Petitioners Brief — Evans v. Newton
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FILED
SEP 15 1965
~ | JOHN F. DAVIS, CLERK
In THE
ent Supreme Court of the United States
‘m-
on. OctoseR TERM, 1965
2re No. 61
is-
be E. S. Evans, et al.,
Be Petitioners,
ly —_—V
he
rs CuarLes E. Newton, et al.
10
n- ON WRIT OF CERTIORARI TO THE SUPREME COURT OF GEORGIA
— ee oa re ann
— —- ome a
BRIEF FOR PETITIONERS
Seana
sect wenn
|
Jack GREENBERG
James M. Nasart, III
MicHaEL MELTSNER
CuHarLes STEPHEN RaLstTon
Frank H. Herrron
10 Columbus Circle
New York, New York 10019
Donatp L. HottowELi
Wiuuiam H. ALExanvER
Howarp Moorz, JR.
85914 Hunter Street, N.W.
Atlanta, Georgia 30314
Attorneys for Petitioners
PAGE
Opinion Below ............. ie 1
Jurisdiction 1
Question Presented 2
Constitutional and Statutory Provisions Involved ........ 2
| aa ean ane 4
Summary of Argument 7
ARGUMENT
I.
Ill.
IV.
A Park Established by Testamentary Trust,
in Conformity With a Statute Authorizing and
Encouraging Racial Restrictions, Cannot Ex-
clude Negroes as a Class
City Officials Are Directly Responsible for Ex-
clusion of Negroes From Baconsfield ..................
In Deciding an Issue of State Law, the Courts
of Georgia Accorded the Racial Limitation in
Bacon’s Will a Deference Inconsistent With
Supreme Federal Law
Baconsfield Is a Public Facility From Which
Negroes Cannot Be Excluded
The Charitable Trust in This Case Is so Much
the Creature of the State and so Related to
an Inherently Public Aspect of Community
Life as to Be Governed by the Fourteenth
Amendment Prohibition of Racial Discrimina-
tion
19
22
TaBLE oF CASES:
Anderson v. Albany, 321 F. 2d 649 (5th Cir. 1963) ... 23
Anderson v. Martin, 375 U. S. 399
sedge 13
Barrows v. Jackson, 346 U. S. 249 .................... 13
Bell v. Maryland, 378 U. S. 226 24
Brown v. Board of Education, 347 U. S. 483 _.............. 23
Burbank v. Burbank, 152 Mass. 254, 25 N. E. 437
(1890) 12
Burton v. Wilmington Parking Authority, 365 U. S.
715 7, 13, 14, 18, 30
Cooper v. Aaron, 358 U. S. 1 21
Cox v. De Jarnette, 104 Ga. App. 664, 123 S. E. 2d 16
(1961) <a
Cresson’s Appeal, 30 Pa. 437 (1858) .... Ne
Derrington v. Plummer, 240 F. 2d 922 (5th Cir. 1956),
cert. denied sub nom. Casey v. Plummer, 353 U. S.
i, 18, 19
Eaton v. Grubbs, 329 F. 2d 710 (4th Cir. 1964) _.......... 8, 25
Emory University v. Nash, 218 Ga. 317, 127 S. E. 2d
BN EE i taiccdcaeinciciesieceneccchencnitaenniciomitemees 18
Estate of Stephen Girard, 391 Pa. 434, 138 A. 2d 844
(1958), appeal dismissed and cert. denied, 357 U. S.
RAREST EEE ARG SPREE SO A Sa na 19
Fox v. North Carolina, 378 U. S. 587 __....-...-..- 13
Gantt v. Clemson Agricultural College, 320 F. 2d 611
(4th Cir. 1963) 13
Goree v. Georgia Industrial Home, 187 Ga. 368, 200
S. E. 684 (1938)
errr rr rrr rere
PAGE
Griffin v. School Board, 377 U. S. 218 19
Guillory v. Administrators of Tulane University, 212
F. Supp. 674 (E. D. La. 1962) 17
Hague v. CIO, 307 U. S. 496 25
Holmes v. Atlanta, 350 U. S. 879 23
Hampton v. Jacksonville, 304 F’. 2d 320 (5th Cir. 1962),
cert. denied sub nom. Ghioto v. Hampton, 371 U. S.
911 19
Jones v. Atlanta, 35 App. 376, 133 S. E. 521 (Ga. Ct.
App. 1926) 29
Jones v. Habersham, 107 U. S. 179 12
Lackland v. Walker, 151 Mo. 210, 52 S. W. 414 (1899) 12
Law v. Jekyll Island State Park Authority, C. A.
No. 8579 (N. D. Ga., July 27, 1964) 23
Lester v. Jackson, 69 Miss. 887, 11 So. 114 (1892) ........ 12
Lombard v. Louisiana, 373 U. S. 267 13, 24
Marsh v. Alabama, 326 U.S. 501 8, 23, 24, 26
Morehouse College v. Russell, 219 Ga. 717, 135 S. E.
2d 432 (1964) 29
Morehouse College v. Russell, 109 Ga. App. 201, 136
8. E. 2d 179 (1964) 29
Muir v. Louisiana Park Theatrical Ass’n, 347 U. 8S.
971 23
Murphy v. Johnston, 190 Ga. 23, 8 S. E. 2d 23 (1940) .... 29
NAACP v. Alabama ex rel. Patterson, 357 U. 8. 449... 11
New Orleans City Park Improv. Ass’n v. Detiege, 358
U. 8S. 54 23
Pace v. Dukes, 205 Ga. 835, 55 S. E. 2d 367 (1949) ...... 29
Parrot v. Tallahassee, 381 U. S. 129 _................ 13
PAGE
Pennsylvania v. Board of Directors of City Trusts, 353
U. 8. 230 8, 15, 20
Peterson v. Greenville, 373 U. 8S. 244 -..0.000000000...... 7, 13, 26
Regents of University System v. Trust Co. of Georgia,
186 Ga. 498, 198 S. E. 345 (1938) neces 29
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. 1965) ..........2.........cec-cesee 17
Robinson v. Florida, 378 U. S. 158 .................... 7, 10, 13, 26
Shelley v. Kraemer, 334 U.S. 1.000... 8, 16, 20, 26
Simkins v. Moses H. Cone Memorial Hospital, 323 F. 2d
959 (4th Cir. 1963), cert. denied, 376 U. S. 938 ....8, 24, 25
Simpson v. Anderson, 220 Ga. 155, 137 S. E. 2d 638
Cs eiccihls dulnth Goudie Rcctadinevecteonsichenienabotoenatnedesieniichmsenvrnies 27
Smith v. Holiday inns of America, Inc., 336 F.. 2d 630
I I ainsi sceinacodinirencvtaninasenehianticadigunveers 19
Stubbs v. City of Macon, 78 Ga. App. 237, 50 S. E. 2d
i SOMES I R oAe 29
Tate v. Department of Conservation and Development,
See Wr ee COU Cae, -ROGG) incavccvctescnnecseccccicsenendeecsere 19
- Turner v. Memphis, 369 U. S. 350 -00. ee. 18
Watson v. Memphis, 373 U. S. 526 —2000. ee... 23
Williams v. North Carolina, 378 U. S. 548 0000... 13
Wright v. Georgia, 373 U. S. 284
PAGE
Srarures:
98 U. S. C. §1257(3) a
Georgia Constitution 1877, Art. 7, Sec. 2, Par. 1, (Ga.
Code §2-5001) .... 28
Georgia Constitution 1945, Art. 7, Sec. 1, Par. 4, (Ga.
ERIE TID | ceireeccserrnccqneenenepnssvenncomaninenensnesuresbinreransestves 28
Georgia Code:
IIIT lic ssehceipcietsciaiiiaoeteespitvinerienennicinreeiiesianenciintininenienootit 29
§69-502 (Acts 1892, p. 104) ............---ccecseseessnssrserseees 12
§69-504 (Acts 1905, p. 117) .............. 3, 10, 11, 12, 13, 14,
22, 24, 25, 27, 29
§69-505 (Acts 1905, pp. 117-18) .........-....-.---- 3, 10, 11, 22
§69-601 to 69-616 .................. oihaseedlesileaiieta 24
I hack iach cintihienchenicnncininimnnsiacocliniatetiowrnveneeuenentese 29
NIT hocncecikislnicoeatinintinteciane 28
SIE a chocrecierecveressesst:venciessiovecsatissinncncettanimesiniesneapnaicsinereis 27
§108-202 27
ITT lai tosuieihssolohecbesicnecegiantnsmnaisteetnninanatatiatcnndens 12
noice eccutnesenaibanpencriiontssimtitaienpennctiamaccesote 27
aap dooce 28
Georgia Acts:
1870, p. 398 ...... » oe
TICE Scsiniccipipnicndiiaetiepiiestemnnelptninciostometteandamgnetoncisisioa 11
IIIT TI octcieecheliguiienpeeenenieonenncemnighyetstepananssennisieuabonii 11
1889, p. 124 11
1890-91, p. 213 ll
1890-91, Vol. I, p. 114 : ae
st scsninnnceneeeeiniigittendamennnnnantiinenlicniak 11
1894, pp. 115, 117 1l
1897, pp. 71, 73 s* 11
1908, p. 58 11
ee eee 23
vi
PAGE
OrHer AUTHORITIES:
Clark, Charitable Trusts, the Fourteenth Amendment
and the Will of Stephen Girard, 66 Yale L. J. 979
I sistiiaiaasiriidgsabicisaibiciienatanpebielocsiatainienemenaiiesdepingitelendieeinsisbes 30
GC TROOOE, Tremere CHM OG. TOCB) nnn cec cc ccccccerernntrsnresrescons 12
In THE
Supreme Court of the United States
Ocroser Term, 1965
No. 61
E. 8S. Evans, et al.,
Petitioners,
VY
Cuarites E. Newron, et al.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF GEORGIA
BRIEF FOR PETITIONERS
Opinion Below
The opinion of the Supreme Court of Georgia (R. 81)
is reported at 220 Ga. 280, 138 S. E. 2d 573.
Jurisdiction
Judgment of the Supreme Court of Georgia was entered
on September 28, 1964 (R. 81). Rehearing was denied
October 8, 1964 (R. 92). 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 petition
for writ of certiorari was filed March 5, 1965, and granted
April 26, 1965 (R. 93-94).
The jurisdiction of this court is invoked pursuant to
28 U. S. C. §1257(3), petitioners having asserted below
2
and asserting here denial ef rights, privileges and immuni-
ties secured by the Fourteenth Am«%.*ment to the Consti-
tution of the United States.
Question Presented
Where (a) Georgia’s Legislature expressly authorized
the establishment of racially restricted public parks
through testamentary charitable trusts;
(b) following creation of such a park and cortinuous
ownership and management by the City of Macon and its
agents, city officials took all necessary steps to place the
park in private hands for the express purpose of continuing
operation of the park on a segregated basis;
(c) the courts of Georgia enforced the will provision
directing exclusion of Negroes in preference to a conflict-
ing provision directing perpetual ownership by the city;
(d) the park established by charitable trust is in all
respects a public facility and part of the public life of the
community; and
(e) the charitable trust is endowed by the state with
judicial administration, tax exemption, perpetual existence,
and tort immunity:
can the substitution of private trustees to operate the park
for white persons only be reconciled with the Fourteenth
Amendment?
Constitutional and Statutory 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 statutes of the
State of Georgia:
3
Ga. Code §69-504 (1933) (Acts, 1905, p. 117):
Gifts for public parks or pleasure grounds.—Any
person may, by appropriate conveyance, devise, give,
or grant to any municipal corporation of this State, in
fee simple or in trust, or to other persons as trustees,
lands by said conveyance dedicated in perpetuity to
the public use as a park, pleasure ground, or for other
public purpose, and in said conveyance, by appropriate
limitations and conditions, provide that the use of
said park, pleasure ground, or other property so
conveyed to said municipality shall be limited to the
white race only, or to white women and children only,
or to the colored race only, or to colored women and
children only, or to any other race, or to the women
and children of any other race only, that may be
designated by said devisor or grantor; and any person
may also, by such conveyance, devise, give, or grant
in perpetuity to such corporations or persons other
property, real or personal, for the development, im-
provement, and maintenance of said property.
Ga. Code §69-505 (1933) (Acts, 1905, pp. 117, 118) :
Municipality authorized to accept—Any municipal
corporation, or other persons natural or artificial, as
trustees, to whom such devise, gift, or grant is made,
may accept the same in behalf of and for the benefit
of the class of persons named in the conveyance, and
for their exclusive use and enjoyment; with the right
to the municipality or trustees to improve, embellish,
and ornament the land so granted as a public park,
or for other public use as herein specified, and every
municipal corporation to which such conveyance shall
be made shall have power, by appropriate police
provision, to protect the class of persons for whose
benefit the devise or grant is made, in the exclusive
used (sic) and enjoyment thereof.
Statement
» The will of Augustus Octavius Bacon, a United States
senator from Georgia, executed March 28, 1911 (R. 10-28),
provided for a gift of real property to the City of Macon
as owner and trustee_to maintain a public park for the
white women and children of the City of Macon.’ A Board
of Managers appointed by the mayor and council (R. 19)
was to operate ihe park. The will set aside a separate
fund in trust to defray expenses of administering the park
(R. 20). The park, named Baconsfield, was operated in
“accordance with the racial limitation in Bacon’s will until
the spring of 1963, when Negroes began using it (R. 8, 33).
Shortly thereafter, the present suit was instituted by some
of the respondents to enforce the racial limitation and to
exclude Negroes again from the park.
May 4, 1963, Charles E. Newton and other members of
the Board of Managers of Baconsfield filed a petition in
the Superior Court of Bibb County, Georgia, requesting
removal of the City of Macon as trustee, appointment of
new trustees, and transfer of title in Baconsfield to the
new trustees. Named as defendants were the City of Macon
and the trustees of certain residuary legatees of Bacon’s
estate, the Curry heirs. Plaintiffs sought expressly to
enforce the racially discriminatory terms of Bacon’s will
(R. 5-10).
The Ctiy of Macon answered (R. 32) admitting most
allegations of the petition, but claiming “no authority to
enforce racially discriminatory restrictions with regard to
property held in fee simple or as trustees for a private
or public trust and, as a matter of law, [being] prohibited
1 The Board of Managers was given discretion to open the park to white
men and white non-residents of Macon (R. 20), and this power was exer-
cised (R. 7-8).
—
5
from enforcing such racially discriminatory restrictions”
(R. 33). Defendant trustees for the Curry heirs answered
admitting all allegations of the petition and joining in
“each and every prayer of said petition” (R. 34-35) ; these
defendants were represented by the same counsel as plain-
tiff members of the Board of Managers (R. 10, 35). Plain-
tiffs then filed a motion for summary judgment (R. 35).
May 29, 1963, petitioners heze, Rev. E. S. Evans and
five other. Negro citizens of Macon, moved to intervene.
For the first time a diversity of interest appeared in the
lawsuit (R. 36). The intervenors alleged that to appoint
new trustees to comply with the racial limitation in Bacon’s
will would violate the Fourteenth Amendment (R. 40).
They 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” (R. 41).
January 8, 1964, plaintiff members of the Board of
Managers amended their original petition, requesting that
all Negroes be enjoined from using the park (R. 42-43).
The amendment also requested that four previously un-
represented residuary legatees under Bacon’s will, the
Sparks heirs (R. 44), be added as plaintiffs and that the
trustees of the Curry heirs, originally joined as defendants,
be permitted to assert the Curry heirs’ interests as plain-
tiffs (R. 44). Simultaneously, the Sparks heirs intervened,
asking that all relief requested by the original plaintiffs
be granted (R. 45-46). At the same time, the trustees for
the Curry heirs concurred in asking to be allowed to assert
their interests as plaintiffs, and joined in all of plaintiffs’
prayers for relief (R. 47-48). 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 if other
relief were denied (R. 47, 49).
>.
6
February 5, 1964, the City of Macon, the only defendant
making any pretense of defending the suit, amended its
answer to state that it had resigned as trustee of Bacons-
field (R. 50) pursuant to resolution of the mayor and
council on February 4, 1964 (R. 51-61), and requesting the
court’s acceptance of its resignation and the appointment
of substitute trustees (R. 50-51).
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. 62-63). Interverors asked the court to “with-
hold approval of the attempted resignation of the City of
Macon as trustee under the will of A. O. Bacon, [and]
direct the City of Macon to continue to fulfill this para-
mount constitutional obligation to administer the park on
a racially non-discriminatory basis .. .” (R. 63).
No evidentiary hearing was held. The Superior Court
issued its decree’ March 10, 1964, allowing intervention
? The Superior Court also issued a letter opinion, reprinted in the Peti-
tion for Writ of Certiorari, pp. lla-12a, which was as follows:
After careful consideration of the Motion for Summary Judgment
in the above stated case, I have reached the following conclusions:
The racial limitation in Senator A. O. Bacon’s will is not unlawful
for any reason as contended by the intervenors, Reverend E. S. Evans,
et al.
The inability of the City of Macon, as Trustee, to apply constitu-
tionally the racial criterion prescribed by the testator 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 resigna-
tion 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 purpose 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 benefits of Baconsfield
should be extended to white persons only, or more clearly indicating
-—
7
by all who requested it, accepting the resignation of the
City of Macon as trustee of Baconsfield, appointing three
private individuals as new trustees, and retaining jurisdic-
ition (R. 64-65). 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 held moot
(R. 65).
Negro intervenors, petitioners here, appealed to the Su-
preme Court of Georgia. On September 28, 1964, the
Supreme Court of Georgia affirmed the judgment of the
Superior Court of Bibb County (R. 81, 89). A motion for
rehearing was denied on October 8, 1964 (R. 92).
Summary of Argument
Before Senator Bacon wrote his will creating Bacons-
field for white persons only, Georgia enacted Ga. Code
§69-504, expressly authorizing gifts of land to public or
private trustees for the establishment of racially restricted
public parks. The natural tendency of the statute was to
encourage if not to force testaters to specify segregation,
and under the principles announced in Peterson v. Green-
ville, 373 U. S. 244 and Robinson v. Florida, 378 U. S. 153,
the testator’s personal preference for segregation, if any,
must be disregarded. By placing its authority behind dis-
criminatory classification based solely on color, the state
denies equal protection of the laws. Burton v. Wilmington
Parking Authority, 365 U. S. 715, 726, 727 (concurring and
dissenting opinions).
that this limitation was an essential 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.
a
8
The actions of the Board of Managers of Baconsfield
and the Mayor and Council of the City of Macon repre-
sent a glaring illustration of state action to enforce segre-
gation. As owner and trustee, the city through the board
operated Baconsfield for white persons in violation of
Pennsylvania v. Board of City Trusts, 353 U. S. 230. In
1963, when Negroes went on the property, rather than
treat the racial limitation as absolutely void, the city and
board went to court to enforce it. This contravened Shelley
v. Kraemer, 334 U. S. 1, and Bacon’s stated intent that the
city retain perpetual control. By submitting its resigna-
tion, the city transferred public property to private persons
for the invidious purpose of assuring continued segrega-
tion.
Georgia’s courts violated the Fourteenth Amerdment by
enforcing the racial limitation in Bacon’s will. Shelley v.
Kraemer, supra. Under Pennsylvania v. Board of City
Trusts, supra, that limitation was null and void, but the
courts below gave it effect although it was in direct conflict
with another provision of Bacon’s will directing perpetual
ownership by the city. In doing so, the courts acted in
defiance of the Constitution which forbids a state to imple-
ment segregation.
As a public facility operated for the benefit of the com-
munity, Baconsfield cannot be restricted to white persons
under the Fourteenth Amendment. Like the company town
in Marsh v. Alabama, 326 U. S. 501, Baconsfield, even if
owned by private trustees, is similar in all respects to
facilities owned and operated by the state. Like the hos-
pitals in Simkins v. Moses H. Cone Memorial Hospital,
323 F. 2d 959 (4th Cir. 1963) cert. denied 376 U. S. 938
and Eaton v. Grubbs, 329 F. 2d 710 (4th Cir. 1964),
Baconsfield fulfills an essential public function that might
otherwise have to be performed by the state. Moreover,
i
9
Baconsfield is so much a part of the public life of the
community that whether owned by public or private in-
terests, exclusion of one race is inconsistent with the Four-
teenth Amendment.
As a charitable trust given significant state protection
in the form of judicial administration, tax exemption,
perpetual existence and tort immunity, Baconsfield must
be subjected to special scrutiny before being permitted
to exclude Negroes. While all charitable trusts are simi-
larly favored the court need not decide whether all arbi-
trary discriminations are forbidden in all such trusts. But
when a charitable trust receiving these advantages has
been created pursuant to a state policy of segregation,
has been operated by the state on a segregated basis,
has been turned over to private control to continue segre-
gation, and has created a facility of an inherently public
nature, that trust cannot be allowed to perpetrate the very
type of arbitrary discrimination proscribed by the Four-
teenth Amendment.
ARGUMENT
L
A Park Established by Testamentary Trust, in Con-
formity With a Statute Authorizing and Encouraging
Racial Restrictions, Cannot Exclude Negroes as a Class.
The Bibb County Superior Court accepted the City of
Macon’s resignation and appointed private trustees, be-
lieving they could enforce the racial restriction in Bacon’s
will forbidden to the city by the Constitution. Finding
the racial limitation “essential and indispensable,” (supra
p. 7) the court approved the change in trustees as the
way to preserve the limitation without violating the Con-
10
stitution. The court’s conclusion that ptivate trustees
could do what the city might not does not stand the test
of examination. The state’s encouragement and sanction-
ing of segregated parks through passage of Ga. Code
§69-504 invalidates enforcement of the racial restriction
whether Baconsfield is operated by public or private
trustees. Cf. Robinson v. Florida, 378 U. S. 153.
In 1905 Georgia’s Legislature enacted what is now Ga.
Code §69-504 (Acts 1905, p. 117), authorizing the convey-
ance of land to be “dedicated in perpetuity to public use
as a park, pleasure ground, or other public purpose...”
The conveyance could be by “devise, gift, or grant,” in
fee simple to a municipal corporation or in trust to a
municipal corporation or other persons. The statute ex-
pressly authorized limitation of use of conveyed property
“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.” A companion statute
empowered municipalities to accept such gifts and “by
appropriate police provision, to protect the class of persons
for whose benefit the devise or grant is made, in the ex-
clusive use and enjoyment thereof.” Ga. Code §69-505
(Acts 1905, pp. 117-18).
In 1911 Senator Augustus Octavius Bacon followed the
provisions of §69-504, providing in his will a gift of land
to the City of Macon
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, ... (R. 19).
11
The similarity between the statute and the will leaves
no doubt that Senator Bacon was seeking to assure per-
petual enforcement of the trust by strict compliance with
every aspect of 469-504. Bacon was taking no chances that
there might be a failure of the trust. The close connection
between Georgia’s statute and Senator Bacon’s carefully
drawn will defeats any possible argument that Baconsfield
is the product of purely private action. As in NAACP v.
Alabama ex rel. Patterson, 357 U. S. 449, 463, “the crucial
factor is the interplay of governmental and private action.”
It is argued that §69-504 had nothing to do with Bacon’s
decision to limit use of the park to one race, and Bacon’s
will did express his view that “in their social relations
with two races . . . should be forever separate” (R. 21).
But the statute obviously encouraged racial restrictions
and strongly implied that a trust for unrestricted parks
would not be upheld. In 1911 there was no judicial con-
struction of the act, and nothing in the statute itself in-
dicated it was permissive rather than mandatory. The
statute was passed at a time when Georgia was requiring
segregation in many other areas.’ Its companion statute
expressly authorized use of the police power to enforce
racial limitations in municipal parks, Ga. Acts 1905, pp.
117-18, now Ga. Code §69-505. Certainly, §69-504’s listing
of six types of authorized racial limitations, considered in
light of the maxim inclusio unius est exclusio alterius, was
an awesome portent that Georgia would not tolerate un-
segregated parks.
3 E.g., Ga. Acts 1870, p. 398 (segregation on railroads and other common
carriers); Ga. Acts 1887, p. 68, and Acts 1889, p. 124 (school segrega-
tion); Ga. Acts 1890-91, Vol. I, p. 114 (segregation in state university) ;
Ga. Acts 1894, pp. 115, 117 and Acts 1908, p. 58 (segregation of names
on voting lists); Ga. Acts 1894, p. 31 and Acts 1874, p. 109 (segregated
tax returns) ; Ga. Acts 1897, pp. 71, 73 and Acts 1890-91, p. 213 (segrega-
tion of prisoners).
12
The significance of (69-504 is best understood when
considered against the background of prior Georgia law.
As respondents concede, Georgia had long enforced charita-
ble trusts, see Jones v. Habersham, 107 U. S. 179, and mu-
nicipalities had been authorized to act as trustees of such
trusts in 1892. Ga. Acts 1892, p. 104, now Ga. Code, §69-502.
There were thus only a limited number of possible reasons
for enactment of 469-504: to make it plain that creation
of a park was a valid charitable purpose, to require that
parks established under charitable trusts be restricted to
one race, or to encourage racial restrictions by making it
clear that segregated parks would be acceptable. It is
unlikely that §69-504 was passed merely to validate parks
as charitable trusts. Ar old Georgia law, now Code §108-
203, defining charitable purposes does not expressly men-
tion public parks, but no previous Georgia cases had re-
fused to recognize them as charitable, and courts in several
other states had accepted them.‘ However, it was far
from clear that a park restricted to one race would be
considered charitable. Traditionally, only trusts for edu-
cational or religious purposes, or for aid of the poor,
could be limited to a restricted class; trusts for other, or
“community benefit,” purposes would not be recognized
unless their facilities were open to all members of the
community. See 4 Scott, Trusts, p. 2715, §375.2 (2d ed.
1956). See also id., p. 2650 ($371) and p. 2660 (§371.6).
Section 69-504 turned the law of trusts upside down, creat-
ing serious doubts that trusts for parks open to the whole
community would be enforced, and establishing that ra-
cially restricted parks were acceptable to the state.
Whether the racial provision of 469-504 is viewed as manda-
4 Cresson’s Appeal, 30 Pa. 437 (1858); Lackland v. Walker, 151 Mo.
210, 52 8S. W. 414 (1899); Burbank v. Burbank, 152 Mass. 254, 25 N. E.
427 (1890) ; ef. Lester v. Jackson, 69 Miss. 887, 11 So. 114 (1892).
13
tory or permissive, Georgia’s legislature obviously served
the cause of segregation by enacting it.
Whatever the construction eventually placed upon it,
§69-504 could only encourage testators to encumber their
charitable trusts with racial restrictions. Thus Georgia
shares with Senator Bacon the responsibility for exclusion
of Negroes from Baconsfield. When segregation by private
persons is required by statute or ordinance, Peterson v.
Greenville, 373 U. S. 244, 248; or executive command,
Lombard v. Lousiana, 373 U. 8. 267; or encouraged® by
administrative regulation, Robinson v. Florida, 378 U. S.
153, private motivation is overshadowed by the state’s
intervention. See also Parrot v. Tallahassee, 381 U. S.
129; Fox v. North Carolina, 378 U. S. 587; Williams v.
North Carolina, 378 U. 8. 548.
The state’s encouragement of private discrimination is
much more effective here than in Robinson, where the
state required racially separate restrooms if both races
were served or employed. A private decision to integrate
a restaurant could easily be effectuated in Florida by
installing separate restroom facilities, if indeed the restau-
rant did not already have them for Negro employees. But
there was no way for a testator in Georgia to be assured
that his trust would be upheld if he did not direct the
exclusion of one race from the park.
Support for petitioners’ position can be also found in
the views expressed by several members of this Court in
Burton v. Wilmington Parking Authority, 365 U. S. 715.
Justice Stewart, concurring, 365 U. S. at 726, read the
decision below as construing a Delaware statute to an-
5 In other contexts, this Court has proscribed encouragement of discrim-
ination by the state. Anderson v. Martin, 375 U. 8. 399; Barrows v. Jack-
son, 346 U. S. 249, 254. See also Gantt v. Clemson Agricultural College,
320 F. 2d 611, 613 (4th Cir. 1963).
14
thorize “discriminatory classification based exclusively on
color,” and thus “clearly violative of the Fourteenth
Amendment.” 365 U. S. at 727. Justices Frankfurter,
Harlan, and Whittaker could not accept the premise but
agreed with the conclusion. 365 U. S. at 727, 728. As
Justice Frankfurter wrote, “For a State to place its an-
thority behind discriminatory treatment based solely on
color is indubitably a denial by a State of the equal pro-
tection of the laws.” 365 U.S. at 727 (dissenting opinion).
Here, certainly, is a statute authorizing discriminatory
classification based exclusively on color and thus violative
of the Constitution.*
It has been noted above that §69-504 authorized gifts to
private trustees, as well as municipalities, for establish-
ment of public parks. Had Bacon given his land to private
trustees rather than the city it is just as clear that the
racial limitation, inspired and sanctioned by the state,
could not be enforced. Thus, contrary to the reasoning
of respondents and the courts below, the transfer of
Baconsfield from public to private trustees had no effect
whatever on the enforceability of the racial clause in
Bacon’s will, and to effect that transfer was erroneous.
Petitioners, who resisted that transfer in the courts below,
complain not only because the court’s action was erroneous,
but also because it was injurious to them and all Negroes
in Macon. The Superior Court transferred ownership in
Baconsfield from the city, which had acknowledged an in-
ability to enforce the limitation, to private trustees whose
very existence is dependent upon an understanding—albeit
erroneous—that they could exclude Negroes with impunity.
6 In Burton, the dissenting justices thought Delaware’s statute might be
merely declaratory of the common law which allowed a restaurant to ex-
elude any person for any reason. In this case the statute is not ambiguous.
It speaks in terms of white and colored. Delaware’s statute made no refer-
ence to race, nor did its Supreme Court in stating the common law.
15
IL.
City Officials Are Directly Responsible for Exclusion
of Negroes From Baconsfield.
This lawsuit is a superb example of concerted action by
state officials to enforce segregation. Compliance with
Senator Bacon’s racial restriction by the City of Macon as
owner and trustee, and by the city-appointed Board of
Managers, was precluded by the decision in Pennsylvania
v. Board of Directors of City Trusts, 353 U. S. 230. But
rather than comply with the Constitution and treat the
racial restriction as pro non scripto, just as segregation
statutes are dead letters today, city officials devised means
of warding off Negro use of the park.
First, the Board of Managers of Baconsfield petitioned
the Superior Court to replace the city as trustee. Its case
was bottomed on the racial language of Bacon’s will; no
reason was offered except that the city was not limiting
the park to white persons. The ultimate power of appoint-
ing board members resided with the city. Thus, a state
agency was petitioning a court to effect a change in a
charitable trust to exclude Negroes from a place of public
recreation.
The defendant City of Macon could find no reason to
object to its displacement. Its answer merely admitted the
petition’s allegations and apologized for the city’s consti-
tutional disability to eject Negroes. Raising no defenses,
the city placidly acquiesced in divestment of its title to the
property and its power to appoint members of the Board
of Managers, despite Senator Bacon’s stern injunction that
the property was “under no circumstances, or by any au-
16
thority whatsoever, to be sold or alienated or disposed of.
...” (R.19). Apparently, the city decided not to assert the
defense that transfer of its property to discriminate racially
would violate the Fourteenth Amendment.
Following Negro petitioners’ intervention, the city
adopted another stance and submitted its resignation to the
court. In its resolution authorizing the resignation, the city
offered as its principal reason that the city deemed “it to
be in the public interest that Baconsfield be operated and
maintained for the benefit of the public rather than for
private benefit or profit” and without the city’s withdrawal
“the property may revert” to Bacon’s heirs “in which case
Baconsfield would become commercial or residential prop-
erty or property wherein no part of the public would have
the enjoyment of the property ...” (R. 60). Thus, the city
was taking affirmative action, in the name of “the public
interest,” to preserve a park for “part of the public’—the
white part. Assuming that the city was faced with a hard
choice between no park at all and one for whites only, it
takes a weird construction of the Fourteenth Amendment to
say a subdivision of the state can opt for the latter.
The city had several alternatives consistent with the
Fourteenth Amendment and in harmony with the interests
of its white as well as Negro citizens. It could have resisted
the board’s petition with a powerful argument that destruc-
tion of its title by the Superior Court for purposes of en-
forcing segregation would violate the Fourteenth Amend-
ment under the rule established in Shelley v. Kraemer, 334
U. S. 1. The city also should have urged that the racial
limitation in Bacon’s will must fall for its inconsistency
with other provisions of the will manifesting Bacon’s intent
that the city never surrender control of Baconsfield.
Bacon had described the city’s interest in the property
as comprehending:
17
all right, title and interest in and to said property
hereinbefore described and bounded, both legal and
equitable, including all remainders and reversions and
every estate in the same of whatsoever kind... . (R. 19).
The property was “under no circumstances, or by any au-
thority whatsoever, to be sold or alienated or disposed
of....” (R. 19). The will went on to say:
... I further specifically provide and direct that the
said trustees hereinbefore named and their successors
shall not have power or authority to sell or otherwise
alienate or dispose of the tract of land thus described,
bounded and platted or any part thereof during the
continuance of said trust or trusts or at any other
time, under any circumstances and upon any account
whatsoever, and all such power to make such sale or
alienation is hereby expressly denied to them, and to
all others (R. 22).
By resigning the city ignored Bacon’s intent. Had the city
resisted the Board’s petition in an attempt to retain the
property, the court would have been much more likely to
choose to follow Bacon’s language concerning ownership
rather than that concerning racial limitation. (See Argu-
ment ITI, infra). In a recent Texas case the court held that
the intent of the donor of Rice University to maintain a
first-class educational institution, which could no longer be
accomplished without foundation grants stipulating non-
discrimination, outweighed the intent to exclude Negroes.
Rice University v. Carr, 9 Race Rel. L. Rep. 613 (D. C.
Harris County 1964), appeal dismissed, No. 14,472 (Tex.
Civ. App. 1965). Cf. Guillory v. Administrators of Tulane
University, 212 F. Supp. 674, 687 (E. D. La. 1962). More-
over, in an analogous situation, the Georgia Supreme Court
18
allowed Emory University to admit Negroes without for-
feiting tax exemption because the statute conditioning uni-
versity tax exemption on the maintenance of segregation
was construed to conflict with another clause of the same
statute. Emory University v. Nash, 218 Ga. 317, 127 S. E.
2d 798 (1962). There was, therefore, reason to believe that
the argument here suggested might have been well received
by the State Supreme Court.
Spurning the opportunity to contest the suit and pre-
serve Baconsfield for all of its constituency, the city pre-
sented its resignation to the Superior Court. If one accepts
respondents’ notion that the Superior Court had no choice
but to relieve the unwilling trustee of the burden of office
(see Brief in Opposition, p. 12), the city is solely respon-
sible for turning a piece of public property over to pri-
vate persons for the purpose of maintaining racial segrega-
tion.
There are many ways of manipulating property interests
so that official discrimination can be continued under the
guise of private discrimination, but they are all fruitless
because the Fourteenth Amendment is notably intolerant
of technical evasions. The most common method is to lease
public property to private interests, but it is now well set-
tled that the private lessee is governed by the constitutional
standards limiting the state, if the state retains any sig-
nificant involvement or control. See Burton v. Wilmington
Parking Authority, 365 U. S. 715; Turner v. Memphis, 369
U. S. 350; Derrington v. Plummer, 240 F. 2d 922 (5th Cir.
1956), cert. denied sub nom. Casey v. Plummer, 353 U. S.
924. Where substantial state involvement or control re-
mains it is, of course, immaterial whether the property was
conveyed for the purpose of perpetuating discrimination.
Where there is such a purpose, the Fourteenth Amendment
restricts the actions of the lessee whether or not the state
19
continues to be involved. See Tate v. Department of Con-
servation and Development, 231 F. 2d 615 (4th Cir. 1956) ;
Derrington v. Plummer, supra, 240 F. 2d at 925. Similar
considerations govern the applicability of the Fourteenth
Amendment when public land is sold to private interests.
The sale does not alter the constitutional obligations of the
owner if significant control is retained by the state, see
Hampton v. Jacksonville, 304 F. 2d 320 (5th Cir. 1962),
cert. denied sub nom. Ghioto v. Hampton, 371 U. 8S. 911;
Smith v. Holiday Inns of America, Inc., 336 F. 2d 630 (6th
Cir. 1964), or if the purpose was to continue discrimination,
see Hampton v. Jacksonville, supra, 304 F. 2d at 331 (Jones,
J., concurring). A fortiori, the state may not give land away
to private persons for the purpose of perpetuating racial
segregation. Cf. Griffin v. School Board, 377 U. S. 218, 231.
The City of Macon therefore could not transfer property
without consideration for the explicit purpose of promoting
segregation and in the knowledge that segregation would
he required.
Il.
In Deciding an Issue of State Law, the Courts of
Georgia Accorded the Racial Limitation in Bacon’s Will
a Deference Inconsistent With Supreme Federal Law.
No one branch of government can claim full credit for
_ keeping Baconsfield white. Each made a unique contribu-
tion, the Superior Court of Bibb County no less than the
others. It issued the order accepting the city’s resignation
and appointing three new trustees.’
7In the second Girard College Case, the Supreme Court of Pennsyl-
vania approved the appointment of private trustees to continue discrim-
inatory operation. Estate of Stephen Girard, 391 Pa. 434, 138 A. 2d 844
(1958), appeal dismissed and cert. denied, 357 U. S. 570. Denial of review
by this Court was not a ruling on the merits, and petitioners submit that
the Pennsylvania Supreme Court ruled erroneously.
20
If the principle of Shelley v. Kraemer, 334 U. S. 1, is not
to be strictly limited to restrictive covenants, the Superior
Court’s order was invalid. Accepting the arguments of the
- board and the city, the court replaced the city in order that
Baconsfield might continue to be operated on a segregated
basis in accordance with the terms of Bacon’s will. This is,
if anything is, enforcement by the judiciary of racial sepa-
ration and wholly inconsistent with the equal protection of
the laws.
The Superior Court held “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” (supra, p. 6, n. 2). Under Shelley v. Kraemer,
supra, the Superior Court’s enforcement of the racial limi-
tation would violate the Constitution even if it were un-
equivocally clear that Bacon intended to limit use of his
park to white persons at the expense of having control of
the park transferred to private interests. However. that
issue is not necessarily presented by this record, because
Bacon’s will manifested contradictory desires. If Bacon
intended that the park be restricted to white persons, it is
no less clear that he intended Baconsfield to be forever
owned by the City of Macon. The will provisions quoted
on pages 16, 17, supra, establish this beyond question.
The decision in Pennsylvania v. Board of Directors of City
Trusts, 353 U. S. 230, renders impossible the present ef-
fectuation of both desires. What the Superior Court did
was to ignore Bacon’s intention as to ownership and im-
plement the intention as to racial selection.
Petitioners submit that the courts of Georgia were not
at liberty to make such a choice. Bacon wanted a park for
white persons; he wanted the city as trustee. He offered
no intimation as to which desire should prevail in case of
21
conflict. Faced with the necessity of making the choice that
Bacon had never contemplated, the Superior Court caose
segregation, just as the city had done. The court’s action
is no more compatible with the Fourteenth Ameadment.
No branch of government can require, encourage or partici-
pate in a policy of racial segregation, Cooper v. Aaron,
358 U. S. 1, 16-17, and certainly a court cannot decide to
enforce a will provision mandating segregation as against
another provision that is in harmony with the Constitu-
tion.
The court’s decision cannot be passed off as the resolu-
tion of a will construction problem under traditional rules
of state law. Overriding federal law steps in and says that
any term of the will that blatantly violated the Fourteenth
Amendment is not entitled to consideration by the state
court. Had the Georgia courts followed this principle, they
would have had no choice but to implement the provision
requiring perpetual ownership by the city.
Petitioners requested that the court reject the resigna-
tion and compel the city to fulfill its obligation under the
will and its constitutional obligation to accord equal treat-
ment to all citizens (R. 63). By rejecting this request, the
courts of Georgia acted in defiance of the Constitution.
22
IV.
Baconsfield Is a Public Facility From Which Negroes
Cannot Be Excluded.
Respondents have argued that “characterization of
Baconsfield as a ‘public’ park begs the question” (Brief in
Opposition, p. 7), but calling it public has substantive as
well as semantic significance. It was created pursuant to
Ga. Code §69-504, which bears the heading “Gifts for public
parks or pleasure grounds.” The statute describes the
lands conveyed as “dedicated in perpetuity to the public
use as a park, pleasure ground or for other public pur-
pose.” In every conceivable respect but one Baconsfield
is and has been a public park. Until this litigation it was
owned by the city and operated under the management of
an appointed board of managers. The city and board also
owned and administered the separate trust fund set aside
by Bacon for maintenance of the park (R. 22-25). The
city, through its board, had “complete and unrestricted
control and management of the said property with power
to make all needful regulations for the preservation and
improvement” of the park (R. 3). Ga. Code §69-505 author-
ized the city “to improve, embellish, and ornament the
land so granted as a public park,” and so far as the record
shows, Baconsfield’s appearance is like that of any other
public park. The great majority of the public are allowed
to go on the premises of this large,* open tract of land
at will and without charge.
8 Baconsfield’s area does not appear in the record, but its dimensions as
set forth in the legal description are very large. The irregular eastern
boundary is approximately 4155 feet, the northern boundary is 1662 feet,
the western and southern boundaries at least 3397 and 437 feet, respec-
tively (R. 17).
23
The only difference between Baconsfield and any other
public park is the exclusion of Negroes. But that does
not differentiate it from other public parks in Georgia,
where the policy of the state, as expressed in §69-504 and
as manifested by the actions of all state agencies in this
suit, has been to have all public parks exclude one race
or the other. Even after the decisions outlawing racial
segregation in public schools and other public facilities,
eg., Brown v. Board of Education, 347 U. S. 483; Muir v.
Louisville Park Theatrical Ass’n., 347 U. S. 971; New Or-
leans City Park Improve. Ass’n v. Detiege, 358 U. S. 54;
Watson v. Memphis, 373 U. S. 526, several Georgia com-
raunities have been guilty of requiring segregation in pub-
lie recreational facilities or actually operating segregated
facilities, see, e.g., Holmes v. City of Atlanta, 350 U. S. 879;
Anderson v. Albany, 321 F. 2d 649 (5th Cir. 1963); Law
vy. Jekyll Island State Park Authority, C. A. No. 8579
(N. D. Ga., July 27, 1964) ; ef. Wright v. Georgia, 373 U. S.
984.2 This Court’s rulings having rendered unlawful the
continued operation of public parks on a segregated basis,
it is an anomaly indeed if this park can be singled out and
allowed to segregate.
Irrespective of state ownership, past or present, it is
highly questionable whether any open park land available
for use by a majority of the people can be segregated.
By close analogy, this Court’s decision in Marsh v. Ala-
bama, 326 U. S. 501, indicates that even a privately owned
park which is open to most of the public must admit all
of the public. In Marsh the court emphasized the similarity
between the company town of Chicasaw and any other town,
*In 1956, in an obvious response to Holmes v. Atlanta, 350 U. 8. 879,
Georgia enacted a law allowing public parks to be sold, leased or otherwise
disposed of without regard to whether the property was unsuitable or
inadequate for park purposes. Act No. 20, Ga. Laws 1956, Vol. I, p. 22.
24
and refused to accept private ownership as a reason for
ignoring the Fourteenth Amendment:
..» Ownership does not always mean absolute dominion.
The more an owner, for his advantage, opens up his
property for use by the public in general, the more
do his rights become circumscribed by the statutory
and constitutional rights of those who use it.... Thus,
the owners of privately held bridges, ferries, turn-
pikes and railroads may not operate them as freely
as a farmer does his farm. Since these facilities are
built and operated primarily to benefit the public and
since their operation is essentially a public function,
it is subject to state regulation. ... 326 U.S. at 506.
Petitioners submit that recreational parks are also “built
and operated primarily to benefit the public” and “their
operation is essentially a public function.” *° The Legis-
lature of Georgia in 1905 viewed it a public function to
encourage the establishment of public parks, see Ga. Code
§69-504, and present Georgia law authorizes municipalities
to set aside existing public property or acquire new prop-
erty for use as parks, playgrounds, and recreation centers,
see Ga. Gode Ann. §§69-601 to 69-616. Thus the reasoning
in Marsh v. Alabama fully supports the contention that
irrespective of ownership, a public park cannot be operated
for white persons only. To hold otherwise would be to
say that the validity of an absolute prohibition on the
distribution of literature in Baconsfield depends on who
holds legal title.
The overriding significance of function, as opposed to
ownership, is also demonstrated by the decisions of the
Fourth Circuit in Simkins v. Moses H. Cone Memorial
1° See Lombard v. Louisiana, 373 U. 8. 267, 274 (concurring opinion) ;
Bell v. Maryland, 378 U. 8. 226, 286 (concurring opinion).
25
Hospital, 323 F. 2d 959 (4th Cir. 1963), cert. denied, 376
U. S. 938, and Eaton v. Grubbs, 329 F. 2d 710 (4th Cir.
1964), which held that medical facilities owned and oper-
ated by private groups under comprehensive state plans
are subject to the nondiscrimination requirements of the
Fourteenth Amendment. These decisions clearly apply to
those private facilities which the state takes into account
when deciding whether to provide other facilities. Bacons-
field is such a facility, for the City of Macon stated its
concern, in the resolution authorizing resignation, that
Baconsfield not be lost to public use (R. 60).
Baconsfield is not a hospital with necessary limitations
on entry and use. It is open park land, inherently a part
of the public life of the community. “Wherever the title
of streets and parks may rest, they have immemorially
been held in trust for the use of the public and, time out of
mind have been used for purposes of assembly, com-
municating thoughts between citizens, and discussing pub-
lic questions.” Hague v. CIO, 307 U. 8. 496, 515 (concurring
opinion).
The considerations discussed above support the conclu-
sion that Baconsfield would have to be opened to all of the
public even if it had never been owned and managed by
the city. Petitioner’s case is strengthened by the history of
Baconsfield’s ownership and operation by the city and the
transfer to private trustees for the purpose of allowing
discrimination.
0 4
26
V.
The Charitable Trust in This Case Is so Much the
Creature of the State and so Related to an Inherently
Public Aspect of Community Life as to Be Governed
by the Fourteenth Amendment Prohibition of Racial
Discrimination.
The State of Georgia is in so many ways responsible for
the creation of Baconsfield and its continuous operation
on a segregated basis that it is difficult to isolate the
various strands of doctrine supporting petitioners’ consti-
tutional position. Focus has centered on the statute en-
acted in 1905 which puts this case well within the rule of
Peterson v. Greenville and Robinson v. Florida. Emphasis
has been placed upon the concerted action of state agencies
toward the single goal of assuring segregation in Bacons-
field. These factors make Shelley v. Kraemer applicable
as well as those cases forbidding a state institution to
transfer public property for the purpose of continuing
racial discrimination. It has been argued that the courts
of Georgia violated the Fourteenth Amendment by giving
weight and preference to an invalid racial limitation over
another, inconsistent clause in Bacon’s will. And the fourth
argument was that Baconsfield is inherently a public facility
like any other public park, which under the doctrine of
Marsh v. Alabama and the recent hospital cases cannot
discriminate even when operated by private trustees.
Those arguments are sound, but there is another con-
cerning the unique nature of the charitable trust that should
be considered by the Court. A charitable trust is so much
a creature of the state that it ought to be subjected to
particularly close scrutiny when it calls for discrimination
against persons according to race or color.
27
The testamentary charitable trust takes effect only when
the state’s judicial branch upholds its validity and sanc-
tions its enforcement. If in the eyes of the state the
trust does not serve a permissible public purpose, it will
not be enforced. The very fact that the Baconsfield trust
was approved by the state demonstrates, apart from the
significance of Ga. Code §69-504, that the State of Georgia
approves the establishment of public institutions for the
exclusive benefit of white persons. If the State of Georgia,
acting through its legislature or courts, determined that
the operation of public facilities for one race only was in-
consistent with public policy, Baconsfield would not exist
in its present form.
The usual purposes of charitable trusts such as support
of educational and religious institutions, aid for the poor,
and other goals generally accepted as charitable are ap-
proved by the state because dollars given by the charitable
donor fulfill needs that, except for religion, would other-
wise be a burden of the state. It is incongruous in the ex-
treme that the state should protect and enforce charitable
institutions serving the needs of the state but not governed
by essential principles of fairness which the state itself
is bound by the Constitution to observe.
Georgia, like other states, has an elaborate legal struc-
ture encouraging and sanctioning the creation of charitable
trusts. Statutes provide for the enforcement of charitable
trusts in equity, see Ga. Code Ann. $108-201, continuous
supervision by the courts, §108-204, and effectuation of
the testator’s charitable intent under the cy pres doctrine,
§108-202. Charitable trusts are looked upon with special
favor, see, e.g., Simpson v. Anderson, 220 Ga. 155, 137
S. E. 2d 638 (1964); Goree v. Georgia Industrial Home,
187 Ga. 368, 200 S. E. 684 (1938).
28
The testamentary charitable trust begins with state ap-
proval by the court of equity. The trustees are bound to
follow the terms of the trust, and since the beneficiaries
of charitable trusts by definition constitute a rather broad
class of individuals, the trustees may be challenged not
only by members of the favored group, but by the state
attorney general or, in Georgia, the solicitor general of
the circuit in which the trust corpus lies. See Ga. Code
§108-212.
Having encouraged the creation of charitable trusts and
provided a system of law, both legislative aad judicial, for
their effectuation, the state does not end its aid to charitable
trusts. It grants them among other things exemption from
taxation. Georgia’s constitution and statutes are no ex-
ception from the general rule. See Ga. Const. 1945, Art. 7,
Sec. 1, Par. 4; Ga. Code §2-5404; Ga. Code §92-201. It
happens that since 1918 Georgia has conditioned tax exemp-
tion on the maintenance of racial restrictions in the opera-
tion of charitable trusts: “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 ;” Editorial
note, Ga. Const. 1877, Art. 7, Sec. 2, Par. 1, Ga. Code Ann.
§2-5002. Tax exemption is a boon to the testator setting
up a charitable trust. It assures that the resources he
leaves will not be siphoned off into the state treasury but
will be evoted exclusively to his purposes. The state ex-
empts charitable trust assets from taxation because the
trust is doing the work of the state; for the state to tax
them would be like removing money from one pocket and
placing it into another.
Probably even more desirable to the testator considering
the establishment of a charitable trust is that most valuable
incident, perpetual existence. Private trusts are restricted
29
in duration by the rule against perpetuities, see, Ga. Code
(85-707, but charitable trusts are not, see Regents of Uni-
versity System v. Trust Co. of Georgia, 186 Ga. 498, 512,
198 S. E. 345 (1938); Murphy v. Johnston, 190 Ga. 23,
8S. E. 2d 23 (1940) ; Pace v. Dukes, 205 Ga. 835, 55 S. E. 2d
367 (1949). See also Ga. Code §69-504. The state allows
dead hand control perpetually on the theory that the public
will perpetually benefit.from a charitable trust. A man
has some right to exercise his prejudices in the use of his
private property during his life, and to dispose of his
property by will, making arbitrary choices about its re-
cipients and uses. But no man has the right to control
his property through eternity. The state sets temporal
limits on testamentary encumbrances, and in the excep-
tional situation of the charitable trust it exercises close
supervision. In this case Georgia has not only given
Bacon’s trust perpetual existence, but has exercised its
broad powers to assure the maintenance of segregation to
the end of time.
Another advantage conferred by Georgia on charitable
trusts is immunity from tort liability in certain situations.
An institution’s “charitable assets” cannot be recovered
for the negligence of employees. Morehouse College v.
Russell, 219 Ga. 717, 1385 S. E. 2d 432 (1964); id., 109 Ga.
App. 301, 136 S. E. 2d 179 (1964); Cow v. De Jarnette,
104 Ga. App. 664, 123 S. E. 2d 16 (1961). Georgia has a
comparable doctrine of tort immunity for municipalities,
Ga. Code §69-301, which applies to the operation of public
parks, Stubbs v. City of Macon, 78 Ga. App. 237, 50 S. E.
2d 866 (1948); Jones v. City of Atlanta, 35 App. 376, 133
§. E. 521 (Ga. Ct. App. 1926).
The features of state involvement in the creation of
charitable trusts are so manifold that such trusts are to
a significant degree creatures of the state and the special
30
beneficiaries of the state even though they begin with a
private decision and with privately owned property. See
Clark, Charitable Trusts, the Fourteenth Amendment and
the Will of Stephen Girard, 66 Yale L. J. 979, 1002-09
(1957). Without regard to whether other types of chari-
table trusts shou!d, because of these state contacts, be
subject to the Fourteenth Amendment, the Baconsfield
trust has features which require that it be subject to the
Amendment. The Baconsfield trust receives the continued
support, recognition, and sanction of state law on the
theory that a park is a benefit to the community and serves
the community. It is a trust totally involved with the
public life of the community, the intended domain of the
Fourteenth Amendment, and is to some degree distinct
from charitable trusts which because of the nature of their
enterprises necessarily offer direct benefits to only small
portions of the community. Baconsfield was established so
as to offer its beneficial use directly to every member of
the public, except Negroes. It flies in the face of the Four-
teenth Amendment’s prohibition against the exclusion of
persons from the benefits and protections of state law on
the basis of race. This is all the more evident where, as
here, the initial decision to discriminate racially was en-
couraged by an explicitly racial state statute. An overall
appraisal of the nature of state involvement in the trust,
the nature and function of the trust in the community,
“the benefits mutually conferred” by the testator and the
state, and the role of the state legislature and state judi-
ciary in establishing and continuing the park on a segre-
gated basis, leads irresistibly to the conclusion that this
case involves “that degree of state participation and in-
volvement in discriminatory action which it was the design
of the Fourteenth Amendment to condemn.” Burton v.
Wilmington Parking Authority, 365 U. S. 715, 724.
31
CONCLUSION
For the foregoing reasons the judgment below should
be reversed.
Respectfully submitted,
Jack GREENBERG
James M. Nasri, III
MicHaEL MELTSNER
Cuartes STEPHEN RatsTon
Frank H. Herrron
10 Columbus Circle
New York, New York 10019
Donatp L. HoLttoweEL.
WruiusM H. ALeExanper
Howarp Moorsg, Jr.
85914 Hunter Street, N.W.
Atlanta, Georgia 30314
Attorneys for Petitioners
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