Evans v. Abney Brief for Petitioners

    N M C P  LEGAL DEFENSE FUND 
LIBRARY

99 HUDSON STREET

Isr t h e

fpupreuu' (Enurt 0! tip HtutTft States
October Term, 1968 

No. 1106

R everen d  E. S. E v a n s , et al.,
Petitioners,

v.

G u y t o n  G . A b n e y , et al.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF GEORGIA

BRIEF FOR PETITIONERS

W il l ia m  H. A le x a n d e r

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

J a c k  G reen berg  
J am e s  M. N a b r it , III 

10 Columbus Circle 
New York, New York 10019

C h a r le s  L. B l a c k , Jr.
169 Bishop Street
New Haven, Connecticut 06511

A n t h o n y  G . A m sterdam  
3400 Chestnut Street 
Philadelphia, Pennsylvania 19104

Attorneys for Petitioners



I N D E X

Opinions Below ..........................-.......................... .......... -  1

Jurisdiction .....................................................    2

Questions Presented ............................................—-.........  2

Statutes Involved ........................................... —..............  3

Statement of the Case ......................................................  5

The Will ...................................... -........ -......................  9
The City of Macon Acquires Baeonsfield—1920 .... 11

City Administration and Financial Aid to the 
Park and Federal Government Aid .....................  14

Baeonsfield Clubhouse—Built by Federal Govern­
ment ...... ................................-....................................

Public Roads in the P a rk .................... -....................  21

City-Built Swimming Pool and Bathhouses at 
Baeonsfield ....................................    21

City Operated Zoo ........................................ - ------  24

Public School Playground ..........................................  24

City Leased Building ..............................      25

City-Aided Recreation Facilities ...................    25

Sale of Portion of Trust Property to State........... 26

Tax Exemption .................. -..... ................................... 26

Income Property...........................................................  27

Assets of the Estate .................................. -..............  27

PAGE



11

How the Federal Questions Were Raised and De­

PAGE

cided .............................. ........................................... 28

Summary of Argum ent......................................................  33

A egumestt—

I. Introductory: State and National Law ....... .....  36

II. The Decree of the Court Below Violates the 
Fourteenth Amendment, in That It Is Hostile 
to and Infringes Petitioners’ Right to Continue 
to Enjoy Public Facilities Without Racial Dis­
crimination ........ ..... ........ ..... _......... ........ .............  40

A. The Decree of the Georgia Court Imposes
the Drastic Sanction of Reverter on Compli­
ance With the Fourteenth Amendment, and 
in so Doing Infringes upon a Federal Inter­
est Declared and Created by the Constitu­
tion, at the Same Time and by the Same Act 
Inflicting Detriment on the Petitioners and 
Encouraging Racial Discrimination ......... . 40

B. The Judgment That This Trust Has 
“Failed,” Though Its Intended Beneficiaries 
May Still Enjoy Its Benefits Just as Before,
Can Rest Logically Only on the Proposition 
That, as a Matter of Law, the Presence of 
Negroes Spoils a Park for Whites, an Im­
permissible Ground Under the Fourteenth 
Amendment. The Rejection of the Cy Pres 
Alternative Must Rest on Substantially Sim­
ilar Grounds 50



Ill

PAGE

C. Confronted with the Unavoidable Necessity
of Choosing Between Senator Bacon’s Two 
Contradictory Wishes, the Georgia Court 
Impermissibly Chose to Give Effect to That 
Part of His Will Which Was Incurably 
Tainted by Its Having Been Drawn Under 
Georgia Code §69-504. This Choice Consti­
tuted a Preference of the Unconstitutional 
Over the Constitutionally Unobjectionable 
Alternative ....................................... -.......... -.....  60

D. At Least Under the Highly Special Circum­
stances of This Case, the Provision for Ra­
cial Discrimination in Baconsfield Ought, as 
a Matter of Federal Law, Under the Four­
teenth Amendment, to Be Treated as Abso­
lutely Void. If This Is Correct, Then Fed­
eral Law Commands That This Trust Be 
Continued and That the City Continue as 
Trustee, for It Is Clear That Without the Ra­
cially Discriminatory Language Georgia Law 
Compels That Result. Similarly, Federal 
Law Commands That a Public Park “Dedi­
cated” to the White Public Be “Dedicated”
to the Negro Public as Well ..... ....................  71

C o n clu sio n 80



IV

T able of A uthorities

Cases: page

Adams v. Bass, 18 Ga. 130 .............. .... ........................... 56, 57
Anderson v. Martin, 375 U.S. 399 (1964) — ............. -  68

Barrows v. Jackson, 346 U.S. 249 (1953) ............. 34,41,48
Brown v. Board of Education, 347 U.S. 483 (1954)....48, 73,

77
Brown v. Gunn, 75 Ga. 441 (1885) ............................... . 65
Burton v. Wilmington Parking Authority, 365 U.S. 715 

(1961) ..........       34,50,67

Charlotte Park and Recreation Commission v. Bar­
ringer, 242 N.C. 311, 88 S.E.2d 114 (1955), cert.
denied, 350 U.S. 983 (1956) .......... ...... ........... ......... 47,53

Commonwealth of Pennsylvania v. Brown, 392 F.2d 
120 (3rd Cir. 1968), cert. den. 391 U.S. 921 (1968)..._34, 75 

County of Gordon v. Mayor of Calhoun, 128 Ga. 781
(1907) .......           65

Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1867)—.33,41, 43

East Atlanta Land Co. v. Mowrer, 138 Ga. 380 (1912).... 65
Erie R.R. v. Tompkins, 304 U.S. 69 (1938) .................. 46
Evans v. Newton, 382 U.S. 296 (1966) _____5, 35, 43, 48, 49,

60, 76
Evans v. Newton, 221 Ga. 870, 148 S.E.2d 329 (1966).... 7
Evans v. Newton, 220 Ga. 280, 138 S.E.2d 573 (1964), 

reversed, 382 U.S. 296 (1966), on remand, 221 Ga.
870, 148 S.E.2d 329 (1966) ................... ...................... . 1

Ford v. Harris, 95 Ga. 97 (1894) ..................... ..............  65
Ford v. Thomas, 111 Ga. 493 ...... .......... ....... ..... ...........  56

Griffin v. County School Board, 377 U.S. 218 (1964).... 73

Holmes v. Atlanta, 350 U.S. 879 (1955) .......................35, 77



V

Indiana ex rel. Anderson v. Brand, 303 U.S. 95 (1938).. 37

Lyeth v. Hoey, 305 U.S. 188 (1938) .............—...... -........  37

Mapp v. Ohio, 367 U.S. 643 (1961) .............................. 35,70
Marsh v. Albania, 326 U.S. 501 (1946) ........................... 74
Martin v. Hunters’ Lessee, 1 Wheat. 304 (1816) ------33, 37
Mayor and City Council of Baltimore v. Dawson, 350

U.S. 877 (1955) ...........- ............. -.................................... 77
Mayor and Council of the City of Macon v. Franklin,

12 Ga. 239 (1852) .................................................... 64, 65, 76
McCulloch v. Maryland, 4 Wheat. 316 (1819) ....... 33,41,43

New York Times v. Sullivan, 376 U.S. 254 (1964).....33, 39,
47

PAGE

Pennsylvania v. Board of Directors of City Trusts, 353
U.S. 230 (1957) ........................................................34,74,77

Peterson v. City of Greenville, 373 U.S. 244 (1963)....... 69
Pettit v. Mayor and Council of Macon, 95 Ga. 645

(1894) ...........................- ........ ........................................ 65
Pettway v. American Cast Iron Pipe Company, ——

F .2 d ------  (5th Cir., No. 25826, May 22, 1969).........  38
Plessy v. Ferguson, 163 U.S. 537 (1896) ..... .............. .73,77
Presbyterian Church in the United States v. Mary 

Elizabeth Blue Hull Memorial Presbyterian Church,
____U .S .------- , 37 U.S.L.W. 4107 (1969) .................33, 38

Reitman v. Mulkey, 387 U.S. 369 (1967) .....................41, 68
Robinson v. Florida, 378 U.S. 153 (1964) .................... . 42

Shelley v. Kraemer, 334 U.S. 1 (1948) ........................ 34,41
Strauder v. West Virginia, 100 U.S. 303 (1880).....34, 50, 60



VI

Sweet Briar Institute v. Button, 280 F. Supp. 312 
(W.D. Ya. 1967), rev’d per curiam, 387 U.S. 423, 
decision on the merits, 280 F. Supp. 312 (1967).......  75

PAGE

Tyler v. United States, 281 U.S. 497 (1930) .... ............  37

Western Union Telegraph Co. v. Georgia Railroad and 
Banking Co., 227 F. 276 (S.D. Ga. 1915) ................ . 65

Statutes:

28 U.S.C. §1257(3) ....... .......... .......................................... 2

U. S. Constitution, Art. VI ............................................  37

Civil Rights Act of 1964 ............ ............... ................... . 38

Georgia Code, §69-504 (1933) (Acts, 1905) ..... 2,3,30,34,
60, 61, 63, 66, 67, 68, 
69, 71, 73, 76, 77, 79

Georgia Code, §69-505 (1933) (Acts, 1905) ...... .4,30,34,35,
62, 72, 73, 74

Georgia Code, §108-106(4) ........ ........ ............... 34,50,52,54

Georgia Code, §108-202 ............ ......................... ...4, 55, 56, 60

Georgia Code, §108-203 ....... ...................... ..................... . 62

Georgia Code, §108-212 (Acts, 1952) ........... ......... .......  8

Georgia Code, §113-815 ........... ............................4,55,56,60

Georgia Code of 1895, §4008 ........ .................... .......... . 62



I n th e

(Emtrt rtf %  Inttrfc
October Term, 1968 

No. 1106

R everend E . S. E vans , et ah,

v.
Petitioners,

Guyton  G. A bn ey , et ah

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF GEORGIA

BRIEF FOR PETITIONERS

Opinions Below

The letter opinion of the Judge of the Superior Court of 
Bibb County dated December 1, 1967, and filed May 14, 
1968 (A. 525)* is unreported. The opinion of the Supreme 
Court of Georgia filed December 5, 1968, is reported at 165 
S.E.2d 160 (A. 537). Earlier proceedings in this same case 
are reported sub nom, Evans v. Newton, 220 Ga. 280, 138 
S.E.2d 573 (1964), reversed 382 U .S . 296 (1966), on remand, 
221 Ga. 870, 148 S.E.2d 329 (1966).

* Citations herein are to Appendix (A .), except where indicated 
as citations to original record (R.).



2

Jurisdiction

The judgment of the Supreme Court of the State of 
Georgia was entered on December 5, 1968 (A. 546). The 
Petition for Certiorari was filed March 3, 1969 and wTas 
granted May 5, 1969 (A. 548). The jurisdiction of this 
Court is invoked under 28 U.S.C. §1257(3), the petitioners 
having claimed the violation of their rights under the Con­
stitution of the United States.

Questions Presented

1. Whether, in the absence of any reversionary clause in 
the will leaving property in trust as a park, the imposition 
by the Georgia court of a reversion to the heirs on a show­
ing that Negroes have used, and must be allowed to use the 
park, constitutes an infringement by state power on a 
federal interest declared and created by the Constitution, 
both by its immediate penalization of compliance with the 
Fourteenth Amendment, and by its operation to discourage 
desegregation.

2. Whether the holdings by the state court that this 
trust has “failed” and that cy pres, cannot apply, rest on a 
ground impermissible under the Fourteenth Amendment— 
the ground that the presence of Negroes frustrates the en­
joyment of the park by whites, even though the latter, the 
intended beneficiaries, may use the park as freely as ever.

3. Whether the racially exclusionary provision in Bacon’s 
will must as a matter of federal law be treated as null and 
void, first, because it is “ incurably tainted” for all pur­
poses by its connection with Georgia Code §69-504; sec­
ondly, because it was meant to form and did actually form 
a part of the public law by which the City conducted its



3

park; and thirdly, because federal law, commanding equal­
ity between the races, commanded and by operation of law 
brought it about that this park, “ dedicated in perpetuity” 
to whites, must also be taken to be “dedicated in perpetuity” 
to Negroes.

Statutes Involved

1. This case involves the Fourteenth Amendment to the 
Constitution of the United States.

2. This case involves the following Georgia statutes:

a. Georgia Code Section 69-504:

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.



4

b. Georgia Code Section 69-505:

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

Municipality authorized 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.

c. Georgia Code Section 108-202:

Cy pres.—When a valid charitable bequest is in­
capable for some reason of execution in the exact man­
ner provided by the testator, donor, or founder, a 
court of equity will carry it into effect in such a way 
as will as nearly as possible effectuate his intention.

d. Georgia Code Section 113-815:

Charitable devise or bequest. Cy pres doctrine, ap­
plication of.—A  devise or bequest to a charitable use 
will be sustained and carried out in this State; and in 
all cases where there is a general intention manifested 
by the testator to effect a certain purpose, and the 
particular mode in which he directs it to be done shall 
fail from any cause, a court of chancery may, by ap­
proximation, effectuate the purpose in a manner most 
similar to that indicated by the testator.



Statement of the Case

Petitioners are Negro citizens in Macon, Georgia who 
have sought in this extended litigation to desegregate 
Baconsfield Park, a previously all-white municipal park 
left to the City of Macon by the will of the late United 
States Senator Augustus Octavius Bacon. The case was 
reviewed by this Court once before in Evans v. Newton, 
382 U.S. 296 (1966). Petitioners now seek a reversal of a 
ruling by the Georgia courts that as a consequence of this 
Court’s holding that the Fourteenth Amendment forbids 
the exclusion of Negro citizens from the park, Bacon’s trust 
fails and the park and other trust property is forfeited by 
the City and reverts to the heirs of Senator Bacon.

The early course of the lawsuit, which was begun in the 
Superior Court of Bibb County, Georgia on May 4, 1963, 
is briefly summarized in the following excerpt from the 
opinion by Mr. Justice Douglas for the Court, Evans v. 
Newton, 382 U.S. 296, 297-298:

In 1911 United States Senator Augustus 0. Bacon 
executed a will that devised to the Mayor and Council 
of the City of Macon, Georgia, a tract of land which, 
after the death of the Senator’s wife and daughters, was 
to be used as “a park and pleasure ground” for white 
people only, the Senator stating in the will that while 
he had only the kindest feeling for the Negroes he was 
of the opinion that “in their social relations the two 
races (white and negro) should be forever separate.” 
The will provided that the park should be under the con­
trol of a Board of Managers of seven persons, all of 
whom were to be white. The city kept the park segre­
gated for some years but in time let Negroes use it, 
taking the position that the park was a public facility 
which it could not constitutionally manage and maintain 
on a segregated basis.



6

Thereupon, individual members of the Board of Man­
agers of the Park brought this suit in a state court 
against the City of Macon and the trustees of certain 
residuary beneficiaries of Senator Bacon’s estate, ask­
ing that the city be removed as trustee and that the 
court appoint new trustees, to whom title to the park 
would be transferred. The city answered, alleging it 
could not legally enforce racial segregation in the park. 
The other defendants admitted the allegation and re­
quested that the city be removed as trustee.

Several Negro citizens of Macon intervened, alleging 
that the racial limitation was contrary to the laws and 
public policy of the United States, and asking that the 
court refuse to appoint private trustees. Thereafter 
the city resigned as trustee and amended its answer 
accordingly. Moreover, other heirs of Senator Bacon 
intervened and they and the defendants other than the 
city asked for reversion of the trust property to the 
Bacon estate in the event that the prayer of the peti­
tion were denied.

The Georgia court accepted the resignation of the 
city as trustee and appointed three individuals as new 
trustees, finding it unnecessary to pass on the other 
claims of the heirs. On appeal by the Negro inter- 
venors, the Supreme Court of Georgia affirmed, hold­
ing that Senator Bacon had the right to give and be­
queath his property to a limited class, that charitable 
trusts are subject to supervision of a court of equity, 
and that the power to appoint new trustees so that the 
purpose of the trust would not fail was clear. 220 Ga. 
280, 138 S. E. 2d 573.

This Court, in reversing the judgment of the Georgia 
Supreme Court, ruled that the park was “a public institu­
tion subject to the command of the Fourteenth Amendment,



7

regardless of who now has title under state law” (382 TT.S. 
at 302).

Immediately after this Court’s decision, the Supreme 
Court of Georgia delivered a second opinion setting forth 
the view that the purpose for which the Baeonsfield Trust 
was created had become impossible to accomplish and had 
terminated. Evans v. Newton, 221 Ga. 870, 148 S.E.2d 329 
(1966). However, the judgment did not direct that the 
Superior Court on remand enter any particular order, but 
merely ruled that the court should pass on contentions of 
the parties not previously decided, and said that the “ judg­
ment of the Supreme Court of the United States is made 
the judgment of this Court” (148 S.E.2d at 331).

On remand in the Superior Court of Bibb County, a 
Motion for Summary Judgment (A. 98) (which was sub­
sequently amended and supplemented by three additional 
pleadings (A. 360, 462, 468) was filed by Guyton G. Abney, 
et al. as Successor Trustees under the Last Will and Tes­
tament of Senator Augustus Octavius Bacon. The motion 
asked that the court rule that Senator Bacon’s trust had 
become unenforceable, and that the Baeonsfield property 
had reverted to movants as successor trustees under Item 
6th of Bacon’s will, and to certain named heirs of Senator 
Bacon (A. 103). The motion was opposed by petitioners, 
Rev. E. S. Evans, et al., the Negro citizens of Macon who 
had earlier intervened seeking the racially nondiscrimina- 
tory operation of Baeonsfield Park, by the filing of a re­
sponse (A. 119) and four supplemental responses to the 
summary judgment motion (A. 242, 393, 454; R. 971). Peti­
tioners filed numerous exhibits, as well as depositions, 
affidavits, answers to interrogatories and stipulations set­
ting forth additional facts. Petitioners objected on federal 
constitutional grounds based on the due process and equal 
protection clauses of the Fourteenth Amendment, as well



8

as on state law grounds, to the relief sought by the suc­
cessor trustees and heirs. The heirs also filed several affi­
davits and exhibits supplementing the factual record. None 
of the other parties to the case, including the City of Macon, 
the Trustees of Baeonsfield named by the court’s order of 
March 10, 1964, or the members of the Board of Managers 
of Baeonsfield (who initiated this lawsuit) either opposed 
the granting of the relief requested in the Motion for Sum­
mary Judgment, or offered any evidence. The court heard 
oral arguments on June 29, 1967, and granted the parties 
time to file further documentary evidence, which was filed.

At the hearing the petitioners, Evans, et al., suggested 
that the Attorney General of Georgia should be made a 
party to the case. By order dated July 21, 1967, the Attor­
ney General was made a party pursuant to Georgia Code 
Section 108-212 (Acts 1952, pp. 121, 122; 1962, p. 527). The 
Attorney General of Georgia filed a “Response” opposing 
the relief requested by the heirs and supporting the posi­
tion of the intervenors E. S. Evans, et al. that the doctrine 
of cy pres should be applied to save the trust (R. 975-988).

The Superior Court, granted the relief requested in the 
successor trustees’ and heirs’ Motion for Summary Judg­
ment, ruling that the trust established by Senator Bacon 
failed immediately upon this Court’s ruling in January 
1966, that the City of Macon was dismissed from the case, 
and that the trust assets reverted to the successor trustees 
and heirs (A. 517-524). In addition, the court ruled that 
the doctrine of cy pres was not applicable, that there was 
no dedication to the public, that the heirs were not estopped 
and that no federal constitutional rights of intervenors 
were violated by the reversion of the trust assets (id.). The 
Superior Court order and decree was entered May 14 1968
(id.).



9

Petitioners duly appealed to the Supreme Court of 
Georgia, which filed an opinion December 5, 1968, affirming 
the decree of the Bibb Superior Court, and rejected peti­
tioners’ federal constitutional claims (A. 537-545). The 
court below stayed its remittitur and further proceedings 
pending the disposition of a timely petition for certiorari 
in this Court (A. 547).

While the record filed with this case includes the entire 
record of proceedings before this Court on the prior peti­
tion, it also includes a good deal of additional factual data 
and evidence presented to the Superior Court on remand. 
The evidence develops the history of Baconsfield Park, and 
shows in great detail the substantial governmental invest­
ment, including the expenditure of both city and federal 
government funds, in establishing, improving and main­
taining Baconsfield Park.

The Will

Senator A. 0. Bacon provided in Item 9th of his Will 
(A. 10-31), signed in 1911 and probated in 1914, for the 
disposition of his farm called Baconsfield. He left the prop­
erty in trust for the use of his wife and daughters during 
their lives (A. 118) and provided that after their deaths:

. . .  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 
to the Mayor and Council of the City of Macon, and to 
their successors forever, 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



10

enjoyed as a park and pleasure ground, subject to 
the restrictions, government, management, rules and 
control of the Board of Managers hereinafter provided 
for: the said property under no circumstances, 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 excepting so far as herein 
specifically authorized. (A. 19)

The will provided for a seven member all-white Board of 
Managers to be chosen by the Mayor and Council of Macon 
(A. 19) and for the Board to have power to regulate the 
park, including discretion to admit men (A. 20). Senator 
Bacon directed that a portion of the property be used to 
gain income for the upkeep of the park (A. 20). He directed 
that “ in no event and under no circumstances” should either 
the park property or the income-producing area be sold or 
otherwise alienated, and specified that except for the desig­
nated income-producing area the property “ shall forever, 
and in perpetuity be held for the sole uses, benefits and 
enjoyments as herein directed and specified” (A. 20). The 
will stated Senator Bacon’s belief that Negroes and whites 
should have separate recreation grounds (A. 21). It also 
stated his wish that the property be “ preserved forever for 
the uses and purposes” indicated in the will, and that it be 
perpetually known as “Baconsfield” (A. 21). It provided 
that the trustees had no power to sell or dispose of the 
property “under any circumstances and upon any account 
whatsoever, and all such power to make such sale or alien­
ation is hereby expressly denied to them, and to all others” 
(A. 22).

Item 10th of Senator Bacon’s will bequeathed bonds, 
valued at $10,000, to the City of Macon with directions that 
the income be used for the preservation, maintenance and



11

improvement of Baconsfield (A. 22). The will said that if 
the City was without legal power under the city charter to 
hold the funds in trust, the City should select a successor 
trustee (A. 24). Bacon gave a similar direction for the 
City to select a successor trustee “if for any reason it 
should be held that the Mayor and Council of the City of 
Macon have not the legal power under their charter to hold 
in trust for the purposes specified the property designated 
for said park and pleasure ground . . .” (A. 24).

In a 1913 codicil, Senator Bacon noted that one of his 
daughters, Mrs. Augusta Curry, had predeceased him, and 
provided that her children should stand in her place in the 
disposition of the property, except that with respect to 
Baconsfield their interest would cease upon the death of 
his wife and his other daughter (A. 29-30). Item 3rd of 
the codicil provided, inter alia:

To prevent possibility of misconstruction I hereby pre­
scribe and declare that all interest of the said children 
of my said daughter Augusta in the property specified 
in Item 9 of my said Will and in the rents, issues and 
profits thereof, shall cease, end and determine upon 
the death of my wife Virginia Lamar Bacon and of 
my daughter Mary Louise Bacon Sparks (A. 30).

In Item 4th of the codicil, it was provided that Custis 
Nottingham, one of the trustees and executors under the 
will, and his family, could occupy a house on Baconsfield 
rent-free until the full expiration of the trust for which he 
was appointed (A. 30).

The City of Macon Acquires Baconsfield— 1920

The City of Macon obtained possession of Baconsfield in 
February 1920, many years before the death of Senator 
Bacon’s surviving daughter, by virtue of an agreement



12

between the City and the trustees under the will, which was 
entered into with the written assent of all of Senator 
Bacon’s heirs. The agreement is set forth in the Macon 
City Council Minutes of February 3, 1920 (Intervenors’ 
Exhibit 0 ;  A. 405-407). Under the agreement between the 
City and the trustees, which recites that it was executed 
with the signed assent of all legatees and beneficiaries of 
the Bacon estate, the trustees conveyed Baconsfield to the 
City by deed, and also conveyed to the City to be covered 
into the City treasury the bonds and accumulated interest 
bequeathed by Item 10th of the will (Id.). The deed of 
Baconsfield to the City appears in the record as Intervenors’ 
Exhibit P ; it was executed February 4, 1920, and recorded 
February 10, 1920 (A. 353). In the agreement the City 
agreed to pay the trustees the sum of $1,665 annually dur­
ing the life of Senator Bacon’s daughter, Mrs. Sparks 
(A. 405-407). The City also agreed that it would appro­
priate 5% of the sum of the value of the bonds and ac­
cumulated interest each year, or $650 annually, for the 
improvement of Baconsfield Park (Id.). The City agreed 
not to charge any taxes or other assessments of any kind 
against the property (Id.). At the same time the City 
agreed with Custis Nottingham that he would terminate 
his occupancy of a house in Baconsfield in consideration 
of a cash payment of $5,100 from the City of Macon (Ex­
hibit O; A. 405). Nottingham’s Quit Claim Deed to the 
City is Intervenors’ Exhibit G- (A. 357).

The City of Macon paid $5,100 to Custis Nottingham in 
consideration of his deed of his interest in Baconsfield 
(A. 405). The City of Macon paid the trustees under the 
will an annuity each year during the life of Mrs. Mary 
Louise Bacon Sparks. The Baconsfield annuity payments of 
$1,665 per year were regularly included in the Macon City 
budgets. (See, for example, budgets for the years 1939 and



13

1940, Interveners’ Exhibits T and U ; A. 416, 417). Mrs. 
Sparks lived until May 31, 1944 (Intervenors’ Exhibit W ; 
A. 456). Accordingly, there were 25 payments of $1,665 
from February 1920 through February 1944, and the City 
of Macon thus paid a total of $41,625 to the trustees under 
Bacon’s will in order to acquire Baconsfreld during Mrs. 
Sparks’ life.

The Macon City Council Minutes of February 17, 1920 
(Intervenors’ Exhibit P ; A. 408), reflect the fact that 
the City had taken over Baconsfield Park; that the council 
elected the first Board of Managers; that the Mayor of 
Macon, G. Glenn Toole, was elected to the Board of Mana­
gers; and that this election of the Mayor was requested 
by the trustees under Bacon’s will, Messrs. Jordan and 
Nottingham, who wrote a letter to the Mayor stating:

In turning over to the City of Macon the park devised 
to it by Senator Bacon, permit us to express the hope 
that this Park will mean all to the white citizens of 
Macon that Senator Bacon wished it to mean.

The place is one of great natural beauty, but it could 
easily be marred by haphazard work. We are sure 
that before anything material is done to this property 
that you, the City Council, and the Commission ap­
pointed by it will have a well defined and permanent 
plan of improvement in view.

We believe that it is of the utmost importance that 
you be a member of this Commision, and wish here 
to voice the hope that you will not decline such service 
from any false modesty. It will greatly expedite the 
people’s enjoyment of this property if the Commission 
is headed hy the head of our City Government. Dif­
ferences in opinion and change of plans will be thus 
avoided, and the money essential to the improvement 
of this property will be expended by the one charged 
with raising it. (A. 408-409; emphasis added).



14

Mr. Toole who was Mayor of Macon from 1918-1921 and 
from 1929-1933 (Heirs and Trustees Exhibit E ; A. 463), 
remained a member of the Board of Managers until 1945. 
(Intervenors’ Exhibit B, Baeonsfield Minutes of May 30, 
1945, and November 1, 1945; A. 268, 271, 273-274).

City Administration and Financial Aid to the Park 
and Federal Government Aid

Mr. T. Cleveland James was Superintendent of Parks of 
the City of Macon from 1915 to the time of his Deposition 
in April 1967 (A. 206). He developed most of Macon’s 
parks, including Baeonsfield and exercised “general super­
vision” over Baeonsfield for many years. (A. 205). He 
testified that Baeonsfield was a “wilderness” with “under­
growth everywhere” and no facilities at the time the 
Mayor directed him to take charge of the park (A. 199-200; 
202; 218). Supt. James initially developed Baeonsfield 
Park using workmen who were paid by the federal Works 
Progress Administration, an agency of the United States 
(A. 203-205). The W.P.A. men were working at Bacons- 
field under his supervision for a period he estimated as 
a year or more (A. 203-205; 218). The federally paid 
workmen cleared the underbrush, cleared foot paths, built 
footbridges, dug ponds, built benches, planted trees and 
flowers and generally performed landscaping work in 
Baeonsfield Park (A. 201-207). The W.P.A. workers did 
similar work in other city parks under the supervision 
of the City Park Superintendent (A. 213). Mr. James’ 
testimony is supplemented and corroborated by W.P.A. rec­
ords from the archives of the United States (Intervenors’ 
Exhibit E ; excerpts at A. 347-352) which reflect that Works 
Progress Administration Work Project No. 244 involved 
landscaping city parks in Macon, Georgia under the su­
pervision of the City Park Superintendent. The W.P.A. 
records indicate that W.P.A. Project No. 244 was ap­



15

proved August 7, 1935; that the federal government paid 
$120,032.35 for 469,079 man hours of work; and that the 
sponsor (City of Macon) paid $17,923.43 for work on the 
project (A. 349). The W.P.A. records do not indicate how 
much of the labor was at Baconsfield and how much was 
at other city parks. But, Mr. James’ testimony indicates 
that W.P.A. work at Baconsfield was very extensive (A. 
218):

Q. Will you describe for us very briefly what you 
meant when you said Baconsfield Park was a wilder­
ness when you first went out there? A. Well, there 
wasn’t nothing there but just undergrowth every­
where, one road through there and that’s all, one 
paved road.

Q. And no facilities out there; is that correct! A. 
No.

Q. And how long did it take you to turn it into a 
usable park? A. Oh, about 6 or 8 months, probably 
a year.

Q. I see, and you used employees fairly regularly 
during all of that year? A. Yes.

Q. Every day? A. Well, we had the PW A labor, 
trying to get me to give them something to do, you 
know, and I worked them over there.

Q. You say you used the PWA employees for maybe 
a year? A. I expect I did, yes, that is what I did 
my work with.

The minutes of the Baconsfield Board of Managers meet­
ing held March 30, 1936 (Intervenors’ Exhibit B ; A. 248), 
indicate that considerable development, landscaping and 
planting had been done in the park during the preceding 
12 months. No earlier minutes of the Board are avail­
able (A. 247). However, the Board minutes indicate an 
extensive pattern of governmental involvement in the



16

maintenance of the park from 1936 until the City resigned 
as trustee of the park in 1964. (The minutes from 1936- 
1945 are Exhibit B, R. 506-565; see excerpts at A. 246- 
275. The minutes from 1945-1967 are Exhibit A, R. 376- 
505; see excerpts at A. 276-346). The City’s involvement in 
the operation of the park was manifested in a great number 
of ways. For example, for a twelve year period from 1936 
to 1948, all but one of twenty-one meetings of the Board of 
Managers of Baconsfield took place in the Mayor’s office or 
elsewhere in Macon’s City Hall. During the same period 
the Mayor of Macon attended 16 of the 21 meetings. (See, 
generally, Intervenors’ Exhibits A  and B supra; A. 246- 
346). The minutes reflect that over an extended period of 
years the Board of Managers frequently requested and 
obtained assistance from the City of Macon in developing 
and improving the park. The minutes of the Board of 
Managers refer to Baconsfield as “ one of the outstanding 
municipal parks in the Southeast” (A. 294), and to “Ba­
consfield and the other public parks of the City of Macon” 
(A. 274).

The deposition of Park Superintendent James and the 
Board of Managers’ minutes indicate positively and con­
clusively that Baconsfield Park was maintained and oper­
ated as an integral part of the City park system from the 
time the park was first developed until the City resigned 
as trustee in 1964. Park department employees under Mr. 
James’ supervision maintained Baconsfield just as they did 
all of the other city parks (A. 200-201; 208; 217-218). Mr. 
James estimated that the City spent about $5,000 for 
flowers and plants in Baconsfield during the years he 
worked there, and additional amounts were spent by the 
Board of Managers for gardening supplies (A. 211). In 
1938, the United States government gave to the park 144 
bamboo plants representing six different varieties of bam­
boo (A. 252). Mr. James regularly assigned men from the



17

city Park Department to work in Baconsfield as the need 
arose (A, 200-201). City workers did all the general main­
tenance work in the park until 1964 (A. 200-201). For a 
period of years, Mr. James, the City Superintendent of 
Parks, lived in Baconsfield Park, occupying a home rent 
free (A. 290). The substantial value of the city’s contri­
bution of labor for upkeep of the park is demonstrated 
bv the increase in the board’s maintenance expenditures 
after the City resigned as trustee of the park in 1964 (A. 
235). The amounts spent by the Board of Managers for 
maintenance in the years 1960-1966 were as follows:

1960--$1,307.20
1961 — $1,645.72
1962 — $1,995.57
1963 — $1,465.20
1964 — $6,545.78
1965 — $7,073.80
1966 — $6,675.89

(Computed from Answer to Interrogatory No. 9; A. 135- 
136.) The Chairman of the Board of Managers agreed that 
the cost increase in 1964 and thereafter was attributable to 
the fact that the City withdrew its services, and it became 
necessary for the board to pay for services which had pre­
viously been furnished by the City Parks Department (A. 
235). The Mayor of Macon ordered all city employees to 
stop working at Baconsfield after the City resigned as 
trustee in 1964 (A. 176-177).

Baconsfield Clubhouse— Built by Federal Government

There is a two story brick building known as the Bacons­
field Clubhouse located in the park. The clubhouse was built 
in 1939 by the Works Progress Administration (W.P.A.), 
an agency of the United States (Intervenors’ Exhibits J 
(A. 403-404). Iv (R. 724-841; excerpts at A. 419-442), L



18

(R. 842-846), M (R. 847-910; excerpts at A. 443-453), N 
(R. 911-913) and R (A. 413-414)). The clubhouse con­
struction project was sponsored by the City of Macon 
acting in conjunction with a private group known as the 
Women’s Clubhouse Commission. In its application for 
federal funds for this project, the City of Macon, by its 
Mayor and Treasurer, executed numerous documents con­
stituting agreements, assurances, certificates, representa­
tions and contracts which are contained within the W.P.A. 
records (Intervenors’ Exhibits K (A. 419-442) and M (A. 
443-453)). The City in several documents represented to 
the United States that the City was the sole owner of the 
Baconsfield Park property (R. 774, 788-789), that the City’s 
ownership was “perpetual,” (A. 449), that there were no re­
versionary or revocation clauses in the ownership docu­
ments (R. 789; A. 449), that the property was not private 
property (id.), and certified that proposed clubhouse proj­
ect was “ for the use or benefit of the public” (R. 796, 808; 
A. 434, 451). Federal funds totaling $16,512.80 were ex­
pended to construct the clubhouse (see Intervenors’ Ex­
hibits L (R. 842-846) and N (R. 911-913)). The city officials 
signed documents indicating that the sponsor’s (City’s) 
share of construction costs would be financed out of the 
“ regular tax fund with the assistance of the Women’s Club 
of Macon” (Intervenors’ Exhibit K ; R. 774). The Women’s 
Club had agreed to contribute $3,000 (Intervenors’ Ex­
hibit R ; A. 413). The sponsor’s (City’s) share of the con­
struction costs finally amounted to $8,376.91 (R. 846, 913). 
The total costs of the clubhouse, including the federal 
contributions ($16,512.80; R. 845, 912) was $24,889.71 (In­
tervenors’ Exhibits L and N).

In a sworn certificate executed under oath by the Mayor 
and Treasurer of the City of Macon on October 14, 1938, 
quoted in full below, the City promised that there would be



19

no discrimination against any group or individual in the 
use of the clubhouse or the property upon which it was 
located, and that the City did not intend to lease, sell, 
donate or otherwise convey title or release jurisdiction of 
the property during the useful life of the improvements 
built with federal funds. The certificate contained in Inter­
veners’ Exhibit K, reads as follows (A. 440-441):

With reference to Works Progress Administration 
Project Application State Serial No. 6586, this is to 
certify that the proposed building referred to in plans, 
specifications and other data submitted to support the 
project applications, as “Baconsfield Club House” will, 
upon completion, be used as a community club house 
for the general use and benefit of the public at large, 
without discrimination against any individual, group 
of individuals, association, organization, club or other- 
party or parties who may desire the use of the build­
ing and the property upon which the building is 
located.

It is further certified that the City of Macon, as project 
sponsor and owner of the property upon which the 
building is to be constructed, does not intend to lease, 
sell, donate or otherwise convey title or release juris­
diction of the property together with improvements 
made thereon, during the useful life of the improve­
ments placed thereon through the aid of W. P. A. 
funds.
It is further certified that the City of Macon, as project 
sponsor, will be responsible to see that the property 
together with the improvements made thereon will be 
maintained for the general use and benefit of the public, 
and will not be used for the profit or benefit of any­
one individual or specific group or organization; and



20

the management of the property, together with im­
provements made thereon, will at all times be subject 
to the approval of the designated city official or officials 
of the City of Macon, who will be responsible to see 
that the foregoing certification is adhered to.

/ s /  Chables L. B owden 
Mayor, City of Macon, 
Georgia

/ s /  F ran k  B ranan

Treasurer, City of Macon, 
Georgia

Another similar certificate or agreement containing as­
surances that the property “will not be leased, sold, donated 
or otherwise disposed of to any private individual or cor­
poration, or to a quasi-public organization during the oper­
ation of the project” and would be “maintained by the 
Women’s Club and operated for the benefit of the general 
public,” was executed September 7, 1938, by the Mayor 
and Treasurer of the City of Macon and by the President 
and Treasurer of the Women’s Club House Commission 
(Intervenors’ Exhibit M at A. 453).

The Women’s Club continues to occupy the clubhouse in 
Baeonsfield Park, using the building free of charge and 
without paying rent either to the City or to the Board of 
Managers. The Women’s Club charges fees for various 
organizations which use the building for meetings, but none 
of these funds go to the City or to the Board of Managers 
(A. 159-164; 221-222; 232-234). Mayor Merritt of Macon 
testified that he has attended meetings at the Clubhouse of 
such organizations as the Georgia Legal Secretaries Asso­
ciation, the Georgia Milk Dealers Association, and several 
other local associations of various types (A. 161-163).



21

The minutes of the Board of Managers of Baeonsfield in­
dicate that the Board permitted the Highland Hill Baptist 
Church to use the Baeonsfield Clubhouse as the temporary 
meeting place for the church during the construction of 
the church. The Board voted this permission for the church 
to use the Clubhouse at its meeting of June 25, 1953, not­
withstanding its attorney’s advice that this use was not 
permitted by Senator Bacon’s will (Exhibit A, Minutes 
of 6/25/53; A. 296-298). A  letter from the Chairman of 
the Board of Deacons of Highland Hill Baptist Church 
thanking the Board for the use of the Clubhouse as a 
meeting place for the church was read at the Baeonsfield 
Board meeting of May 17, 1955 (Exhibit A, Minutes of 
5/17/55; A. 311).

Public Roads in the Park

Certain roads running through Baeonsfield Park were 
paved and developed by the City (A. 167-169; 202-203; see 
also Intervenors’ Exhibit A, Minutes of 5/17/55 (A. 312- 
313). On several occasions the Board of Managers resolved 
to seek federal funds for the paving of roadways in the 
park, but the record does not indicate whether any federal 
highway funds were actually obtained (see Intervenors’ 
Exhibit B, Minutes of 3/30/36 (A. 247-248); 6/28/38 (A. 
253); and 10/12/38 (A. 247-248)). On one occasion the City 
paid the Board of Managers the sum of $1,000 as “ partial 
reimbursement from City of Macon for paving in Bacons- 
field.” (Intervenors’ Exhibit A, financial statement follow­
ing Minutes of 10/16/47; A. 393).

City-Built Swimming Pool and Bathhouses at Baeonsfield

As early as 1936, the Board of Managers of Baeonsfield 
began discussing the desirability of constructing a swim­
ming pool in the park, and the discussion of government



22

aid for a pool continued for years (Interveners’ Exhibit 
B, Minutes of 6/29/36 (A. 249), 7/30/36 (A. 251), 12/7/36 
(B. 517), 12/14/44 (A. 260), 5/30/45 (A. 262-268)). Fi­
nally, on June 3, 1947, the Chairman of the Board of 
Managers met with the Mayor and several aldermen of 
Macon and “ strongly urged” that the City appropriate 
$100,000 to build a pool in Baconsfield. (See Intervenors’ 
Exhibit A, Minues of 6/3/47; A. 281-282). The City agreed 
to this suggestion and on July 22, 1947, resolved to deliver 
the sum of One Hundred Thousand Dollars to the Board 
of Managers of Baconsfield to be used by the Board for 
the construction of a swimming pool. (Intervenors’ Ex­
hibit I ; A. 389; see also, Intervenors’ Exhibit V ; A. 418.) 
Subsequently, the City appropriated an additional Forty 
Thousand Dollars on December 23, 1947 to the Becreation 
Department to construct bathhouses at Baconsfield pool 
(Intervenors’ Exhibit I ;  A. 389). The Baconsfield minutes 
indicate that the Board of Managers accepted the $100,000 
grant and designated the Chairman and Secretary of the 
Board of Managers and the Chairmen of the City Council’s 
Finance and Becreation committees to act as agents to con­
struct the pool and disburse the funds from a special swim­
ming pool account. (Intervenors’ Exhibit A, Minutes of 
8/4/47; A. 285-287.) A  large community swimming pool 
and adjacent buildings were constructed in 1948 on a por­
tion of the Baconsfield land designated in Bacon’s will as 
income-producing property. After the pool was constructed 
the Board of Managers and the City entered into a contract 
by which the pool was leased by the Board to the City for 
a two year term, to be automatically renewed for successive 
two year terms unless either party terminated the lease 
or the City breached its covenants (Heirs’ Exhibit D ; A. 
384-388). The City agreed to operate the pool:

. . .  as a part of the pleasure and recreational facil­
ities of Baconsfield, for the enjoyment and benefit of



23

the beneficiaries of the trust for Baconsfield, as set 
up and established in the said last will and testament 
of the said A. 0. Bacon, deceased, and also for other 
persons who are or may be admitted to Baconsfield 
(A. 385).

The City agreed to bear any losses in connection with the 
pool operation, and to share any profits with the Board. 
No payments to the Board were made under this provision 
(Heirs’ Exhibit H and attached letter; A. 470-474). The 
City made additional capital expenditures at the pool and 
related facilities over the years for improvements, includ­
ing the following amounts (Heirs’ Exhibit I I ; A. 473):

1948 $ 4,999.57
1960 6,079.21
1962 6,360.55

$17,439.33

The sum of $1,084.93, which remained in the old swim­
ming pool account was transferred to the regular account 
of the Board of Managers in 1959. (Intervenors’ Exhibit 
A, Minutes of 5/8/59; A. 326, and financial statement fol­
lowing Minutes of 10/29/59; R. 456.)

The pool was finally closed and the lease cancelled in 
1964 in order to avoid racial desegregation as required 
by the Fourteenth Amendment. In April 1963, following 
attempts by Negro groups to integrate the park, the Board 
resolved to cancel its contract with the City relating to the 
pool and to attempt to negotiate a contract with a private 
party for operation of the pool (Minutes of 4/9/63; A. 
334-335). At the same time, the Board directed its attor­
neys to commence this lawsuit to remove the City as trustee 
(Id.). The swimming pool contract was finally cancelled



24

in May 1964. The Board’s attorney wrote a letter to 
Mayor Merritt dated May 22, 1964 (Intervenors’ Exhibit 
X ; A. 458-460) stating that it was cancelling the pool lease 
because of the City’s inability to enforce racial segrega­
tion at the pool. The Mayor replied by letter dated May 28, 
1964 (Intervenors’ Exhibit Y ; A. 461), acquiescing in the 
termination and relinquishing control of the pool to the 
Board of Managers. The swimming pool has remained 
closed since that time, and has not been maintained or 
kept in repair since 1964. Nearby highway construction 
which interfered with the pool area during a period of time 
has now been completed, but the pool remains closed.

City Operated Zoo

The City established a zoo in Baconsfield Park, with 
caged animals, including monkeys, a bear, ducks, rabbits, 
a raccoon, a few deer, and a few peafowl and pheasants. 
(Answer to Interrogatory No. 2; A. 133.) Mayor Merritt 
stated that the zoo included 40 or 50 monkeys (A. 154). 
The zoo was closed and all the animals and cages removed 
after the City resigned as trustee in 1964. While the zoo 
was in operation the City employed a full-time employee 
at Baconsfield to take care of the animals (A. 155-156; 201, 
208). The Public Works Department of Macon dismantled 
the zoo (R. 208).

Public School Playground

A  playground in the Baconsfield Park is regularly used 
as the school playground for a nearby public school oper­
ated by the Bibb County Public School System (A. 173- 
174). The school is Alexander School Number 3, a pre­
viously all white elementary school, which it was anticipated 
would be attended by a small number of Negro pupils living 
in the neighborhood under the school district’s desegrega-



OK
t j O

tion plan. (Intervenors’ Exhibit W, Stipulation No. 2; 
A. 456-457.) The school personnel supervise the children 
in using the playground in Baconsfield (A. 173-174; 178- 
179). The Bibb County Board of Education was respon­
sible for having the playground installed, including bas­
ketball courts (A. 180, 192). Prior to 1964, the City 
Recreation Department had an employee assigned to the 
playground at Baconsfield to supervise the children. The 
City spent an average of $1,180.70 per year to employ 
someone at the playground prior to February 1964 (A. 
175-179).

City Leased Building

From 1954 until the present time, the City has leased a 
building referred to as the Open Air School from the 
Board of Managers and paid the Board a rental of $300 
per annum. (Exhibit A, Minutes of 6/24/54; A. 301; A. 
181-184.) This is a one story brick building located in 
the portion of the Baconsfield property set aside for rais­
ing revenue (Id.). The City in turn makes the building 
available, free of charge, to the Macon Young* Women’s 
Civic Club for the activities of the “Happy Hour Club,” an 
organization of elderly people (Id.). The building was 
previously occupied by the Board of Education rent free 
(Intervenors’ Exhibit B, Minutes of 7/10/41; R. 541).

City-Aided Recreation Facilities

A Little League baseball field located in the park was 
constructed in part with the aid of the City which dumped 
100 to 200 truck loads of dirt in a low area of Baconsfield 
where the field is now located (A. 164-165). The financial 
records of the Board indicated that it made a “part pay­
ment” to the City for filling in the play area in the amount 
of $3,500. (Exhibit A, financial statement following Min-



26

utes of 12/18/56; E. 437.) The minutes do not indicate 
any subsequent payments.

Several tennis courts are maintained in the park. The 
City of Macon assisted in installing lights at the tennis 
courts to permit play at night. (A. 169-170; Minutes of 
7/24/62; A. 330.) In 1964, the Board of Managers granted 
to the Macon Tennis Club, a private club, permission for 
the club to regulate play at the Baconsfield Tennis Courts 
according to the rules of the club, and permission to main­
tain the tennis courts. (Intervenors’ Exhibit A, Minutes of 
4/10/64; E. 492.)

Sale of Portion of Trust Property to State

During World War II, when informed that the War De­
partment wanted a strip of land to open a roadway, the 
Board and the City sold a strip of land from the area of 
Baconsfield devised by Senator Bacon as income-producing 
property to the State Highway Board of Georgia. (See 
the deed and attached resolutions, Intervenors’ Exhibit H ; 
E. 655-660.) The Board of Managers received a check in 
the amount of $1,500 from the City of Macon in this trans­
action. (Intervenors’ Exhibit B, Minutes of 3/3/42; E. 542- 
543, and financial statement following Minutes of 12/15/44;
A. 261.)

Tax Exemption

The Board of Managers has never paid any taxes, fed­
eral, state, or local, on the Baconsfield property or on any 
of the income they have received. The property has always 
been treated as exempt from taxes under Georgia laws. 
(See Financial Statements in Intervenors’ Exhibits A  and
B, passim-, see also A. 184, 196.)



27

Income Property

The income-producing area of the trust property now 
includes a shopping center with several business, includ­
ing a filling station, pharmacy, ice cream store, etc. The 
rental income of the Board of Managers during calendar 
year 1966 was $7,058.37. (Computed from Intervenors’ Ex­
hibit C; R. 569-592.) The rental income received during 
the period April 1, 1963, to March 31, 1964, was $5,225.04 
(R. 346). During the years the Board also has received 
payment for various types of utility easements on the 
property. In 1958, the Board received $3,500 from the City 
Board of Water Commissioners for a sewer easement. (In­
tervenors’ Exhibit A, financial statement following Minutes 
of 5/8/58; A. 324.) The State Highway Department ac­
quired 26.932 acres of land in Baeonsfield by condemnation 
proceedings in 1964 to construct a portion of Interstate 
Highway 16. (Heirs’ Exhibit I ;  A. 476.) The Board of 
Managers was awarded the sum of $131,000 in the con­
demnation, and the Court ordered that sum paid to the 
Chairman of the Board of Managers to be invested in short­
term government bonds and to be held subject to the fur­
ther order of the court pending the outcome of proceedings 
in the instant case {ibid.).

Assets of the Estate

The assets as of April 17, 1967, held by the First Na­
tional Bank & Trust Company in Macon, as agent for the 
Board of Managers of Baeonsfield, were stated by the 
Bank as follows (Intervenors’ Exhibit D ; R. 594):



28

“ A ssets :
Cash:

Principal Cash Overdraft $ 266.44
Income Cash Balance 9,443.67

$ 9,177.23
Property:

Real Estate 255,000.00
U. S. Treasury Bonds 136,434.98
Savings Account First 

National Bank 7,795.05

399,230.03

Total Assets $408,407.26
Less:

Real Estate 255,000.00
Highway Right of Way Fund 143,766.92

398,766.92

Rent Accumulation $ 9,640.34”

The original trust fund of $10,000 in bonds left by Sen­
ator Bacon, was long ago “depleted” according to the 
City (City’s Answer to Interrogatory No. 13; A. 116).

An accounting filed by the successor trustees with the 
court below on June 3, 1968, showed the total trust assets 
to be $404,810.77, including a book value for the real estate 
of $255,000 (R. 1055).

How the Federal Questions Were Raised 
and Decided

The petitioners’ federal constitutional objections to the 
order of the court below ruling that the Baconsfield Park 
property had reverted to the heirs were stated in their 
Response to the motion for summary judgment (A. 119- 
122) and in their several supplemental responses (A. 242,



29

393, 454; E. 971). The federal constitutional objections 
were repeatedly and elaborately articulated. The follow­
ing excerpts from the Supplemental Kesponse and the 
Second Supplemental Eesponse represent the general 
thrust of petitioners’ argument as stated to the Superior 
Court:

The entry of a judgment to the effect that the trust 
properties should revert to the heirs of Senator Bacon 
would violate the intervenors’ rights under the Due 
Process and Equal Protection clauses of the Four­
teenth Amendment to the United States Constitution, 
in that:

(a) A  Judicial decree of reversion would not im­
plement the intent of Senator Bacon’s will, which ex­
pressed the legally incompatible intentions that (1) 
Negroes be excluded from Baconsfield Park, and (2) 
that Baconsfield Park be kept as a municipal park for­
ever. A judicial choice between these incompatible 
terms must be made in conformity with the said 
Fourteenth Amendment. The affirmative purpose of 
the trust, to have a park for white people, will not fail 
if the park is opened for all, and for the court to rule 
that the mere admission of Negroes to the park is such 
a detriment to white persons’ use of the park as to 
frustrate the trust and cause it to fail, would be a vio­
lation of the said Fourteenth Amendment. (A. 242-243)

# # *
An application of the reverter doctrine or other doc­

trine finding a failure of the trust on the facts of this 
case would amount to a judicial sanction which imposed 
a penalty because the agencies managing Baconsfield 
Park fulfilled their Fourteenth Amendment obligation 
to operate the park on a racially non-diseriminatory 
basis. The use of such a judicial sanction in these cir­



30

cumstances would violate the intervenors’ rights under 
the due process and equal protection clauses of the 
Fourteenth Amendment to the Constitution of the 
United States. (A. 399)

—  6 —

The due process and equal protection clauses of the 
Fourteenth Amendment to the Constitution of the 
United States require that the racially exclusionary 
words of Senator A. 0. Bacon’s will relating to Bacons- 
field Park he treated by the courts as pro non scripto 
as though they were never written. This is required, 
firstly, because the racially exclusionary terms were 
written in the will to conform to racially exclusionary 
suggestions and requirements of Georgia Code Section 
69-504 (Georgia Acts 1905, p. 117). The racial portions 
of Section 69-504 are void under the Fourteenth 
Amendment, and indeed were void ab initio even under 
the “ separate but equal” doctrine, by authorizing the 
total exclusion of Negroes from public parks, and thus 
must be regarded as pro non scripto. Secondly, it is 
required because by the City’s acceptance of the park, 
pursuant to Georgia Code Section 69-505 (Georgia 
Acts 1905, pp. 117-118), and its operation of the park 
in accordance with Bacon’s will, the will was made a 
part of the City’s own laws governing the operation 
and use of the park, and is to be treated in the same 
manner as if the racially exclusionary words appeared 
in a city ordinance. (A. 399-400)

— 9 —

By virtue of all the facts and circumstances pre­
sented on the record of this case the City of Macon 
has so invested the Baeonsfield Park with a public



31

character, and the City .has become involved to such 
an inextricable extent, that it would be a violation of 
the intervenors’ rights under the due process and 
equal protection clauses of the Fourteenth Amend­
ment for the state courts to apply any state law doc­
trines (whether relating to trust law, the law of dedica­
tion, real property law, or other principles), so as to 
defeat the rights of the intervenors to racially non- 
discriminatory use and access to the park as a public 
park (E. 401-402)

Before the Superior Court the constitutional claims were 
argued orally and were presented in full written briefs. 
The ruling of the trial court on petitioners’ constitutional 
arguments was brief and general. The court stated in its 
order of May 14, 1967 (A. 519-520):

It is my opinion that Shelley vs. Kraemer, 334 U.S. 
1, 68 S.Ct. 836, 92 L.ed. 1161 (1948), does not sup­
port the position of the intervenors. It is further my 
opinion that no federal question is presented in regard 
to the reversion of Baconsfield, but rather this prop­
erty has reverted by operation of law in accordance 
with well settled principles of Georgia property law.

The federal questions were preserved on appeal by ap­
propriate enumerations of error and again fully briefed 
before the Supreme Court of Georgia. The Supreme Court 
of Georgia also rejected petitioners’ constitutional argu­
ments on the merits. The court stated at the conclusion 
of its opinion (A. 545) :

6. The intervenors urge that they have been denied 
designated constitutional rights by the judgment of 
the Supreme Court of Bibb County holding that the 
trust has failed and the property has reverted to Sen-



32

ator Bacon’s estate by operation of law. We recognize 
the rule announced in Shelley v. Kraemer, 334 U.S. 1 
(68 SC 836, 92 LE1161, 3ALR2d 441), that it is a viola­
tion of the equal protection clause of the Fourteenth 
Amendment of the United States Constitution for a 
state court to enforce a private agreement to exclude 
persons of a designated race or color from the use or 
occupancy of real estate for residential purposes. That 
case has no application to the facts of the present 
case.

Senator Bacon by his will selected a group of people, 
the white women and children of the City of Macon, 
to be the objects of his bounty in providing them 
with a recreational area. The intervenors were never 
objects of his bounty, and they never acquired any 
rights in the recreational area. They have not been 
deprived of their right to inherit, because they were 
given no inheritance.

The action of the trial court in declaring that the 
trust has failed, and that, under the laws of Georgia, 
the property has reverted to Senator Bacon’s heirs, is 
not action by a state court enforcing racially discrimi­
natory provisions. The original action by the Board 
of Managers of Baconsfield seeking to have the trust 
executed in accordance with the purpose of the testator 
has been defeated. It then was incumbent on the trial 
court to determine what disposition should be made of 
the property. The court correctly held that the prop­
erty reverted to the heirs at law of Senator Bacon.



33

Summary of Argument

Federal law entirely governs the crucial issues in this 
case. As both venerable and recent decisions of this Court 
established beyond doubt, no area of state law and no 
action of any state agency, whether in the field of trusts 
or anywhere else, is immune from total control by the 
Constitution. Petitioners contend that the Fourteenth 
Amendment has been violated in this case, thus tender­
ing a purely federal question. Martin v. Hunters’ Lessee, 
1 Wheat. 304 (1816); New York Times v, Sullivan, 376 U.S. 
254 (1964); Presbyterian Church in the United States v. 
Mary Elisabeth Blue Hull Memorial Presbyterian Church, 

ITS , 37 U.S.L. Week 4107 (1969).

The action of the court below violates the Constitution 
in that it imposes a drastic forfeiture on the mere fact of 
the City’s compliance with federal law. The only possible 
excuse for this (an excuse whose extreme doubtfulness 
need not be argued in this case) would be the testator’s 
definite command, but the record unequivocally shows, and 
the court below admits, that the contingency now dealt with 
in this way never entered the testator’s mind and that he 
made no provision, definite or indefinite, for action such 
as that taken by the court below. Thus, it is the choice of 
the Georgia court, that this reversion is to occur on a 
showing that Negroes must be allowed to use the park. 
Aside from its naked character as a penalty on municipal 
compliance with federal law, this action constitutes a 
strong potential encouragement of racial discrimination. 
Petitioners, as Negroes in whose favor the constitutional 
guarantees primarily run, and as citizens of Macon who 
will lose a public park if this reverter is enforced, have 
standing to rely on this ground. McCulloch v. Maryland, 
4 Wheat. 316 (1819); Crandall v. Nevade, 73 U.S. (6



34

Wall.) 35 (1867); cf. Shelley v. Kraemer, 334 U.S. 1 
(1948); Barrows v. Jackson, 346 U.S. 249 (1953).

Secondly, since the intended white beneficiaries of Ba­
con’s trust may still use the park as freely as ever the 
judgment that the “ uses of the trust” have “ failed” (Geor­
gia Code §108-106(4)) must logically rest on the premise 
that for Negroes to use it as well so impairs white enjoy­
ment as to produce “ failure.” The record is absolutely 
silent on this impairment, so that the premise is one of 
pure law. Cf. Mr. Justice Stewart’s concurring opinion in 
Burton v. Wilmington Parking Authority, 365 U.S. 715, 
726 (1961). This is beyond question a proposition on which 
no state court judgment can be allowed to rest, under the 
Fourteenth Amendment, for it goes even further than an 
“ assertion” of Negro “ inferiority.” Strauder v. West Vir­
ginia, 100 U.S. 303, 308 (1880). It is immaterial that this 
proposition doubtless was not consciously present in the 
Georgia court’s mind; it is a proposition logically neces­
sary to the conclusion that the “uses” of this trust—en­
joyment by whites—have “failed” (Georgia Code §108-106 
(4)) when all that has changed is that Negroes in uncertain 
numbers may be present. Having, under Georgia law, an 
easy alternative to this decreeing of “failure,” in the 
Georgia cy pres statutes, the Georgia court refused to 
use it, a decision which logically must rest on a proposi­
tion very similar to the one just identified. See Pennsyl­
vania v. Board of Directors of City Trusts, 353 U.S. 230 
(1957); Pennsylvania v. Brown, 392 F.2d 120 (3rd Cir. 
1968), cert, denied, 391 U.S. 921 (1968).

Thirdly, the discriminatory provision in Bacon’s m il 
was incurably tainted by its evident connection with §69- 
504 of the Georgia Code authroizing racial discrimination 
and only racial discrimination in trusts for public parks. 
A  provision so tainted ought to be unusable, not merely



35

affirmatively, but for any practical purpose. Mapp v. Ohio, 
367 U.S. 643 (1961); see Mr. Justice White’s concurring 
opinion in Evans v. Newton, 382 U.S. 296 (1966).

Fourthly, the racially discriminatory term in Bacon’s 
will should be treated as a nullity, pro non scripto, for two 
reasons. The first reason is that it was intended to be­
come and did actually become a part of the public law 
material of the city of Macon; its character as such (evi­
dent enough in any case) is incontestably established by 
Georgia Code §69-505. Having this character, it should 
simply be stricken, as a city ordinance commanding racial 
discrimination would be stricken. Holmes v. City of A t­
lanta, 350 U.S. 879 (1955). The second reason is that this 
park, which by Georgia law was beyond any doubt “dedi­
cated in perpetuity” to the whites, must by virtue of the 
federal command of racial equality be “dedicated in per­
petuity” to the blacks. The park, by virtue of this federally 
commanded addition to Georgia law, then stands “ dedi­
cated in perpetuity”  to all.

All of the above arguments are greatly strengthened and 
reinforced by the impressive showing in this record of long- 
continued and heavy public involvement in the park’s main­
tenance and control.



36

ARGUMENT

I.

Introductory: State and National Law.

One overriding point must initially be made. Respon­
dents have introduced into this case, in their Brief in 
Opposition to Petition for Certiorari, at p. 15 and passim, 
an idea that seems to govern strategically the view of the 
case which they would have this Court take:

Respondents submit that the petition for a writ of 
certiorari should be denied because the decision of the 
Supreme Court of Georgia involved nothing more than 
the application of well-settled principles of Georgia 
law to a Georgia will. No rights guaranteed petitioners 
by the Fourteenth Amendment have been denied; nor 
is the decision of the Georgia court in any way incon­
sistent with the decision of this court in Evans v. 
Newton, 382 U.S. 296 (1966).

This Court has scrupulously adhered to the rule that 
the highest court of a state may administer its statu­
tory and common law according to its own under­
standing and interpretation (see, e.g., American Rail­
way Express Co. v. Commonwealth of Kentucky, 273 
U.S. 269 (1927)), and especially where the law which 
is being administered by the state tribunal is property 
law (see Tyler v. U. S., 281 U.S. 497 (1930)), or where 
the case involves the construction of a will. As this 
Court stated in Lyeth v. Hoey, 305 U.S. 180, 59 S.Ct. 
155 (1938):

“ The local law determines the right to make a 
testamentary disposition . . . and the condition es­
sential to the validity of wills, and the state courts



37

settle their construction.”  59 S.Ct. at 158. (Empha­
sis supplied.)

At the very beginning, in application to each and every 
argument that is to follow, petitioners deem it necessary to 
confront this idea (surely valid as far as it goes) with its 
obvious and beyond all doubt equally valid limitation—that 
no state law and no state act, in any field, from automobile 
traffic to contingent remainders, can prevail in the face of 
federal law, and that no state court holding can stand in 
the way of a federal court’s examining the fact and truth 
of any transaction, for determining whether, in practice 
and not only in theory, the Constitution has been violated. 
The Constitution protects against actions, and not only 
against maladroit or erroneous classifications and con­
cepts. This has been clear at least since Martin v. Hunters’ 
Lessee, 1 Wheat 304, 357-360 (1816); Indiana ex rel. Ander­
son v. Brand, 303 U.S. 95 (1938). Petitioners have no inter­
est in questioning the general right of the Georgia court to 
deal with trust questions. But when it is claimed, as 
petitioners here claim, that the particular dealing at bar 
violates, in multiple ways, the Fourteenth Amendment, it 
is entirely unresponsive to set up the general proposition 
that state courts ordinarily deal with these matters, where 
federal law is not implicated. U. S. Constitution Article 
VI.

Respondents’ own cases, cited in the just-quoted pas­
sage from their Brief in Opposition, in fact illustrate not 
only the general proposition, but also the exception. In 
both Tyler and Lyeth, having paid due respect to state 
law and state courts, this Court went on to say and to 
hold that these cannot control the incidence of federal 
taxation. See Tyler v. United States, 281 U.S. 497, 503 
(1930); Lyeth v. Hoey, 305 U.S. 188, 193 (1938). Unless 
the Fourteenth Amendment is of lesser dignity than a 
tax statute, the very same thing is true in this case.



38

The Georgia court has the general power to say when, 
under Georgia law, a trust has terminated. But that only 
opens, and does not by any means close, the question 
whether the Georgia court’s holding, in all its bearings 
and on all the facts, results in a violation of the Fourteenth 
Amendment.

It is very striking that no longer ago than last Term 
the Georgia court’s decree declaring a trust to be termi­
nated was in this Court reexamined, in the light of a claim 
that the action violated the First Amendment, and un­
animously reversed—Mr. Justice Harlan concurring spe­
cially not because of any belief that Georgia controls her 
own trust law without the necessity for responding to the 
federal Constitution, but solely because of a desire to 
state his understanding of the limits to the holding on the 
merits. Presbyterian Church in the United States v. Mary 
Elizabeth Blue Hull Memorial Presbyterian Church,
U.S. , 37 U.S.L.W. 4107 (1969). This recent case 
should finally leach out any lingering chemical trace of 
the notion that a state court has some special plenary 
power over trusts, without entire subjection to federal 
constitutional norms.1

1 The recently decided case of Pettway v. American Cast Iron
Pipe Company,------ F .2d------- - (5th Cir., No. 25826 May 22, 1969),
involved a trust created by the owner of the business. He willed 
the entire company in trust to his employees in 1924, with certain 
racial conditions as to the composition of those bodies responsible 
for management. While the case itself contained no issues regard­
ing this trust and was decided on grounds altogether unconnected 
therewith, it does suggest an interesting question. Suppose the 
owner of a business were, in 1924, to have willed that business in 
trust to his employees with a provision in the trust instrument to 
the effect that no Negro should ever be employed by the company. 
After the passage of the Civil Rights Act of 1964, such a provision 
would clearly become unlawful and could not be followed. Is it 
possible that this Court would allow a state court to decree the 
reversion of the company to the heirs of the settlor on the ground 
that state courts were a law unto themselves when it came to the 
question of whether a trust had terminated?



39

The absolutely general subjection of state judgments to 
federal norms could be illustrated over a range as wide as 
the history of the Republic. Perhaps it is enough to cite 
New York Times v. Sullivan, 376 U.S. 254, 265 (1964), 
where the state libel law—normally, of course, a matter 
of state concern—was in effect drastically revised to make 
it chime with the federal Constitution. As this Court said 
in that case, in words equally applicable to this case: “ It 
matters not that that law has been applied in a civil action 
and that it is common law only, though supplemented by 
statute.” 376 U.S. at 265.

The petitioners in this case are putting forward definite 
claims that the action of the Georgia court violates the 
Fourteenth Amendment in a number of ways. These claims 
cannot be answered by suffusing the discussion of them with 
a general feeling-tone of deference to the Georgia court’s 
dealings with trusts. If no important or substantial fed­
eral claim is present in this case, then the wrrit of certiorari 
was improvidently granted. If one or more substantial 
and important federal questions are present, then this 
Court alone, on the record before it and on the uncontro­
verted facts in that record, is the one final authority on 
the question whether what has been done—and not merely 
what the Georgia court has said has been done—violates 
the Constitution.

All the arguments that follow point to different aspects 
of a single plain factual pattern: by testamentary disposi­
tion and by Georgia law, in intricate and intended coaction, 
a public park was limited to whites. The flagrant uncon­
stitutionality of that limitation is conceded by all. By the 
present decree of the Georgia court, this provision is never­
theless given a drastic affirmative effect. The question 
whether such an effect can be given to a flagrantly uncon­
stitutional set of arrangements is a federal question, and 
only a federal question.



40

II.

The Decree of the Court Below Violates the Four­
teenth Amendment, in That It Is Hostile to and Infringes 
Petitioners’ Right to Continue to Enjoy Public Facilities 
Without Racial Discrimination.
A. The Decree of the Georgia Court Imposes the Drastic 

Sanction of Reverter on Compliance With the Four­
teenth Amendment, and in so Doing Infringes Upon 
a Federal Interest Declared and Created by the 
Constitution, at the Same Time and by the Same Act 
Inflicting Detriment on the Petitioners and Encourag­
ing Racial Discrimination.

The immediate contemporary facts presented by this 
record are simple and prima facie damning-. A  park was 
being operated by the city of Macon as trustee, and by a 
Board of Managers appointed by the City Council. The 
Fourteenth Amendment says that Negroes may not be ex­
cluded from a park so operated. Macon accordingly allowed 
Negroes to use the park. Upon this showing, the Georgia 
court decrees the extreme penalty2 of forfeiture of the 
property.

On the face of it, this constitutes a direct and drastic 
interference by the state of Georgia with a course of events 
charged with that high and positive federal interest, which 
attaches to the commands of the Constitution. It is the 
command of the Constitution that all races use any park 
run by the City, or by a Board of Managers appointed 
by the City, or by both in coaction. This command, like 
all constitutional commands, states and implements a na­

2 Petitioners choose “ penalty” as the handiest word for what 
the action taken undoubtedly is—the imposition of a drastic and 
detrimental consequence on a showing that Negroes must be al­
lowed to use the park. It is the fact and not the word that matters. 
Of. Brief in Opposition to Certiorari, p. 18.



41

tional interest. State power in no form, and on no state-law 
doctrinal basis, may take action hostile to a federal interest 
so expressed, or penalize that which the Constitution com­
mands. McCulloch v. Maryland, 4 Wheat. 316 (1819); 
Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1867); cf. Shelley 
v. Kraemer, 334 U.S. 1 (1948); and Barrows v. Jackson, 
346 U.S. 249 (1953).

It is quite beside the point that if this park be forfeited 
the exclusion of Negroes might thereafter not constitute a 
violation of the Fourteenth Amendment, for it is the for­
feiture itself, decreed by the Georgia court in this case, 
which constitutes the sanction hostile to the federal consti- 
tiuonal command.3

It is clear, in addition, that this action of the Georgia 
court will operate widely as a discouragement to expedi­
tious and voluntary compliance with the Fourteenth Amend­
ment, and will encourage racial discrimination, contra the 
decision in Reitman v. Mnlkey, 387 U.S. 369 (1967). I f  this 
Georgia decision stands, it will be taken as a strong prece­
dent supporting the proposition that state courts may 
generally decree reversion of property for breach of racial 
conditions. The use of this device by draftsmen, and com­
pliance by those placed in terrorem, will undoubtedly be 
significant.

Where, as here, the reverter occurs as to public property, 
Negroes will be discouraged from asserting their rights, 
since they will know (and doubtless will be told) that such 
assertion would be a futility, since reversion would attend 
their success; this might be of little significance in Macon, 
but it might well be highly significant in small communities 
with few Negro inhabitants. Cities, reciprocally, would be

8 This is the sufficient answer to respondents’ point in their Brief 
in Opposition, p. 17, first full paragraph.



42

encouraged to evade as long as possible their duty to 
integrate. Where a trust instrument or deed so much as 
raised a doubt as to its interpretation or validity, the 
plain duty of non-discrimination might be evaded by pro­
longed and exhausting litigation.

A  potential discouragement of racial equality need not be 
absolutely certain or highly substantial in order to offend 
the Constitution. See Robinson v. Florida, 378 U.S. 153 
(1964), where the fact that a restaurateur, if he should 
desegregate, would be directed to put in separate toilets, 
was held sufficient discouragement to make unconstitu­
tional his discriminatory rule. The effect of the affirmance 
of the present decree would beyond question rise to a 
higher order of magnitude than the effect of the regula­
tion in Robinson.

It is true that the detriment here imposed for failure to 
keep Baconsfield white is not one finally avoidable by keep­
ing Baconsfield white, since that is forbidden by the Four­
teenth Amendment. It might be argued, then, that the 
sanction of reverter does not in this case foster racial 
discrimination, since the racial discrimination involved can­
not permissibly occur in any case. The consequence of this 
argument would seem to be an absurdity—that a state 
may impose any forfeiture it likes on the performance of 
a compelled federal duty, even though it cannot impose 
any forfeiture on the same act when that act is not a fed­
eral duty. I f  the argument had force, a state could fine 
a man, in a moderate sum, for paying his federal income 
tax, since he has to pay that tax anyway, and hence cannot 
be influenced not to pay it by the fear of a small fine. 
Sound federalism is not built of such scholastic spider­
webs. The imposition by a state of a forfeiture, on a show­
ing that a federally imposed duty has been or will be 
performed by a municipality, is as noxious an interference



43

with, national supremacy as can well be imagined. U. S. 
Constitution, Art. V I; see McCulloch v. Maryland, 4 Wheat. 
316 (1819); Crandall v. Nevada, 73 U.S. 35 (1867).4

A state which would thus impose a drastic forfeiture of 
property as a penalty for obedience to the Constitution, 
and, moreover, do so in a way that effectively discourages 
the assertion of federal rights and encourages their denial, 
must surely come forward with some justification. The only 
justification even specious must be looked for in Senator 
Bacon’s will. On examination, there are here two pos­
sibilities, one of which is totally and clearly demurrable, 
and the other of which, being entirely unsustained by the 
record, is admitted by the Georgia court not to exist in fact.

First, Senator Bacon clearly and seriously desired that 
Negroes be excluded from this publicly operated park. But 
neither he nor any other person has any lawful power to 
command such a result. That result can be attained only 
by the repeal of the Fourteenth Amendment. Senator Ba­
con’s desire in this regard is no more effective in law than 
would have been an express direction that a colored citizen 
of Macon chosen by lot stand in the stocks in the park 
every Sunday. There can never have been any doubt about 
this, since at least 1956, and no party connected with this 
case ever seems to have doubted it, but any possible doubt 
was laid at rest by the decision of this Court in Evans v. 
Newton, 382 U.S. 296 (1966).

A  quite different expressed or implied desire of Senator 
Bacon might be brought forward as justification for what

4 Reference is here made to footnote 1 above. Unless it be true 
that a state court may validly decree forfeiture of property for the 
violation of any directions of a settlor, though compliance with 
those directions would constitute a flagrant violation of national 
law, there is no possible way to sustain the judgment in the case 
at bar.



44

lias been done; it might be said that Senator Bacon in­
tended, desired, or willed the destruction of the park and 
the reversion of this property to his heirs if Negroes had 
to be allowed to use the park. If such intent was discern­
ible, or inferable, an interesting question would be pre­
sented. The categorical fact is, however, that Senator 
Bacon’s intent, desire, or will in this regard is unknown 
and unknowable, and in overwhelming probability never 
was so much as formed. The Georgia court admits this 
unmistakably, saying that the reversion which it decrees 
occurs “because of a failure of the trust, which Senator 
Bacon apparently did not contemplate and for which he 
made no p r o v is io n (A. 543) (emphasis added). Respon­
dents make the same admission in their Brief in Opposi­
tion to Certiorari at p. 23.

Despite these admissions, which entirely cover the 
ground, it will be useful briefly to show how thoroughly 
unknowable Senator Bacon’s intent in this regard must 
remain.5 First, the Bacon will, and this whole record, are

5 Petitioners are here so laboring this point because respondents, 
in their Brief in Opposition to Certiorari, passim, have sought to 
convert this case into one involving the mere “ construction” of a 
will. On the only point that matters—whether Bacon would have 
preferred the total collapse of his plan for a park to the presence 
therein of Negroes—the will contains no basis for “ construction.” 
Curiously, respondents virtually concede this, citing a passage from 
Scott on Trusts which says that, in circumstances like these, “ all 
the court can do is to make a guess not as to what he intended 
but as to what he would have intended if he had thought about 
the matter.” Brief in Opposition, p. 23. (Emphasis supplied.) 
The very passages from Bacon’s will which respondents quote 
(Brief in Opposition, pp. 4-7) state as solemnly as language can 
do his wish that the property be kept a park forever. Respondents 
ask, then, that this Court respect a “construction” of a will which 
the Georgia court itself admits has no basis in a demonstrated or 
in any way knowable intent of Senator Bacon, and which respon­
dents themselves virtually concede to be a mere guess. Any action 
at this time will necessarily do violence to Senator Bacon’s ex­
pressed intentions; it is to the last degree misleading to stress that



45

absolutely silent on this point. One must therefore recur 
to the probabilities. The question (an unanswerable one) 
then is: Would this Georgian who died over fifty years 
ago prefer to have his lovely farm remain as a park with 
some Negroes using it along with whites, or would he pre­
fer to have it become mere city real estate, fully alienable, 
subject to all the vicissitudes affecting such property 
through the decades and centuries? On the latter alterna­
tive, Negroes certainly cannot be excluded. If a restaurant 
is opened on the property, Negroes must be served. If 
rent property is erected, Negro tenants cannot be rejected. 
If there are sidewalks, Negroes cannot be kept off them. 
I f  a church is erected, a mixed couple may be married in it. 
Senator Bacon’s announced ground for his exclusionary 
policy—the prevention of “ social relations” among the races 
—cannot be attained, even as to this property, by a rever­
sion, except for so long as it remains completely “private” 
and in the hands, by chance, of a special sort of “private” 
owners. What wise lawyer in 1911 would have thought 
that alienable city real estate, descending from heir to heir, 
could be kept completely “private,” and in the hands of 
those who would prevent racial interrelation?

Senator Bacon, moreover, formed and expressed his de­
sire for racial exclusion against a background of seemingly 
permanent and general racial separation. His desire for 
his park was congruent with the social system in which 
he lived. If he had known that separation of the races in 
public facilities of all sorts was to become impossible in

one action— maintenance of the park with Negroes in it—will vio­
late Senator Bacon’s will, while utterly submerging the fact that 
the other action— destroying the park forever—will also cardinally 
violate Senator Bacon’s will. It is submitted that, while a state 
court may “ guess” as it wishes on matters federally indifferent, no 
state court, on the basis of a mere “ guess,” can destroy a public 
facility on a showing that Negroes must use it.



46

Georgia, would he have preferred to let his farm become 
city real estate rather than let it be a park conducted on 
the same lines as all other public facilities in the State?

Of course, no one can know the answer. Contrary to 
suggestions in the respondents’ Brief in Opposition to 
Certiorari, petitioners do not themselves pretend to be 
able to answer, and are not asking this Court to answer, 
either de novo or by second-guessing the Georgia court. 
What petitioners assert, on the contrary, and what they 
take to be conceded, is precisely that no one can give the 
answer—whether approving or disapproving of Bacon’s 
“ social philosophy.” (Brief in Opposition, p. 19.) What 
petitioners insist is that it is clearly shown that Bacon 
did not choose between reversion and Negro presence. No 
one, then, is left to choose, except the Georgia court. Its 
choice, the anti-Negro choice, violates the Fourteenth 
Amendment, whether it be called a “guess,” an item in 
“ social philosophy,” or anything else at all.

No party in this case, as it now stands, has any claim 
to be considered as the agent of Senator Bacon’s wishes. 
The admission of the Georgia court to this effect is com­
pelled by the record.

The state of Georgia, having acted through its courts to 
decree forfeiture of public property on a showing that Ne­
groes have used it and must be allowed to use it, cannot 
(and does not), therefore, proffer the justification that it 
is merely carrying out the command of a private testator.6 
The only possible justification remaining is that the rever­
sion occurs “by operation of law.” But law “ operates” as 
a human act; in this case the act is that of the Georgia 
court. Cf. Erie R.R. v. Tompkins, 304 U.S. 69 (1938).

6 It is highly questionable whether even that justification would 
suffice, but petitioners need not here argue the point.



47

For a more recent illustration even more directly con­
cerned with the case at bar, see the language quoted above 
at p. 39 from New York Times v. Sullivan, 376 U.S. 254, 
265 (1964). Georgia may have any rules of trust law she 
desires, declaring these by statute or by judicial decision. 
Or she may, if she wishes, have no law of trusts at all. 
The one reservation is that no state law, particular or 
general, legislative in origin or judicially fashioned, con­
cerning “ failure of trust” or concerning anything else, may 
penalize obedience to federal law. (See supra, I.) The rul­
ing below does just that.

It cannot make any difference that the Georgia court, 
or the respondents, choose to look on the case as one where 
the trust “merely” fails. The “failure” of a trust, like the 
termination of a fee, is not a happening in the order of 
physical nature, which a court observes and records. It is 
a holding in the legal order, which the court by its deci­
sion declares and enforces. The actuality is that applica­
tion is made to the court for affirmative judgment, and it is 
that affirmative judgment which, to ail intents and purposes, 
brings about and even constitutes the “failure.” In appli­
cation to the present case, this point is highly practical 
as well as soundly philosophic; no one could possibly have 
guessed what the status of this park was to be until the 
Georgia court declared its reversion.

In their Brief in Opposition to Certiorari, at pp. 19 and 
25, respondents cite Charlotte Park and Recreation Com­
mission v. Barringer, 242 N.C. 311, 88 S.E.2d 114 (1955), 
cert, denied, 350 U.S. 983 (1956), wherein the North Caro­
lina court gave effect to an explicit provision for the de­
termination of a fee upon use of a golf course by Negroes. 
Of course, that case has no authority here, on familiar prin­
ciples applicable to the denial of certiorari. It was, more­



48

over, decided before the thorough-going effect of Brown v. 
Board of Education, 347 U.S. 483 (1954), and its sequel 
cases, was felt in the state courts. Even so, properly read, 
it tells strongly against respondents’ position. For, while 
it gave effect to a termination clause that explicitly pro­
vided for termination on use by Negroes, it refused to 
decree termination with respect to a second deed which 
clearly provided (as clearly as Senator Bacon’s will) that 
Negroes were not to use the golf course, but which failed 
expressly and in just those words, to provide for termina­
tion on the happening of this event. 88 S.E.2d at 124. On 
the level of federal law, this is a most meaningful dis­
tinction. Petitioners do not concede (the point not being- 
in issue here) that even an express provision for termina­
tion may be judicially implemented. But the state court is 
playing a far more active role than that— as the North 
Carolina court seems to recognize—when it supplies for 
the parties a provision for termination that is not in the 
instrument. That is just what the North Carolina court 
would not do, and just what the Georgia court has done. 
The difference is a federal-law difference, for it is a dif­
ference in the degree or even the kind of affirmative action 
by a state agency.

These petitioners have standing to assert the ground 
developed in this section. The constitutional norm against 
racial discrimination, obedience to which is being penalized 
here, runs primarily in their favor. Cf. Barrows v. Jackson, 
346 U.S. 249 (1953). These petitioners have, in addition, 
a direct and substantial interest in the treatment of the 
claim they here assert; if it is upheld, then the decree pro­
nouncing reversion of this property is reversed, the park 
continues as a park, and these petitioners are (by force 
of the Fourteenth Amendment) entitled to use that park. 
Evans v. Neivton, 382 U.S. 296 (1966). They have standing,



49

then, in both senses of the term—they are the centrally 
intended beneficiaries of the rule they invoke, and they will 
in fact benefit substantially from its application in this 
case. Furthermore, they are citizens of Macon, and the 
destruction of this park, though brought about formally 
by the divestiture of the city’s title, falls substantially on 
them.

Although petitioners have standing, it is worthwhile not­
ing how very widespread would be the impact of the pen­
alty here imposed on the City’s performance of its Four­
teenth Amendment duty. In taking away this park, Georgia 
destroys values built up by many persons and entities. The 
City has spent money on the park—money contributed over 
the years by its citizens. The tax immunity enjoyed by 
this park has been, in effect, a huge subsidy at the ex­
pense of taxpayers of all races. The federal government 
has contributed to the creation and to the improvement 
of the park, in part after an express certification that it 
was a nondiscriminating public facility (A. 440-441). The 
decree of the Georgia court destroys all these values, re­
pudiates this certification, and wipes out the deep and total 
public character which decades of maintenance and subsidy 
have given to Baconsfield—without any definite warrant 
for this step in Bacon’s directions, and solely on the show­
ing that the Negro members of the public may now use 
this public place.

It should be noted how profoundly the present record 
differs in this respect from the spare record in Evans v. 
Newton, supra. There, the case came up on the pleadings. 
Here, a full record has been made, and is before this Court, 
of prolonged public dedication and deep, multi-level gov­
ernmental involvement. The step the Georgia court has 
taken constitutes the destruction of a facility in the widest



50

and profoundest sense public; the penalty for admitting 
Negroes falls on the past and the future.

B. The Judgment That This Trust Has “ Failed,”  Though 
Its Intended Beneficiaries May Still Enjoy Its Benefits 
Just as Before, Can Rest Logically Only on the Propo­
sition That, as a Matter o f Law, the Presence of 
Negroes Spoils a Park for Whites, an Impermissible 
Ground Under the Fourteenth Amendment. The 
Rejection of the Cy Pres Alternative Must Rest on 
Substantially Similar Grounds.

The judgment of the Georgia court in this case must 
stand logically on a ground which the Fourteenth Amend­
ment forbids any agency of the state government to oc­
cupy. Under Georgia Code §108-106(4),7 this trust ends, 
and a resulting trust for the heirs arises, only if the “uses” 
of the trust “fail.” The holding, on analysis, then, must 
rest on the proposition that, as a matter of law, the 
presence or proximity of Negroes, in any number, causes 
the “use”— enjoyment by whites of a public amenity—to 
“ fail.” This premise, as to the Negro race, is worse than 
“an assertion of their inferiority.” Strciuder v. West Vir­
ginia, 100 U.S. 303, 308 (1880). It is an assertion of their 
obnoxiousness. The Fourteenth Amendment strikes down 
a state decision resting, by irresistible implication, on 
such a shocking ground. See the opinion of Mr. Justice 
Stewart, concurring in Burton v. Wilmington Parking Au­
thority, 365 U.S. 715, 726 (1961). Just as, in Burton, 
there was no suggestion in the record that appellant was 
“ offensive” to other customers, so there is no suggestion

7 Ga. Code §108-106(4) provides :
“ Trusts implied, when.— Trusts are implied—

#  % *  *  *

4. Where a trust is expressly created, but no uses are 
declared, or are ineffectually declared, or extend only to a 
part of the estate, or fail from any cause, a resulting trust is 
implied for the benefit of the grantor, or testator, or his heirs.”



51

in this record that petitioners’ presence “offends” whites 
to the extent of “ frustrating” the purpose of a trust estab­
lished for the benefit of the latter. Here, as there, the of­
fensiveness of the Negroes is supplied, in effect, as a 
matter of law.

(Petitioners here would emphasize that they are not 
putting forward the suggestion that the members of the 
Georgia court held this idea in their minds; there is no 
reason whatever for any imputation of that kind, and peti­
tioners would be sorry to be thought to have made it. 
What is being urged here is that, on a proper analysis, 
the logical implication of the holding turns out to be as 
petitioners here urge.)

The affirmative “purpose of the trust” established by 
Senator Bacon is not left obscure by him. It is the furnish­
ing of a public park to the whites of Macon. That pur­
pose has not to any degree been “ frustrated,” or “ failed,” 
in the normal sense of either of those words. The whites 
of Macon may still resort to Baconsfield just as freely as 
ever. There is not one scintilla of evidence in this record 
showing that the admission of Negroes as well either has 
diminished or faintly threatens to diminish the enjoyment 
of Baconsfield by whites. (If such evidence were ever to 
be offered in a proceeding of this sort, this Court would 
then have to consider whether such an issue of fact could 
ever be made in an American court.) The conclusion that 
this trust, clearly set up for the benefit of the whites of 
Macon, no longer benefits them, thus “ frustrating” the 
affirmative purpose of the trust, causing its “uses” to 
“ fail,” must therefore rest on a conclusion, in effect one 
of law, that Negroes spoil a park for whites.

The only faint (and, it is submitted, illusory) hope of 
escape from this conclusion lies in the assertion that the



52

exclusion of Negroes was itself a “purpose of the trust”— 
that is, one of the chief objects of its establishment, one of 
the “ uses” which has “ failed.” But to assert this is to 
assert a great absurdity, an absurdity too great to hide 
behind any generalities about “ deference” to state courts; 
who would leave land in trust for the purpose of exclud­
ing Negroes, or “ declare” such exclusion as a “use” ? 
Georgia Code §108-106(4). It is also to impute a truly 
sinister design to Senator Bacon, a design altogether in­
consistent with his expression of friendship for the Negro 
race. To call the exclusion of Negroes by Senator Bacon 
part of “ the purpose of the trust” is to confuse the affirma­
tive object he had in mind with a provision, incidental 
though of course important in his eyes, as to a collateral 
matter.

Confusion, but easily dispellable confusion, may be cre­
ated by the fact that Bacon’s will uses the word “ sole. . . .” 
See respondents’ Brief in Opposition to Certiorari, p. 27. 
But the adjective “ sole” does not denote a mode or degree 
of enjoyment or use. Unpacked, it says no more than, that 
Negroes are to be excluded. It does not in any way differ 
in its reference from an explicit and separate provision 
for their exclusion, and does not make it any the less 
“ the purpose of the trust” that the whites of Macon shall 
enjoy Baconsfield.

The Georgia court, in its opinion, repeatedly declares 
that the purpose of this trust was the furnishing of a 
park for Macon whites, e.g., “It is clear that the estator 
sought to benefit a certain group of people, white women 
and white children of Macon . . .” (A. 540) ; “ the benefi­
ciaries being “the white women, white girls, white boys, 
and white children of the City of Macon . . .” (A. 541); 
“ Senator Bacon . . . selected a group of people, the white 
women and children of the City of Macon, to be the ob­



53

jects of his bounty, in providing them with a recreational 
area.” (A. 545).

Elsewhere, the Georgia court several times speaks of 
the total failure of this purpose, e.g., . . we are of the
opinion that the sole purpose for which the trust was 
created has become impossible of accomplishment . .
“ . . . the sole purpose . . . had become impossible of ac­
complishment . . .” (A. 539, 542; emphasis supplied).

It is interesting that these passages recognize and em­
phasize the unitary and simple character of this trust’s 
object; it had a “ sole purpose.” But the passages pre­
viously quoted tell us, correctly, that this “ sole purpose” 
was the furnishing of a park to the whites. There is no 
way whatever, therefore, to justify the judgment of the 
Georgia court, except on the basis that, as a matter of 
law, the proximity of Negroes destroys the value of the 
park for whites, for it is only on this assumption that the 
“uses” of the trust may be said to have “ failed.” That is 
the certain “hidden major premise” of the Georgia court’s 
holding. (It is, of course, not petitioners’ assertion that 
this proposition was consciously present to the Georgia 
court’s mind, p. 51 supra.)

It is to be observed that this is emphatically not a case 
in which the court was asked to give effect to a provision 
for reverter or for the determination of a base fee, in 
the event of Negroes’ occupying or otherwise using prop­
erty. (Cf. Charlotte Park and Recreation Commission v. 
Barringer, 242 N.C. 311, 88 S.E.2d 114 (1955), cert, denied, 
350 U.S. 983 (1956), and the discussion supra, pp. 47-48.) 
That case can be decided when it is reached. Not even infor­
mally, not even by implication, did Senator Bacon pro­
vide for this reversion. (For full discussion of this point, 
and the Georgia court’s admission thereon, see above, 
p. 43 et seq.)



54

It is then not Senator Bacon’s will, in either sense of 
the word, that is being enforced. It is 1968 Georgia de­
cisional law, and nothing else, that declares that a rever­
sion is to be decreed when Negroes must be admitted to a 
place where a testator, in a will fifty-seven years old, has 
said they are not to go—though that testator did not 
himself provide for a reversion.

To sum up at this point, Georgia law provides for a 
resulting trust, in cases of this sort, only where the trust 
has “ failed.” Georgia Code, §108-106(4). This trust can 
be said to have “failed”  only on one of two hypothesis:

(1) It was its “purpose”—its affirmative purpose in 
the sense that “failure” to attain that purpose is 
“ failure” of the whole trust—to exclude Negroes. This 
is at once a sinister and an absurd interpretation, 
one to be rejected as soon as clearly stated. The 
Georgia court never espouses it; there is no indica­
tion Senator Bacon espoused it. For a state court to 
decree the forfeiture of property on such a premise 
would be to implement and support in the most 
drastic way a particularly noisome form of racism— 
and in this case to do so without one grain of sup­
port in the record for the settlor’s having held such 
a view.

(2) It was the “purpose” of the trust, affirmatively, 
to furnish a park for white people, but that purpose 
“fails” even though white people may still use the 
park, because Negroes may also use it. Whatever 
words one uses to describe the evaluation of Negro 
presence on which this alternative must rest—nui­
sances, obnoxious, detriments to enjoyment—the in­
escapable assumed premise is that, as a matter of law, 
the presence of Negroes causes white enjoyment to



55

“fail.” This is an impermissible ground under the 
Fourteenth Amendment.

If the Georgia court had had no alternative, under its 
state law, to decreeing reverter whenever all the particular 
terms of any trust could not be fulfilled, then, a question 
of some complexity would be presented. We are spared 
the effort of unraveling this remedial tangle, for Georgia 
law very plainly provided the court below with means of 
escape from a holding that a park must revert, and the 
underlying trust be treated as “failed,” merely because 
some Negroes may now join the whites who continue to 
be beneficiaries in fact as well as in law.

The Georgia law of cy pres is codified in two sections 
of the Georgia Code:

108-202. Cy pres.—When a valid charitable bequest 
is incapable for some reason of execution in the 
exact manner provided by the testator, donor, or 
founder, a court of equity will carry it into effect in 
such a way as will as nearly as possible effectuate 
his intention. (Emphasis supplied.)

113-815. Charitable devise or bequest. Cy pres doc­
trine, application of.—A devise or bequest to a chari­
table use will be sustained and carried out in this 
State; and in all cases where there is a general in­
tention manifested by the testator to effect a certain 
purpose, and the particualr mode in which he directs 
it to be done shall fail from any cause, a court of 
chancery may, by approximation, effectuate the pur­
pose in a manner most similar to that indicated by 
the testator. (Emphasis supplied.)

On their face, these statutes seem not so much to make 
possible as to command application of cy pres to just such



56

a situation as the one which confronted the Georgia court 
in this case. As far as §108-202 is concerned, it is en­
tirely plain that continuance of the trust on a nondis- 
criminatory basis effectuates Senator Bacon’s intention 
“ as nearly as possible.” There would be, indeed, a large 
variance from his intention, but that variation, however 
large, would be as small “as possible”  under the Four­
teenth Amendment. Under §113-815, the application of cy 
pres to this ease would have carried out the general di­
rective of the first clause, and operation of the park on a 
nondiscriminatory basis would, again, amount to its opera­
tion in the “manner most similar” possible to that which 
Bacon directed.

The Georgia court, in the opinion below, treats quite 
briefly the contention that cy pres should have been ap­
plied—not citing either of these statutes. Only one case, 
Ford v. Thomas, 111 Ga. 493, is cited—for the proposition 
that the doctrine “ cannot be applied to establish a trust for 
an entirely different purpose from that intended by the 
testator” ; on examination, all that case held was that in­
sufficient effort had been exerted to fulfill the purpose the 
testator stated.

It is stressed in the opinion that Senator Bacon desired 
the exclusion of Negroes— a point conceded by all, and one 
only opening the question whether cy pres should have 
been applied.

Respondents, in their brief in the Georgia court, say 
that the “ one Georgia case we find to be of significance is 
Adams v. Bass, 18 Ga. 130.” That case, decided before 
the Civil War, voided a trust for the resettlement of 
Negro slaves in free states, on the ground that the particu­
lar states named by the testator would not admit them. Of 
this case, perhaps the best thing one can say is that it 
was decided before the adoption of the present Georgia



57

code or of the Thirteenth and Fourteenth Amendments. 
It represents a low point in failure to apply cy pres, and 
contravenes flagrantly the letter and the spirit of the 
present Georgia code.

After Adams v. Bass, no Georgia case has been found in 
which a trust was allowed to fail, when beneficiaries and 
trustee were still in being, and when the intended benefit 
could still be received, merely because the trust could not 
be carried out in the manner directed by the settlor, or be­
cause its benefits were extended to a larger class, without 
in any way diminishing the enjoyment of the intended bene­
ficiaries.8 The very least one can say, therefore, is that the 
Georgia court was not bound by any of its precedents, by 
any of its statutes, or (as it concedes) by anything disposi­
tive or even suggestive in Senator Bacon’s will, to choose 
not to save this trust. The state court was entirely free, 
and indeed was forced, to make its own choice, as an agency 
wielding state power, between that action (the application 
of cy pres) which would have saved the trust, and that 
action (the one it took) which would destroy the trust and 
with it the petitioners’ rights, as citizens of Macon, to 
resort to the park.

Not quoting or even citing either of the Georgia cy pres 
statutes, respondents stress that cy pres is an “intent- 
enforcing doctrine.” As these Georgia statutes show, cy 
pres, at least in Georgia, could more precisely be described 
as an “ intent-varying” doctrine, for these Georgia statutes 
take hold only where the known intent of the settlor cannot 
be fulfilled. More fundamentally, however, this case is not 
one to which the concept of intent-enforcement is relevant. 
It would be impossible for a testator, short of signing his

8 Respondents speak of the ease at bar as having been decided 
under “well-settled principles of Georgia law,” Brief in Opposition 
to Certiorari, p. 15, but cite no cases, anywhere, to back this up.



58

name in Wood, to indicate more clearly than Senator Bacon 
did Ms wish that this land remain forever a park: “And I 
conjure my descendants to the remotest generation as they 
shall honor my memory and respect my wishes to see to 
it that this property is cared for, protected and preserved 
for the uses and purposes herein indicated . . (A. 21).
At the same time, he very clearly indeed intended that Ne­
groes be excluded, and gave reasons for that desire—just 
as he gave reasons for wanting the land to remain a public 
park. The concept of “ intent-fulfillment” is nonsense when 
applied to these equally clear and quite contradictory “ in­
tents.” Under these circumstances where the intent of the 
testator must in any case be grossly violated, all the cy pres 
doctrine can do is to open to a court the choice as to which 
violation is to occur.

We have to construct the rationale necessary to explain 
logically the court’s ruling, for the grounds it gives are 
little, if any, more than conclusory. But these grounds can 
be constructed with certainty—not in the sense that they 
were consciously present in the mind of the Georgia court, 
which petitioners do not assert,9 but that they are logically 
necessary to the holding.

It is submitted that, in deciding not to apply cy pres 
to this trust, the Georgia court necessarily decided that 
the racial limitation in Senator Bacon’s will was of more 
dignity and importance than his equally or more solemn 
and explicit provisions for the perpetuity of this trust 
and for the perpetual maintenance of the park as such. 
This policy decision, by the court, was inescapable. For 
the only other person who could have decided it was Sen­
ator Bacon, and he did not decide it. The Georgia court 
concedes that he did not decide it (see p. 44, supra). The 8

8 See supra, p. 51, first full paragraph.



59

record would not support a finding that he decided it, 
hut would, on the contrary, conclusively show that he did 
not decide it.

It does not avail to stress (as the Georgia court, in its 
brief treatment of the cy pres contention, stresses) that 
Senator Bacon very seriously desired to keep Negroes out 
of Baeonsfield. The Geor gia statutes, on their face, clearly 
provide for cy pres in the very case, and only in the very 
case, where the settlor’s intent cannot be given effect. The 
question posed to the Georgia court, then, was not whether 
cy pres would fulfill Senator Bacon’s whole intent, but 
whether the variation from that intent was undesirable 
enough to inhibit the use of the clearly available device of 
cy pres. The judgment of the Georgia court, under what­
ever view of state law taken, is therefore a judgment that 
forfeiture of this park and total failure of Senator Bacon’s 
scheme is to be preferred to the admission of Negroes.

Georgia’s cy pres statute merely opens the way to an 
unavoidable choice between these alternatives; neither they 
nor anything else in Georgia law compel the choice made. 
As to ordinary state law questions of this form, it goes 
without saying the Georgia court’s choice would be final. 
But in this case the choice was made in a direction which 
clearly implies 10 an estimate that racial mixture is cru­
cially undesirable, so undesirable that the whole carefully 
constructed scheme for a park is not to be saved. Such a 
decision is wrong as a federal-law matter.

To sum up, then, this state court had first to decide 
whether this trust was to be declared to have “failed” ; its 
“ failure,” if any, consisted in nothing more or less than the 
admission of Negroes to enjoy the park along with the in­
tended beneficiaries, who still could themselves fully enjoy

10 But see supra, p. 51, first full paragraph.



60

it. Secondly, having (as petitioners contend, impermissibly) 
chosen to declare “ failure,” the Georgia court chose to reject 
the cy pres alternative clearly tendered it, thereby inevi­
tably espousing the proposition that enjoyment of a park by 
whites in the absence of Negroes so fundamentally differs 
from enjoyment of a park by whites in the presence of 
Negroes as to go not to the question of “ exact manner” 
(Ga. Code §108-202) or “particular mode” (Ga. Code 
§113-815), but rather to the essence. Since the essence of 
enjoyment is enjoyment, this must in turn imply that the 
presence of Negroes, as a matter of law, critically impairs 
white enjoyment. The ground for declaring “ failure” of 
the trust, and the ground for rejecting cy pres, came down 
then (as one would expect) to much the same ground— a 
ground profoundly insulting to Negroes, and hence im­
permissible under the Fourteenth Amendment. Strauder 
v. West Virginia, 100 U.S. 303, 308 (1880).

C. Confronted with the Unavoidable Necessity of Choos­
ing Between Senator Bacon’s Two Contradictory 
Wishes, the Georgia Court Impermissibly Chose to 
Give Effect to That Part of His Will Which Was 
Incurably Tainted by Its Having Been Drawn Under 
Georgia Code §69-504. This Choice Constituted a 
Preference of the Unconstitutional Over the Constitu­
tionally Unobjectionable Alternative.

As Mr. Justice White maintained in his concurring 
opinion in an earlier decision in this case, Evans v. Newton, 
382 U.S. 296, 302 (1966), “ . . . the racial condition in the 
trust . . .  is incurably tainted by discriminatory state legis­
lation validating such a condition under state law.” 382 U.S. 
at 305. (Emphasis supplied.) Cf. 382 U.S. at 300, fn. 3, 
where the majority discusses the same theory. This incur­
able taint goes not only to the availability of the tainted 
provision for producing the result it primarily aims at, but 
also makes it improper for the Georgia court, ineluctably



61

faced (as we have shown) with making its own choice be­
tween the tainted and the untainted provisions in Bacon’s 
will, to choose to give strikingly preferential effect to the 
tainted provision, by treating it as tantamount to a direc­
tion that the trust be terminated on its violation. The pro­
vision “ incurably tainted” ought to be given no effect what­
ever; certainly it should not be enlarged by construction 
into a direction for termination.

Georgia Code §69-504, passed a few years before Senator 
Bacon drew his will, reads as follows:

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 chil­
dren 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, improvement, and main­
tenance of said property.

It is submitted that Mr. Justice White correctly held that 
“ This case must . . .  be viewed as one where the state has 
forbidden all private discrimination except racial discrimi­



62

nation.” 382 U.S. at 311. The background of §69-505 makes 
clear its functioning as an affirmative facilitation of racial 
discrimination.

The Georgia Code of 1895, the first relevant item in that 
background, names no category including parks as a sub­
ject of charitable trusts. The 1895 Code enumeration (not 
materially different from present Ga. Code §108-203) is as 
follows:

§4008. (3157.) Subjects of charity. The following 
subjects are proper matters of charity for the jurisdic­
tion of equity:

1. The relief of aged, impotent, diseased or poor- 
people.

2. Every educational purpose.

3. Provisions for religious instruction or worship.

4. For the construction or repair of public works, or 
highways, or other public conveniences.

5. The promotion of any craft or persons engaging 
therein.

6. For the redemption or relief of prisoners or 
captives.

7. For the improvement or repair of burying- 
grounds or tombstones.

8. Other similar subjects, having for their object 
the relief of human suffering, or the promotion of hu­
man civilization.

“The promotion of human civilization” would seem a 
pretentious statement of the objective of a park; for a state 
court to hold that segregating a park constitutes such a 
promotion of civilization would violate the Fourteenth 
Amendment. No “construction or repair” is the principal



63

subject of this trust. No Georgia court ever held any part 
of this section applicable to a park, in all the years before 
§69-504 became law. This really is enough to establish the 
entire uncertainty, in the Georgia law, before §69-504, of 
the validity of a trust for a racially discriminatory park.

Authoritative summarization of the general law of trusts 
for parks confirms this view, e.g.,:

4. Other Public Purposes.—Other public purposes 
not in the ordinary sense benevolent, may be valid 
charities, since they are either expressly mentioned by 
the statute, or are within its plain intent. All of these 
purposes tend to benefit the public, either of the entire 
country or of some particular district, or to lighten the 
public burdens for defraying the necessary expenses of 
local administration which rest upon the inhabitants 
of a designated region. 4 Pomeroy, Equity §1024.

There being no Georgia cases, this synthesis of the “com­
mon law” elsewhere is significant. The park, where held 
a public charity, is so held because it benefits the whole 
public, or because its receipt free of charge, lightens the 
expense of the performance of a governmental function. 
The upholding of racially exclusive parks, as objects of 
public charity, would be a contradiction in terms on the 
first of these theories, and the second of them so deeply im­
plicates the charitable trust in the governmental plan as 
to make its enforcement plainly obnoxious to the Fourteenth 
Amendment.

Thus, as one would confidently expect when so carefully 
drawn a statute as §69-504 is put through the state legis­
lature, the prior Georgia law was at least doubtful. It is 
against the parts of that law that were not doubtful that 
§69-504, and its operation, are to be judged. A  very clear



64

role can be assigned this statute when one adverts to the 
law of parks in Georgia, as plainly seen in the old Georgia 
cases.

Apparently no Georgia case had dealt with a charity in­
volving a park. But plenty of Georgia cases had dealt with 
parks, treating them, as the common law traditionally does, 
as lands “ dedicated to the public,” the members of the pub­
lic, as such, having easements of enjoyment in them.

The leading case, never lost sight of in later opinions, is 
Mayor and Council of the City of Macon v. Franklin, 12 Ga. 
239 (1852). In a luminous opinion, Judge Nisbet learnedly 
reviews the doctrine of “dedication,” concluding:

Dedications of lands for charitable and religious 
purposes, and for public highways, are valid without 
any grantee to hold the fee, and the principle upon 
which they are sustained, sustains dedications of 
streets, squares and commons. City of Cinciimati vs. 
The Lessee of White, 6 Peters’ R. 435, 436. Beatty vs. 
Kurts, 2 Peters’ R. 256. Town of Paulett vs. Clark, 9 
Crunch, 292. Lade vs. Shepherd, 2 Stra. 2004. 12 
Wheat. 582.

* *  # # *

That commons and squares are subjects of dedication 
and under the principles which govern streets and 
highways, see the great case of The City of Cincinnati 
vs. White’s Lessees, 6 Peters, 431. Watertown vs. Co­
hen, 4 Paige R. 510. State vs. Wilkinson, 2 Vermont R. 
480. Pearsoll vs. Post, 20 Wend. 111. 22 Wend. 425. (12 
Ga. at 244-45.)

The holding of the case was that the city of Macon might 
not sell for a private use land which it had itself “dedicated” 
to the public as a public square or common.



65

Other Georgia cases treat public parks and analogous 
tracts as “dedicated,” with reciprocal public easements. 
County of Gordon v. Mayor of Calhoun, 128 Ga. 781 (1907), 
decided a few years after the passage of §69-504, shows that 
the Georgia court, which had apparently never dealt with a 
park as the subject of a charitable trust, thoroughly knew 
the “common,” with its accompanying public easements, as 
the legal device by which parks were maintained as such. 
See also Pettit v. Mayor and Council of Macon, 95 Ga. 645 
(1894).

There was, however, one difficulty, not much felt, perhaps, 
in 1852, the year of Macon v. Franklin, but later a cloud 
that could have been seen on the horizon. The “dedication” 
that creates a public park is to the public as a whole. 
Georgia law was of one voice on this, Ford v. Harris, 95 Ga. 
97, 100 (1894); East Atlanta Land Co. v. Mowrer, 138 Ga. 
380, 388 (1912); Western Union Telegraph Co. v. Georgia 
Railroad and Banking Co., 227 F. 276 (S.D. Ga. 1915). The 
concept of “ dedication” left no room for selecting parts of 
the “public” to enjoy the public easement; there was no mid­
dle ground, conceptually, between the public use, compre­
hensive as to the public, and the private easement, an un­
satisfactory legal basis for operating a public park.

The expectable trouble developed, not as to parks, but as 
to the analogous case of the cemetery. In Brown v. Gunn, 
75 Ga. 441 (1885), “persons of color” claimed, as members 
of the public, the right to be buried or to bury their dead 
in a cemetery they contended had been “dedicated” to the 
public. The court held, on the facts, that no “ dedication” 
had taken place, but there was no suggestion, in the opinion, 
that such “dedication” could conceivably, as a matter of 
law, have been to the white public only.



66

This, then, was the background of §69-504:

1. No provision in the purportedly exhaustive Code 
enumeration authorized the setting up of a charitable 
trust for a park.

2. The “ common law” of the subject, outside Georgia, 
generally rested the inclusion of parks in the subject- 
matter of charitable trusts on two grounds, one of 
which was incompatible with racial exclusion and the 
other of which so deeply involved the interests of gov­
ernment in the operation of the park as to make it 
likely that “ state action” would be found.

3. No Georgia case had ever held a park, racially re­
stricted or not, to be the proper subject of a charitable 
trust.

4. Georgia’s public parks were conceived as “dedi­
cated” commons, with corresponding public easements. 
This concept, thoroughly familiar to the Georgia court, 
had no room for restriction to parts of the public. Thus, 
the only sure and well-travelled way of giving one’s 
land for a public park—“ dedicating” it to the public— 
contained no means of enforcing a racial restriction.

5. In at least one case that got as far as the state’s 
highest court, Negroes, asserting the very claim so ir­
resistibly suggested by all the foregoing, had sought 
to enjoy their easement in “dedicated” property, and 
had been turned away only on a narrow finding of fact.

Petitioners urge that the situation defined by these num­
bered points was the one §69-504 was designed to meet, be­
cause it is the very situation to which it appears to address 
itself. It reads and sounds like remedial legislation, and if 
it was, this was what it was designed to remedy. In any



67

case, this is the legal background against which it became 
law.

Against that background §69-504 is no longer a puzzle. 
That section supplies the one thing needful—permission to 
give land as a park with racial restrictions—and it supplies 
that alone. Before it was passed, anybody who wanted to 
give his land as a park for the whole public could “ dedicate” 
it, in the time-honored way. The single practical change the 
section made was that he now could restrict his gift racially 
—not in general or in any way he wished, but only racially.

The 1905 statute, then, by the leave and only by the leave 
of which this racially restrictive term was inserted in 
Senator Bacon’s will, was a specifically hostile state act 
against the colored race, authorizing clearly, for the first 
time in Georgia law, their exclusion from parks otherwise 
public. That was its minimum effect. Here we have what 
one would never have expected to encounter in such explicit 
clarity, literally that very thing which Mr. Justice Stewart, 
concurring in Burton v. Wilmington Parking Authority, 365 
U.S. 715 at 727 (1961), found by inference: “ . . . This legis­
lative enactment . . . authorizing discrimination based ex­
clusively on color.” Here is no mere general declaration of 
a right to discriminate on any grounds, but rather on the 
one hand the lending of Georgia’s law’s sanction, for the 
first time so far as one can tell, to charitable trusts for pub­
lic parks, with the proviso that racial discrimination and 
that discrimination alone, is to be permitted—and, on the 
other hand, the plugging of a loophole that had made racial 
discrimination difficult in the law of public parks as it 
actually existed in Georgia.

This is the minimum effect of this statute. But is it not 
also clear that, against this background, any citizen must 
see that the state is at least suggesting discrimination! Is



68

this not the necessary effect of snch a statute? If it were 
merely declaratory of one consequence of a general capacity 
in testators to discriminate in any manner, must it not for 
that very reason function as a mark of the state’s special 
interest in this form of discrimination? Cf. Reitman v. 
Mulkey, 387 U.S. 369 (1967). Against the legal backdrop 
that actually existed, on the other hand, it must surely signal 
to all a state policy of fostering and favoring segregation, 
evidenced in the most convincing manner by solicitude to 
make such segregation possible against all previous objec­
tions of a technical cast. As this Court held in Anderson 
v. Martin, 375 U.S. 399, 402 (1964), striking down a law 
which encouraged racial discrimination at the polls, “plac­
ing of the power of the State behind a racial classification 
that induces racial prejudice” violates the Equal Protection 
Clause.

Finally, a careful lawyer, seeing in §69-504 his only re­
liable Georgia authority for setting up a trust for a park, 
might well be afraid to count on a later time’s reading of a 
statute so clearly racial in its thrust. The verbal problem 
he would have would not be that of the meaning of the word 
“may.” The problem would be whether the act which, under 
the statute, the testator “may” perform is (1) the convey­
ance of land for a park with or without any of the conditions 
enumerated; or (2) the conveyance of the land together 
with the one he chooses from among those conditions. 
Stranger feats of stautory construction have been per­
formed than a court’s reading this language to have the 
latter meaning.

The general point is not, however, the only reliance in 
this case. What Senator Bacon actually did, in the first 
instance, was to leave his land in trust as a park for the 
white women and children of Macon (K. 19). Now §69-504, 
on its face and with no ambiguity whatever, fails to au-



69

tliorize a gift to women and children on an unsegregated 
basis. It authorizes a gift for white women and children 
only, or for colored women and children only, or for women 
and children of any other race only, but none for women 
and children of all races together. Had Senator Bacon, 
therefore, wished to leave his park for all women and chil­
dren, he would have had to conclude that he could not law­
fully do so under §69-504, and that if he tried to do so on 
an alternative “common law” theory he would be met not 
only by all the difficulties above discussed, but also by the 
powerful argument that this carefully drawn statute, 
enumerating permitted discriminations, excluded others by 
implication. The Board of Managers, to be sure, later 
opened the park to all whites. But Bacon could not have 
known they would, and authorized them not to. Under 
§69-504, he could not have authorized them to include all 
women and children.

The actual effect of all this on Senator Bacon’s mind is 
not important. Peterson v. City of Greenville, 373 U.S. 244 
(1963). What is important is that the state of Georgia, in 
passing this statute:

(1) Supplied the specific thing its law had lacked— 
a clear means for a private person’s giving his land 
for a “public” park on racially discriminatory terms.

(2) In the context of prior law, signalled the State’s 
anxious interest in seeing racial discrimination (rather 
than mere general “freedom of choice” ) authorized 
and practiced.

(3) Engendered legal doubt that any trust for a 
park would be valid without racial discrimination, and, 
unless its readable text and normal implications be ig­
nored, made flatly unlawful the non-racist rule of ad­
mission—“women and children only”—corresponding



70

to the racist rule— “white women and children only”— 
actually adopted in this case, thus in effect commanding 
segregation by race if a “women and children” park 
was wanted.

It would seem clear that such a statute does “incurably 
taint” a discriminatory provision drawn under its authority. 
The only question that remains, in the present posture of 
the case, is whether the “incurable taint” really is incurable, 
or whether a miraculous recovery has occurred. Is the racial 
condition “tainted” only as far as its direct affirmative 
thrust goes, while the same provision is untainted when a 
court seeks to use it as the only ground for destroying this 
public park? The question is a new one, but it is a question 
not of state law but of the effect of a federal constitutional 
taint. Petitioners submit that that which is “ incurably 
tainted” by constitutional infirmity ought not to be usable 
for any purpose, on the obvious ground that any use of 
such a provision in some way gives practical effect to that 
which ought to be without effect. Cf. Mapp v. Ohio, 367 U.S. 
643 (1961).

I f this tainted condition drops out of the will, then re­
version is clearly impossible.



71

D. At Least Under the Highly Special Circumstances of 
This Case, the Provision for Racial Discrimination in 
Baconsfield Ought, as a Matter of Federal Law, Under 
the Fourteenth Amendment, to Be Treated as Abso­
lutely Void. If This Is Correct, Then Federal Law 
Commands That This Trust Be Continued and That 
the City Continue as Trustee, for It Is Clear That 
Without the Racially Discriminatory Language Georgia 
Law Compels That Result. Similarly, Federal Law 
Commands That a Public Park “ Dedicated”  to the 
White Public Be “ Dedicated” to the Negro Public as 
Well.

Senator Bacon’s will, as we have just seen, was drawn 
under the then recently-enacted authority of the present 
Georgia Code §69-504, quoted supra, p. 61.

The will looked backward, then, to recently enacted state 
legislation for its indispensable authorization. (Compare 
the argument developed in C, supra.) Even more important, 
so far as the argument about to be developed is concerned, 
on its face it clearly looked forward to further and quite 
centrally important official connection with state power, for 
it provided that the city of Macon should be trustee and that 
the City Council should appoint the Board of Managers for 
the park. When the city of Macon accepted this position, the 
racially discriminatory provisions in the will became tanta­
mount to city ordinances—part of the normative material 
promulgated and espoused b y  the City with respect to the 
conduct of this public park.11 Senator Bacon, an eminent

11 No special weight is intended to be placed on the word “ or­
dinance.” The crucial point is that the “no-Negro” rule became, 
by the City’s acceptance of the trust, a rule which the City (or 
the Board of Managers appointed by the City, or both) had ac­
cepted and had the duty of enforcing. It can hardly make any 
difference that the City, by accepting the trust, had in some sense 
bound itself to keep this rule in force. Whatever the rule’s claim 
to permanency, it was certainly a part of the publicly espoused 
rule-material governing this city park, and had become that by the 
City’s action as well as by the action of Senator Bacon. Cf. Re­
spondents’ Brief in Opposition to Certiorari, pp. 31-32.



72

lawyer, knew and clearly wished that this part of his will 
would speedily gain this official status as part of the City’s 
rules with respect to the operation of its park. It would 
seem quite artificial to treat such provisions at any stage 
in their rapid and intended progress from explicit statutory 
sanction toward the status of being, in effect, ordinances, in 
a manner different from that in which one would treat 
ordinances themselves. Indeed, their character as “mere” 
expressions of Bacon’s will was merged in their character 
as quasi-ordinances on the day the city of Macon accepted 
the trust.

This point is driven all the way home by Georgia Code 
§69-505, in force when Bacon drew his will, when he died, 
when the City accepted the trust, and during the whole life 
of Baconsfield as an all-white park:

69-505. Municipality authorized to accept.—Any mu­
nicipal corporation, or other persons natural or artifi­
cial, 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, embel­
lish, 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 use 
and enjoyment thereof. (Emphasis added).

How is it possible, in the light of this language, to see 
these provisions as not having the character, intended anc 
achieved, of public law? Under this statute it is the con 
veyance itself that gives the restrictions their public la- 
character.



73

But is it not clear that a city ordinance, commanding ex­
clusion of a race from a large park, would simply be 
stricken? Could a Georgia court be permitted thereafter to 
close the park and give the property back to the former 
owners, on the ground that the known or declared “ pur­
pose” of the laws about parks was the provision of parks 
on a discriminatory basis? See Griffin v. County School 
Board, 377 U.S. 218 (1964). Would not any public-law 
material declaring such a “purpose” have to be similarly 
stricken?

It is submitted, therefore, first, that Senator Bacon’s di­
rections about the discriminatory conduct of Baeonsfield 
were intended by him to achieve very quickly the status of 
city ordinances, and they did in fact achieve and hold that 
status, under §69-505 and by virtue of the City’s becoming 
trustee. Secondly, it is submitted that their status in this 
regard makes it suitable to treat them as unconstitutional 
city ordinances or other public-law rules are always treated 
—i.e., as nullities. If they are nullities, then there is not and 
never was any colorable ground for termination of the 
trust or for the City’s resignation. When they are stricken, 
what remains is a public park.

It is worth pointing out that there lurks in this argument 
no problem about the retroactivity of Brown v. Board of 
Education, 347 U.S. 483 (1954), and its sequel cases, out­
lawing segregation even where “ separate but equal” facili­
ties were provided. The part of §69-504 which authorized 
racial exclusion, since it obviously made possible the crea­
tion of city parks without provision for separate equal 
facilities, was unconstitutional on its face even under Plessy 
v. Ferguson, 163 U.S. 537 (1896). The exclusion of Negroes 
from Baeonsfield, a public park run by the City, was uncon­
stitutional even under Plessy v. Ferguson, supra, unless 
separate but equal facilities were in fact provided; this



74

record shows none, and it can hardly be that the burden 
rests on those excluded from one city park to show affirma­
tively that no “equal” park is furnished. Senator Bacon’s 
testamentary provision for exclusion of Negroes rested, 
then, on an unconstitutional statute, and both contemplated 
and induced an unconstitutional action (at least so far as 
this record shows) by Macon—under 1910 standards as 
well as under 1969 standards.12 It would seem quite artifi­
cial not to treat a provision so sandwiched as though it 
were itself unconstitutional, to be stricken as a matter of 
federal law, as one would strike out the part of §69-504 on 
which it rested, and the discrimination it contemplated and 
created.

This conclusion, in a deep but true sense, may be seen to 
rest on the philosophy of Marsh v. Alabama, 326 IT.S. 501 
(1946). That case held that, where a person opens his or 
its property to the public, or to a governmental use, there 
attaches an obligation to respond to the norms of the Con­
stitution, as these regulate governmental action. It would 
be harmonious with this philosophy to hold that as soon as 
a testator, like Bacon, publishes a will giving his property 
to serve as a public park, and even goes so far as to make 
the City of Macon his trustee for this purpose, so as to 
effect the incorporation of his rules for running the park 
into the City’s own fabric of law, then these directions, if 
repugnant to the Constitution, are to be treated as official 
rules repugnant to the Constitution normally are treated— 
by looking on them as null and void. A constitution which 
forces color-blindness on the city ought to be held to force

12 In any case, the provision, and the City’s consequent §69-505 
powers, were evidently unconstitutional long before this litigation 
started. Pennsylvania v. Board of Directors of City Trusts, 353 
TJ.S. 230 (1957). Besides, the public-law character of the racial 
provision, and its consequent amenability to such constitutional 
norms as might develop, were fixed from the beginning.



75

color-blindness on one who both proposes to use and suc­
ceeds in using the city as agent of his will,

More in fairness to Senator Bacon’s memory than in 
strict relevance to this point, it should again be emphasized 
that there is no reason whatever for thinking that Senator 
Bacon would have disagreed with the indicated result, as 
matters now stand. We simply have no way of knowing 
whether, if he had been told that this park could not be 
operated at all on a discriminatory basis, he would have 
chosen that it be operated for all. Treating his racial direc­
tions as pro non scripto, as the nullities they would un­
questionably be if considered as sections in a city code, 
may, for all we know, do far less violence to what his wish 
would have been than is done by the Georgia court in award­
ing Baconsfield to his heirs, for such fate as marketable city 
property may have-—including likely occupancy, and even 
ownership, by Negroes. The choice to overthrow his scheme 
in toto is not one that can be justified by respect for the 
wishes of a dead man; his choice, among the choices now 
open, is not knowable or even probably inferable. (For 
fuller discussion, see supra at pp. 43-46.) The choice is 
solely that of the 1968 Georgia court. And it is submitted 
that as a matter of federal law that court ought to be held 
to treating the racial exclusionary provisions as nullities.

The underlying assumption, in the very similar case of 
Commonwealth of Pennsylvania v. Brown, 392 F.2d 120 
(3rd Cir. 1968), cert. den. 391 U.S. 921 (1968), involving 
the Girard College Trust, seems clearly to be that the word 
“white,” in a will turning property over to the public for a 
public use, is to be treated as a nullity, as a matter of 
federal constitutional law. A  judgment of affirmance in 
the case now at bar would have the absurd result of invit­
ing a suit by the Girard heirs, or as many as could be found, 
for a reversion. Cf. Sweet Briar Institute v. Button, 280



76

F. Supp. 312 (W.D. Va. 1967), rev’d per curiam, 387 U.S. 
423, decision on the merits, 280 F. Supp. 312 (1967).

Another and rather closely parallel route to considering 
this racially restrictive language as a nullity is to be found 
in the fact that this park, having unquestionably been “ dedi­
cated” to the white public under Georgia law, must, as a 
result of the federal command of equality, be taken to have 
been “dedicated” to the Negro public as well.

The regular way of creating a public park in Georgia, 
prior to the enactment of Georgia Code §69-504, was by 
dedication to the public, with reciprocal public easements. 
See Macon v. Franklin, 12 Ga. 239, and the summary on this 
point in this Court’s opinion in this same case, Evans v. 
Neivton, 382 U.S. 296, 300, n. 3 (1966). (Cf. also point C, 
supra.)

Section 69-504, enacted in 1905, while permitting racial 
discrimination, expressly retains the concept of “dedica­
tion”  :

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 pub­
lic use as a park, pleasure ground, or for other public 
purpose, and in said conveyance, by appropriate limi­
tations 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 chil­
dren of any other race only, that may be designated by 
said devisor or grantor; and any person may also, by



77

such conveyance, devise, give, or grant in perpetuity 
to such corporations or persons other property, real 
or personal, for the development, improvement, and 
maintenance of said property. (Acts 1905, p. 117.) 
(Emphasis added.)13

Now, when this park passed into the trusteeship of the 
city of Macon, thereupon it became the fixed right of all 
Negro citizens of Macon to be treated, with respect to 
their rights in the park, just as the white citizens were 
treated. This record shows no “ separate but equal” facili­
ties, in 1914 or at any other time. The enjoyment of ease­
ments by whites, but not, by Negroes, in a park under city 
trusteeship, was therefore unconstitutional even under 
Plessy v. Ferguson. (See supra, pp. 73-74.) It can make no 
difference that Negroes were not positioned in knowledge 
or in power to enjoy their rights.

But even if it be thought that this arrangement was not 
unconstitutional under Plessy, and even if (contrary to the 
general rule) Brown v. Board of Education, supra, and 
cases following are not taken as declaring the rule that had 
been correct all along, but only of force prospectively, it is 
nevertheless indisputable that, at some time years prior to 
this litigation’s commencement, it became clear that as a 
matter of federal constitutional law, the Negro citizens of 
Macon must possess, in respect of this city-trusteed park, 
just exactly the same rights, intangible as well as tangible, 
as the white citizens of Macon.14 Since it cannot be con­
tested, under §69-504, that the park has been through all

13 It is hard indeed to see how, in the face of this language re­
spondents can contend that this park was not “ dedicated” to the 
white public. But see Brief in Opposition to Certiorari, p. 34.

14 See Holmes v. Atlanta, 350 U.S. 879 (1955); Mayor & City 
Council of Baltimore v. Dawson, 350 U.S. 877 (1955); Pennsyl­
vania v. Board of Directors of City Trusts, 353 U.S. 230 (1957).



78

these times “dedicated” to the use of the whites, it must 
equally, hy operation of federal law, be taken to be “dedi­
cated” to the use of blacks—not because Georgia law or­
dered that result (for it did not), not because Senator 
Bacon intended that result (for he did not), but because 
federal law, in commanding equality, necessarily com­
manded that result.

Since the point of “dedication” was raised in the assign­
ments of error in the Georgia Supreme Court, and since it 
was fully briefed there, it is surprising to find that it is not 
dealt with in that court’s opinion. There is a brief refer­
ence in the opinion to the Order and decree of the Bibb 
County Court; the passage referred to is thus the only 
place one can look for a reasoned statement of the Georgia 
court’s grounds for rejecting the “dedication” argument:

It is clear that the testator sought to benefit [the 
whites] and the language of the will clearly indicates 
that the limitation to the class of persons was an essen­
tial and indispensable part of the testator’s plan for 
Baconsfield. There has been no dedication of Bacons- 
field as a park for the use of the general public.

It is petitioners’ contention, as just set out, that this con­
clusion is wrong, not as a matter of state law, but as a 
matter of federal law, for the precise reason that it takes no 
account of the fact that federal law commanded equal rights 
—whether as holders of easements, or as beneficiaries of 
“ dedication”—for Negroes. As a net integral sum, adding 
the effect of Bacon’s will, under Georgia law, to the effect 
of federal law on the situation thus created, Baconsfield 
must be held “dedicated” to all.

I f  Baconsfield, then, by the joint operation of Georgia 
and federal law, was “dedicated” to use as a park by whites



79

and by non-whites, then it seems plain that under Georgia 
law that dedication is not retractable. Granting arguendo 
that the purpose of Senator Bacon’s trust has failed (but 
see above, point B), the uses to which the park is “ dedicated” 
have not failed.

Some confusion may be created by the juxtaposition of 
the concepts of “dedication” and “trust.” These concepts 
are not at war under Georgia law—or, for that matter, under 
Anglo-American law in general. Section 69-504, just quoted, 
makes it plain that Georgia law sees no difficulty in lands 
being loth, under trusteeship and dedicated to the public. 
For the “appropriate conveyance” under §69-504 may be in 
fee simple or in trust, but whichever of these sorts of con­
veyances is chosen, the lands are to be “dedicated in per­
petuity to the public use. . . .” There is no difficulty about 
this double aspect of the creation of a park. The legal title 
to land may be held by a trustee, and the duties of his (or 
its) trusteeship may include, for example, maintenance, 
while simultaneously the land may be “dedicated” to the 
public, with public easements upon it. These arrangements 
are complementary and not contradictory. Somebody, 
whether or not a trustee, always holds underlying title to 
land over which easements run.

The holding, then, that Baconsfield was not to be treated 
as “dedicated” to the public, with all that must imply under 
Georgia law, rests essentially on a wrong reading or dis­
regard of the federal command of equality. Such a holding 
obviously cannot be allowed to stand.

The thoroughness of the “dedication” in this case is em­
phasized (if emphasis be needed) by reference to the public 
subsidies and aids this park has received. The record 
abounds with details of maintenance, tax exemption, and 
even substantial city and federal aid. State power com­



80

pelled and solicited these aids, and can have done so only- 
on the theory that the park was “dedicated” as a park. It 
would be anomalous in the extreme for that same state 
power, acting through a different agency, now to be al­
lowed to say that this park was not, after all, “ dedicated” 
to a public use.16 And if it was dedicated to a public use, it 
was necessarily dedicated to use by all races, under the 
Fourteenth Amendment.

CONCLUSION

For the foregoing reasons it is respectfully submitted that 
the judgment of the Supreme Court of Georgia ought to 
be reversed.

Respectfully submitted,

W il l ia m  H . A le xan d e r

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

J a c k  G reen berg  
J am e s  M. N a b r it , III 

10 Columbus Circle 
New York, New York 10019

C h a r le s  L. B l a c k , J r .
169 Bishop Street
New Haven, Connecticut 06511

A n t h o n y  G . A m sterdam  
3400 Chestnut Street 
Philadelphia, Pennsylvania 19104

Attorneys for Petitioners

16 See su-pra, pp. 49-50.



MEILEN PRESS INC. — N. Y. C. 219