Circuit Retaxation Costs Order

    I n  t h e

j^ttprem? ©Hurt of %  Itttteft States
October Term, 1964 

No..................

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

—v.—

Charles E. Newton, et al.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF GEORGIA

J ack Greenberg 
J ames M. Nabrit, III 
Michael Meltsner 
F rank H. IIeferqn 

10 Columbus Circle 
New York, New York 10019

D onald L. H ollowell 
W illiam H. A lexander 
H oward Moore, Jr.

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

Attorneys for Petitioners



I N D E X

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

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

Questions Presented ..................................... ................... . 2

Statutory and Constitutional Provisions Involved____ 3

Statement ..... ..... ..... ....................... ......... .......... ..............  5

How the Federal Questions Were Raised and Decided 
Below ............... ..................... .............. ..... ....... ....... ......  9

Reasons for Granting the Writ .......... ..................... ......  12

I. This Case Involves Enforcement by the State 
of Racial Discrimination in Violation of the 
Fourteenth Amendment ..... ............ .......... .......  12

II. The State of Georgia and the City of Macon 
Are So Involved in the Operation of Bacons- 
field as to Invalidate Under the Fourteenth 
Amendment Any Enforcement of the Racially 
Discriminatory Terms of Senator Bacon’s 
Will ..... .......................................... ................... . 17

Conclusion..................... .......... ............. ....... .....................  25

A ppendix....... ............ ..... ......... ................ .......... ......... ..... . la

Opinion of Supreme Court of Georgia _______ __  la

Judgment of Supreme Court of Georgia ........... 10a

Order of Supreme Court of Georgia Denying 
Rehearing ........................ .......... ................... ..........  10a

PAGE



n

Letter Opinion of Superior Court of Bibb County .. 11a 

Order of Superior Court of Bibb County............... 13a

PAGE

Table of Cases

Adams v. Bass, 18 Ga. 130 (1855) ..... ...... .......... ...........  19
American Colonization Society v. Gartrell, 23 Ga. 448 

(1858) ...............................................................................  19

Beckwith v. Rector, etc., of St. Philip’s Parish, 69 Ga.
564 (1882) ................................ ...... .................................. 21

Burton v. Wilmington Parking Authority, 365 U. S.
715 ........................................................................  17,20

Charlotte Park and Recreation Comm’n v. Barringer,
242 N. C. 311, 88 S. E. 2d 114 (1955), cert, denied,
350 IT. S. 983 ......................... .............. ................. ......... . 14

Cox v. De Jarnette, 104 Ga. App. 664, 123 S. E. 2d 16
(1961) .................................     22

Creech v. Scottish Rite Hosp. for Crippled Children,
211 Ga. 195, 84 S. E. 2d 563 (1954) ..............................  16

Eaton v. Grubbs, 329 F. 2d 710 (4th Cir. 1964) ....... 21, 24
Emory University v. Nash, 218 Ga. 317, 127 S. E. 2d

798 (1962) ................. .............. ................ ..................... . 21
Estate of Stephen Girard, 391 Pa. 434, 138 A. 2d 844 

(1958) ..............         ..11,15

Goree v. Georgia Industrial Home, 187 Ga. 368, 200
S. E. 684 (1938) ............. ................... ......... ...................  21

Guillory v. Administrators of Tulane University, 212 
F. Supp. 674 (E. D. La. 1962) .................. ....................  16

Holmes v. City of Atlanta, 350 U. S. 879 12



Ill

Jones v. City of Atlanta, 35 App. 376, 133 S. E. 521 
(Ga. Ct. App. 1926) .............. .......... ............... .............  23

Leeper v. Charlotte Park and Recreation Comm’n, 2 
Race Rel. L. Rep. 411 (Super. Ct. Mecklenburg
County 1957) ......... .... ....... ........ ......... ................. ..... . 14

Lombard v. Louisiana, 373 U. S. 267 .......................15,16,17

Marsh v. Alabama, 326 U. S. 501 .................... ...... .......  24
Morehouse College v. Russell, 219 Ga. 717, 135 S. E. 2d

432 (1964) ____________ ____________ ______ __________ 22
Morehouse College v. Russell, 109 Ga, App. 301, 136

S. E. 2d 179 (1964) .......................... ........ ........... ..........  22
Morton v. Savannah Hospital, 148 Ga. 438, 96 S. E.

887 (1918) ................................ ...................................... 22
Muir v. Louisville Park Theatrical Ass’n, 347 U. S.

971 ..................................................................................... 12
Murphy v. Johnston, 190 Ga. 23, 8 S. E. 2d 23 (1940) ... 23

Pace v. Dukes, 205 Ga. 835, 55 S. E. 2d 367 (1949) 23
Pennsylvania v. Board of Directors of City Trusts

of the City of Philadelphia, 353 U. S. 230 ......... 11,12,13,
14,15,17

Pennsylvania v. Board of Directors of City Trusts
of the City of Philadelphia, 357 U. S. 570 ..... ......... 11,15

Peterson v. City of Greenville, 373 U. S. 244 .....15,16,17,
19, 20

Regents of University System v. Trust Company of
Georgia, 186 Ga. 498, 198 S. E. 345 (1938) ......... 23

Rice University v. Carr, 9 Race Rel. L. Rep. 613 (D. C. 
Harris County, Tex. 1964), appeal dismissed, No.
14,472, Tex. Ct. Civ. App., February 4, 1965 ........... 16

Robinson v. Florida, 378 U. S. 153...... ............. ...11, 16,17,19

PAGE



IV

Shelley v. Kraemer, 334 U. S. 1 ...................................... 14,15
Simians v. Moses H. Cone Memorial Hospital, 323 

F. 2d 929 (4th Cir. 1963), cert, denied, 376 U. S.
938 ........................................ ...... ........ ............... .. ..........  24

Simpson v. Anderson, 220 Ga. 155, 137 S. E. 2d 638
(1964) ................................ .......... .......... ..... ............ . 21

Smith v. Allright, 321 U. S. 649 ........... ......................... . 24
Stubbs v. City of Macon, 78 Ga. App. 237, 50 S. E. 2d 

866 (1948) ...........................   22

Terry v. Adams, 345 U. S. 461..... .............. .............. .......  24
Turner v. City of Memphis, 369 IT. S. 350 ....................... 17

Watson v. City of Memphis, 373 IT. S. 562 ................. 12

Statutes

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

Const. Ga. 1877, art. 7, sec. 2, par. 1, Ga. Code Ann. 
§2-5002 ................   20

Const. Ga. 1945, art. 7, sec. 1, par. 4, Ga. Code Ann. 
§2-5404 ......... ......................... ............... .......... .................. 3, 21

Ga. Code Ann. §69-301 ................. ....... ..... ........ ....... . 22

Ga. Code Ann. §69-504 .............. ....................... 5, 9,10,11,14,
18,19, 21, 23

Ga. Code Ann. §69-505 ................................................ .....  20

Ga. Code Ann. §§69-601 through 69-616..........................  24

Ga. Code Ann. §85-707 .................................. ............ .......  23

Ga. Code Ann. §92-201 ..................................................... 4, 21

Ga. Code Ann. §108-201 ...............................................    21

PAGE



V

Ga. Code Ann. §108-202 _______ __ ____________......10,16, 22

Ga. Code Ann. §108-203 ......................................................  21

Ga. Code Ann. §108-204 .......................................... ...........  22

Ga. Code Ann. §§108-206 through 108-209  ................ 22

Ga. Code Ann. §108-212 (1963 Supp.) ..........................  22

Pa. Stat. Ann., tit. 18, §4654 .............................. ..... .........  15

PAGE

Other A uthorities

American Bar Association, Canons of Professional
Ethics, No. 10 ....................................................... ..... . 16

Clark, Charitable Trusts, the Fourteenth Amendment, 
and the Will of Stephen Girard, 66 Yale L. J. 979 
(1957) ..................... ............................ ................. ...........  24

Woodward, The Strange Career of Jim Crow, Ch. II 
(1957) ........ ........... ........................................................... 19



In t h e

(Eflurt of %  Imtpf* States
October Term, 1964 

No..................

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

Charles E. Newton, et al.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF GEORGIA

Petitioners pray that a writ of certiorari issue to re­
view the judgment of the Supreme Court of Georgia in 
the case of E. S. Evans, et al. v. Charles E. Newton, et al.,* 
entered on September 28, 1964. Rehearing was denied on 
October 8,1964. Mr. Justice Stewart, on December 22, 1964, 
granted an order extending the time for filing this petition 
for writ of certiorari to and including March 5, 1965.

Opinion Below

The opinion of the Supreme Court of Georgia (R. 132) is 
reported at 138 S. E. 2d 573 and is set forth in the appendix 
infra, p. la.

* Petitioners are E. S. Evans, Louis H. Wynn, J. L. Key, Booker 
W. Chambers, William Randall, and Van J. Malone. The respon­
dents are all parties who were defendants in error in the Supreme 
Court of Georgia. See note 5 infra.



2

Jurisdiction

The judgment of the Supreme Court of Georgia in this 
case was entered on September 28, 1964 (R. 147). Rehear­
ing was denied October 8, 1964 (R. 153). On December 22,
1964, Mr. Justice Stewart extended the time for filing the 
petition for writ of certiorari to and including March 5,
1965.

The jurisdiction of this Court is invoked pursuant to 
Title 28, U. S. C. §1257(3), petitioners having asserted 
below and asserting here deprivation of rights, privileges 
and immunities secured by the Constitution of the United 
States.

Questions Presented

1. Land was left in trust to the City of Macon, Georgia, 
for use as a public park for the exclusive use of white 
women and children; the city administered the park on a 
discriminatory basis through an appointed board of man­
agers; after Negroes were allowed to use the park, the city 
and the board of managers petitioned a court of equity to 
appoint new trustees so that Negroes might be excluded 
from the park; the court appointed new trustees for that 
purpose. Is the state thereby enforcing racial discrimina­
tion contrary to the Fourteenth Amendment?

2. In the above circumstances a state statute authorized 
gifts of land in trust for the establishment of parks 
limited to white women and children; the state granted 
tax exemption to such trusts only if use of such parks were 
limited according to race; the state by law encouraged the 
establishment of charitable trusts to fulfill a public function 
of providing public recreational facilities; the state granted



3

limited liability in tort eases to such charitable institutions; 
the state granted them perpetual existence, unlike non- 
charitable trusts; and the City of Macon administered the 
park for years on a discriminatory basis. Has the state 
become involved in the operation of the park to such an 
extent as to require the applicability of the equal protection 
clause of the Fourteenth Amendment?

Statutory and Constitutional Provisions Involved

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

This case also involves the following constitutional and 
statutory provisions of the State of Georgia:

Const. Ga. 1945, art. 7, sec. 1, par. 4, Ga. Code Ann. 
§2-5404:

Exemptions from taxation.—The General Assembly 
may, by law, exempt from taxation all public property; 
places of religious worship or burial and all property 
owned by religious groups used only for residential 
purposes and from which no income is derived; all 
institutions of purely public charity; all intangible per­
sonal property owned by or irrevocably held in trust 
for the exclusive benefit of, religious, educational and 
charitable institutions, no part of the net profit from 
the operation of which can inure to the benefit of any 
private person; all buildings erected for and used as a 
college, incorporated academy or other seminary of 
learning, and also all funds or property held or used 
as endowment by such colleges, incorporated academies 
or seminaries of learning, provided the same is not in­
vested in real estate; and provided, further, that said 
exemptions shall only apply to such colleges, incorpo­



4

rated academies or other seminaries of learning as are 
open to the general public; provided further, that all 
endowments to institutions established for white peo­
ple, shall be limited to white people, and all endow­
ments to institutions established for colored people, 
shall be limited to colored people; . , .

Gu. Code Ann. §92-201:

Property exempt from taxation.—The following de­
scribed property shall be exempt from taxation, to w it: 
All public property; places of religious worship or 
burial, and all property owned by religious groups used 
only for single family residences and from which no 
income is derived; all institutions of purely public char­
ity ; hospitals not operated for the purpose of private or 
corporate profit and income; all intangible personal 
property owned by or irrevocably held in trust for the 
exclusive benefit of, religious, educational and chari­
table institutions, no part of the net profit from the 
operation of which can inure to the benefit of any pri­
vate person; all buildings erected for and used as a 
college, nonprofit hospital, incorporated academy or 
other seminary of learning, and also all funds or prop­
erty held or used as endowment by such colleges; non­
profit hospitals, incorporated academies or seminaries 
of learning, providing the same is not invested in real 
estate; and provided, further, that said exemptions 
shall only apply to such colleges, nonprofit hospitals, 
incorporated academies or other seminaries of learn­
ing as are open to the general public: Provided, fur­
ther, that all endowments to institutions established 
for white people, shall be limited to white people, and 
all endowments to institutions established for colored 
people, shall be limited to colored people; . . .



5

Ga. Code Ann. §69-504:

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 
divisor 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 per­
sonal, for the development, improvement, and mainte­
nance of said property.

Statement

This suit was commenced by some of the respondents to 
effect the banishment of Negroes from a public park estab­
lished in Macon, Georgia under the will of Augustus Oc­
tavius Bacon, a United States senator from Georgia. The 
will of Senator Bacon (R. 19), executed on March 28, 1911,1 
provided in Item 9th for a gift of real property to the City 
of Macon as owner and trustee for the maintenance of a 
park for the white women and children2 of the City of

1A codicil was added September 6, 1913 (R. 43).
2 The Board of Managers was given discretion to open the park 

to white men and white non-residents of Macon (R. 31). This 
power was exercised (R. 15).



6

Macon, under the supervision of a Board of Managers ap­
pointed by the Mayor and Council (R. 27). The will set 
aside a separate fund in trust to defray expenses of ad­
ministering the park (R. 34). The park, named Baconsfield, 
was operated in accordance with the racial limitation in 
Bacon’s will until a short time before this suit was insti­
tuted, when Negroes were allowed to use the park (R. 15).

On May 4, 1963, Charles E. Newton and other members 
of the Board of Managers of Baconsfield3 filed a petition 
in the Superior Court of Bibb County, Georgia, requesting 
the removal of the City of Macon as trustee, the appoint­
ment of new trustees, and the transfer of title in Bacons­
field to newly appointed trustees. Named as defendants 
were the City of Macon and the trustees of certain residu­
ary legatees of Bacon’s estate, the Curry heirs.4 This relief 
was sought explicitly for the purpose of enforcing the ra­
cially discriminatory terms of Bacon’s will (R. 12-17).

The City of Macon filed its answer (R. 47) admitting 
most allegations of the petition, but stating that it had 
“ no authority to enforce racially discriminatory restric­
tions with regard to property held in fee simple or as trus­
tees for a private or public trust and, as a matter of law, 
is prohibited from enforcing such racially discriminatory 
restrictions” (R. 48). The defendant trustees for the Curry 
heirs filed their answer admitting all allegations of the 
petition and joining in “ each and every prayer of said 
petition” (R. 51); they were represented by the same coun­
sel as the plaintiff members of the Board of Managers (R.

3 The Board of Managers did not sue as an entity. Each member 
sued, through private counsel, in his capacity as member of the 
Board (R. 12).

4 The trustees for the Curry heirs were Guyton G. Abney, 
J. D. Crump, T. I. Denmark and Dr. W. G. Lee (R. 12).



7

17, 51). Plaintiffs filed a motion for summary judgment 
(E. 54).

On May 29, 1963, a diversity of interest appeared in this 
lawsuit for the first time when Rev. E. S. Evans and five 
other Negro citizens of the City of Macon, petitioners here, 
moved for leave to file a petition in intervention (R. 56). 
In their intervention petition of June 18, 1963, the Negro 
intervenors alleged that the appointment of new trustees 
of the park in order to comply with the racial limitation in 
Bacon’s will would violate the Fourteenth Amendment (R. 
61). The intervenors requested that the Superior Court 
“ effectuate the general charitable purpose of the testator 
to establish and endow a public park within the City of 
Macon by refusing to appoint private persons as trustees” 
of the park (R. 62-63). Their petition also challenged the 
plaintiffs’ standing to sue (R. 63).

On January 8, 1964, the plaintiff members of the Board 
of Managers filed an amendment to their original petition 
requesting that all Negroes be enjoined from using the 
park (R. 65). The amendment requested the addition as 
plaintiffs of four previously unrepresented residuary lega­
tees under Bacon’s will, the Sparks heirs (R. 66); a request 
was also made that the trustees of the Curry heirs, origi­
nally joined as defendants, be permitted to assert the in­
terests of the Curry heirs as plaintiffs (R. 67). Simul­
taneously, the Sparks heirs intervened, asking that all 
relief requested by the original plaintiffs be granted (R. 
69). Also at the same time, the trustees for the Curry 
heirs asked to be allowed to assert their interests as plain­
tiffs, and joined in all of the plaintiffs’ prayers for relief 
(R. 72). In addition, the Sparks heirs and the trustees for 
the Curry heirs, all of whom were represented by counsel 
for the plaintiff Board members, asked for reversion of 
the trust property into Bacon’s estate in the event that 
other relief were denied (R. 70, 74).



8

On February 5, 1964, the City of Macon, the only defen­
dant making any pretense of defending the suit, amended 
its answer stating that the City had resigned as trustee of 
Baconsfield (R. 94) pursuant to resolution of the Mayor 
and Council on February 4, 1964 (R. 79), and requesting 
the court’s acceptance of its resignation and the appoint­
ment of substitute trustees (R. 76).

On May 5, 1964, the Negro intervenors amended their 
petition, alleging that the Fourteenth Amendment would 
be violated if the relief sought by the other parties were 
granted (R. 95).

No evidentiary hearing was held. The Superior Court 
issued its decree on March 10, 1964, allowing intervention 
by all who had requested it, accepting the resignation of 
the City of Macon as trustee of Baconsfield, appointing 
three private individuals as new trustees, and retaining 
jurisdiction of the case (R. 99). No ruling was made on 
the requests that Negroes be enjoined from using the park. 
The conditional prayers for reversion of the trust property 
were deemed moot (R. 100).

Appeal was taken to the Supreme Court of Georgia by 
petitioners, the Negro intervenors.5 On September 28, 1964, 
the Supreme Court of Georgia affirmed the judgment of

5 The defendants in error on the appeal were the City of Maeon, 
the four Sparks heirs, the four trustees for the Curry heirs, and 
the three newly appointed trustees of the park. By amendment to 
the bill of exceptions,  ̂the original plaintiffs, the members of the 
Board of Managers of Baconsfield, were added as defendants in 
error on the appeal (R. 105, 110, 130). Subsequent to the decree 
of the Superior Court, all seven members of the Board of Man­
agers of Baconsfield submitted their resignations to the three newly 
appointed trustees of the park (R. 115). The trustees then re­
appointed three of the members of the Board of Managers and 
substituted four new members of the Board (R. 116). All members 
of the Board of Managers, whether original appointees or new 
appointees, "were made parties to the appeal (R. 131).



9

the Superior Court of Bibb County. A  motion for rehear­
ing was denied on October 8, 1964 (R. 153).

How the Federal Questions Were Raised 
and Decided Below

The federal constitutional issues, on which this case 
turned, were raised at the outset by the Negro intervenors, 
petitioners here, in their intervention petition (R. 59). 
There it was alleged that enforcement of the racial limita­
tion in Bacon’s will by a court of the State of Georgia “ is 
violative of the Fourteenth Amendment to the United 
States Constitution” (R. 61). It was also alleged that “dis­
crimination based solely upon race is no longer a permis­
sible object of state action whether such action is that of 
an administrative agency, the state executive officers and 
employees, the state legislature, or the state courts” (R. 
62). The intervenors requested that the Superior Court 
“ effectuate the general charitable purpose of the testator” 
by refusing to appoint private trustees (R. 62-63).

Following the intervention of Bacon’s heirs and the res­
ignation of the City of Macon, the Negro intervenors 
amended their petition, alleging: 1) that the “ equal pro­
tection clause of the Fourteenth Amendment to the United 
States Constitution prohibits this Court from enjoining 
Negroes from use of the park” , 2) that “ the equal protec­
tion clause of the Fourteenth Amendment” prohibits ac­
ceptance of the City’s resignation and the appointment of 
new trustees “ for the purpose of enjoining [sic] [enforc­
ing] the racially discriminatory provision in the will of 
A. 0. Bacon,” 3) that §69-504 of the Georgia Code6 “pre­
scribes racial discrimination and is therefore violative of

6 Section 69-504 of the Georgia Code authorized gifts of prop­
erty to municipalities for the operation of parks “for white women 
and children” and other racially designated classes, supra, p. 5.



10

the equal protection clause to the Fourteenth Amendment” , 
and 4) that §108-202 of the Georgia Code (the cy pres 
provision) “ properly construed, requires that the racially 
discriminatory provision in A. 0. Bacon’s will be declared 
null and void” (R. 95-96).

The order of the Superior Court of Bibb County rejected 
the constitutional claims of the Negro intervenors by im­
plication (R. 99). Upon issuing its order and decree, Judge 
Long of the Superior Court wrote a letter to counsel for 
all parties stating that the “ racial limitation in Senator 
A. O. Bacon’s will is not unlawful for any reason as con­
tended by the intervenors, Reverend E. S. Evans, et al.” 
The letter also said that the appointment of new trustees 
was proper since the City of Macon, acting as trustee, 
could not “ apply constitutionally the racial criterion pre­
scribed by the testator.” The doctrine of cy pres was held 
to be inapplicable to this trust. Appendix, infra, p. 11a.

On appeal the Supreme Court of Georgia affirmed the 
ruling of the Superior Court (R. 147), deciding all issues 
adversely to petitioners. In its opinion the Supreme Court 
of Georgia stated: “ Counsel for the plaintiffs in error 
(the Negro intervenors) assert that the decree of the 
judge of the superior court was ‘patent enforcement of 
racial discrimination contrary to the equal protection 
clause of the Fourteenth Amendment’ to the Federal Con­
stitution” (R. 141). The court rejected this contention. It 
also held that Ga. Code Ann. §69-504 did not require that 
Senator Bacon’s gift to the City include a racial limitation 
and held that such a racial limitation was not invalid (R. 
142-143). The Supreme Court of Georgia rejected peti­
tioners’ contention that the racial limitation should be 
stricken under the cy pres doctrine (R. 143-144). Finally, 
it held that the action of the Superior Court in accepting 
the City’s resignation as trustee and appointing private



11

trustees was consistent with this Court’s ruling in Penn­
sylvania v. Board of Directors of City Trusts of the City 
of Philadelphia, 353 U. S. 230, pointing out that the Su­
preme Court of Pennsylvania subsequently approved the 
appointment of private trustees for Girard College and 
this Court dismissed the appeal and denied certiorari, 
Estate of Stephen Girard, 391 Pa. 434,138 A. 2d 844 (1958); 
Pennsylvania v. Board of Directors of City Trusts of the 
City of Philadelphia, 357 U. S. 570 (R. 144-146).

Petitioners moved for a rehearing, contending that Ga. 
Code Ann. §69-504, providing for gifts of real property to 
municipalities for the benefit of white persons or for the 
benefit of Negro persons, brought this case within the hold­
ing of this Court in Robinson v. Florida, 378 U. S. 153, 
which held that a state regulation requiring desegregated 
restaurants to provide racially separate rest-room facilities 
constituted state encouragement of segregation in violation 
of the Fourteenth Amendment (R. 149). The Supreme 
Court of Georgia denied rehearing without opinion (R. 
153).



12

Reasons for Granting the Writ

The decision below conflicts with applicable decisions 
of this Court on important constitutional issues.

I.

This Case Involves Enforcement by the State of 
Racial Discrimination in Violation of the Fourteenth 
Amendment.

This is a classic case of state enforcement of racial dis­
crimination by every branch of government, legislative, 
executive, administrative, and judicial. The responsibility 
of each branch is no less than in the many cases prohibiting 
discrimination in public recreational facilities, e.g., Wat­
son, v. City of Memphis, 373 U. S. 562; Holmes v. City of 
Atlanta, 350 U. S. 879; Muir v. Louisville Park Theatrical 
Ass’n, 347 U. S. 971.

The suit began when the members of the Board of Man­
agers of Baconsfield, who had been enforcing racial dis­
crimination for generations, sued for relief that would 
enable them to resume the practice. Under Bacon’s will, 
the Board members were appointees of the Mayor and 
Council of Macon' with the sole function of administering 
the park owned in trust by the City (R. 31). They must be 
regarded as part of the administration of the City of 
Macon. See Pennsylvania v. Board of Directors of City 
Trusts, 353 U. S. 230.

Significantly, the Board of Managers did not sue as a 
collective entity, but each member sued individually in his 
capacity as a member of the Board. Presumably, if the 7

7 All seven appointees must be white, at least four must be women 
and one should be a descendant of Senator Bacon, if possible (r !



13

Board had sued as a body, it would have been entitled, as 
a municipal agency, to representation by the City Attor­
ney. Since the principal defendant was the City of Macon, 
the nonadversary, sham nature of the suit would have been 
exposed from the beginning if this had occurred. In any 
event, the Board members suing individually were treated 
as competent parties.

The involvement of the executive and legislative branches 
of City government is evident also. In the first instance, 
the City failed to exercise its control over its own litigation 
by preventing the suit altogether. As defendant, the City 
put up the weakest kind of defense. It did not even sug­
gest to the Superior Court that the Board members, suing 
individually, lacked the capacity to represent an agency of 
the City (R. 47). At no time did the City raise any objec­
tions, constitutional or otherwise, to the transfer of its 
public park to other trustees (R. 49). Eventually, the City, 
acting through its Mayor and Council, caved in completely, 
voluntarily submitting its resignation (R. 94), and joining 
in the plaintiffs’ request that the new trustees be appointed 
so that Negroes could be excluded again from Baconsfield 
(R. 76).

Undoubtedly the City could have prevented the result 
brought about by this suit. Several municipalities have 
received gifts from private donors mandating racial dis­
crimination in the use of the property transferred. Faced 
with the conflict between the terms of the gift and the re­
quirements of the Constitution, they have continued to use 
donated resources and ignored governmentally unenforce­
able limitations rather than devise schemes for private dis­
criminatory operation.8 In the Girard College Case, where

8 The City of Charlotte purchased the reversionary interest from 
the heirs of a testator who required racial discrimination, so that 
the City could continue to provide recreational facilities for its



14

the Board of Directors of City Trusts was a statutory body 
with independent power to sue, the City of Philadelphia 
and the State of Pennsylvania entered the suit through 
their official counsel, respectively, on the side of the Four­
teenth Amendment, 353 U. S. 230. By contrast, the Mayor 
and the Council of the City of Macon bear direct, if 
not primary, responsibility for the racial discrimination 
brought about by this suit.

The responsibility of Georgia’s judiciary is apparent on 
the surface. Two of Georgia’s courts held that the dis­
criminatory terms of a private instrument must be given 
effect, despite the Fourteenth Amendment, to insure the 
exclusion of Negroes from a place of public accommodation. 
It is submitted that this result was foreclosed by Shelley 
v. Kraemer, 334 U. S. 1.

In many ways, state involvement was less clear in 
Shelley than here. In Shelley, the instrument containing 
the discriminatory clause was an agreement between pri­
vate parties, in which the state had no part. The lawsuit in 
Shelley represented a genuine controversy between private 
parties—Negroes who wanted to maintain their home and 
other home owners who wanted to secure the exclusion of 
Negroes from the neighborhood, a putative right obtained 
in the bargaining process. Finally, the subject of the law­
suit in Shelley was a private home, rather than a place of 
public accommodation.

In this case, the racial limitation was encouraged by, 
imposed upon, and accepted by the state. Section 69-504 
of the Georgia Code invited Senator Bacon to restrict use

citizens, Leeper v. Charlotte Park and Recreation Comm’n, 2 Race 
Eel. L. Rep. 411 (Super. Ct. Mecklenburg County 1957), even 
though the racial limitation had been held valid, Charlotte Park 
and Recreation Comm’n v. Barringer, 242 N. C. 311, 88 S. E. 2d 
114 (1955), cert, denied, 350 U. S. 983.



15

of the park to the women and children of one race.” The 
limitation was accepted and enforced by the City and its 
agents for many years, including several years following 
this Court’s decision in the Girard College Case. In the 
spring of 1963, a turning point for civil rights in this coun­
try, Negroes were allowed to use the recreational facilities 
of Baconsfield because the City recognized that overt en­
forcement of discrimination by the state would no longer be 
tolerated. But City officials promptly went to court and 
asked that private trustees be substituted so that discrim­
ination could be reintroduced under private supervision.

Whether the original proponents be viewed as City 
agents or the City itself, it was an instrumentality of the 
state that sought judicial enforcement of discrimination 
in this case. Cf. Lombard v. Louisiana, 373 U. S. 267, 
where an official policy of segregation in restaurants was 
held to invalidate trespass convictions of Negroes who 
challenged that policy. It is of minor importance that the 
racial limitation on use of Baconsfield can be traced to an 
individual owner of private property. That was true in 
the first Girard College Case, 353 IT. S. 230, where it was 
held that the policy could not be enforced by a state 
agency.9 10 It was also true in Shelley v. Kraemer. More­
over, this Court held in Peterson v. City of Greenville, 373

9 See pp. 18-20, infra.
10 In the second Girard College Case, the Supreme Court of 

Pennsylvania approved the appointment of private trustees to con­
tinue discriminatory operation. Estate of Stephen Girard, 391 
Pa. 434, 138 A. 2d 844 (1958), appeal dismissed and cert, denied, 
357 U. S. 570. Petitioners challenge the correctness of the ruling 
of the Supreme Court of Pennsylvania. This Court’s refusal to 
review may be read in the light of the possible availability of relief 
for the Negro plaintiffs in the courts of Pennsylvania under Pa. 
Stat. Ann., tit. 18, §4654, forbidding racial discrimination in “pri­
mary and secondary schools, high schools, academies, colleges and 
universities, extension courses and all educational institutions un­
der the supervision of this Commonwealth. . . . ”



1 6

U. S. 244, that there are times when the private role in 
originating officially enforced policies of discrimination 
will not be considered. See also Lombard v. Louisiana, 373 
U. S. 267 and Robinsonv. Florida, 378 U. S. 153.

Nor is it important that the private heirs of Senator 
Bacon joined with the members of the Board of Managers 
in the request for enforcement of the restriction in Bacon’s 
will. They did so only as an afterthought, and they were 
represented by the same attorneys as the Board members. 
Thus their interests must have been identical with those 
of the Board members. See American Bar Association, 
Canons of Professional Ethics, No. 10.

Finally, it should be noted that the courts of Georgia 
refused to apply the doctrine of cy pres. Under this doc­
trine, which is firmly established in Georgia as a means 
of effectuating a testator’s charitable intent, see Ga. Code 
Ann. §108-202; Creech v. Scottish Rite Hosp. for Crippled 
Children, 211 Ga. 195, 84 S. E. 2d 563 (1954), the Superior 
Court could have ensured the maintenance of a public park, 
permitted white persons to continue using it, and retained 
City administration by refusing to appoint new trustees. 
Instead it chose the course which would permit racial dis­
crimination. Compare Guillory v. Administrators of Tulane 
University, 212 F. Supp. 674, 687 (E. D. La. 1962) (admin­
istrators under discriminatory will allowed to desegre­
gate) ; Rice University v. Carr, 9 Race Rel. L. Rep. 613 
(D, C. Harris County, Tex. 1964), appeal dismissed, No. 
14,472, Tex. Ct. Civ. App., February 4, 1965 (same).



17

II.

The State o f  Georgia and the City o f  Macon Are So 
Involved in the Operation o f  Baconsfield as to Invali­
date Under the Fourteenth Amendment Any Enforce­
ment o f  the Racially Discriminatory Terms o f  Senator 
Bacon’ s Will.

As this Court held in Burton v. Wilmington Parking Au­
thority, 365 U. S. 715, 722, discrimination by private entities 
is invalid under the Fourteenth Amendment if “ to some 
significant extent the State in any of its manifestations has 
been found to have become involved in it.” In Burton and 
in Turner v. City of Memphis, 369 U. S. 350, this reasoning 
was held to justify injunctive relief against the institutions 
practicing discrimination. In Peterson v. City of Green­
ville, 373 U. S. 244, the same reasoning was applied to in­
validate criminal trespass convictions, where a local or­
dinance required discrimination by private restaurateurs. 
See also Lombard v. Louisiana, 373 U. S. 267; Robinson v. 
Florida, 378 U. S. 153. It is submitted that the involvement 
of the State of Georgia and the City of Macon in the opera­
tion of Baconsfield invalidates the result reached in this 
case.

One factor meriting serious consideration under this 
heading is the fact that racial discrimination has been en­
forced by each department of government, as pointed out in 
the previous argument. Another factor of significance is the 
continuous ownership and operation of Baconsfield on a 
discriminatory basis for a substantial length of time. It is 
settled under the first Girard College Case that continued 
operation by municipal authorities would make further ex­
clusion of Negroes impossible. The question now presented 
is whether it is possible to wipe away the effects of city 
administration merely by appointing new trustees.



18

According to Bacon’s will, the Board of Managers was 
given “ complete and unrestricted control and management 
of the said property with power to make all needful regu­
lations for the preservation and improvement of the 
same . . . ” (R. 31). Bacon provided funds for

the management, improvement and preservation of said 
property, including when possible drives and walks, 
casinos and parlors for women, playgrounds for girls 
and boys and pleasure devices and conveniences and 
grounds for children, flower yards and other orna­
mental arrangements . . . (R. 32).

He expressed the hope that the Board of Managers would 
preserve his two houses (R, 33) and “ the present woods 
and trees” on the property (R. 34). In the years of their 
administration the City and the Board of Managers have 
exercised the discretion granted them. They have decided 
what types of facilities to provide, what buildings to pre­
serve and for what purposes, and whether to alter the land­
scape. The City was in control during the years when 
Baconsfield took shape as an institution open to the public. 
The effects of its administration remain.

A fact of critical importance in this case is the State of 
Georgia’s responsibility for the original restriction of 
Baconsfield to a distinct racial group. Section 69-504 of 
the Georgia Code, enacted in 1905, well before Bacon pub­
lished his carefully drafted will, provides:

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 per­
petuity 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



19

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 desig­
nated by said devisor or grantor; and any person may 
also, by such conveyance, devise, give, or grant in per­
petuity to such corporations or persons other property, 
real or personal, for the development, improvement, 
and maintenance of said property.

Many choices were offered to donors. Lands could be dedi­
cated to the exclusive use of the white race, the colored 
race, or any other race, or the women and children of the 
white race, the colored race, or any other race. But no 
choice was offered for those who might have preferred to 
endow an integrated park.

The Supreme Court of Georgia held in this case that 
§69-504 did not require that gifts be limited racially (R. 
142), but no such construction was in existence to guide 
testators and their attorneys in 1911 when Bacon wrote 
his will. Men are careful to conform to the letter of the 
law when preparing their wills. This statute was passed 
during the time when segregation laws were sweeping the 
South, see Woodward, The Strange Career of Jim Crow, 
Ch. II (1957), and its words revealed a separatist intent. 
The unhappy fate of pre-Civil War testamentary trusts for 
the emancipation or resettlement of slaves stood as a warn­
ing to any who might depart from the explicit directions of 
the statute. See Adams v. Bass, 18 Ga. 130 (1855); Amer­
ican Colonization Society v. Gartrell, 23 Ga, 448 (1858).

The rule of Peterson v. City of Greenville, 373 IT. S. 244 
and Robinson v. Florida, 378 U. S. 153 applies. The State



2 0

of Georgia suggested that Senator Bacon limit his gift to 
one of several racial classes, and he did so, following the 
words of the statute very closely (R. 30). In these circum­
stances, Senator Bacon’s personal motives—explicitly set 
forth at some length in his will (R. 32-33)—are of no conse­
quence; “ a palpable violation of the Fourteenth Amendment 
cannot be saved by attempting to separate the mental urges 
of the discriminators.” Peterson v. City of Greenville, 373 
IT. S. 244, 248. Georgia expressly authorized racial restric­
tions in §69-504 and, in a companion statute, §69-505, offered 
enforcement of them through the police power.11 See Burton 
v. Wilmington Parking Authority, 365 U. S. 715, 726 
(Stewart, J., concurring).

Reinforcing these statutes, the law of Georgia has for 
many years conditioned tax exemption on the existence of 
segregation. At least since 1877, the Constitution has au­
thorized exemption from taxation for “all institutions of 
purely public charity.” Ga. Const. 1877, art. 7, sec. 2, par. 1, 
Ga. Code Ann. §2-5002. In 1918 an amendment to the Con­
stitution included a proviso that “ all endowments to insti­
tutions established for white people, shall be limited to 
white people, and all endowments to institutions established 
for colored people, shall be limited to colored people; . . . ” 
Editorial note, Ga. Const. 1877, art. 7, sec. 2, par. 1, Ga.

11 Ga. Code Ann. §69-505 provides:
Municipality authorized to accept.—Any municipal corpora­

tion, 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 and enjoyment thereof.



21

Code Ann. §2-5002. This exemption and proviso were car­
ried over into the statute setting forth tax exemptions, (la. 
Code Ann. §92-201, and readopted in the Georgia Constitu­
tion of 1945, art. 7, sec. 1, par. 4, Ga. Code Ann. §2-5404.12

Tax exemption is always a valuable subsidy, and “may 
attain significance when viewed in combination with other 
attendant state involvements.” Eaton v. Grubb.s, 329 F. 2d 
710 (4th Cir. 1964). Senator Bacon was eager to obtain tax 
exemption for Baconsfield, providing in his will that a 
special statute should be sought if tax exemption should 
be denied (R. 32). In Georgia tax exemption is dependent 
upon the erection of racial barriers.

The Baconsfield trust, created pursuant to Ga. Code Ann. 
§69-504, is but one of several types of charitable trusts to 
which the State extends support in numerous ways in addi­
tion to tax exemption. See Ga. Code Ann. §108-203. The 
courts of Georgia have often remarked that charitable 
trusts are looked upon with special favor. See, e.g., Simp­
son v. Anderson, 220 Ga. 155, 137 S. E. 2d 638 (1964); 
Goree v. Georgia Industrial Home, 187 Ga. 368, 200 S. E. 
684 (1938) and cases cited; Beckwith v. Rector, etc., of 
St. Philip’s Parish, 69 Ga. 564 (1882). The statutes of 
Georgia reflect this solicitude, providing for the enforce­
ment of charitable trusts in equity, Ga. Code Ann. §108-201, 
the effectuation of the testator’s intent under the cy pres

12 In Emory University v. Nash, 218 Ga. 317, 127 S. E. 2d 798 
(1962), the Supreme Court of Georgia held that the proviso on 
racial limitation could not be applied to deprive a desegregated 
university of its tax exemption because the racial proviso was incon­
sistent with another proviso stipulating that tax exemption should 
only apply to “such colleges, incorporated academies or other 
seminaries of learning as are open to the general public,” Ga. Code 
Ann. §92-201. However, because there is no conflicting statute 
requiring that tax exempt parks be open to the general public, 
Georgia’s law continues to condition tax exemption of parks on 
the maintenance of racial limitations.



22

doctrine, §108-202, and continuous supervision by equity 
courts, §108-204. Particular favoritism is extended to chari­
table trusts in §§108-206 through 108-209, which lay down 
rules of procedure and construction directed toward up­
holding the validity of attempted charitable trusts. Chari­
table, or public, trusts are enforced in the courts by the 
Attorney General or the solicitor general of the circuit 
in which the trust corpus lies. Ga. Code Ann. §108-212 
(1963 Supp.).

One of the many ways the State of Georgia supports 
charitable trusts is by extending them immunity from suit 
in certain tort situations. Under the present rule, an in­
stitution’s charitable assets cannot be recovered by a per­
son claiming negligence of the institution’s employees. 
Morehouse College v. Bussell, 219 Ga. 717, 135 S. E. 2d 
432 (1964); id., 109 Ga. App. 301, 136 S. E. 2d 179 (1964); 
Cox v. De Jarnette, 104 Ga. App. 664,123 S. E. 2d 16 (1961); 
Morton v. Savannah Hospital, 148 Ga. 438, 96 S. E. 887 
(1918). Noncharitable assets, such as money received for 
services or a liability insurance policy, can be recovered 
by one suing under respondeat superior, and all assets are 
subject to recovery for administrative negligence, or the 
torts of the institution as opposed to its employees. Ibid. 
Nonetheless, Georgia continues to offer charitable enter­
prises a substantial degree of immunity from suit, with 
very little doctrinal change having occurred in the last fifty 
years. See Morton v. Savannah Hospital, supra.

Georgia has a comparable doctrine of immunity from 
suit for municipalities where a governmental function is 
being performed. Ga. Code Ann. §69-301. It has been held 
that maintaining a park is a governmental function, so that 
the municipality is immune from liability for the acts of 
its officers or employees in connection with the park. Stubbs 
v. City of Macon, 78 Ga. App. 237, 50 S. E. 2d 866 (1948);



23

Another incident of charitable trusts in Georgia, illus­
trating the support offered them by the state and their simi­
larity to governmentally owned and operated institutions, 
is perpetual existence. Georgia retains in its law of pri­
vate, or noncharitable, trusts, the traditional rule against 
perpetuities limiting their duration to “ lives in being . . . , 
and 21 years, and the usual period of gestation added there­
after.” Ga. Code Ann. §85-707. However, the rule against 
perpetuities does not apply to charitable trusts. Regents 
of University System v. Trust Company of Georgia, 186 
Ga. 498, 512, 198 S. E. 345 (1938); Murphy v. Johnston, 
190 Ga. 23 (7), 8 S. E. 2d 23 (1940); Pace v. Dukes, 205 
Ga. 835, 55 S. E. 2d 367 (1949). In the case of Baconsfield, 
perpetual existence is guaranteed by §69-504.

This element of perpetual existence is a factor of major 
significance. It is axiomatic that a man has a right to exer­
cise his prejudices in the use of his private property during 
his life, and to dispose of his property by will, making irra­
tional choices about its recipients and uses. But no man 
has the right to control his property through eternity. The 
law sets temporal limits on testamentary encumbrances, 
and in the exceptional situation of the charitable trust it 
exercises close supervision. In this case Georgia has not 
only given Bacon’s trust perpetual existence, but has exer­
cised its broad powers to assure the maintenance of segre­
gation to the end of time.

It has been shown that charitable trusts—whether the 
trustees be public or private—are carefully nurtured by 
the State of Georgia, as by other states. The reason the 
state fosters these institutions to such a degree lies in the 
fact that charitable trusts perform many functions often

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



24

performed by the state. See Clark, Charitable Trusts, the 
Fourteenth Amendment, and the Will of Stephen Girard, 
66 Yale L. J. 979, 1010 (1957). As an example, Baconsfield, 
established under a charitable trust, serves as a public rec­
reational facility for some of the citizens of Macon. The 
provision of recreational facilities is a public function un­
der the laws of Georgia. Ga. Code Ann. §§69-601 through 
69-616 authorizes municipalities to set aside existing public 
property or acquire new property for use as parks, play­
ground and recreation centers.

Thus Baconsfield was set up under one of several gov- 
ernmentally developed methods of providing public parks. 
The Constitution forbids racial restrictions in public facil­
ities established by government ; it would be anomalous if 
public parks set up under other, equally effective, govern- 
mentally fostered plans could be so restricted. In analogous 
situations, the Fourth Circuit has held that medical facilities 
operated by private groups under comprehensive state plans 
to provide health facilities for all citizens are subject to the 
nondiscrimination requirements of the Fourteenth Amend­
ment. Simkins v. Moses H. Cone Memorial Hospital, 323 
F. 2d 929 (4th Cir. 1963), cert, denied, 376 U. S. 938; Eaton 
v. Grubbs, 329 F. 2d 710 (4th Cir. 1964). Cf. Smith v. All- 
wright, 321 U. S. 649, Terry v. Adams, 345 U. S. 461.

Indeed, this Court’s decision in Marsh v. Alabama, 326 
U. S. 501 requires the desegregation of Baconsfield. Since 
the company town in Marsh was like any other town in all 
respects except ownership, the commands of the Fourteenth 
Amendment were held to be applicable. Apart from its 
previous ownership, Baconsfield is no different from, any 
other public park.



25

CONCLUSION

For the foregoing reasons the petition for writ of 
certiorari should be granted.

Respectfully submitted,

Jack Greenberg 
James M. Nabrit, III 
Michael Meltsner 
F rank H. Heeeron 

10 Columbus Circle 
New York, New York 10019

Donald L. H ollowell 
W illiam H. A lexander 
H oward Moore, Jr.

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

Attorneys for Petitioners



A P P E N D I X



APPENDIX

In the Supreme Court oe Georgia 
22534

Decided Sept. 28, 1964 

209

Evans e t  a l. v. Newton e t  a l.

The record does not support the contentions of the plain­
tiffs in error, and the judge could not properly have gone 
beyond the judgment rendered. The judgment is not shown 
to be erroneous for any of the reasons urged by counsel 
for the plaintiffs in error.

Opinion o f  Supreme Court o f  Georgia

The will of A. 0. Bacon (which was probated in solemn 
form) in Item Nine gave in trust described property, to be 
known as “Baconsfield” , to named trustees for the benefit 
of his wife and two named daughters for their joint use, 
benefit, and enjoyment during the term of their natural 
lives. It was provided that upon the death of the last sur­
vivor, the property, including all remainders and rever­
sions, “ 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 enjoyed as a park and pleasure 
ground, subject to the restrictions, government, manage­
ment, rules and control” of a board of managers consist­
ing of seven persons, not less than four to be white women 
and all seven to be white persons. In order to provide for 
the maintenance of the park, income from described real 
property and bonds was to be expended by the board of 
managers.



2a

Charles E. Newton and others, as members of the Board 
of Managers of Baconsfield, brought an equitable petition 
against the City of Macon (in its capacity as trustee under 
Item Nine of the will of A. 0. Bacon), and Guyton G. 
Abney and others, as successor trustees under the will 
holding assets for the benefit of certain residuary bene­
ficiaries. It was alleged: The city as trustee holds the 
legal title to a tract of land in Macon, Bibb County, known 
as Baconsfield, under Item Nine of the will of A. 0. Bacon. 
As directed in the will, the board through the years has 
confined the exclusive use of Baconsfield to those persons 
designated in the will. The city is now failing and refusing 
to enforce the provisions of the will with respect to the 
exclusive use of Baconsfield. Such conduct on the part of 
the city constitutes such a violation of trust as to require 
its removal as trustee. It was prayed that: the city be 
removed as a trustee under the will; the court enter a de­
cree appointing one or more freeholders, residents of the 
city, to serve as trustee or trustees under the will; legal 
title to Baconsfield and any other assets held by the city 
as trustee be decreed to be in the trustee or trustees so 
appointed for the uses originally declared by the testator; 
and for further relief.

The City of Macon filed its ansiver asserting that it can­
not legally enforce racial segregation of the property known 
as Baconsfield, and therefore it is unable to comply with 
the specific intention of the testator with regard to main­
taining the property for the exclusive use, benefit, and en­
joyment of the white women, white girls, white boys, and 
white children of the city. The city prayed that the court 
construe the will and enter a decree setting forth the duties 
and obligations of the city in the premises. The other de­
fendants admitted the allegations of the petition and

Opinion of Supreme Court of Georgia



3a

prayed that the city be removed as a trustee. The peti­
tioners thereafter filed a motion for summary judgment.

Reverend E. S. Evans and others, alleging themselves 
to be Negro residents of the City of Macon, on behalf of 
themselves and other Negroes similarly situated, filed an 
intervention in the cause and asserted: The restriction and 
limitation reserving the use and enjoyment of Baconsfield 
Park to “white women, white girls, white boys and white 
children of the City of Macon,” is violative of the public 
policy of the United States of America and violative of the 
Constitution and laws of the State of Georgia. The court 
as an agency of the State of Georgia cannot, consistently 
with the equal protection clause of the Fourteenth Amend­
ment of the Constitution of the United States and the 
equivalent provision of the Constitution of the State of 
Georgia, enter an order appointing private citizens as trus­
tees for the manifest purpose of operating, managing, and 
regulating public property (which passed to the City of 
Macon under a charitable trust created by will) in a racially 
discriminatory manner. Although the charitable devise at 
the time of its creation was capable of being executed in 
the exact manner provided by the will, by operation of law 
it is no longer capable of further execution in the exact 
manner provided for by the testator. The court should 
effectuate the general charitable purpose of the testator to 
establish and endow a public park by refusing to appoint 
private persons as trustees.

By amendment to the petition it was alleged: By the 
will of A. 0. Bacon a trust was established for his heirs. 
The trust has been executed as to four of his seven heirs 
now living, A. 0. B. Sparks, Willis B. Sparks, Jr., Virginia 
Lamar Sparks, and M. Garten Sparks. The interests of 
three remaining heirs, Louise Curry Williams, Shirley

Opinion of Supreme Court of Georgia



4a

Curry Cheatham, and Manley Lamar Curry, are still held 
under an executed trust by four trustees holding under 
the authority of the will, these trustees being Guyton Ab­
ney, J. D. Crump, T. I. Denmark, and Dr. W. G. Lee. These 
seven persons have an interest in the litigation since, if 
the trust purpose expressed in the will with respect to the 
designation of persons who may use Baconsfield should 
fail, the property comprising Baconsfield, together with 
the property providing the upkeep of Baconsfield, will re­
vert to the estate of A. 0. Bacon and be distributed to 
these heirs. The amendment prayed that the Sparks heirs 
be allowed to intervene and that the trustees be allowed to 
assert the interests of the other heirs. It was also prayed 
that the Negro intervenors and other members of the Negro 
race resident in Macon be permanently enjoined from en­
tering and using the facilities of Baconsfield. The Sparks 
heirs and the trustees of the other heirs of A. 0. Bacon 
filed an intervention praying that the relief sought by the 
original petitioners be granted, but that if such relief not 
be granted, the property revert to them.

The City of Macon filed an amendment to its answer, 
alleging that pursuant to resolution adopted by the Mayor 
and Council of the city at its regular meeting on February 
4, 1964, the city has resigned as trustee under the will of 
A. 0. Bacon. It prayed that the resignation be accepted 
by the court.

The Negro intervenors filed an amendment to their inter­
vention in which they asserted: The equal protection clause 
of the Fourteenth Amendment to the United States Con­
stitution prohibits the court from enjoining Negroes from 
the use of the park, and from accepting the resignation of 
the City of Macon as trustee and apointing new trustees 
for the purpose of enjoining (enforcing!) the racially dis­

Opinion of Supreme Court of Georgia



5a

criminatory provision in the will of A. 0. Bacon. Code 
§ 69-504 prescribes racial discrimination and is therefore 
violative of the equal protection clause of the Fourteenth 
Amendment to the United States Constitution. Since the 
racially discriminatory provision in the will was dictated 
by that unconstitutional statute, enforement of the racially 
discriminatory provision is constitutionally prohibited. 
Code § 108-202, properly construed, requires that the ra­
cially discriminatory provision in the will be declared null 
and void. The interveners prayed that the court withhold 
approval of the attempted resignation of the city as trus­
tee under the will, direct the city to continue to administer 
the park on a racially nondiscriminatory basis, and deny 
the injunction sought by the petitioners to exclude Negroes 
from the use of the park.

On March 10, 1964, the judge of the superior court en­
tered an order and decree in the case which adjudged as 
follows: (1) The intervenors named are proper parties in 
the case and are proper representatives of the class which 
their intervention states that they represent, the Negro 
citizens of Bibb County and the City of Macon. (2) The 
defendants, Gluyton G. Abney, J. D. Crump, T. I. Denmark, 
and Dr. W. G-. Lee, as successor trustees under the will 
of A. O. Bacon, and intervenors A. 0. B. Sparks, Willis 
B. Sparks, Jr., Virginia Lamar Sparks and M. Garten 
Sparks are also proper parties. (3) The City of Macon 
having submitted its resignation as the trustee of the prop­
erty known as Baconsfield, the resignation is accepted by 
the court. (4) Hugh M. Comer, Lawton Miller, and B. L. 
Bagister are appointed as trustees to serve in lieu of the 
City of Macon. (5) The court retains jurisdiction for the 
purpose of appointing other trustees that may be neces­
sary in the future. (6) It is unnecessary to pass upon the

Opinion of Supreme Court of Georgia



6a

secondary contention of the intervenors Guyton G. Abney 
and others.

Reverend E. S. Evans and others in their writ of error 
to this court assign error on this order of the trial judge. 
Their contentions will appear from the opinion.

Opinion of Supreme Court of Georgia

A lmand, Justice. Counsel for the plaintiffs in error (the 
Negro intervenors) assert that the decree of the judge of 
the superior court was “ patent enforcement of racial dis­
crimination contrary to the equal protection clause of the 
Fourteenth Amendment” to the Federal Constitution. The 
decree did not enforce, or purport to enforce, any judgment, 
ruling, or decree as related to the intervenors. After deter­
mining that all parties were properly before the court, the 
decree did two things: (1) Accepted the resignation of the 
City of Macon as trustee of Baeonsfield, and (2) appointed 
new trustees.

“The law of charities is fully adopted in Georgia . . . ” 
Jones v. Habersham, 107 U. S. 174(5). Under the law of 
this State any person may, by will, grant, gift, deed, or 
other instrument, give or devise property for any charitable 
purpose. Ga. L. 1937, p. 593 (Code Ann. 108-207). Any 
public convenience might be a proper subject for a chari­
table trust. Code 108-203. A charity once established is 
always subject to supervision and direction by a court of 
equity to render effectual its purpose. Code 108-204. It 
is the rule that a charitable trust shall never fail for the 
want of a trustee. Code 108-302.

Whether the will of A. O. Bacon, establishing a trust for 
the operation of Baeonsfield, contemplated by the language 
“to the Mayor and Council of the City of Macon and to 
their successors [italics ours]” that the named trustee 
might resign, need not be determined. The City of Macon 
did resign, and the judge of the superior court was con­



7a

fronted with the commandment of Code 108-302 that a trust 
shall never fail for the want of a trustee. Being empowered 
to appoint trustees when a vacancy occurs for any cause 
(Thompson v. Hale, 123 Ga. 305, 51 S E 383; Harris v. 
Brown, 124 Ga. 310(2), 52 S E 610; Woodbery v. Atlas 
Realty Co., 148 Ga. 712, 98 S E 472; Sparks v. Ridley, 150 
Ga. 210(3), 103 S E 425), the judge exercised such power 
and appointed successor trustees.

The contention by counsel for the plaintiffs in error that 
Code 69-504 required A. O. Bacon to limit the use of Bacons- 
field to the members of one race cannot be sustained. Code 
69-504, in providing for gifts limited to members of a race, 
simply states that any person may “ devise, give, etc.” The 
law of Georgia does not by Code 69-504, nor by any other 
statutory provision, require that any testator shall limit 
his beneficence to any particular race, class, color, or creed. 
Such limitation, however, standing alone, is not invalid, and 
this Court has sustained a testamentary charity naming 
trustees for establishing and maintaining “ a home for 
indigent colored people 60 years of age or older residing 
in Augusta, Georgia.” Strother v. Kennedy, 218 Ga. 180 
(127 SE2d 19). A. O. Bacon had the absolute right to give 
and bequeath property to a limited class.

Counsel for the plaintiffs in error assert that: “As the 
City was unable to comply with the racially discriminatory 
direction of the trust, three alternatives were open to the 
lower court: (1) declare the racially discriminatory pro­
vision null and void; (2) remove the trustee (or accept its 
resignation) and appoint a non-governmental trustee; (3) 
declare failure of the trust.” They insist that the judge 
should have chosen the first alternative.

Counsel for plaintiffs in error assert that the court 
should have applied the provisions of Code 108-202 that

Opinion of Supreme Court of Georgia



8a

when a valid charitable bequest is incapable for some rea­
son of exact execution in the exact manner provided by the 
testator a court of equity will carry it into effect in such 
way as nearly as possible to effectuate his intention. The 
answer to this contention is : the application of the cy pres 
rule, as provided in this code section, was not invoked by 
the primary parties to this case, and even if it be conceded 
(which we do not concede, see Smith v. Manning, 153 Gfa. 
209, 116 S E 813 and Fountain v. Bryan, 176 Ga. 31, 166 
S E 766) that the intervenors could raise such issue, the 
facts before the trial judge were wholly insufficient to 
invoke a ruling that the charitable bequest was or was not 
incapable for some reason of exact execution in the exact 
manner provided by the testator. There is no testimony in 
the record of any nature or character that the board of 
managers provided by the will cannot operate the park 
pursuant to the terms and conditions of the will.

Counsel for the plaintiffs in error cite Pennsylvania v. 
Board of Directors of City Trust of the City of Philadel­
phia, 353 IT. S. 230. In the Pennsylvania case the United 
States Supreme Court pointed out that the board which 
operated Girard College was an agency of the State of 
Pennsylvania by legislative act, and that the refusal to 
admit Negroes to Girard College was therefore discrimina­
tion by the State. Upon the return of the case to the Su­
preme Court of Pennsylvania for further proceedings not 
inconsistent with the opinion, that court remanded the case 
to the Orphans’ Court for further proceedings not incon­
sistent with the opinion of the Supreme Court of the United 
States. The Supreme Court of Pennsylvania, on the sec­
ond appearance of the case (see Girard College Trustee­
ship, 391 Pa. 434), stated that the Orphans’ Court con­
strued the United States Supreme Court’s opinion to mean

Opinion of Supreme Court of Georgia



9a

that the Board of City Trusts was constitutionally incap­
able of administering Girard College in accordance with the 
testamentary requirements of the founder, and the Orphans’ 
Court entered a decree removing the Board as trustee of 
Girard College and substituting therefor thirteen private 
citizens, none of whom held any public office or otherwise 
exercised any governmental power under the Common­
wealth of Pennsylvania. The Supreme Court of Pennsyl­
vania affirmed this action on review, and again sustained 
action denying admission to Girard College by the Negro 
applicants. Counsel for the defendants in error cite Girard 
College Trusteeship, 391 Pa. 434, and strongly rely on this 
Pennsylvania case. (On review by the United States Su­
preme Court the motion to dismiss was granted, and treat­
ing the record as a petition for certiorari, certiorari was 
denied. Pennsylvania v. Board of Directors of City Trust 
of Pennsylvania, 357 U. S. 570. A  motion for rehearing was 
denied. 358 U. S. 858.) In so far as the Girard College 
Trusteeship case is applicable on its facts to the present 
case, it supports the rulings we have made.

The record does not sustain the contentions of the plain­
tiffs in error, and the judge could not properly have gone 
beyond the judgment rendered. This judgment is not shown 
to be erroneous for any of the reasons urged by counsel 
for the plaintiffs in error.

Judgment affirmed. All the Justices concur.

Opinion of Supreme Court of Georgia



10a

Supreme Court of Georgia

Atlanta, September 28,1964

The Honorable Supreme Court met pursuant to adjourn­
ment. The following judgment was rendered:

E. S. Evans et al. v. Charles E. Newton et al.

This case came before this court upon a writ of error 
from the Superior Court of Bibb County; and, after argu­
ment had, it is considered and adjudged that the judgment 
of the court below be affirmed. All the Justices concur.

Judgment o f  Supreme Court o f  Georgia

Order of Supreme Court of Georgia Denying Rehearing

Supreme Court of Georgia

Atlanta, October 8,1964

The Honorable Supreme Court met pursuant to adjourn­
ment. The following order was passed:

E. S. Evans et al. v. Charles E. Newton et al.

Upon consideration of the motion for a rehearing filed 
in this case, it is ordered that it be hereby denied.



11a

STATE OF GEORGIA
Superior Courts of the Macon J udicial Circuit 

Macon, Georgia
Chambers of:

Oscar L. L ong 
H al B ell 
W. D. A ultman 

Judges

Mr. A. 0. B. Sparks, Jr.
J ones, Sparks, Benton & Cork 
Attorneys at Law 
Persons Building 
Macon, Georgia

Mr. T rammell F. Shi 
Attorney at Law 
Southern United Building 
Macon, Georgia

Mr. Donald L. H ollo well
Attorney at Law
859% Hunter Street, N. W.
Atlanta, Georgia

R e : Charles E. Newton, et al. v.
The City of Macon, et al.,
No. 25864, Bibb Superior Court.

Gentlemen:

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

Letter Opinion o f  Superior Court o f  Bibb County

Bibb, Crawford 
Peach and Houston 

March 10, 1964 Counties



12a

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

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

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

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

Yours truly,

/ s /  0. L. Long
OLL:ese

CC: Mr. Romas Ed Raley, Clerk 
Bibb Superior Court 
Macon, Georgia

Letter Opinion of Superior Court of Bibb Comity



13a

Order o f  Superior Court o f  Bibb County

No. 25864

B ibb Superior Court 

B ill in E quity

Charles E. Newton, et al.

v.

City of Macon, et al.

Order and Decree

The Motion for Summary Judgment filed in behalf of 
petitioners in the above captioned matter having come on 
regularly to be heard, and the Court having duly considered 
all pleadings filed in behalf of all parties to said cause and 
the briefs filed in behalf of petitioners and the intervenors 
Rev. E. S. Evans, Louis H. Wynne, Rev. J. L. Key, Rev. 
Booker W. Chambers, William Randall, and Rev. Van J. 
Malone, it is

Considered, ordered and adjudged as follows:

(1) The intervenors named above are proper parties to 
this case and are proper representatives of the class which 
their intervention states they represent, to-wit, the negro 
citizens of Bibb County, Georgia, and the City of Macon, 
Georgia.

(2) The defendants Guyton G. Abney, J. D. Crump, T. I. 
Denmark and Dr. W. G. Lee, as successor Trustees under 
the Last Will and Testament of Augustus Octavius Bacon, 
deceased, are also proper parties to the case, as are the



14a

intervenors A. 0. B. Sparks, Willis B. Sparks, Jr., Virginia 
Lamar Sparks and M. Garten Sparks.

(3) The defendant the City of Macon having submitted 
its resignation as Trustee of the property described in the 
petition and known as Baconsfield, said resignation is here­
by accepted by the Court.

(4) Under the principle that a trust shall not fail 
for want of a trustee it becomes the duty of this Court to 
appoint new trustees to serve in lieu of the City of Macon; 
and the following, all being citizens and residents of Bibb 
County, Georgia, are hereby appointed as Trustees, to-wit, 
Hugh M. Comer, Lawton Miller and B. L. Register.

(5) The Court hereby retains jurisdiction for the pur­
pose of appointing another trustee or trustees in the event 
any of the persons named above fails to accept his appoint­
ment or in the event of the future death, incompetency or 
other cause whereby any or all of such Trustees fail or 
cease to act as such.

(6) Since the relief herein granted is also that primarily 
sought by the defendants Guyton G. Abney, et ah, as Trus­
tees under the Last Will and Testament of Augustus Octa­
vius Bacon and by intervenors A. 0. B. Sparks, Willis B. 
Sparks, Jr., Virginia Lamar Sparks and M. Garten Sparks, 
it is therefore unnecessary to pass upon and the Court does 
not pass upon the secondary contentions outlined in para­
graph 5 of the amendment to the answer and cross bill filed 
by Guyton G. Abney, et al., as Trustees and in paragraph 6 
of the petition for intervention filed by the above named 
intervening heirs.

So ordered, this the 10th day of March, 1964.

/ s /  0. L. Long 
J.S.C.M.C.

Order of Superior Court of Bibb County



38