Hampton v. City of Jacksonville, FL Brief of Appelle City of Jacksonville

    IN THE

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 19,298

FRANK HAMPTON, et al.,

Appellants,

CITY OF JACKSONVILLE, FLORIDA, et al.,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT 
COURT FOR THE SOUTHERN DISTRICT OF 

FLORIDA. JACKSONVILLE DIVISION

BRIEF OF APPELLEE 

CITY OF JACKSONVILLE

WILLIAM M. MADISON 
FREDERICK J. SIMPSON 
1103 City Hall 
Jacksonville 2, Florida 
Attorneys for Appellee 
City of Jacksonville



I N D E X

Page

I. STATEMENT OF THE CASE ............................

II. STATEMENT OF QUESTIONS INVOLVED ..

III. ARGUM ENT............ ..............................................

Question Number 1 ............ ..................................

Question Number 2 .......................... ...................

Question Number 3 ............................... ..............

CONCLUSION ...............................................................

TABLE OF CASES

City of Montgomery et al v. Georgia Teresa Gilmore
et al, U.S.C.A., 5th Circuit, 277 F. 2d 364 .............. 6,24 S

Eaton v. Board of Managers of the James Walker Me­
morial Hospital, 164 F. Supp, 191, 261 F. 2d 521,
359 U.S. 984, 3 L.Ed. 2d 934, 79 S.Ct. 931 . . . .  19,20,21

Girard College Case, 138 Atl. 2d 844 ...........................  21

Hampton et al v. City of Jacksonville, Circuit Court of 
the Fourth Judicial Circuit of the State of Florida 
in and for Duval County, No. 593374-E, Division 
C ............................................................................  6,25,26

Sorrels v. McNally, 89 Fla. 459, 105 So, 1 0 6 .................  17,28
Tonkins v. City of Greensboro (1958), 162 F. Supp. 549,

175 F. Supp. 476, 276 F. 2d 890 ........ ............. 5,22,23,24

ORDINANCE

1

7

9

9

16

22

30

Ordinance No. EE-16 3



INDEX Continued

Page

LAWS

Jacksonville Charter Compilation, 1953, Section 6, (Acts
1887, ch. 3775, art. 1, sec. 2) ............................... .. 4,5

Jacksonville Charter Compilation, 1953, Section 605,
(Acts 1943, ch. 22349, sec. 1) ...............................  5

Jacksonville Charter, Chapter 10711, Laws of Florida,
Acts of 1925 ..............................................................  22

U.S.C.A. Title 42, Section 1983 ................. ........... . 8,21,22

RULES

Federal Rules, Rule 52(a) ....................... .................. . 9

Rule 24, U. S. Court of Appeals, 5th C ircu it.................. 4

TEXTS

33 American Jurisprudence, Life Estates, Remainders,
etc., Section 206 ................................................ 18

McQuillin Municipal Corporations, Section 52.38 . . . .  15

Patton on Titles, Second Edition, Volume 1, Section 203 17

Rhyne, Municipal Law, 1957 Edition .........................  15

Tiffany Real Property, Third Edition, Volume 1 .......... 18



1

IN  THE

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 19,298

FRANK HAMPTON, et al.,

Appellants,

• v. ■

CITY OF JACKSONVILLE, FLORIDA, et al.,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT 
COURT FOR THE SOUTHERN DISTRICT OF 

FLORIDA. JACKSONVILLE DIVISION

BRIEF OF APPELLEE 
CITY OF JACKSONVILLE

I.

STATEMENT OF THE CASE

{ Appellants’. Brief with, afe.w. exceptions contains a fair state­
ment of the case. | These exceptions contain certain erroneous



2

statements made by the Appellants, which of necessity must 
be corrected so that there will be a sound basis for appellate 
review.

Appellants, at page 3 of their Brief, represent that a 
member of the City Commission testified that the reverter 
clause was recommended so “that the citizens of Jacksonville 
would have golfing facilities”, citing as authority for the 
statement page 131 of the record. However, page 131 of the 
record says:

“A. I recommended to the City Attorney that he 
include a reverter clause in the specifications because 
both of our appraisers when they went out and ap­
praised the property, they said that the best potential 
value of the golf courses was the continued use as a 
golf course, so therefore, rather than to confuse the 
issue more, I recommended the reverter clause be 
placed in it and they be sold for the continued use as 
golf courses, so that the City may derive the highest 
sale price from the courses.

Q. Commissioner, did you not also say that the 
purpose of the reverter clause was to provide and to 
assure the citizens of Jacksonville of some golfing 
facilities, something in that order?

A. I believe I did say that with the reverter clause, 
the golf courses could not be diverted to warehouses 
and housing projects, that the citizens of the City 
of Jacksonville would have golfing facilities.” (R. 131)

and further, page 132 of the record says:

“Q. Now, this reverter clause that you had in the



3

deed, as you said, was designed for two purposes, one 
was to get the highest and best value for the property 
as golf courses and the other was to insure the citi­
zens of Jacksonville of having golfing facilities, am I 
correct in that statement?

A. Yes.” (R. 132)

Therefore, Appellants’ statement represents only a half truth 
when confronted with the actual testimony in the record 
because from said record it is clear that Commissioner Thomas 
testified that he, personally, had two reasons for recommend­
ing the reverter clause. It should be noted at this point that 
Commissioner Thomas had no authority to require the re­
verter clause to be inserted in the deeds conveying the golf 
courses. The reverter clauses were required to be placed in 
said deeds by Ordinance No. EE-16, of the City of Jacksonville, 
enacted by the City Council, as the legislative body of the 
City, and concurred in by the official action of the entire 
City Commission of the City. (R. 36)

The second error, which of necessity must be corrected, 
appears at page 4 of Appellants’ Brief. There the statement 
is made:

“Neither the City nor defendants Ghioto and Hurley 
adduced any evidence to deny that Brentwood and 
Hyde Park golf courses were following and would 
continue to follow a policy of racial discrimination.”

Appellants’ error at this point is clear in view of the fact 
that this appeal was taken by Appellants following an order 
dismissing their petition to modify the final decree, which 
was made by defendants at the close of the plaintiffs’ case in



4

the trial court. Obviously, defendants City, Ghioto and Hurley 
adduced no such evidence because,

(a) Their motion to dismiss at the close of the plaintiffs’ 
case was granted, and

(b ) It is completely immaterial that the defendants Ghioto 
and Hurley may follow a policy of racial discrimination in 
the operation of said privately owned golf courses, and 
therefore the manner of operating the courses by said private 
owners is not within the purview of the Fourteenth Amend­
ment.

Also, it IS apparent that Appellants failed to present suc­
cinctly the questions involved on this appeal in their statement 
of the case as required by Rule 24 of this Court.

In addition, Appellants throughout their Brief have failed 
to place the testimony of Commissioner Dallas Thomas in 
proper perspective in relation to the procedure required by law 
in order that the City dispose of any public property. The 
Legislature of the State of Florida has authorized the City of 
Jacksonville to dispose of property by sale in the manner set 
forth in the following compiled sections of its City Charter:

“Sec. 6. Powers of city generally.
Said corporation shall have perpetual succession, 

shall sue and be sued, plead and be impleaded, may 
purchase, lease, receive and hold property, real and 
personal within said city; and may sell, lease or other­
wise dispose of the same for the benefit of the city; 
and may purchase, lease, receive and hold property, 
real and personal, beyond the limits of the city, to be 
used for the burial of the dead; for the erection of



5

waterworks; for the establishment of poor-houses, pest 
houses, houses of detention and correction; for the 
public parks and promenades, and for any other public 
purpose that the Mayor-(commissioner) and City Coun­
cil may deem necessary or proper; and may sell, lease 
or otherwise dispose of such property for the benefit 
of the city to the same extent as natural persons may. 
* 0 * (Acts 1887, ch. 3775, art. 1, Sec. 2)

“Sec. 605. Sale of real estate belonging to c ity -  
Joint concurrence by Commission and Council.

That from and after the passage of this Act, no sale 
of real estate belonging to the City of Jacksonville shall 
be made without the joint concurrence of the City 
Council and the City Commission of said city. All 
deeds and other conveyances of such real estate shall 
be authorized by ordinance duly passed by the City 
Council and approved by the Mayor [-Commissioner] 
and the City Commission of said city. (Acts 1943, Ch. 
22349, §1.)” (R. 41-42)

It is obvious, in view of the above provision of law, that one 
Commissioner has no authority whatsoever to authorize the sale 
of or to sell any property belonging to the City or to formu­
late the terms upon which any sale may be made. It is ap­
parent that Appellants have erroneously assumed in their 
Brief that the reasons for making the sale of the golf courses 
and the reasons for the City retaining the possibility of re­
verter given by Commissioner Dallas Thomas, were the offi­
cial reasons for the City deciding to sell the golf courses and 
to retain the possibility of reverter. The fallacy of their as­
sumption is made quite clear in view of the above-quoted 
Section 605 of the City Charter. In other words, the reasons 
advanced by Commissioner Thomas may or may not have



6

been the reasons why the particular action was taken by the 
City Council and City Commission. In any event, if it was 
Appellants desire to place before the Court below the reasons 
why the golf courses were sold and the reasons why the possi­
bility of reverter was retained, they should have included in 
the record before that Court certified copies of the official 
minutes or records of the meetings of those public bodies 
wherein the decisions to sell the golf courses and to retain 
the possibility of reverter were made.

Even if the reasons advanced by Commissioner Thomas 
were the reasons why the City Council and City Commission 
acted, we submit that such reasons are not material in view 
of the fact that there is no law or constitutional provision 
which requires the City to operate or maintain a golf course. 
Tonkins v. City of Greensboro (1958), 162 F.Supp. 549, 175 
F.Supp. 476, 276 F. 2d 890: Hampton et al v. City of Jackson­
ville, Circuit Court of the Fourth Judicial Circuit of the State 
of Florida in and for Duval County, No. 593374-E, Division C 
(R. 37 through 46); City of Montgomery, Alabama, et al v. 
Georgia Teresa Gilmore et al, U.S.C.A., 5th Circuit, 277 F. 2d 
364.



7

II.

STATEMENT OF QUESTIONS INVOLVED

The following questions are respectfully submitted as being 
pertinent to the issues presented or involved by this appeal.

QUESTION NUMBER 1

WAS THE TRIAL COURT’S FINDING OF FACT 
THAT THERE WAS NO PROOF AT THE TRIAL 
OF ANY SORT THAT IN THE SALE OF SAID 
GOLF COURSES ANY RACIAL RESTRICTIONS 
WERE IMPOSED BY ANY SIDE AGREEMENT 
OR ANY UNDERSTANDING, ANY TACIT UN­
DERSTANDING OR ANYTHING ELSE, BE­
TWEEN THE CITY COMMISSION OR ANYONE 
ELSE CONNECTED WITH THE CITY AND 
EACH OF THE TWO PURCHASERS, DEFEND­
ANTS GHIOTO AND HURLEY, NOR THAT SAID 
SALES WERE NOT BONA FIDE IN ALL RE­
SPECTS, CLEARLY ERRONEOUS?

QUESTION NUMBER 2

DOES THE FACT THAT THE CITY OF JACK­
SONVILLE RETAINED A POSSIBILITY OF RE­
VERTER IN CASE THE PROPERTIES KNOWN 
AS THE BRENTWOOD AND HYDE PARK GOLF 
COURSES EVER CEASE TO BE MAINTAINED 
AND USED ONLY FOR GOLF COURSE PUR­
POSES CONSTITUTE THE RETENTION OF 
SUCH AN INTEREST IN SAID PROPERTIES 
THAT THEY REMAIN PUBLIC PROPERTIES, OR 
CONSTITUTE STATE ACTION PERMITTING



8

THE CITY TO EXERCISE DOMINION AND CON­
TROL OVER THE MANNER OF OPERATION 
OF SAID GOLF COURSES?

The trial court answered this question in the negative.

QUESTION NUMBER 3

IS IT AN UNCONSTITUTIONAL VIOLATION OF 
THE FOURTEENTH AMENDMENT OF THE 
FEDERAL CONSTITUTION AND U.S.C.A. TITLE 
42, SECTION 1983 (R.S. §1979) TO CLOSE, DE­
CLARE S U R P L U S  AND SELL TWO GOLF 
COURSES OWNED BY THE CITY OF JACKSON­
VILLE RATHER THAN TO INTEGRATE SUCH 
COURSES?

The trial court answered this question in the negative.



9

ARGUMENT

QUESTION NUMBER 1

WAS THE TRIAL COURT’S FINDING OF FACT 
THAT THERE WAS NO PROOF AT THE TRIAL 
OF ANY SORT THAT IN THE SALE OF SAID 
GOLF COURSES ANY RACIAL RESTRICTIONS 
WERE IMPOSED BY ANY SIDE AGREEMENT 
OR ANY UNDERSTANDING, ANY TACIT UN­
DERSTANDING OR ANYTHING ELSE, BE­
TWEEN THE CITY COMMISSION OR ANYONE 
ELSE CONNECTED WITH THE CITY AND 
EACH OF THE TWO PURCHASERS, DEFEND­
ANTS GHIOTO AND HURLEY, NOR THAT SAID 
SALES WERE NOT BONA FIDE IN ALL RE­
SPECTS, CLEARLY ERRONEOUS?

III.

Rule 52(a) of the Federal Rules provides in part:

“In all actions tried upon the facts without a jury * e * 
the court shall find the facts specially * * *. Findings 
of fact shall not be set aside unless clearly erroneous, 
and due regard shall be given to the opportunity of 
the trial court to judge of the credibility of the 
witnesses. * * *”

Appellants at the trial failed to produce a scintilla of evi­
dence which would in any manner show a subterfuge, col­
lusion, illegality, fraud, abuse of discretion or an artifice in 
connection with the sales of the two municipal golf courses. 
On the contrary, affirmative testimony of the witnesses was 
to the contraiy, and the Court found in its order dismissing 
the petition, that:



10

“5. There was no proof at the trial of any sort that 
any racial restrictions were imposed by any side agree­
ment or any understanding, any tacit understanding 
or anything else, between the City Commission or any­
one else connected with the city and each of the two 
purchasers, defendants Ghioto and Hurley, nor that 
said sales were not bona fide in all respects.” (R. 204)

Defendant Hurley on cross-examination testified as follows:

“Q. Mr. Hurley, was there any understanding, either 
express or implied, agreed to by you and the City as 
to the method you would use in operating the golf 
course if you were the successful bidder? Did you 
have any such agreement or understanding?

A. As to how they would be —

Q. Yes.

A. Operated? You mean the operating of the golf 
course?

Q. That’s correct.

A. As far as maintenance and one thing and another?

Q. That’s correct.

A. No.

Q. Did any officer or employee of the City of Jack­
sonville obtain or attempt to obtain from you any 
agreement, commitment or assurance that anyone would 
be excluded from the Brentwood Golf Course by reason 
of race or color?



11

A. No.

Q. Did the City of Jacksonville or any of its officers 
or employees influence or attempt to influence the 
formulation of plans and policies for the operation of 
the Brentwood Golf Course?

A. No.

Q. Did you or anyone acting in your behalf take 
part in the formulating the terms and conditions upon 
which the Brentwood Park was offered for sale and the 
terms upon which you bought it?

A. You mean in making the offer of purchase?

Q. That’s right.

A. It was left up to more or less on -- we purchased 
it on a bid proposition which the interested parties, as 
I understood it myself at that time, we would — we 
could set up the amount of down payment ourselves 
and the number of years and submit it to the City as 
a bid.

Q. In other words, my question was actually pointed 
this way. You did not have any say-so as to how the 
bid specifications, the specifications for the sale of the 
golf course was formulated yourself? In other words, 
the terms and conditions of the sale other than follow­
ing the specifications as advertised?

A. That’s right.

Q. Since the time you have purchased the golf



12

/
(

course, has any officer or employee of the City at­
tempted to tell you ~ or told you how to operate the 
course in the sense as to who you should admit to

A. They have not.” (R. 82,83)

Defendant Ghioto on cross-examination testified as follows:

“Q. Mr. Ghioto, did any officer or employee of the 
City of Jacksonville attempt to obtain or obtain from 
you any agreement, commitment or assurance that 
anyone would be excluded from the Hyde Park Golf 
Course by reason of race or color?

A. No.

Q. Did anybody connected with the City, its officers 
or employees, influence you or attempt to influence you 
in the formulation of plans and policies for the opera­
tion of the Hyde Park Golf Course?

A. No, they did not.

Q. Did you yourself take any part in formulating 
the specifications upon which the offering of the Hyde 
Park Golf Course was made, the offering in the news­
papers?

A. No, I did not.” (R. 99)

and on re-cross testified as follows:

“Q. Mr. Ghioto, since you have completed the — 
since the sale was completed, has the City or any of 
its officers or employees attempted to tell you or have



13

told you how you should operate the golf course at 
any time?

A. No, they haven’t.” (R. 100)

Frank A. Schroeder and Bebe Marie Schroeder, his wife, 
were called by plaintiffs and they testified that they loaned 
defendant Ghioto $15,000.00 (R. 102, 107). Mr. Schroeder 
further testified on cross-examination as follows:

“Q. Mr. Schroeder, are you in any way connected 
with the City of Jacksonville as an officer or employee?

A. No, sir.

Q. Have you ever been?

A. No, sir.” (R. 105)

Mrs. Schroeder in addition testified on cross-examination as 
follows:

“Q. Have you ever been an officer or employee of 
the City of Jacksonville?

A. No, I haven’t.

Q. Are you an officer or employee of the City of 
Jacksonville now?

A. No.” (R. 109)

Commissioner Dallas Thomas on cross-examination testified 
as follows:

“Q. Commissioner Thomas, was there at the time



14

that the golf courses were being offered for sale to 
these defendants — as to the defendant, Hurley, or is 
there now any agreement or understanding, express or 
implied or agreed to between you and Mr. Hurley as 
to the method of his operating the Brentwood Golf 
Course?

A. No.

Q. Was there at the time the Hyde Park sale was 
being consummated to Mr. Ghioto, or is there now, any 
agreement or understanding, express or implied, or 
agreed to between you and Mr. Ghioto as to the method 
of operation of the Hyde Park Golf Course?

A. No.” (R. 136)

From the testimony, it is obvious that plaintiffs failed to 
produce any evidence to show any subterfuge, artifice, collu­
sion, fraud or illegality in connection with the sales of the two 
golf courses.

In view of the state of the record on this point, Appellants 
argue and would have this Court believe that something 
sinister could be inferred from one feature of the terms of the 
sales, that is, the small down payment in relation to the total 
purchase price. We submit that the record is barren of any 
competent testimony from an expert qualified to testify on 
such matters or that there was any other evidence relating 
to the amount of down payment which would be reasonable 
in a case of this type. To make it short, Appellants argue that 
there is something unusual about the low down payment, but 
Appellants fail to show from the record any fact that would 
show that this is an “unusual” down payment from a business 
viewpoint under these circumstances.



15

The law is well settled that the terms and conditions upon 
which municipal property will be sold are left to the sound 
discretion of the governing body. The rule is well stated in 
McQuillin Municipal Corporations, Section 52.38, page 103:

“In the absence of illegality, fraud or clear abuse of au­
thority, municipal officers in the exercise of discretion­
ary powers as to the disposition of municipal property 
will not be restrained in equity.”

Likewise in Rhyne, Municipal Law, 1957 Edition, page 381, 
it is said:

“Generally, courts will not interfere with the discre­
tion of a municipal governing body in the sale or 
disposition of municipal property under proper author­
ity in the absence of a clear showing of fraud or illegal­
ity. Thus it has been held that a taxpayer may not 
enjoin the sale of municipal property because of the 
inadequacy of consideration, or because property was 
reconveyed to the same person who sold it to the city 
for less than its value but for more than the city paid 
for it; or because the selling price is below the reason­
able market value; or because the municipality may 
possibly receive a higher offer or price from someone 
else. The courts will assume that the property was 
sold in good faith and for an adequate price or con­
sideration. * * *”

and in the instant case the trial Court concluded as a matter of 
law:

“4. That no collusion, illegality, fraud or clear abuse 
of discretion has been shown to exist with respect to the 
sale of the two municipal golf courses and each of such



16

sales, to-wit: The Hyde Park Golf Course to Fred 
A. Ghioto and the Brentwood Golf Course to Roland 
Hurley, was bona fide.” (R. 205)

In view of the foregoing it is manifestly clear that the District 
Court was eminently correct in finding as a matter of fact that:

“5. There was no proof at the trial of any sort that 
any racial restrictions were imposed by any side agree­
ment or any understanding, any tacit understanding 
or anything else, between the City Commission or any­
one else connected with the city and each of the two 
purchasers, defendants Ghioto and Hurley, nor that said 
sales were not bona fide in all respects.” (R. 204)

QUESTION NUMBER 2

DOES THE FACT THAT THE CITY OF JACK­
SONVILLE RETAINED A POSSIBILITY OF RE­
VERTER IN CASE THE PROPERTIES KNOWN 
AS THE BRENTWOOD AND HYDE PARK GOLF 
COURSES EVER CEASE TO BE MAINTAINED 
AND USED ONLY FOR GOLF COURSE PUR­
POSES CONSTITUTE THE RETENTION OF 
SUCH AN INTEREST IN SAID PROPERTIES 
THAT THEY REMAIN PUBLIC PROPERTIES, OR 
CONSTITUTE STATE ACTION PERMITTING 
THE CITY TO EXERCISE DOMINION AND CON­
TROL OVER THE MANNER OF OPERATION OF 
SAID GOLF COURSES?

The trial Court answered this question in the negative.

Appellants argue throughout their Brief that the fact that 
the City holds a possibility of reverter in case the properties 
cease to be used for golf course purposes, makes the golf courses



17

public property of the City subject to its dominion and control 
as to manner of operation. Appellants’ Brief is void of any 
authority in law or in fact in support of their argument.

Throughout their Brief Appellants repeatedly cite cases 
involving “leases” of public property as distinguished from 
the instant case of a bona fide sale. Certainly we recognize it 
is the law of this country that neither the owner nor its lessee 
in possession of public property can deny persons the use 
thereof on account of their race, because there the property is 
still public property. But we see no significance whatsoever 
in the “lease” cases cited and relied on by Appellants, in view 
of the fact that the instant case involves the sale and perma­
nent disposition of public property by lawful means.

We submit that the City does not now have a present inter­
est in the subject properties but on the contrary, has the 
mere possibility of having an estate at some future time. 
Thus the Supreme Court of Florida in the case of Sorrels v. 
McNally, 89 Fla. 459, 105 So. 106, said:

“A possibility of reverter is created by the conveyance 
of a limited fee, and while in some respects it is similar 
to a reversion, in others it is quite different. It is not an 
estate, but the mere possibility of having an estate at 
some future time.” (Emphasis supplied.)

The Florida Supreme Court is in accord with the great 
weight of authority on this point. Thus in Patton on Titles, 
Second Edition, Volume 1, Section 203, at page 454, it is 
stated:

“A determinable fee is considered to be a fee estate 
because of the fact that it may endure forever in a 
man and his heirs. * * s Upon the termination of such



18

a fee, the title reverts to the grantor or his heirs, with­
out the necessity of claim of reentry. In the meantime, 
the whole estate is considered as being in the holder of 
the base fee with a mere possibility of reverter in its 
creator.” (Emphasis supplied)

And in Tiffany Real Property, Third Edition, Volume 1, at page 
386, it is stated:

“ * * 8 * If one who has an estate in fee simple creates 
a determinable fee in favor of another, he has there­
after merely a possibility of reacquiring the land by 
reason of the occurrence of the contingency named or 
indicated, this possibility being known as a possibility 
of reverter.

“The owner of a determinable fee has all the rights 
of an owner in fee simple, with the same rights of user 
and power to commit unlimited waste; conveyance of 
the property does not necessarily terminate the fee, 
but the grantee takes it subject to the same liability 
to termination as existed before the grant.” (Emphasis 
supplied)

And again in 33 American Jurisprudence, Life Estates, Re­
mainders, etc., Section 206, it is stated thus:

“ 9 s * 4 The possibility of reverter which remains in 
the grantor on the conveyance of a qualified or de­
terminable fee is the possibility that the land may re­
vert to the grantor or his heirs when the granted estate 
determines. It represents whatever is not conveyed 
by the deed. The proprietor of a determinable fee, so 
long as the estate in fee remains, till the contingency 
on which the estate is limited occurs, has all the rights



19

and privileges over it that he would have if tenant in 
fee simple. After such a grant, no right of seisin or 
possession remains in the grantor. All the estate is in 
the grantee, notwithstanding the qualification.” (Em­
phasis supplied)

From the foregoing authorities it is apparent that under 
the law of real property, the City has no control over or present 
interest in the two golf courses. Logically then, the next 
question is, does the fact that the City retained a possibility 
of reverter in selling the golf courses give the City such an 
interest in the properties as would amount to discrimination 
between the races by “state action”, so that the operation of 
the courses would necessarily come within the ambit of the 
Fourteenth Amendment? We submit that the foregoing ques­
tion has been answered in the negative. In the case of 
Eaton v. Board of Managers of the James Walker Memorial 
Hospital, 164 F. Supp. 191, a suit was brought by three Negro 
doctors alleging that they were discriminated against by the 
hospital board in that they were not allowed to practice there 
on the “courtesy staff,” as were many white doctors. Federal 
Jurisdiction was based on the theory that the hospital was an 
instrumentality of the City of Wilmington and the County of 
New Hanover and as such was an agency of the State of 
North Carolina, which was prohibited by the Fourteenth 
Amendment to the Federal Constitution from denying to any 
person within its jurisdiction the equal protection of the laws. 
The defendants moved to dismiss on the ground that the 
hospital was a private corporation not subject to state control, 
and hence the discriminatory treatment was not state action 
within federal jurisdiction. The court found that the land 
on which the hospital was built had been conveyed by the 
city and county in 1901 to the hospital board with a right of 
reverter in case the property ever ceased to “be used and



20

maintained as a hospital for the benefit of the city and county.” 
The Act of 1901 chartering the hospital provided that the 
purpose of the Act was to remove the management of the 
hospital as far as possible “from the vicissitudes which gen­
erally result when such an institution is left in control of local 
municipal authorities.” Some of the original members of the 
board had been named by city and county officials. Past 
contributions to operating expenses had been made by the 
city and county. Some four percent of the current income was 
being received from the county under a contract to care for 
indigent residents. In spite of all this the District Court held 
that the complaint should be dismissed for lack of federal 
jurisdiction, pointing out that it did not find any present trace 
of public control in the self-perpetuating board of the hospital, 
that past contributions to operating expenses did not establish 
a present public connection, and that the fact that four per 
cent of the hospital’s current income was received from the 
county was immaterial in light of the fact that complete con­
trol of the expenditure of those funds resided in the present 
hospital board. The District Court went on to say:

The only way the City and County can claim an in­
terest in the property or any control over the property 
would be in the event that the hospital ceased to be 
used for the care of the sick and afflicted of New Han­
over County. The purpose and effect of the deed is 
to carry out the intent of the charter to create a public 
charity but not a public corporation. The City and 
County may eventually regain the property, but this 
possibility is distinctly within the control of the hospital 
corporation. Only the latter possesses initiative with 
regard to the same.” (Emphasis supplied)

The Court of Appeals for the Fourth Circuit affirmed, 261



21

F. 2d 521, finding that the facts clearly showed that the hos­
pital had been privately operated for a number of years, free 
of state control, and holding that the fact that the city and 
county retained a possibility of reverter did not make the hos­
pital a public corporation, citing the Girard College Case, 138 
Atl. 2d 844, certiorari denied 78 S. Ct. 1383.

The United States Supreme Court, on May 4, 1959, denied 
a petition for writ of certiorari in the Eaton case, 359 U.S. 984, 
3 L.Ed. 2d 934, 79 S.Ct. 931.

If the possibility of reverter held by the city and county 
in the Eaton case did not amount to state action, then a fortiori 
the possibility of reverter held by the City in the instant case 
does not amount to state action.

We believe we have clearly demonstrated that there is no 
basis in law or in fact for Appellants’ contention that the City 
in selling said golf courses retained a present interest in said 
properties, thereby making same public properties of the 
City, or retained any right to determine or control the manner 
in which said golf courses shall be operated by their private 
owners. It clearly appears that there was no “state action” in 
this case which deprived any citizen of his constitutional 
rights guaranteed to him by the Fourteenth Amendment as 
implemented by U.S.C.A. Title 42, Section 1983, (R.S, 1979).



22

QUESTION NUMBER 3

IS IT AN UNCONSTITUTIONAL VIOLATION OF 
THE FOURTEENTH AMENDMENT OF THE 
FEDERAL CONSTITUTION AND U.S.C.A. TITLE 
42, SECTION 1983 (R.S. §1979) TO CLOSE, DE­
CLARE S U R P L U S  AND SELL TWO GOLF 
COURSES OWNED BY THE CITY OF JACKSON­
VILLE RATHER THAN TO INTEGRATE SUCH 
COURSES?

The trial Court answered this question in the negative.
This seems to be the real thrust of Appellants’ case, that is, 

they argue that it is an unconstitutional violation of the Four­
teenth Amendment to close, declare surplus and sell the City’s 
two golf courses rather than to operate them on an integrated 
basis.

We submit that it is immaterial what the reason was for 
selling the golf courses. Under its Charter the City is author­
ized “to acquire, construct, own and operate . . . golf courses 
. . . and all such buildings and improvements as said city 
may deem necessary or desirable for use in connection there­
with, within or outside the limits of said city; . . .” Chapter 
10711, Laws of Florida, Special Acts of 1925. This is a grant 
of authority to and not a requirement or duty imposed upon 
the City to operate golf courses. Under such circumstances 
the law is well established that the closing and bona fide sale 
of a public recreational facility is not racial discrimination 
against any class of citizens.

In Tonkins v. City of Greensboro, 162 F. Supp. 549 (1958), 
it was alleged that it was an unconstitutional violation of the 
Fourteenth Amendment to close and execute a sale of the



23

city’s swimming pool rather than operate same on an inte­
grated basis. The Court decided directly against such con­
tention, holding that there was no duty upon the city to 
operate its pool, failure to so operate did not constitute dis­
crimination, and that a sale of the pool after its closing was 
perfectly legal so long as it was bona fide. Approximately one 
year later, plaintiffs in the same suit filed a supplemental com­
plaint attacking the bona fides of the sale. 175 F.Supp. 
476, (1959). The court dismissed the complaint, finding 
from defendent’s uncontradicted testimony that the sale 
was advertised and conducted according to statutory 
and city charter provisions; that all persons had equal 
opportunity to bid; that no city officer attempted to ob­
tain from the pool corporation any commitment that any­
one would be excluded from the pool for racial reasons; that 
the city and its officers had not attempted to influence the 
operation of the pool subsequently; and that the property 
value is assessed at the customary rate for the city and county, 
and the corporation has never attempted to secure any kind 
of concession or exemption from the city. It was held, on the 
other hand, that the fact that the corporation president hap­
pened to be a city official and had originally insisted upon 
continued city segregated operation of the pool, did not indi­
cate a secret agreement concerning its future operation; that 
the fact that the corporation was given a five-year period in 
which to pay the purchase price and that an assistant city 
attorney was named trustee in a deed of trust securing the 
purchase price balance were not sufficient to show that the 
sale was not bona fide; that the inclusion of an acceleration 
clause in the deed of trust which might be used by the city 
to exact a commitment that the pool be operated on a segre­
gated basis in exchange for an extention of time for payment, 
was not a sufficient threat to impeach the sale; and that the 
failure of the city to change the zoning ordinance which al­



24

lowed the pool to be operated only on a non-profit basis, thus 
eliminating many potential bidders, did not permit an infer­
ence adverse to defendants. The court also rejected plaintiffs’ 
contention that the sale could not be bona fide since the cor­
poration had announced publicly prior to the sale that it would 
operate the pool exclusively for white citizens, there being 
no legal basis for the theory that a city may sell a recreational 
facility only on condition that the purchaser will operate it 
on an integrated basis.

On appeal to the Court of Appeals for the Fourth Circuit 
the decision was affirmed, 276 F. 2d 890, the Court noting 
that the city official who was president of the buying corpora­
tion was a member of a nine-man commission which served 
in an advisory capacity only, whereas legal authority to con­
summate the sale rested in the City Council, of which he was 
not a member. Stating that “the question to be determined is 
whether, apart from motives, the sale was real or only a pre­
tense,” the Court held that it could not say from the record 
that the District Court’s finding was clearly erroneous, and 
concluded that since the racial discrimination was exercised 
in a privately-owned facility, operated free of city participa­
tion or assistance, there was no “State action” which a federal 
court might enjoin under the Fourteenth Amendment.

Even more appropriate on this point is the case of City of 
Montgomery, Alabama, et al v. Georgia Teresa Gilmore, et al, 
U.S.C.A., 5th Cir., 277 F. 2d 364, decided April, 1960, wherein 
this Court held that the City was not required to operate parks 
and it could keep them closed as long as it saw fit, but when 
and if they were reopened they must be non-discriminatorily 
available for all the public regardless of their race, the Court 
saying:

“We agree with the District Court that no law, state



25

or federal, requires the City to operate public parks. 
# # * #’>

The Court went on to say:
“* * a Without wise advance planning, and consid­
erable self-discipline and forebearance on the part of 
citizens of all races, it may be inevitable that the City 
of Montgomery for a long time in the future will be 
totally deprived of parks and recreational facilities.

“It is not the function of the Court to suggest possi­
ble steps to avert that result. We can only call atten­
tion to the limit of the pertinent constitutional pro­
vision as construed by the Supreme Court, i. e., that 
it does not compel the mixing of the different races in 
the public parks. As was said in Cohen v. Public Hous­
ing Administration, 5 Cir., 1958, 257 F. 2d 73, 78:

“ ‘Neither the Fifth nor the Fourteenth Amendment 
operates positively to command integration of the races 
but only negatively to forbid govemmentally enforced 
segregation.5 ”

Not only is it abundantly clear that the law of this Federal 
Circuit is to the effect that there was no duty upon the City 
to operate public recreational facilities, but there has been a 
decision of the local state court involving some of the same 
parties, declaring the law of Florida to be that the City is 
under no duty to operate public recreational facilities and 
specifically holding that the City of Jacksonville had a right 
to sell and thus permanently dispose of the two golf courses in 
question pursuant to its Charter authority. (R. 37 through 46).

We feel compelled to point out that the parties to this appeal 
stipulated in the lower court that the District Judge could take 
judicial notice of any part of said local state court file, namely,



26

Hampton, et als v. City of Jacksonville, Case No. 593374-E, 
Circuit Court of the Fourth Judicial Circuit of the State of 
Florida, in and for Duval County. (R. 63-64, 202). Only the 
Final Decree entered in the state court in that case is a part 
of the record in this Court. However, such Final Decree, 
among other things, showed the method pursued by the City 
in offering said golf courses for sale, the public advertisement 
for sealed bids therefor upon the City’s specifications, and the 
prior efforts of the City to sell said properties to the best 
financial advantage of the City. The Appellants have made 
no showing that the final sale of said golf courses now under 
attack was not accomplished by using the same procedure. In 
fact the testimony of Hurley and Ghioto shows that they sub­
mitted bids to the City on the basis of the City’s advertise­
ment and specifications therefor. (R. 82, 83, 99). There is 
nothing in the record to show that the Appellants or any other 
persons were denied the opportunity to submit bids for the 
purchase of the golf courses.

In view of the foregoing authorities and circumstances, it is 
quite clear that Appellants’ “argument” in this connection is 
an “argument” only, there being no basis whatever in law for 
such a novel theory that any sale of the golf courses had to 
provide for their use upon an integrated basis.

We have heretofore presented our main argument for sus­
taining the order of the District Court, but before concluding, 
we feel it necessary to clarify certain loose arguments made 
by Appellants in their Brief.

At page 9 of their Brief, in talking about the City’s mortgage 
on the properties, Appellants use the term “repossess” in con­
nection with such mortgages. Certainly counsel for Appel­
lants would not contend that should the purchasers-mortgators



27

be in default under their mortgage that the City could repos­
sess the golf courses without benefit of a mortgage foreclosure. 
The term repossess is not apropos in real property mortgage 
foreclosure, for here there must be proceedings in a court of 
competent jurisdiction in the form of a suit to foreclose the 
mortgage before the purchasers of the two golf courses could 
be ousted from their lawful possession of same.

At page 10 of Appellants’ Brief, in support of the statement 
The City of Jacksonville has not only retained a valuable 

interest in the property conveyed,” Appellants say in Foot­
note 1:

“1 In Florida, reversionary interests are present in­
terests which may be conveyed or devised. Richardson 
v. Holman, 160 Fla. 65, 70, 33 So. 2d 641 (1948).”

We submit that if by such statement Appellants mean to imply 
that the cited case holds a possibility of reverter is a present 
interest in land, they are in error. Actually the case involved 
the construction of a deed to determine whether or not the 
deed created an estate in fee simple determinable or an estate 
upon condition subsequent, with the court construing the 
deed to create the former, and went on to hold that the possi­
bility of reverter could be alienated by virtue of a specific 
Florida Statute permitting any uncertain interest in land to 
be alienated. Thus, the court at page 643 of its opinion said:

“The statutes of Florida * 0 e contemplate that any 
interest in land may be the subject of conveyance. 
Section 689.01, Florida Statutes 1941, F.S.A., provides 
that ‘No estate or interest of freehold, or for a term 
of more than one year, or any uncertain interest of, in 
or out of any messuages, lands, tenements or heredita­
ments shall be created, made, granted, transferred or



28

released in any other manner than by instrument in 
writing, signed in the presence of two subscribing wit­
nesses by the party creating, making, granting, convey­
ing, transfering or releasing such estates, interest, 
for a term more than one year.’ Section 731.05, Florida 
Statutes 1941, F.S.A., and other statutes with reference 
to passing by will is of similar import, so it appears that 
in Florida all restraints on alienation have been re­
moved. A possibility of reverter is an uncertain interest 
in land that may under our law be conveyed or devised, 
regardless of what the common law rule was.”

The law of Florida is clearly contrary to Appellants’ state­
ment. Sorrels v. McNally, supra.

Again at page 10, Appellants argue that when the City 
closed the courses rather than integrate, the City determined 
that the Courses could only be operated at a loss if they were 
integrated, citing pages 39 and 122 of the record. The record 
does not show any such determination by the City. It does 
show that one member of the City Commission made a state­
ment to the City Commission that the golf courses had been 
operated at a loss to the City in excess of $50,000.00 per year, 
and in his opinion if the courses were operated on an inte­
grated basis the play would fall off to an extent that the 
burden would be too great on the taxpayers of the City. 
(R 122).

Even assuming arguendo that the City determined that the 
courses could be operated only at a greater loss if they were 
integrated, Appellants argue at page 11 that the only possible 
conclusion is that the purchasers were given a choice of losing 
money or segregating. We cannot agree with this proposition. 
For instance, the purchasers could operate as a private golf



29

club, limiting the use of the course and its financing to mem­
bers only, or raise the greens fee, or voluntarily integrate and 
make up any loss of revenue brought about by a decrease in 
volume by an increase in the greens fee. The main weakness 
in this phase of Appellants’ argument, however, lies in the 
fact that it was not up to the City to determine on what basis 
the purchasers could operate the golf courses and charge for 
their use and the City did not do so.

Continuing on at the bottom of page 11 of Appellants’ brief, 
it is stated that the City in its argument before the District 
Court relied on the case of Derrington v. Plummer. Appellants 
here are again in error because until reading Appellants’ brief, 
counsel for Appellee, City of Jacksonville, was not cognizant 
of the existence of said case due to the fact that the question 
in the Derrington case was the leasing of public property and 
did not involve the question of a sale and final disposition of 
public property.



30

C O N C L U S I O N

The burden is on the Appellants to show that the findings 
of fact made by the lower court were clearly erroneous, and 
that it erred in entering its order dismissing the petition to 
modify the final decree theretofore entered in the cause on 
the merits. Appellants have not met this burden. The findings 
of fact of the lower court and its conclusions of law were 
eminently correct based upon the evidence before it and the 
applicable law. The order should be affirmed.

Respectfully submitted,
; / 7

WILLIAM M. MADISON

FREDERICK J. SIMPSON
/  /

1103 City H a ll /"  
Jacksonville 2, Florida

Attorneys for Appellee 
City of Jacksonville

CERTIFICATE OF SERVICE

I DO HEREBY CERTIFY that on this M  3. . day of Feb­
ruary, A. D., 1962, I mailed a true and correct copy of the 
foregoing brief to Jack Greenberg, Constance Baker Motley, 
Michael Meltsner, and Ernest D. Jackson, Attorneys for Ap­
pellants, by placing the same in a properly addressed envelope 
with sufficient postage thereon and depositing the same in 
the U. S. Mail.

1103 City Hall 
Jacksonville 2, Florida



(T H E  F IN A N C IA L  N E W S  C O R P O R A T IO N , JA C K S O N V IL L E , F L O R ID A )