Hampton v. City of Jacksonville, FL Brief of Appelle City of Jacksonville
Public Court Documents
February 20, 1962

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Brief Collection, LDF Court Filings. Hampton v. City of Jacksonville, FL Brief of Appelle City of Jacksonville, 1962. a465d252-b59a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/b023d07b-bc64-46df-9e73-0bdf551a66ce/hampton-v-city-of-jacksonville-fl-brief-of-appelle-city-of-jacksonville. Accessed July 09, 2025.
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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 )