Evans v. Newton Petitioners' Reply Brief

    \
I s  THE

g>uprjmtp OJourt of %  Init^ B u t zb
"\ October T erm, 1965

No. 61

E. S. Evass, el al.,
Petitioners,

v.

Charles E. Newtos, et al.

OS WRIT OF CERTIORARI TO THE SUPREME COURT OE GEORGIA

PETITIONERS’ REPLY BRIEF

J ack Greesberg 
James M. Nabrit, III  
Michael Meltsser 
Charles Stephes R alstos 
F rask H. Heperos 

10 Columbus Circle 
New York, New York 10019

Charles L. Black, Jr.
346 Willow Street 
New Haven, Conn. 06511

Dohalb L. Hollowell 
W illiam H. A lexasder 
H oward Moore, Jr.

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

Attorneys for Petitioners



I N D E X

A rgument :

I. General R ep ly ....................................................... 1

II. Certain Particular Errors in Preliminary Parts 5
of Respondents’ B r ie f ..........................................  5

III. The Respondents Are Mistaken in Maintaining 
“ The Private Nature of Charitable Trusts”
(Brief p. 23) and in Their Deductions There­
from ............................................. -...........................  8

IV. The Appropriate Remedy in This Case (Reply­
ing to Respondents’ Point II) ..............................  14

V. Respondents, in Their Points III-V, Mistake 
The Application of Shelley v. Kraemer, The 
Significance of The Incompatibility of Bacon’s 
Two Desires, and The Significance of The City’s 
Desegregation .......................... ........ .......... .........  18

VI. Respondents Are Wrong in Their Contention 
That §69-504, Georgia Code, Acts 1905, p. 117,
Is Not A Significant Consideration in This Case 24

Table oe Cases

Brown v. Gunn, 75 Ga. 441 (1885) ............................. 28
Burton v. Wilmington Parking Authority, 365 U.S.

715 (1961) ...................................................................  30,31

PAGE



XI

County of Gordon v. Mayor of Calhoun, 128 Ga. 781 
(1907) ................................ -.........................................  28

Dexter v. Harvard College, 176 Mass. 192................. 9

East Atlanta Land Co. v. Mowrer, 138 Ga. 380 (1912) 28

Ford v. Harris, 95 Ga. 97 (1894) ..................................  28

McCletchey v. Atlanta, 149 Ga. 648 ............................  22
McGhee v. Sipes, 334 U.S. 1 —.......................................  18
Marsh v. Alabama, 326 U.S. 501........ .......................... 12
Mayor and Council of the City of Macon v. Franklin,

12 Ga. 239 (1852) ........................................................ 27,28

Paschal v. Acklin, 27 Tex. 173 (1863) .......... ............... 9
Peterson v. City of Greenville, 373 U.S. 244 ............... 32
Pettit v. Mayor and Council of Macon, 95 Ga. 645

(1894) ...........................................................................  28

Shelley v. Kraemer, 334 U.S. 1 .............- ............... 3,4,18,19,
20, 21, 23

The Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 .... 12

Terry v. Adams, 345 U.S. 461-------------------—........—  11,12
Trustees of Dartmouth College v. Woodward, 4 

Wheat. 518 ...................................................................  8

PAGE

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



Ill

E nglish Statute

Elizabethan statute of charitable uses, 43 Eliz. 1, c. 4 9

PAGE

State Statutes

Georgia Acts 1937, No. 50, p. 594..................................  11
Georgia Code of 1895, Section 4008 (3157) .................  24, 25
Georgia Code, Section 69-501 (Acts 1892, p. 104).......  4
Georgia Code, Section 69-504 (Acts 1905, p. 117) ....4, 8, 24,

25, 26, 28, 29, 
30, 31, 32

Georgia Code, Section 108-203 ......................................  9

Otheb A uthorities

Bogert, Trust and Trustees (1960) ........................ 5, 6, 9,10,
11, 21

4 Pomeroy, Equity §1024................................................ 26



In t h e

S u p r e m e  (Orm rt ni %  I r n t e i i  S t a t e s
October T erm, 1965 

No. 61

E. S. E vans, et al.,

v.
Petitioners,

Charles E. Newton, et al.

ON WRIT o f  CERTIORARI to  THE SUPREME COURT OE GEORGIA

PETITIONERS’ REPLY BRIEF

I.
General Reply.

Respondents’ brief addresses itself to a number of special 
points in petitioners’ argument (and in that of the United 
States as amicus curiae). It is petitioners’ belief that these 
special arguments can best be replied to within a framework 
which exhibits the relevance (or lack thereof) of the issues 
to which respondents address themselves. With deference, 
it seems to petitioners that the tendency of respondents’ 
brief is to confuse; the most effective reply is a clearer struc­
turing of the issues.

The following are the affirmative parts of the decree of 
the Superior Court: (1) The acceptance of the City’s resig­
nation as trustee, (2) The appointment of new trustees. It 
is against the affirmance of this judicial decree that peti­
tioners complain to this Court. Primarily, what petitioners



2

ask of this Court is a reversal, and a remand with directions 
to vacate that decree and undo its effect.

The Superior Court entered this decree in a suit brought 
by persons appointed by a public authority, with the an­
nounced sole purpose of bringing about the reinstitution of 
racial discrimination in Baconsfield. The resignation ac­
cepted was tendered by a public authority on the assigned 
sole ground that its tendering and acceptance would make 
possible such reinstitution of racial discrimination. The new 
trustees, under these circumstances, were appointed in order 
that they might discriminate. It is petitioners’ contention 
that the Superior Court’s action in accepting the resigna­
tion, and in appointing new trustees, given the nature of 
the parties and the state of the pleadings before it, con­
stituted the last and crucial step in a set of actions viola­
tive of the Fourteenth Amendment.

Petitioners contend that the Superior Court’s action was 
violative of the Fourteenth Amendment, and must be re­
versed and undone, on either of two hypotheses, which 
exhaust possibility:

(1) The Superior Court’s action was violative of the 
Fourteenth Amendment, if it be assumed that the new 
trustees, if confirmed in office, might constitutionally 
discriminate. On that view (which petitioners think 
the wrong view) the actions of the Board of Managers 
and of the City, and the action of the Superior Court 
confirming the steps they had taken, are unconstitu­
tional on the ground that it is not the proper business 
of any public authority to act affirmatively to clear 
the way for racial discrimination, even though that 
discrimination will have become lawful in itself in con­



3

sequence of the accommodating governmental action. 
Here, of course, one parallel will be Shelley v. Kraemer, 
discussed at length by respondents, but this is so much 
stronger a case than Shelley that none of the perplex­
ities surrounding that case in many minds should im­
pede decision in this case. Here the intervention of 
publie authority—Board of Managers, City, and a 
Court of Equity supervising a charitable trust—is 
several orders of magnitude higher than in Shelley. 
And here, in contradistinction to the lower court’s 
action in Shelley, the public power is not carrying 
out an unequivocally expressed private choice, but is 
itself inescapably choosing between two equally clear 
instructions of the testator, incompatible as a matter 
of law.

(2) The Superior Court’s action was violative of the 
Fourteenth Amendment if the resegregation of Bacons- 
field by the new trustees would itself violate the Four­
teenth Amendment, because on that hypothesis the ac­
tion of the Board of Managers, the City and the Court 
was directed at the institution of a discrimination for­
bidden by the Constitution. It would not matter that 
a new lawsuit might after a lapse of time correct the 
discrimination. The Constitution forbids racial dis­
crimination for a day or a year as well as for a century. 
If it will be unconstitutional for the new trustees to 
segregate, then it was unconstitutional for the Superior 
Court to put them in office for that unlawful purpose, 
after a resignation, tendered by a City, for the same 
announced unlawful purpose.

It is to be the establishment of the second of these alterna­
tive grounds that the establishment of the illegality of



4

discriminatory operation of Baconsfield, by the new trus­
tees, is essential. (The unlawfulness of such operation with 
the city as trustee is conceded by itself.) Petitioners, reply­
ing to respondents’ arguments, will contend that such oper­
ation would be unlawful:

(1) Because the state power, favoring charitable trusts 
and policing compliance with their terms, would be 
involved in a manner forbidden by the doctrine of 
Shelley v. Kraemer.

(2) Because, against the background of Georgia law 
prior thereto, §69-504 of the Georgia Code must be 
taken to have constituted a form of state influence 
surrounding the creation of trusts; indeed, that section, 
against such background, seems to have made flatly 
unlawful the unsegregated limitation—“all women and 
children”—exactly corresponding to the segregated one 
Senator Bacon used—“white women and children.”

(3) Because the public character of Baconsfield—not 
necessarily as a charitable trust in general, but as a 
charitable trust that can be held to be such only because 
of its wholly public purpose and, indeed, its taking 
over of a governmental function—invests it with gov­
ernmental character.
(4) Because, beginning with its necessary affirmative 
approval of the conditions in Senator Bacon’s will 
(Georgia Code 69-501, Acts, Ga. 1892, p. 104), the past 
involvements of the City with Baconsfield are such 
as to make it impossible for a formal transfer to eradi­
cate the factor of state involvement in its operation.

Petitioners, then, contend that the decree entered below 
violated the Fourteenth Amendment on either of the two



5

possible views. It was either (1) the last and confirming 
step in a series of actions, themselves taken by public au­
thority, by which a racial discrimination previously unlaw­
ful was purposefully made lawful, or (2) the last and 
confirming step (as petitioners urge is the correct view) 
in a series of such actions, by which an unlawful racial 
discrimination was made factually possible, at least for 
a time. On either view, reversal is required, and the apt 
remedy is a mandate requiring rejection of the City’s resig­
nation and rescission of the appointment of new trustees. 
While petitioners will reply one by one to such of respon­
dents’ points as require it, each such reply should be read 
with the above outline in mind.

II.

Certain Particular Errors in Preliminary Parts of 
Respondents’ Brief.

A. “ The Board of Managers of Bacons field.'”

Under the quoted heading, at p. 12 if., respondents con­
tend that the Board of Managers of Baconsfield is not an 
organ of public power in any sense. “ The Board is not the 
agent of the City but of Mr. Bacon.” p. 12. This conten­
tion is made in the face of the fact that the Board is ap­
pointed by the City Council, to supervise a park of which 
the City is trustee. That Georgia law and equity give 
such trustee no power over such a Board is hard to believe. 
See, Bogert, Trusts and Trustees, $391, at pp. 205-6 (1960). 
But in any event the Board was, at the crucial time of 
the inception of this lawsuit, and until appeal was taken 
from the lower court’s decree, constituted, as to personnel, 
by the City Council. It was, moreover, all white (a thing



6

which can hardly be held immaterial to its deciding to 
start this suit) because the City Council, a purely public 
authority, obeyed a private man’s wish by making all 
white appointments, thus discriminating racially.

The petition in the court below seems in itself to rec­
ognize the City’s ascendancy over the Board, at least in 
part, for it confesses the Board’s inability to control the 
park’s use, while at the same time saying that a new trustee, 
in the City’s place, would have powers the Board does not 
have. If the Board is independent of the City, why could 
it not have done what the new trustee could do?

But if the respondents were to succeed in establishing 
their thesis that the Board was in complete charge, inde­
pendently of the City, they would have won a Pyrrhic 
victory. They rightly see that this thesis requires that 
the City be viewed as a “ passive title holder,” a charac­
terization said by respondents to be of “ vital significance.” 
(Respondent's Brief, p. 12) But if that really were all 
the City was, then its “ resignation” was a sham, a “ res­
ignation” from nothing, a “ resignation” which could have 
had no reason, and can bear no significance, except clearing 
the road for the continuing all-white character of Bacons- 
field. If respondents are right, the City had no duties to 
resign from, and resigned away only the claims of its 
colored citizens. None of the substantial reasons for allow­
ing trustees’ resignations would apply (see Bogert, Trusts 
and Trustees, §515 (I960)), and to “ freeze” the City as 
trustee (see Respondents’ Brief, p. 43) would “ freeze” it 
in nothing, but would, on a practical analysis, be no more 
than requiring it not to act affirmatively as an accessory 
before the fact to racial discrimination, while at the same 
time very substantially breaking its trust, as a City, to 
all its citizens.



7

Finally, the involvements of the City, in tendering its 
“ resignation” and in other manners, are so deep, that the 
public power is vitally engaged, whatever view be taken 
of the status of the Board of Managers.

B. “ The Scope of the Georgia Supreme 
Court’s Decisions

In the section so headed, respondents appear to be con­
tending that no issue of federal law was raised before or 
decided by the Georgia Supreme Court. This thesis is one 
petitioners confess difficulty in understanding. Petitioners’ 
amended petition for intervention, in the Superior Court, 
objected on federal constitutional grounds to the exact ac­
tion the court later took (R. 63). The repugnancy of this 
action to the Fourteenth Amendment was assigned as error 
to the Georgia Supreme Court (R. 2). As stated and in 
substance, this was a federal question, the question whether 
the resignation could be approved, and new trustees sub­
stituted, all for the overtly proclaimed purpose of re-segre­
gating Baconsfield, without violation of the Fourteenth 
Amendment. No legerdemain, no prestidigitation with 
state code provisions, can make that question anything 
but federal.

It is true that, when the order was entered in the Su­
perior Court, segregation had not yet recommenced. But 
it had been announced repeatedly, on the sheer common- 
law record, that the purpose of the whole proceeding was 
resegregation, that that and only that was what the order 
was in aid of, and that the business would be getting under 
way as soon as practicable after the order was signed. 
Whether the judicial act performed in that context and 
with that effect was in violation of the Fourteenth Amend­
ment is the central federal question in this case. That it



lias clear logical connections with the further federal ques­
tion—whether the racialist operation of the park by “ pri­
vate” trustees also violates the Fourteenth Amendment, 
does not make it any the less a question in itself, or any 
the less “ federal” .

III.

The Respondents Are Mistaken in Maintaining “ the 
Private Nature of Charitable Trusts”  (Brief p. 2 3 )  and 
in Their Deductions Therefrom.

Perhaps seeking to meet petitioners’ arguments (Peti­
tioners’ Brief, pp. 22 ff.) that the public character of Ba- 
consfield tends to bring this case within the rule of Marsh 
v. Alabama and other cases, so as to render unlawful its 
contemplated all-white operation (see Summary above, 
p. 4), the respondents draw large consequences from 
Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 
a case almost entirely unrelated to this one, on its holding. 
The draft they make on that famous opinion is not honored 
by its language, as they quote it :

“ But if this be a private eleemosynary institution, 
endowed with a capacity to take property for objects 
unconnected with government, whose funds are be­
stowed by individuals on the faith of the charter; if 
the donors have stipulated for the future disposition 
and management of those funds in the manner pre­
scribed by themselves, there may be more difficulty in 
the case,. . . ” (4 Wheat. 630).

But Baconsfield is not private. It is “ dedicated to the 
public use,” in the language of the statute authorizing its 
creation, G-a. Code §69-504. The funds for keeping it up are



9

authorized to be “ covered” into the City Treasury (R. 24). 
Its objects, far from being “unconnected with government,” 
are governmental objects, more often attained by govern­
mental action than by any other means.

We have to do here not with a college—planning curricu­
lum along special lines, hiring faculty by acts of judgment, 
selecting students for special aptitude, choosing books, 
closed by its very nature to the general public—but with a 
park, altogether public except for Negroes. The question 
whether the “private” character of a charitable trust for a 
college would, if granted, irresistibly (though paradox­
ically) imply a similarly “private” character in a charitable 
trust for a public park, is a question that can be sensibly 
answered only by recourse to the respective (and very dif­
ferent) reasons of the law for supporting these two so 
dissimilar “ charities” . Such a comparison is instructive, for 
it serves to highlight and make both manageable and lim- 
itable the definite public character of such trusts as the 
Bacon trust.

“ Schools of learning, free schools, and scholars” are in 
the Elizabethan statute, 43 Eliz. c. 4; cf. Ga. Code §108-203. 
Such gifts can be and commonly are limited to restricted 
classes, and to restricted aspects of education. Paschal v. 
Acklin, 27 Tex. 173 (1863); Dexter v. Harvard College, 
176 Mass. 192. A  park for the use of one person a year, 
or of all who could pass a special examination, never was 
thought to be a charitable object.

The reason, in the case of educational trusts, is succinctly 
stated in Bogert, Trusts, §375:

Society will be aided if any or all of its citizens, rich 
or poor, obtain wisdom, knowledge, skill or culture.



10

The theory upon which charitable trusts for parks have 
been sustained, as summed up by the same authority, is 
different toto coelo. The title of the paragraph is included, 
because it speaks directly to the theoretical question:

§378. Governmental Trusts— Community Benefits

Governments (whether national, state or local) have 
as their objects the furnishing of facilities and services 
which will make the lives of their citizens comfortable 
and safe. They carry benefits of a social nature to 
large groups. Their work is not confined to distribu­
tions for the mere financial enrichment of their in­
habitants. Trusts for governmental or municipal pur­
poses are therefore charitable. In the Statute of Char­
itable Uses these trusts were represented by gifts for 
the repair of bridges, ports, havens, causeways, sea 
banks, and highways.

 ̂ ^
Types of Governmental Benefits

Examples of charitable trusts of this class are to 
be found where the purpose of the trust was to furnish 
to the inhabitants water, light, or gas, at cost or less, 
or supply other public utility services which are usually 
or occasionally furnished by municipalities; to con­
struct or repair streets, sidewalks, roads, or bridges; 
to erect or keep in order sea dykes, landing places, 
levees, docks, and similar works on the ocean or other 
water fronts; to supplement the existing police or fire 
departments of a municipality; to establish or aid life 
saving stations; to originate or maintain public parhs 
or playgrounds, and monuments, fountains, gates, or 
other ornamental or useful structures therein; to pre­



11

serve natural scenery, or to beautify public property 
or private grounds by encouraging the keeping of fine 
yards and gardens or by planting trees, shrubs, or 
flowers; or to improve the living conditions of the 
people, or to promote understanding and good feeling 
between different groups in society, or to aid the cause 
of peace. Bogert, Trusts and Trustees, §378, pp. 170, 
177-180 (1960). (Emphasis supplied and footnotes 
omitted.)

This passage has been quoted at length because it is only 
in a full context that we can perceive how thoroughly the 
very concept of the charitable trust for a park is saturated 
with public character. It is held to be charitable precisely 
because it is public in all its bearings—because its main­
tenance is a governmental function, and because it is di­
rectly accessible to all. (A  secondary authority, summing 
up the law, has been used, because there are no Georgia 
cases, and it is the general state of the subject that is 
relevant to the present purpose.) The public character of 
such a trust as the present, and perhaps even the essen­
tiality of that character to its validity, is recognized very 
clearly in Georgia Acts 1937, No. 50, p. 594, declaring that 
“ all gifts to the United States, or to any state or to any 
sub-division thereof for any public purpose, shall be char­
itable.”

We have dealt with this abstract issue, “public vel non,” 
because respondents have posed it, but the significance of 
the term “ public” can be assessed only in the context of 
some purpose, e.g.: Do we mean “public” so as to sxxggest 
a parallel with Terry v. Adams? Or so “ public” that the 
failure of the state affirmatively to prevent racial discrim­
ination is a “ denial” of equal “ protection” in the community



12

life—a denial which may result from state “ inaction” as 
well as from state “ action”—if, against plausibility, the 
state be thought not to “ act” in its favoring of charitable 
trusts? For these purposes, the different kinds of charitable 
trusts may well be not reducible to a single category. This 
case cannot pose all the issues that will arise in later cases, 
and we are in no position either to plead future and perhaps 
hard cases, or to make concessions for those who will be 
involved in them. But we do submit that where a trust, 
such as this one, is of a sort held “ charitable,” with all 
of state favor such a holding implies, only on the grounds 
that it extends a benefit immediately to the public at large, 
and that it performs a function of government, then that 
trust ought to have to respond to constitutional guarantees. 
We submit that such a case falls squarely within the prin­
ciple of Marsh v. Alabama, 326 U. S. 501; if the streets of 
the town had been dedicated on charitable trust, with the 
formal title in a trustee selected by the Company, and the 
dirty work in the hands of a Board of Managers, could 
Marsh’s conviction have stood? We submit that such a 
case as the present should be held within the reason of 
Terry v. Adams, for a governmental function is as defi­
nitely being performed in this case as in that.

Respondents (their Brief, p. 26) imagine horrible results 
if Baconsfield be opened to all the citizens of Macon. These 
all disappear when one grants to this Court the capacity 
to make proper distinctions for reasons of weight. Re­
ligious “ discriminations” in institutions never opened to 
the general public may not be “ arbitrary” at all, but may on 
the contrary be implementary to religious liberty; racial 
discrimination invokes no analogous countervailing consti­
tutional or societal value. The first opinion construing the 
Fourteenth Amendment, The Slaughterhouse Cases, 83 U. S.



13

(16 Wall.) 36, recognized and emphasized the obvious 
historic fact that the Amendment was aimed primarily at 
eliminating racial discrimination; to say that racial dis­
crimination is always forbidden is not to say that every 
differentiation is always forbidden. At the same time, 
some of the respondents’ horribles need thinking about, 
when brought closer to this case. Suppose a large public 
park in Macon were, by the will of a man long dead, open 
to and frequented by the whole public, except that Eoman 
Catholics were excluded? This example, authentically hor­
rible, seems the logical consequence of the position respon­
dents urge. If every “ charitable” trust for a governmental 
purpose, like this one, is immune from federal constitutional 
standards, then a few rich men and a compliant city ad­
ministration could racialize a town, suppress free speech in 
many of its functionally public places, and impose serious 
disadvantages on minority religions, without responding to 
the Fourteenth Amendment. It happens that only Negroes 
now have to fear a widespread use of the doctrines the 
respondents urge. But they should not be made, because of 
their unique political vulnerability in the present time, vic­
tims of a theory that has no stopping place short of such a 
consequence.



14

IV.

The Appropriate Remedy in This Case (Replying to 
Respondents’ Point II).

In this point, respondents seek to send the federal claim 
of petitioners wandering in an untraceable labyrinth of 
state law. As always, this attempt has to fail; the clue, as 
always, is the Supremacy Clause.

There is more than one way to violate the Fourteenth 
Amendment. Petitioners claim, to be sure, that segregation 
of this park by “ private” trustees, against the background 
shown on this record, would in future violate the Four­
teenth Amendment. But petitioners also claim that the 
organs of the State of Georgia may not, in a lawsuit brought 
for the announced purpose of segregating a facility which 
by no other means can be segregated, act in concert for 
the proclaimed end of attaining this segregation. One body 
appointed by a public authority brought a suit praying 
that the court so alter the legal position as, on their theory 
of the matter, to clear the way for segregation. A second 
body—the City of Macon—obligingly cleared the way, an­
nouncing in a resolution of the Council that said that was 
its purpose. The Superior Court then acted judicially by 
accepting a resignation tendered on this ground and this 
ground only, being apprised by the record before it that 
that was the ground and that the whole proceeding before 
it had no other aim or expectable effect. Starting with a 
situation in which, by repeated confession, exclusion of 
Negroes from Baconsfield was unlawful, these parties, 
wielding state power, so acted as, at least hopefully, to make 
it lawful, and (if that hope were doomed to be vain) so as 
to make it factually possible until another lawsuit was



15

brought. Whatever else violates the Fourteenth Amend­
ment, that kind of action by state-empowered governmental 
entities violates that Amendment. State-law categories and 
state-conferred powers can have no bearing on the matter.

Nor is the remedy in this court unclear or difficult. The 
decree of the Superior Court, accepting the City’s resigna­
tion and appointing new trustees, was an essential step in 
a set of actions violating the Fourteenth Amendment. If 
this case goes back to the state court under a mandate that 
that decree be reversed, then what has been done up to now 
will be undone.

It is quite true that, if “ private” trustees are confirmed 
in their trusteeship, and exclude Negroes from this park, 
these petitioners or others similarly situated may apply 
for relief, contending that such segregation violates the 
Fourteenth Amendment. It is also true that, on one alter­
native, the merits of the present suit implicate the question 
that would then be raised, for if exclusion of Negroes by 
the new trustees would be unlawful, then the decree of the 
Superior Court constituted a substitution of a trustee who 
proposed to segregate, for one who was not segregating. 
This judicial action, on the hypothesis that segregation of 
Baconsfield by any trustee would violate the Fourteenth 
Amendment, would amount to the appointment by a Georgia 
court of a trustee who proposed to infringe the Constitu­
tion, for the purpose of his infringing it. And the remedy 
in this court at this step would be just the same—the un­
doing, by apt mandate, of this judicial action hostile to the 
federal right.

It is because of its relevance in the second of these alter­
native theories that petitioners—joined by the United 
States as amicus curiae—have presented argument that



16

segregation of Baconsfield, in the whole setting, would vio­
late the Fourteenth Amendment, whoever the trustee might 
be. In the procedural setting of this case, that argument, 
though very important, is immediately material only as it 
establishes the impropriety of the lower court's action in 
bringing about a state of things in which a trustee appointed 
for the purpose of segregating takes office. But, petitioners 
also contend that the alteration of affairs so that a previ­
ously unlawful segregation could become lawful would be, 
equally, a forbidden objective for the city councils and the 
courts of Georgia. Getting in a trustee who will segregate 
is not a proper public objective, whatever the subsequent 
status of his acts will be.

Bespondents argue at length against the availability of 
the doctrine of cy pres in this case, though neither peti­
tioners nor the United States as amicus have laid any stress 
on this point in their briefs here. Petitioners cheerfully 
concede that Georgia controls her own legal terminology, 
and that if the state law as defined by the state courts can­
not call by the name cy pres any doctrine which will re­
quire the reversal of this case then another name has to be 
found. The federal doctrine we invoke will not fail merely 
because it may not fit into the categories of Georgia law. 
The federal requirement is that the agencies of a state 
refrain from so acting as to foster and facilitate segrega­
tion. They have so acted in this c9.se, and the exactly 
tailored corrective measure is a mandate requiring that the 
unconstitutional steps—the acceptance of the resignation 
and the appointment of new trustees—be recalled.

In the background is the question whether the conse­
quence of opening of this park will be the failure of the 
trust and reverter to the heirs. That issue has nowhere



17

yet been briefed or argued; it seems unlikely that this 
court would let stand an unconstitutional administrative 
and judicial action, on the ground that to disturb it might, 
when all the facts are known and all the arguments heard, 
result in reverter. At this stage, it seems almost enough 
to say that the express language of Senator Bacon’s will 
seems to make the feared result impossible (R. 19). At 
the least, no judicial decree of reversion could pretend to 
implement Senator Bacon’s intention, for, here again his 
intentions were both clear and legally incompatible— (1) to 
keep Negroes out of Baconsfield and (2) to keep Bacons- 
field a park forever. Choice between these would not give 
effect to his will, but would be a judicial choice between two 
incompatible terms of his will, a choice which the court, a 
state agent, and not Senator Bacon would be making. It 
might be added that the affirmative purpose of this trust, 
a park for white people, will not fail if the park is opened 
to all, for the white people will have as much access to it 
as they ever had; to hold that the admission, as well, of 
colored people vitally frustrates the trust would seemingly 
have to rest on the proposition that, as a matter of law, 
proximity to Negroes is so great a detriment to whites as 
to ruin the park for the latter. I f  the time ever came, peti­
tioners would say what little needs to be said about the 
standing of that proposition as a state-law ground for 
decision, in confrontation with the Fourteenth Amendment.



18

V.

Respondents, in Their Points III-V, Mistake the Ap­
plication of Shelley v. Kraemer, the Significance of the 
Incompatibility of Bacon’s Two Desires, and the Signifi­
cance of the City’s Desegregation.

“ In Shelley v. Kraemer,”  say respondents, “ there was in­
volved the right of a Negro citizen to buy property which 
the owner desired to sell him . . . ”  This is a flatly mistaken 
account of Shelley v. Kraemer, 334 U. S. 1. Shelley actually 
concerned a plaintiff’s invocation of the judicial process to 
prevent a Negro from being in a certain place, on the ground 
that state contract and real property law gave the plaintiff 
the right to keep the Negro from being there. The case in­
volved principally the right of a Negro to occupy a house 
in violation of a covenant against Negro occupancy, bind­
ing on him as a matter of state law, as against the claim 
of his neighbor to oust him. In McGhee v. Sipes, 334 U. S. 1, 
companion case to Shelley, and decided on the same day 
and on the same grounds, the seller was not even a party; 
in both cases, it was occupancy, not sale that was at stake. 
The negative easement held by the plaintiff in Shelley was a 
property right under state law, as well as a contract right, 
and consisted in the right to have no Negroes occupying 
the property on which the easement lay; so the state court 
in McGhee described it.

On every ground on which the Shelley rule might be de­
fined and limited, the present case is a stronger case than 
Shelley. I f the Shelley rule is to be limited to a context 
of public impact of discrimination, the park is more in 
the public life than is the home or even the neighborhood. 
I f the functional equivalence of racial covenants to racial



19

zoning contributed to the Shelley result, then it can be 
noted that the result of the Georgia Court’s action will be, 
at least hopefully, the functional equivalent of the same 
old segregated Baconsfield as run by the City. If public 
involvements collateral to that of the court (e.g., the record­
ing system in Shelley) are needful, those are so extensive 
and so obvious here as to make enumeration at once onerous 
and needless. If what avails is the lack of competing con­
stitutional values, none are found here.

The one rationally arguable affirmative objection to this 
Court’s action in Shelley was that the discrimination com­
plained of there, though enforced by judicial action, 
originated in an unequivocal choice by private parties. On 
that score, this case is far stronger than Shelley. In that 
case, the “ private choice” was univalent. Here no facade of 
“ construction” can disguise the fact that Senator Bacon 
plainly wanted, and said he wanted, two legally incom­
patible things, (1) an all-white park, and (2) a park held 
by the City. We may guess that he would have then pre­
ferred, or now, if living and looking over the modern world, 
would prefer, one or the other. But the will, besides provid­
ing for exclusion of Negroes, very carefully back-stops the 
provisions for City control. If the City cannot under its 
Charter serve as trustee, then the City Council is to ap­
point the new trustee (a provision ignored in the proceed­
ings below), and that trustee is to act subject to “ such safe­
guards and restrictions” as the City Council imposes. The 
City is authorized to commingle the trust funds in its own 
treasury (B. 24). The individual trustees for the life of 
Mrs. Bacon and the daughters had to report annually to the 
City. The City is to approve new members of the Board of 
Managers (another provision ignored in the proceedings 
below).



20

With all this in the will, it is not open to any court to say 
that Bacon’s desire for public involvement in the manage­
ment of the park is not clear. In Shelley then, the state court 
had at least enforced the unambiguous will of contracting 
parties. In this case, the state court had ineluctably to 
choose between equally clear expressions. Such a choice is 
inescapably an affirmative judicial act, a choice between 
policies. Confronted with such a choice, no state organ, 
court or city or board of managers, or all in concert, can be 
permitted to choose the policy of segregation in the name of 
carrying out the will of a private donor.

The respondents, to be sure, invite us to speculate on the 
relative importance to Bacon of these incompatible provi­
sions. Such speculation, to be applicable at all to the cur­
rent situation, would have to address itself to the question 
whether Bacon, whose death was closer to Appomattox than 
to 1965, would prefer to give up his desire for public control 
of the park rather than give up his desire to segregate. 
Would he see a common resort to a public park in a city the 
size of Macon today as constituting “ social relations,” the 
thing he desired to avoid? (R. 21) In 1964, a former Sena­
tor from a Confederate state led the way to the passage 
of the Civil Rights Act, and one Congressman from Bacon’s 
own state voted for it and was re-elected. Might Bacon have 
come to see the present situation somewhat as they see it? 
These, the only relevant speculations, would be altogether 
idle. The only thing we know is that Bacon provided, very 
deliberately, for discrimination and for public control, and 
that the organs of the State of Georgia, choosing discrimina­
tion at the expense of public control, are not “ following” a 
private man’s plan for his property, but choosing, on their 
own responsibility, between two incompatible features of 
his plan.



21

Nor does the relatively passive act of the state court— 
“ accepting” the City’s resignation—make that judicial act 
any the less an affirmative act of the State of Georgia. The 
seeming passivity of this action was made possible only be­
cause of the prior preparation of the situation by other 
organs of the State. Nor is a trustee’s “ resignation” either 
perfunctory or perfunctorily acceptable; see Bogert, Trusts 
and Trustees, §§514-515. (1960). Moreover, the Board of 
Managers, an organ appointed by the City Council, and 
wielding public power, asked the court for the removal 
of the City as trustee, in order that segregation might con­
tinue. This action alone would suffice to impart “ state 
action” into the pattern; public officials surely may not 
take affirmative action, as filing this petition was, for the 
confessed purpose of perpetuating segregation. Had the 
state court granted this relief on these grounds, the parallel 
with Shelley would have been too exact to leave room for 
argument. Instead, another holder of state power, the City, 
changed its position in the middle of the lawsuit and so 
acted as to enable the state court to grant, in practical 
effect, the same relief the petition asked for, under the 
milder rhetorical figure of “ accepting” a resignation. The 
responsibility of the state for the result cannot be affected 
by the assignment of different roles in the drama to dif­
ferent wielders of state power.

In any event, the action of the state court in appointing 
new trustees was altogether affirmative. Those trustees were 
appointed in a proceeding commenced by a petition asking 
for their appointment on the ground that, if appointed, they 
could exclude Negroes. They were appointed directly after 
the City had resigned, on the ground, assigned by itself, 
that the new trustees could exclude Negroes. This appoint­
ment, on the record, is an affirmative judicial act aimed



22

solely at the perpetuation of a discriminatory regime in 
Baconsfield.

Nor is it a valid objection that the state court’s refusal to 
accept the City’s resignation would have compelled the City 
to remain as trustee unwillingly. In the first place, on the 
City’s own express admissions, that unwillingness was based 
solely on its unwillingness to run the park on an open basis; 
this is not the case of compelling service by a trustee as 
against general objections, or even as against undisclosed 
objections, but rather it is a case of following to its obvious 
consequences the rule that no organ of state power may so 
act with the intent, purpose and effect exclusively to per­
petuate racial discrimination. Nor does it appear that the 
City’s being trustee is in any way onerous; to be “ trustee” 
is simply to operate the park, a normal municipal function. 
(At all events, the policing of this park must to a consider­
able extent fall on the City.) Georgia municipalities, more­
over, enjoy no general immunity from being compelled to 
perform affirmative duties; in McCletchey v. Atlanta, 149 
Ga. 648, for example, the City was held compellable by 
mandamus to make an annual appropriation for operating a 
“ cyclorama” and to build up and keep separate a special 
fund for this purpose, in obedience to state law—a com­
pulsion more “ affirmative,” if grounded in a less important 
power, than a compulsory continuance as trustee, where 
resignation is confessedly in furtherance of segregation. 
(It seems nearly unnecessary to add that no general state- 
law rule, whether common-law or statutory, giving cities 
in general the power to resign trusts in general, can prevail 
over an obligation of federal constitutional origin, or fix the 
quality, for federal constitutional purposes, of the act of 
resigning.)



23

Finally, only disorder or needless litigation would flow 
from this court’s regarding the ease as not yet raising the 
segregation issue, and the state court’s order as not directly 
implementing segregation. That order was a first step on a 
road clearly marked by the parties, who have candidly 
stamped this suit, and the substitution of trustees with 
which it terminated, as aimed at segregation only. Peti­
tioners insist, then, that far from being inapplicable here, 
Shelley governs this case. The only anxiety petitioners 
would feel about Shelley is that it would be unfortunate 
if any of the questionings about Shelley, any of the uncer­
tainty about the scope of its rule, entered this case. If 
Shelley had never been decided, this case would still be one 
presenting a clear pattern of state action. It is saturated 
with state action. No unequivocal private choice is being en­
forced. The State of Georgia has chosen among policies, 
and has chosen the segregation policy, no more following 
the will of a private person than if the opposite choice had 
been made. If the order of the state court be thought in­
sufficient alone to constitute state action, then one need 
only advert to the fact that the whole litigation pattern was 
set up for the court’s action by parties who themselves hold 
state power, and who confessedly took the actions they took 
in order that segregation might prevail.



24

VI.

Respondents Are Wrong in Their Contention That 
§69-504, Georgia Code, Acts 1905, p. 117, Is Not a 
Significant Consideration in This Case.

Respondents, confronted with Ga. Code §69-504, a statnte 
that explicitly spells out legal sanction for racially segre­
gated public parks of the Baconsfield sort, insist that that 
statute is not a “ significant consideration.” They go on 
to say:

In 1904, the year prior to the passage of that statnte, 
a testator in Georgia could obviously have created a 
trust involving a park with a municipal corporation 
as trustee without inserting any racial restriction. Or 
he could have created such a trust with a racial re­
striction. (Respondents’ Brief, p. 48.) (Emphasis sup­
plied.)

Respondents, in this passage, create a mystery they fail 
to dispel. Why, if the law of 1904 was so clear, did the 
Georgia legislature, in 1905, go to the trouble it did in 
passing this section?

Petitioners contend that the answer first suggesting itself 
—that Georgia Law was at the least not clear on this 
point—is borne out by all the materials now accessible.

First, the Georgia Code of 1895, covering this matter, 
seems to name no category including parks as a subject of 
charitable trusts. The Code enumeration is as follows:

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



25

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

2. Every educational purpose.

3. Provisions for religious instruction or worship.

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

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

6. For the redemption or relief of prisoners or cap­
tives.

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

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

“ The promotion of human civilization” would seem a pre­
tentious statement of the objective of a park; for a state 
court to hold that segregating a park constitutes such a 
promotion of civilization would violate the Fourteenth 
Amendment. No “ construction or repair” is the principal 
subject of this trust. No Georgia court, by the respondents’ 
own account, had ever held any part of this section ap­
plicable to a park, in all the years before §69-504 became 
law. This really is enough to establish the entire uncer­
tainty, in the Georgia law as Senator Bacon new it, of the 
propositions so confidently put forward by the respondents.

There is much more, however. The respondents, ignoring 
and not citing the applicable Georgia Code section just 
quoted, deal with the matter as one of “ common law.” They 
do not tell us why that law in its pristine state applied, in



26

the face of the Code enumeration. More significantly, they 
do not advert to the grounds on which other jurisdictions 
than Georgia had upheld charitable trusts for parks. Those 
grounds were two in number, not unconnected. These are 
summarized in 4 Pomeroy Equity §1024, as follows:

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

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

Thus, as one would confidently expect when so carefully 
drawn a statute as §69-504 is put through the state legisla­
ture, the prior Georgia law was at least doubtful. It is 
against the parts of that law that were not doubtful that 
§69-504, and its operation, are to be judged. A very clear 
role can be assigned this statute, so mysterious a phenom­
enon on respondents’ account, when one adverts to the law



27

of parks in Georgia, as plainly seen in the old Georgia 
cases.

As respondents say, “no Georgia case had dealt with a 
charity involving a park . . . ” But plenty of Georgia cases 
had dealt with parks, treating them, as the common law 
traditionally does, as lands “ dedicated to the public,” the 
members of the public, as such, having easements of enjoy­
ment in them.

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

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

#  #  #  #  #

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

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



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

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

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



29

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

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

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

3. No Georgia case had ever held a park, racially 
restricted or not, to be the proper subject of a chari­
table trust.

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

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

Petitioners are emboldened to think that the situation de­
fined by these numbered points was the one §69-504 was 
designed to meet, because it is the very situation to which



30

it appears to address itself. It reads and sounds like re­
medial legislation, and if it was, this was what it was 
designed to remedy. In any case, this is the legal back­
ground against which it became law.

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

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



31

that had made racial discrimination difficult in the law of 
public parks as it actually had existed in Georgia. Surely 
one may say, as Mr. Justice Stewart said in Burton, “ Such 
a law seems . . . clearly violative of the Fourteenth Amend­
ment.” 365 U. S. at 727.

This is the minimum effect of this statute. But is it not 
also clear that, against this background, any citizen must 
see that the state is at least suggesting discrimination! 
Even on respondents’ own account, is this not the necessary 
effect of such a statute? If it were, as they contend, merely 
declaratory of one consequence of a general capacity in 
testators to discriminate in any manner, must it not for 
that very reason function as a mark of the state’s special 
interest in this form of discrimination? Against the legal 
backdrop that actually existed, on the other hand, it must 
surely signal to all a state policy of fostering and favoring 
segregation, evidenced in the most convincing manner by 
solicitude to make such segregation possible against all 
previous objections of a technical cast.

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



32

formed than a court’s reading this language to have the 
latter meaning.

This general point is not, however, the only reliance in 
this case. What Senator Bacon actually did, in the first 
instance, was to leave his land in trust as a park for the 
white women and children of Macon (R. 19). Now §69-504, 
on its face and with no ambiguity whatever, fails to au­
thorize a gift to women and children on an unsegregated 
basis. It authorizes a gift for white women and children 
only, or for colored women and children only, or for women 
and children of any other race only, but none for women 
and children of all races together. Had Senator Bacon, 
therefore, wished to leave his park for all women and chil­
dren, he would have had to conclude that he could not law­
fully do so under §69-504, and that if he tried to do so on 
an alternative “ common law” theory he would be met not 
only by all the difficulties above discussed, but also by the 
powerful argument that this carefully drawn statute, enu­
merating permitted discriminations, excluded others by im­
plication. The Board of Managers, to be sure, later opened 
the park to all whites. But Bacon could not have known 
they would, and authorized them not to. Under §69-504, 
he could not have authorized them to exclude all men, and 
admit all women and children.

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

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



33

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

(3) Engendered legal doubt that any trust for a park 
would be valid without racial discrimination, and, un­
less its readable text and normal implications be 
ignored, made flatly unlawful the non-racist rule of 
admission—“women and. children only”—correspond­
ing to the racist rule—“white women and children 
only”—actually adopted in this case, thus in effect com­
manding segregation by race if a “women and children” 
park was wanted.

Respondents say that this section is “ not significant,” and 
that petitioners’ attempt to have the Court view it as being 
so “will not bear analysis.” On the foregoing considera­
tions, petitioners submit that respondents have mistaken 
the position.

CONCLUSION
The acceptance of the City’s resignation and the appoint­

ment of new trustees constituted a judicial action con­
firmatory of actions of other organs of state power, hav­
ing the express sole aim of reinstituting racial discrimina­
tion in Baconsfield. While petitioners strongly urge that 
this renewed segregation is in itself illegal, the decree en­
tered violates the Fourteenth Amendment, on either of the 
two possible views as to the latter question. Respondents’ 
arguments fail to cast serious doubt on this conclusion.



34

Petitioners therefore renew their prayer that the judg­
ment of the Supreme Court of Georgia be reversed, and 
that the reversal of the Superior Court’s decree be ordered.

Respectfully submitted,

Jack Greenberg 
James M. Narrit, III 
Michael Meltsner 
Charles Stephen R alston 
F rank H. Heeeron 

10 Columbus Circle 
New York, New York 10019

Charles L. Black, Jr.
346 Willow Street 
New Haven, Conn. 06511

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

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

Attorneys for Petitioners



,-1