with the issues raised by petitioners as to 
each of these agencies.

In pointing at alleged instances of state “ discrimina­
tion”  petitioners make the following statement on page 
14 of the Petition:

“ . . . By contrast, the mayor and council of the 
City of Macon bear direct, if not primary, responsi­
bility for the racial discrimination brought about by 
this suit.”

In support of the foregoing assertion petitioners argue 
in substance that the Mayor and Council of the City of 
Macon should not have resigned as trustee of Baeonsfield, 
but rather that they should have resisted all efforts at 
their removal and attempted to continue to serve as trus­
tee ignoring the racial limitation though that limitation 
is so emphasized by the testator that it may only be 
viewed as an essential and indispensable part of the trust 
purpose.

Respondents submit that while petitioners did from the 
beginning of this litigation point to the Court’s accept­
ance of the C ity’s resignation as a type of action forbidden 
by the Fourteenth Amendment and did from the begin­
ning complain of certain actions of the Board of Managers, 
which petitioners insist is a branch of the City, petitioners 
are now raising for the first time in their Petition for 
W rit of Certiorari the question of whether or not the 
Mayor and Council, in resigning rather than resisting fur­
ther, violated any constitutional rights of petitioners.



11 —

Since city action has never been so complained of be­
fore, either in the Superior Court of Bibb County or in 
the Supreme Court of Georgia, the question of any re­
sponsibility of the Mayor and Council for racial discrim­
ination is not a question properly before this Court.

Further, whether or not the Mayor and Council were 
justified in fearing a reversion under the law of Georgia 
in the event that they did not withdraw as trustee, as that 
fear is expressed in their Resolution, supra (R. 92-93), it 
is apparent from that Resolution that it was that fear 
rather than a desire to exclude Negroes from a park area 
which motivated them.

It is, of course, true that the doctrine cy pres has been 
often applied in Georgia, but that doctrine under Georgia 
law is an intent-enforcing doctrine, and no case is known 
in which the doctrine was applied for the purpose of 
applying trust property to a use expressly disapproved 
of by the settlor. (See again the passage in the will (R. 
32-33) where Mr. Bacon expressly disapproves of recrea­
tion grounds to be used by both races.)

Further, there is doubt as to whether Mr. Bacon’s will 
evidences any general charitable intent beyond the very 
specific, detailed plan he outlines for a park for white 
women and white children. A  general charitable intent 
is universally considered a prerequisite to the application 
of cy pres.

On the basis of facts before noted respondents submit 
that the Board of Managers of Baconsfield may not be 
viewed as a governmental agency. However, it is the 
position of respondents that it is utterly irrelevant whether 
the Board as constituted at the beginning of this litigation 
be viewed as a governmental unit or not. The City was 
not removed as trustee by the Superior Court, but rather 
it resolved to resign, an action which it might have taken



without any suit by the Board of Managers or anyone 
else ever having been filed.

In accepting the resignation of the City of Macon and 
appointing three persons to serve in its stead as trustees, 
the Superior Court of Bibb County, Georgia performed a 
normal function of a court of equity. Courts do not 
normally command persons to be trustees who do not wish 
to serve in that capacity. Shelley v. Kraemer, 334 U. S. 1, 
68 S. Ct. 836, 92 L. Ed. 1161 (1948), does not require a 
court of equity to take affirmative action to compel an 
unwilling trustee to serve in order to render ineffective 
valid limitations as to race contained in a private testa­
ment.

The administration of Baconsfield in all particulars in­
cluding the limitation as to race is the product of private 
choice. No amount of argument regarding Georgia Code, 
Section 69-504, set out at page 18 of petitioner’s brief, 
can obscure that fact.

The authorization embodied in that statute was unnec­
essary to the creation of Mr. Bacon’s trust. Nor was any 
statute needed in order to have created a trust for a park 
for citizens of both races with or without a city as trustee. 
The law of charitable trusts as understood at common 
law has always been in full force and effect in Georgia. 
Jones v. Habersham, 107 U. S. 174, 2 S. Ct. 336 (1883). 
Further, the law of charitable trusts as recognized at 
common law has been often held to include gifts in trust 
for the creation of a park. In Re Smith Estate, 37 A. 114 
(1897). Section 69-504 was not necessary to the creation 
of a trust involving a park. Nor was it necessary to 
create a trust with a municipal corporation as trustee. 
Georgia Code, Section 69-502 (Acts 1892, p. 104), making 
no reference to race, reads as follows:

“ May act as trustee— The incorporated towns and 
cities may act as trustees under any conveyance or will



13 —

donating or giving property for charitable or elee­
mosynary purposes.”

Further, Georgia Code, Section 69-504 (Acts 1905, p. 
117), did not require limitation as to race. Rather the 
language is obviously permissive. A  settlor is not re­
quired to limit his bounty to one race. Rather he “ may”  
so limit his gift if  he so desires. Such is the tenor of the 
statute.

Furthermore, the following quotation from Item Ninth 
of Mr. Bacon’s will makes it abundantly clear that the 
racial limitation was the product of private choice and that 
the state was to no significant extent involved (R. 32-33).

“ . . . I  am, however, without hesitation in the 
opinion that in their social relations the two races 
should be forever separate and that they should not 
have pleasure or recreation grounds to be used or en­
joyed, together and in common . . . ”

As another alleged example of state discrimination pe­
titioners refer to Georgia Code, Sections 2-5404 and 92-201, 
on pages 3 and 4 of their Petition. As before noted they 
are mentioning those two statutes for the first time in 
their Petition. These provisions they read as requiring 
racial separation as a prerequisite to tax exemption in the 
case of a charitable trust. The provisos making refer­
ence to race were not in effect at any time during Mr. 
Bacon’s life. The statutes are apparently not cited for 
any influence those provisos may have exerted upon him. 
In the case of trusts for colleges, which they purport to 
cover, the Supreme Court of Georgia has held in Emory 
University v. Nash, 218 Ga. 317, 127 S. E. 2d 798 (1962), 
that the statutes do not deny tax exemptions to racially 
desegregated colleges. No case has arisen involving a 
park, but in a. concurring opinion in Nash it is suggested 
at 127 S. E. 2d 803 that the proviso relating to race is so 
indefinite as to be utterly void.



—  14 —

The statutory provisions in question do not in any 
event by any normal construction apply to parks or re­
quire racial separation as a prerequisite to exemption, but 
instead the exemption is denied only where endowment 
funds directed as a matter of private choice for the mem­
bers of one race are applied in violation of the limitation. 
Nothing about the statute denies exemption where there 
is racial “ desegregation”  but only where there is a mis­
application of funds.

Having dealt with the arguments of petitioners concern­
ing the various agencies which allegedly denied them con­
stitutional “ rights” , respondents submit that the only 
question involved in this litigation is whether under the 
attendant circumstances the Superior Court of Bibb 
County could accept the C ity’s resignation, and that no 
reason appears for that Court to have required this un­
willing trustee to serve.

CONCLUSION.

For the foregoing reasons the Petition for W rit of Cer­
tiorari should not be granted.

Respectfully submitted,

C. BAXTER JONES,

CHARLES M. CORK,

A. 0. B. SPARKS, JR,,

W ILL IS  B. SPARKS, III,
1007 Persons Building,

Macon, Georgia,
Attorneys for Respondents, Mem­

bers of the Board of Managers 
of Baconsfield.