Appendix — Evans v. Abney

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1968

No. 1106

E. S. EVANS, ET AL., PETITIONERS,

v8.

CHARLES E. NEWTON, ET AL.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF THE

STATE OF GEORGIA

INDEX

Original Print

Proceedings in the Supreme Court of the State of

Georgia

Bill of exceptions si J 1

Judge’s certificate to bill of exceptions = 4 4

Record from the Superior Court, Bibb oP

I ieccncscisetceesninsiaisteniinittinats 12 5

i ihcsinsscieselrapietiieinectedaeia da dasitcctensotkenetgoe itis came 12 5

Exhibits A & B—Last will and testament of

Augustus Octavius Bacon, dated March 28,

1911 and the codicil thereto, dated Septem-

ber 6, 1913 19 10

Answer of defendant, City of Macon _ a 47 82

Answer of defendants, Guyton G. Abney, J. D.

Crump, T. I. Denmark and Dr. W. G. Lee, as

SEMEN SUPUMIIINI: QIN seicetecsadncnecanscnsemensensiionancocinns 51 34

Motion for summary judgment ; 54 35

Motion of Rev. E. 8. Evans et al. ‘to intervene

I I sae toni cmens 56 36

NE SI iatactsceisaniscistbiinabisaiesipeanaed, 59 38

ii INDEX

Original Prin,

Record from the Superior Court, Bibb County,

Georgia—Continued

Amendment to plaintiff’s petition and order al-

lowing 6 4

Petition of A. O. B. Sparks, Willis B. Sparks, Jr.,

Virginia Lamar Sparks and M. Garten Sparks

for intervention and order allowing time 69 5

Amendment to answer and cross bill and order

allowing 72 6

Amendment to answer of City of Macon and

order allowing 76 50

Exhibit A—Resolution of the Mayor and Coun-

cil of the City of Macon adopted February 4,

1964 79 51

Exhibit B—Resignation of The City of Macon

as Trustee Under Will of Senator Augustus

Octavius Bacon 94

Amendment to intervenors’ petition and order

thereon 95 62

Order and decree 99 64

Resignation of The City of Macon as Trustee

Under Will of Senator Augustus Octavius

Bacon 101 66

Acceptance of trust 102 67

Clerk’s certificate (omitted in printing) ____ 103 67

Motion to amend bill of exceptions 105 67

Second motion to amend bill of exceptions ___ 110 69

Motion of Charles E. Newton, et al. to substitute

parties defendant-in-error 115 70

Exhibit “A”—Resignation of Board of Managers

of Baconsfield — 119 73

Exhibit “B”—Acceptance of Resignation of

Board of Managers; Appointment of New

Board of Managers and Acceptance of Ap-

pointment of New Board 120 14

Order granting motion to substitute parties de-

fendant-in-error, etc. 122 75

Motion to add parties defendant-in-error and to

deny defendants-in-error’s motion to substitute

Original Print

Order granting second motion to amend the bill of

exceptions, ete. 79

Order granting motion by Charles E. Newton et al.,

defendants-in-error, etc. ad En N 131 80

Opinion -...--- 132 81

Opinion, Almand, J. 141 a5

Judgment -...-- 147 89

Motion for rehearing .. 148 89

Certificate of probable cause for rehearing ........ 151 91

Order denying motion for rehearing ...................-- 153 92

Clerk’s certificate (omitted in printing) -....-..-..------- 154 92

Order extending time to file petition for writ of

certiorari -...---- 155 93

Order allowing certiorari 156 94

Opinion of Supreme Court of Georgia in Evans

et al. v. Newton et al. 131 95

Motion for summary judgment 136 98

Amendment substituting parties 143 105

Interrogatories -....----- 145 107

Answers to interrogatories 151 113

Response to motion for summary judgment by

intervenors ..- ‘ 157 119

Response to motion for summary judgment by

suecessor trustees . 161 123

Response to motion for summary judgment by

executors .... 164 125

Interrogatories : 166 127

Answer of Board of Managers .........--------------------- 172 133

Second set of interrogatories ..........- am a 182 142

Answer to interrogatories ... , 185 144

Depositions of Mayor, et al. 193 147

Intervenors’ supplemental response to motion for

summary judgment ....... / 371 242

Exhibit “B”—Minutes of meetings of Board of

Managers—Baconsfield ...........-------------+------0-"" 506 246

iv INDEX

Votume II

Excerpts from Exhibit “E”

Exhibit “F’”—Indenture dated February 4,

1920

Exhibit “G”—Indenture dated February 4,

1920

Amendment to motion for summary judgment—

Filed June 29, 1967 io.

Exhibit “A” annexed to foregoing .............

Exhibit “B” annexed to foregoing ..................

Exhibit “C” annexed to foregoing ...................

Exhibit “D” annexed to foregoing .................

Excerpts from resolution of Mayor and Council ....

Order making Attorney-General a party to case ....

Intervenors’ second supplemental response to mo-

tion for summary judgment

Affidavit of William H. Alexander

Exhibit “O”

Exhibit “P”

Exhibit “Q”

Exhibit “R”

Exhibit “S”

Exhibit “T”

Exhibit “U”

Exhibit “V”

Exhibit “K”

Exhibit “M”

Intervenors’ third supplemental response to motion

for summary judgment

hve ao SNe

Exhibit “X”

Exhibit “Y” :

Supplement to motion for summary judgment as

RE 2: SE a ee

§ eee

a EE ea Ue, rk CE OS eae GS

662

671

676

678

695

710

713

715

718

721

723

917

919

921

924

930

931

935

—

INDEX v

Original Print

Second supplement to motion for summary judg-

ment as amended 939 468

Exhibit “H” 941 470

Exhibit “I” 947 476

Exhibit “J” 949 478

Exhibit “K” 959 488

Exhibit “M” 963 491

Response by Attorney Gemeral to motion for sum-

mary judgment 975 502

Order and decree 999 517

Notice of appeal 7 531

Enumeration of errors 1106 532

Decision and opinion by Superior Court ................ 1112 537

Judgment 1127 546

Order granting stay ; ° 547

Order allowing certiorari ...................---.-c-c-csec-ssereeees . 548

* Not in original recordi.

347

$ [595] Excerpts rrom Exuisit “EK”

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National Archives and Records Service

Go ull to @hom these presents shall come, Greeting:

3 Certify That the attached copy, or each of the specified number of

ached copies , of the document(s) identified below is a true copy of a document

legal custody of the Administrator of General Services and deposited

the National Archives of the United States.

Records of the Worke Projects Administration, RG 69, selected

pages from Project Folders OP 65-34-1077 through 1096

(come pages mavoidably illegible).

twheresl, 1, ROBERT H. BAHMER, Archivist of the United States,

being duly authorized (41 CFR 101-7.106-3), have

hereunto caused the Seal of the National Archives

to be affixed and my name subscribed by the

Chief, Central Reference Staff

of the National Archives, in the District of Columbia,

this __239rd day of __sume 19__§7_.

/~3b- YH /thites

_ Archivist of the United States

er: BA 4 tech,

—

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ORATOR TONIC EOE

353

(650)

Exuuisir “F”

Deed Book 248 11

Srate oF Georcia, County oF Bras.

Tuts InDENTURE, Made and entered into this the 4th

day of February, 1920, between Richard C. Jordan, Samuel

B. Hunter, Custis Nottingham, as Trustees of the estate of

Augustus Octavius Bacon, parties of the first part, and

the city of Macon, party of the second part

WirnesseTH: That the said parties of the first part,

in consideration of the devise to the Mayor and Council

of the city of Macow. contained in the Will of Augustus

Octavius Bacon, of solemn probate in the court of Ordinary

of Bibb County, Georgia, and in consideration of the as-

sent of all heirs and legatees of said estate, as evidenced

by their writing under date of January ——-, 1920 hereto

annexed and made a part of this conveyance, and in fur-

ther consideration of the covenants of The City of Macon

to pay as a charge against said lands the sum of One

Thousand six hundred and sixty five ($1665.00) Dollars,

payable annually on the 4th day of February of each

year to grantors herein named during the natural life of

Mary Lou Bacon Sparks, said charge to cease and termi-

nate upon the death of the said Mrs. Mary Lou Bacon

Sparks, and in further consideration of the agreement on

the part of The City of Macon that no taxes or other

assessments which may accrue after this date against the

property herein conveyed shall be a charge against the

other property of said estate;

The Trustees do, for the consideration aforesaid, hereby

sell, convey and deliver unto the said The City of Macon,

its successors, a

354

All that tract or parcel of land lying and being in the _

county of Bibb, State of Georgia, containing one hundred

the hundred and seventeen and seven-tenths (117.7) acres,

more or less, and being just on the East side of the

Ocmulgee River, near the Spring Street Bridge, said prop.

erty lying on both sides of the public road or street, known

as Boulevard, Baconsfield and [651] being more partic

ularly described in Item Nine of the Will of Augustus

Octavius Bacon, of solemn probate and record in The

Court of Bibb County, Georgia,

Which description is hereby referred to and incorporated

as a part‘of this conveyance, and being more fully shown

by plat of said tract attached to said Will, and recorded

in Book F, Folio 354, in the Ordinary’s Office of Bibb

County, and a copy of which plat is hereto attached, and

made a part of this deed. These references to said Will

and Plats are made for the purposes of a more complete

description.

And the said parties of the first part, in consideration

of said foregoing stipulations and of the provisions of said

Will, do hereby convey to The City of Macon the following

personal property, to-wit:

Ten (10) Bonds, Nos. 584 to 593 inclusive, of the

Macon Railway & Light Company, each in the sum of

One Thousand ($1,000.00) Dollars, and bearing interest

at the rate of five (5) per cent, annually, payable semi-

annually, each of said Bonds having attached thereto all

coupons unmatured, and the following matures coupons;

coupons due in the month of July, 1919, and coupons due

in the month of January, 1920, and twenty five hundred

($2500.00) Dollars in cash, the avails of said Bonds, ac-

crued interest since death of the said Augustus Octavius

Bacon, collected by the said Trustees.

—

355

Ix ConsmperaTion of which the said The City of Macon

agrees to appropriate Six Hundred and fifty ($650.00)

Dollars annually for the improvement of said Park, said

gum being five (5) per cent. on the aggregate of Thirteen

Thousand ($13,000.00) Dollars thus covered into her Trea-

sury.

Ix Wiryess Wuenrezor the said parties of the first part,

as Trustees of the estate of Augustus Octavius Bacon,

have hereunto set their hands and affixed their seals the

day and year first above written.

[652] Signed, sealed and de- Samuel B. Hunter (LS.)

livered in the presence of: RR. C. Jordan (L.8.)

A Ethridge Custis Nottingham (L.S.)

Julia E. Greene, Notary As Trustees under last Will

Public, Bibb County, Ga. and Testament of Augustus

Octavius Bacon.

(For Plat see Book 83, Folio 248)

(Recorded Feb. 10, 1920)

ee NTE NE NE

Exuisir “F”

Starz or Georcia, County or Biss

CieRrx’s Orrice, Biss Superior Court.

I, James Murphy, Dep. Clerk of the Superior Court, g

court of record in and for said County, do hereby certify

that the foregoing 1 page contains a true and correct copy

of Deed from Trustees of the estate of Augustus Octaving

Bacon to City of Macon as recorded in Deed Book 248

Page 11 as the same appears of file and record in said

Clerk’s Office.

Witness my official signature and the seal of said Court,

this 2nd day of February, 1967.

/8/ James Murpuy,

Dep. Clerk, Superior Court

Bibb County, Georgia

(Superior Court Bibb County, Georgia)

(Seal)

357

(653)

Exuisit “‘@”

Deed Book 248, Page 16

Gzorcia, Biss County.

Tus Inpenture, Made and executed this 4th day of

February, 1920, between Custis Nottingham, party of the

frst part, and the City of Macon, party of the second

part;

WrrvesseTH: That the said Custis Nottingham is con-

sideration of the sum of Five Thousand, one hundred

($5,100.00) Dollars, to him this day cash in hand paid by

the City of Macon the same being the present cash value

of his occupancy of the dwelling house in the Park at

Baconsfield, and in consideration of the City of Macon

taking over all of said Baconsfield as a Park, and same

being fully described in conveyance from Richard C. Jor-

dan, et al., Trustees to the city of Macon, of even date

herewith, does remise, release and forever Quir Ciaim to

the said the City of Macon all right, title, interest and

equity he has in the premises so occupied by him under

Item Four (4) of the Codocil to the Will of Augustus Oc-

tavius Bacon, of solemn probate and record in the office

of Ordinary of Bibb County, Georgia.

It being Agreed and understood by and between the

parties hereto that the said sum of Five Thousand, One

Hundred ($5,100.00) Dollars represents the present cash

value of the interest of the said Custis Nottingham in

the property and premises herein described and conveyed,

being based on the right of occupancy of the said Custis

Nottingham to said premises under the terms and condi-

tions of the Will of the late Augustus Octavius Bacon,

358

deceased ; said expectancy being for a term of sixteen (16)

years.

And it is further agreed and understood that in the

event the possession of the property this day conveyed to

the said City of Macon by R. C. Jordan, et al. Trustees,

is ever retaken by the said Trustees, or their successors,

then, and in that event the said Custis Nottingham agrees

to accept from the said city of Macon a surrender of the

premises herein conveyed to it and to return to the City

of Macon the unearned portion of said Five Thousand,

One Hundred ($5,100.00) Dollars, [654] based upon a six-

teen (16) year expectancy.

The premises above referred to are the same occupied

at the date of the execution of said will by the said Custis

Nottingham and his family, and now occupied by them.

In Wirwess Wuenreor, I have hereunto set my hand and

affixed my seal the day and year first above written.

Signed, sealed and delivered in the presence of:

H. Budisill Custis Nottingham (LS.)

Julia E. Greene, Notary Public,

Bibb County Georgia.

($5.50 Revenue stamps cancelled)

(Recorded Feb. 13, 1920)

Exurir “G”

Srate or Gzorcia, County or Biss

Cieex’s Orricz, Briss Supezion Covrr.

I, James Murphy, Dep. Clerk of the Superior Court, a

court of record in and for said County, do hereby certify

that the foregoing 1 page contains a true and correct copy

of Deed from Custis Nottingham to the City of Macon as

recorded in Deed Book 248, Page 16 as the same appears

of file and record in said Clerk’s Office.

Witness my official signature and the seal of said Court,

this 27th day of April, 1967.

/8/ James Murpuy

Dep. Clerk, Superior Court

Bibb County, Georgia

(Superior Court Bibb County, Georgia Seal)

—

[662]

Iw roe Supznzion Court or Briss County

[Title Omitted]

AMENDMENT TO Motion ror SumMaARY JUDGMENT

—Filed June 29, 1967

Come now Guyton G. Asyey, J. D. Crump, T. I. Denuanx

and Dr. W. G. Lez as Successor Trustees under the Last

Will and Testament of Augustus Octavius Bacon, an?

tender this amendment to their motion for summary judg.

ment as previously filed:

1.

Movants tender this amendment in order to reflect that

their motion is based upon certain additional evidence by

way of affidavits and aerial photographs and a swimming

pool lease attached hereto.

2.

Specifically the additional evidence attached hereto con-

sists of the following:

(1) An envelope marked “Exhibit A” containing seven

aerial photographs of the Baconsfield area numbered “1”

through “7” on their reverse side and initiated by Frank

M. Willingham.

(2) An affidavit of Frank M. Willingham, Chairman of the

Board of Managers of Baconsfield, identifying the contents

of each of the seven photographs by number and also

identifying a lease of Baconsfield Pool, hereto as “Ex-

hibit B”.

361

(3) An affidavit of Ralp B. Jones, a commercial photog-

rapher, who took the aerial photographs and who identi-

fies them, attached [663] as “Exhibit C”.

(4) A lease of Baconsfield Pool from the Board of Man-

agers of Baconsfield to the City of Macon dated Decem-

ber 21, 1948 bearing the original signatures of officials of

those two bodies, this lease being attached as “Exhibit D”.

WuerzrorzE, movants pray that this amendment with its

accompanying exhibits be allowed and ordered filed of

record.

/8/ Jones, Sparks, Benton & Conk

Jones, Sparks, Benton & Cork

Attorneys for Movants

362

[664]

Exuzrr A

(See Opposite) &

a

[665]

(See Opposite) =

SS

[666]

(See Opposite) =

368

[667 ]

(See Opposite) &

370

[668]

ns ncaa

(See Opposite) =

372

[669]

(See Opposite) =

374

[670]

(See Opposite)

Exuisit “B”

Tue Superior Court or Biss County

[Title Omitted]

Arripavir In Support oF Motions ror Summary

JUDGMENT OF THE @ErRs oF Senator A. O. Bacon

anp Guyton ABNEY ET AL. aS Successor TRustegs

Unper Bacon’s WiLL

I am Frank M. Willingham. I live on Oakcliff Road ip

Macon, Georgia and am President of Willingham Cotton

Mills in Macon. I have served continuously as a member

of the Board of Managers of Baconsfield since about 1954,

I was elected Chairman of the Board of Managers of

Baconsfield at a meeting on May 21, 1964 to fill that posi.

tion upon the resignation of former Chairman Charles §,

Newton.

The purpose of this affidavit is to explain the contents of

seven aerial photographs of the Baconsfield area which I

understand are to be placed in evidence by Attorneys for

the heirs of Senator Bacon and trustees for certain other of

his heirs. I am familiar with the entire Baconsfield avea

because of my connection with the Board of Managers of

Baconsfield. In each of the seven aerial photographs I am

able to recognize without difficulty all or a portion of the

Baconsfield area. These photographs taken from different

angles seem to include the entire park area as well as to

show that part of Baconsfield which Senator Bacon left as

income producing property.

I am informed the photographs were taken by Mr. Ralph

B. Jones of Drinnon, Inc. on June 16, 1967, and information

stamped on the reverse side of these prints so indicates.

—

The seven photographs have been numbered “1” through

«7 in ink on their reverse sides, and I have placed my

initials beside the said numbers on each print.

377

| will now give some description of what is seen in each

of the seven photographs.

(672) Photograph numbered “1” is a view looking in a

generally southeasterly direction. About one inch up from

the bottom of the print and very near the center of the print

is an intersection of two streets. The street which runs

from that point up and to the left reaching the left margin

of the print at a point approximately six inches up from the

bottom of the same is Nottingham Drive. This street forms

hat may generally be described as the northeastern

boundary of the park area. The street which runs at right

angles to Nottingham Drive from the aforementioned inter-

section toward the right hand margin of the print is Park-

view Drive. It forms the northwestern boundary of the

park area. The street which comes into view six inches up

the left margin of the print and which goes out across the

bridge nearest the center of the photograph into the city

is known as North Avenue or Spring Street. It forms the

southeastern boundary of the park area. Southeast of that

street may be seen a cluster of buildings some of which

comprise the Baconsfield Shopping Center, which has pro-

duced income over the years for the upkeep of Baconsfield.

Beyond these buildings may be observed another street

known as Emory Highway. There is additional property

left by Senator Bacon for the purpose of raising income

for his park beyond Emory Highway i. e. southeast of it.

Three inches from the left end of the paper and two and

an eighth inches down from the top of the paper one may

observe the entrance from North Avenue of a paved street

into the Park which is known as Lee Boulevard. This street

378

may be observed proceeding in a northwesterly direction

parallel to Nottingham Drive and then curving sharply ty

the northeast and then dividing in two as it enters Notting.

ham Drive leaving a triangular section of grass. The center

of this triangle of grass is two inches from the left end of

the paper and four and a quarter inches from the bottom of

the paper.

[673] Just northwest of where Lee Boulevard comes int

Nottingham Drive there may be observed another roaq

running off of Nottingham Drive into the park area in the

lower foreground and coming across to dead end in Park.

view Drive. This is an unpaved dirt road.

Two other roads running through the park from Lee

Boulevard over to Parkview Drive appear. They are paved.

The double ribbon of concrete entering the picture from

the right margin at a point approximately three and one.

half inches up from the bottom of the paper is newly opened

Interstate Highway 16. Since Bacon’s grant for the park

extended in a southwesterly direction to the Ocmulgee

River, this Highway runs across land given in that devise,

It was acquired by condemnation. However, before the

construction of Interstate Highway 16 the area which has

now been raised to underlie the Highway was frequently

inundated by floodings of the Ocmulgee River so that the

developed part of the park never extended as far toward

the River a: the present position of Interstate 16.

Photograph numbered “2” is taken from practically the

same direction as photograph numbered “1” already dis-

cussed.

Photograph numbered “3” is a view of the park area

looking in a generally southwesterly direction. Notting-

ham Drive forming the northeastern boundary of the park

may be observed running across the print about two and one

379

quarter inches from the bottom of the paper. Beyond it

may be viewed in succession the Park, Interstate Highway

16, the Ocmulgee River and the City of Macon.

Photograph numbered “4” is a view looking in a gener-

ally northeasterly direction. The Ocmulgee River and

Interstate Highway 16 may be viewed in the foreground.

The street running vertically along the lower left hand of

the print about one half inch from the end of the paper is

Parkview Drive previously referred to as the northwestern

poundary of Baconsfield Park.

(674] Photograph numbered “5” is a view from the

southeast. The prominent road down the left hand side of

the print is Interstate Highway 16. The structure in the

park rather well centered in the photograph and about two

and one half inches up from the bottom of the paper is the

building known as the Woman’s Club. The street passing

under Interstate Highway 16 at the lower left corner of

the print is North Avenue or Spring Street. The street

intersecting Spring Street at about the middle of the print

and one and one-quarter inches up from the bottom of the

paper and running diagonally out of sight at the bottom

right hand corner of the print is the Emory Highway.

Bacon’s commercial area lies east or southeast of Spring

Street. The Baconsfield Shopping Center leased by the

Board of Managers to provide an income for the upkeep of

the park lies in a triangular area between Spring Street

and the Emory Highway. Other parts of Bacon’s commer-

cial property lie to the far side of Emory Highway from

the park and some portion of that property is shown in the

lower foreground in photograph “5”.

The entire area in photograph “5” lying between Spring

Street and the Emory Highway is not a part of the Bacons-

field Shopping Center. Rather the broad alley in the lower

380

right hand corner of the picture approximately two ang

three quarter inches from the right hand border of the

paper and running parallel with it separates Bacon’s income

producing property on the left from another unrelateg

shopping center to the right of that alley.

Photograph “6” is a view toward the west. The Bacons.

field Shopping Center leased by the Board of Managers

appears in the lower left hand corner in a triangular shape,

In the lower left corner there is discernible a sign reading

“Piggly Wiggly”. The alley just beyond that sign serves

as a division between Bacon’s triangular shopping center

and a similar project nearer the left hand bottom of the

picture.

[675] Finally photograph numbered “7” shows a view of

property lying southeast of North Avenue. In the center

of the photograph and approximately three and three quar-

ter inches from the bottom of the paper are the remnants

of Baconsfield Swimming Pool. This pool is located upon

what Bacon had designated as a portion of that property

to raise income to support his park. The circular roadway

passing in close proximity to the ruins of the pool is a

ramp to Interstate Highway 16.

A five page lease of this pool from the Board of Managers

of Baconsfield to the City of Macon dated December 21,

1948 was operative until May of 1964 when it was cancelled,

I have placed my initials on the top of the first page thereof

to identify it as the one I refer to and of which I have

personal knowledge. During the spring of 1964 the ramp

to Interstate Highway 16 was under construction, and heavy

road machinery was operating in close vicinity to the pool.

The pool was not opened in the summer of 1964 and has

not been opened since then.

381

I have read this five page affidavit in its entirety and it

is true and correct in every respect and, if need be, I could

and would swear under oath to the truth of its contents in

open court.

/s/ Frank M. Wiuiwenam

Frank M. Willingham

Personally appeared before me, the

undersigned, an officer duly author-

ized to administer oaths, Frank M.

Willingham, who having been placed

under oath has sworn that the con-

tents of the foregoing affidavit are

true and correct in every respect.

This 28 day of June, 1967.

/s/ H. V. Lamon (N. P. Seal)

Notary Public Residing in

Bibb County, Georgia

[676]

Exursit “CO”

Tue Superior Court or Briss County

[Title Omitted]

Arripavir 1s Support or Motions ror Summary

JUDGMENT OF THE Hers or Senator A. O. Bacon

anp Guyton ABNEY ET AL. aS Successor TrRusTezs

Unver Bacon’s Wi

I am Ralph B. Jones. I am now and have been for thirty.

five years a professional photographer. For nineteen years

I have been associated with Drinnon, Inc., a corporation

engaged in the business of photographs and photographic

engravings with a place of business at 481 Broadway in

Macon, Georgia. I am presently Vice President of Drinnon,

Inc. and manager in charge of photography.

During June, 1967, I was requested by Willis B. Sparks,

III, (whom I understand to be one of several attorneys rep.

resenting the heirs of Senator Bacon and the trustees for

certain other heirs) to take a series of aerial photographs

of Baconsfield including Baconsfield Park and that area

which Senator Bacon devised as income producing property

for the maintenance of Baconsfield Park. Mr. Sparks re-

quested that I take pictures from various angles in order

that all areas of Baconsfield might be observed in one or

more of the pictures.

In accordance with his request on June 16, 1967, I took

several aerial photographs, from different angles all from

an elevation of approximately 1,000 feet. The pictures were

taken with a 4 x 5 (film size) Super-Graphic camera. Ex-

posures were made at 1/500 of a second shutter speed with

a diaphragm opening of F.11. Also a K-2 haze filter was

used.

383

From un-retouched negatives a series of prints was made

at Drinnon, Inc. and on the | .ck of each print appears the

following language which serves to identify the photo-

graphs as the ones taken as above described:

(677] “Drinnon, Inc.

By Ralph Jones

481 Broadway

Macon, Georgia” “June 16, 1967”

It is my understanding that this affidavit and the photo-

graphs hereby identified are to be placed in evidence in the

Superior Court of Bibb County, Georgia as a part of fur-

ther proceedings in the above captioned case.

I could and would, if it were necessary, freely testify

under oath in open court to the truth of the facts contained

in this affidavit.

I have read this two page affidavit in its entirety and it is

true and correct in every respect.

/s/ Raps B. Jones

Ralph B. Jones

Personally appeared before me, the under-

signed, an officer duly authorized to ad-

minister oaths, Ralph B. Jones, who

having been placed under oath has sworn

that the contents of the foregoing affi-

davit are true and correct in every respect.

This 6 day of June, 1967.

/s/ Ean (Illegible) (N. P. Seal)

Notary Public Residing in

Bibb County, Georgia.

384

[678]

Exxuisit “D”

Gzorcis, Briss County

Tu1s Contract made and entered into this the 21 day of

Dec., 1948, between the Boarp or Manacers or Bacon

hereinafter sometimes referred to as the “Boarp”, the first

party, and the Crry or Macon, a Georgia municipal corpo.

ration, hereinafter sometimes referred to as “Tue Crry’,

the second party;

WITNESSETH:

That in consideration of the improvements now being

made by Tz Crry upon the swimming pool in Baconsfield,

and of the improvements which Tue Crry will hereafter

make thereon, and of the other covenants and agreements of

Tue Crry as hereinafter set out, the Boarp hereby leases

and grants unto Tue Crry, upon the terms and conditions

hereinafter set forth and for the period of time designated,

the following described real estate, to-wit:

DESCRIPTION OF PROPERTY:

All that tract or parcel of land situate and being in

the East Macon District of Bibb County, Georgia, and

in that portion of the tract of land known as Bacons-

field, devised to the City of Macon as Trustee, by A. 0.

Bacon in his last will and testament, lying easterly of

Boulevard Baconsfield and also easterly of Emory

Drive, upon which is located the swimming pool and

adjacent buildings, recently constructed upon such por-

tion of Baconsfield, and known as Baconsfield Pool

The tract of land herein specifically demised is more

fully shown upon a plat hereto attached and made a

part of this contract and designated thereon as “Swim-

ming Pool Area”, to which plat reference is made for

of

the purpose of a more complete and accurate descrip-

tion.

385

(679] Tenm or Lease:

This lease shall commence as of the first day of April,

1948, and terminate at midnight of March 31st, 1950.

If the City is not in default hereunder, then this lease

shall automatically be renewed, in accordance with all of

its terms and provisions, for similar successive terms of

two years; provided that either party may terminate this

renewal provision, during either the designated term or

any [680] succeeding term, by serving written notice upon

the other at least six months prior to the termination date

of the then current term, of its desire to terminate such

provision, in which event the contract shall be of no further

force or effect after the termination date of such current

term.

The foregoing provisions shall not be construed as affect-

ing in any way the right of the Boarp, upon the breach by

the City of any of its covenants, to terminate either the

original term or any succeeding term, as hereinafter pro-

vided.

Use or PREMISES:

Said premises are to be used by THE Crry exclusively for

the operation of the said swimming pool, as a part of the

pleasure and recreational facilities of Baconsfield, for the

enjoyment and benefit of the beneficiaries of the trust for

Baconsfield, as set up and established in the said last will

and testament of the said A. O. Bacon, deceased, and also

for other persons who are or may be admitted to Bacons-

field.

386

Tue Operation oF Toe Swimmine Poo.:

Tue Crry shall conduct the said swimming pool, through

such agents and servants, and in such manner and for sy

periods of time during the term of this lease as within its

discretion is deemed appropriate, subject only to the powers

of the Board of Managers of Baconsfield, as set forth ip

the Ninth Item of the said will of A. O. Bacon, and most

particularly subject to the “restrictions, government, map.

agement, rules and control of the Board of Managers”, and

to such regulations and rules for the use and enjoyment of

Baconsfield as said Boarp may adopt and make applicable

to all of Baconsfield.

RENTAL:

It is understood and agreed that Tue Crry shall make

charges to those who use the swimming pool and the swim.

ming pool area as it desires, such charges being made for

the purpose of [681] carrying on a successful operation of

such swimming pool.

It is further agreed that in the conduct of such opera-

tion, the rental which the Boarp obtained from Johnny

Smith, of Bibb County, Georgia, under and by virtue of

the contract entered into between the Boarp and Johnny

Smith, a copy of which is hereto attached, together with

any rental or remuneration which the Boarp may receive

by virtue of any other concession or lease which it may

grant or make to any other person, in the event the within

contract with Johnny Smith is terminated prior to the end

of the term thereby granted, shall be pooled with the income

obtained by Tue Crry from the operation of the swimming

pool and iae swimming pool area, and after the deduction

of the expense of the operation, the balance remaining, if

any, shall then be divided equally between Tue Crry and

the Boarp.

—

In the event that there is any loss resulting from the

operation of the said swimming pool and swimming pool

area, by Tae Crry, such loss shall be borne by Tue Crry,

so that in no event shall the Boarp be required to contrib-

ute to such operation anything other than the net rental

or net income from the concessions and leases above re-

ferred to.

387

Covenants of the City:

Tue Crry covenants and agrees with the Board:

(1) That it will open the said swimming pool as soon

as it has been completed and operate the same during sea-

sonable weather throughout the balance of the term of

this lease.

(2) That it will comply with the provisions of the said

Trust for Baconsfield and with such restrictions, rules and

regulations for the use and enjoyment of Baconsfield, as

the Boarp may from time to time, adopt and make appli-

cable to all of Baconsfield.

(3) That it will make no sub-lease nor grant any [682]

concession for the sale of any article or the operation of

any amusement device upon the demised premises, or oth-

erwise in connection with the operation of the swimming

pool, nor permit any act to be done or performed which

will adversely affect the rights of the lessee in the attached

contract, or the rights of the Boarp with respect to the

granting of any subsequent lease upon or concession in

that area shown upon said plat and designated as “Re-

freshment Concession”, nor with the grant of any conces-

sion by the Boarp upon any portion of Baconsfield which

lies east of Boulevard Baconsfield and Emory Highway.

(4) That it will on or before December 1st of each year

during the term of this lease, furnish THe Boarp with an

388

accounting of all receipts and disbursements for the periog

terminating with September 30th of such year.

In the event that it breaches any of its covenants, num.

bered 1 to 4, inclusive, and fails to correct such breach

within five days after written notice thereof, to the Mayor

of the City of Macon, then the Boarp shall have the right

to immediately terminate this contract, assume possession

and control and management of the swimming pool and the

swimming pool area, in which event all rights of Tue Crry

hereunder, except such rights as it may have with regard

to the net revenue earned to the date of such termination,

shall cease and determine.

In Wirvess Wueneor, the parties hereto, acting by and

[683] through their respective duly authorized officers,

have hereunto set their hands and affixed their seals the

day and year first above written.

Boarp or Manacers or Baconsrretp

/s/ Ds. W. G. Lez

Chairman

Attest: , C. E. Newron, Jr.

Secretary

Tue Ciry or Macon

/s/ (illegible) B. Wizrson

Mayor

/s8/ Viota Ross Napier

City Clerk

(Crry or Macow Szar)

wa—,

686)

ate Copy or Excerpt rrom Reso.tution or Mayor anp

Counc, or Crry or Macon apoprep Juty 22, 1947

Filed June 29, 1967.

{[EmsBieo }

389

CITY HALL

Crry or Macon

GEORGIA

June 27, 1967.

Now, Tuererore, Be Ir Reso.ven, that the Treasurer of

the City of Macon immediately deliver to the Board of

Managers of Baconsfield, either in cash or in securities,

or in both cash and securities, the said fund of One

Hundred Thousand ($100,000.00) the same to be held by

the Board of Managers of Baconsfield in separate fund

and used by such Board solely for the construction of

said pool, with its adjacent buildings and accessories.

I do hereby certify the above is a true and correct

excerpt from Resolution of Mayor and Council of

the City of Macon adopted July 22, 1947.

Witness my hand and seal of the City of Macon

this 27th day of June, 1967.

/s/ Avex B. Cameron

Alex B. Cameron,

Clerk of Council.

(Crry or Macon Sgau)

In addition $40,000.00 was appropriated by Mayor and

Council by ordinance adopted December 23, 1947 for

the year 1948 for the Recreation Department to con-

struct bath houses.

Frzp 1 OFrrice

29th day of June, 1967

/s/ Laan Lavine

Deputy Clerk

390

[687]

In THe Superior Court or Briss County

(Title Omitted]

Orpen Maxine AtTrorNEyY GENERAL A Party To Cage

—Filed July 21, 1967

The above captioned case having come back to this

Court on remand from the Supreme Court of Georgia

for further proceedings and a hearing having been held

on June 29, 1967, on a motion for summary judgment

filed on behalf of the heirs of the late Senator A. O. Bacon

and counsel for the heirs, for the intervenors E. S. Evans,

et al., for the Board of Managers of Baconsfield and suc.

cessor trustees in lieu of the City of Macon formerly ap.

pointed by this Court and for the City of Macon all being

present and all having been heard in open Court and it

being made to appear that the Attorney General of Georgia,

Honorable Arthur K. Bolton should be made a party to

this case pursuant to Georgia Code Section 108-212 (Acts

1952, pp. 121, 122; 1962, p. 527);

Ir Is THEerEForE Now OrpErED anp ApsupcED that the

Attorney General of Georgia in his official capacity is by

this Orper made a party to this case. Let a copy of this

Orper together with copies of the following materials be

forthwith served upon the Attorney General:

[688] (1) A Xerox copy of the record in the case of

Evans v. Newton as it was printed for the

Supreme Court of the United States (including

therein the decision of the Georgia Supreme

Court sought to be reviewed).

(2) A copy of the motion for summary judgment

by Guyton Abney, et al. as successor trusiees

under the Will of A. O. Bacon and an Order

—

(3)

(4)

(5)

[689] (6)

391

of Bibb Superior Court dated November 10,

1966, allowing it to be filed of record.

A copy of a document entitled, “Response to

Motion for Summary Judgment filed by Suc-

cessor Trustees under Will of Augustus Oc-

tavius Bacon,” such document being filed on

behalf of Rev. E. S. Evans, et al., intervenors

with a certificate of service dated January 12,

1967, and signed by Attorney William H.

Alexander.

An unheaded document with a certificate of

service dated January 16, 1967, signed by At-

torney George C. Grant, filed as a response

by the successor trustees in lieu of the City

and the Board of Managers of Baconsfield to

the motion for summary judgment.

A document entitled, “Response to Motion for

Summary Judgment filed by successor trustees

under Will of Augustus Octavius Bacon,” such

document being filed on behalf of Willis B.

Sparks, Jr. and others as the “Sparks heirs”

of Senator Bacon. This document bears a cer-

tificate of service signed as of January 13, 1967.

A 36-page copy of the record of the hearing in

Bibb Superior Court before Judge Oscar L.

Long held on June 29, 1967.

Ir Is Heresy Orperep that said Attorney General shall

have 30 days from receipt by him of these materials and

a copy of this Orper in which to make any written response

by way of pleadings as he shall deem appropriate. He

may make application to this Court within the 30 day

period for an extension of time if he should deem it neces-

sary or appropriate to do so.

meee EOI LL,

392

It is contemplated that counsel for one or more of the

parties will confer with the Attorney General or some

attorney on his staff as to the nature of these proceedings,

the Attorney General being a newcomer to a rather lengthy

case with a voluminous record.

[690] Counsel for the heirs of Senator A. O. Bacon are

hereby Directep to make available to the Attorney Genera]

such copies of such mterials as he after consideration feels

he would wish to have for his consideration. Of course,

any counsel representing any party to the case may pro.

vide the Attorney General with copies of any parts of the

record he feels the Attorney General should have at his

disposal.

There shall be no future oral hearing or argument unless

one shall be expressly requested of this Court by the At-

torney General or some assistant acting on his behalf

within 30 days of the receipt by him of the Orpen of this

Court making him a party to the case.

Let the Attorney General of Georgia sign an acknowl-

edgment of service of this Orpen and accompanying mate-

rials as specified herein and immediately transmit it to the

Clerk of Bibb Superior Court so that it may be filed of

record. Let a copy of this OrpEer be served upon all counsel

of record in this proceeding.

Ir Is So Onpvenep this 21st day of July, 1967.

/s/ O. L. Lone

O. L. Lone

J.8.C.M.C.

/8/ Lituan Lavine

Deputy Clerk

Frizp 1n OFFICE

21st day of July, 1967

wv,

393

[695]

Ix tHe Superior Counr or Biss County, Gzorcia

[Title Omitted]

Inrenvenors’ SeconD SuPPLEMENTAL RESPONSE TO Motion

For Summary JUDGMENT FED BY Successor TRUSTEES

Unper THE Witt or A. QO. Bacon—Filed June 29, 1967

Come now, Rev. E. 8S. Evans, Lous H. Wynne, Rev. J. L.

Key, Rev. Booker W. Campers, Wiliam Ranpau and

Rev. Van J. Matoneg, intervenors, who file this Second

Supplemental Response to the Motion for Summary Judg-

ment filed by the successor trustees under the will of A. O.

Bacon, and show the Court the following:

aie.

That attached hereto amd incorporated herein by refer-

ence, are the following exhibits:

(a) Exhibit J—Affidavit of William H. Alexander, at-

torney for intervenors.

(b) Exhibit K—Certified copy of records of the Work

Projects Administration, Record Group 69, Microfilmed

Project Folders, Georgia: Selected Documents from the

Project Folder Relation to Official Project 665-34-2-164

(Roll 236-W).

(c) Exhibit L—Certified copy of records of the Work

Projects Administration, Record Group 69, Selected pages

from the Microfilmed Project Ledgers for Georgia re sting

to Official Project 665-34-2-164 (Roll 69W).

[696] (d) Exhibit M—Certified copy of records of Work

Projects Administration, Record Group 69, Microfilmed

Project Folders, Georgia: Selected Documents from the

394

Project Folder relating to Official Project 65-1-34-52 (Roll

2990W).

(e) Exhibit N—Certified copy of records of Work Proj.

ect Administration, Record Group 69, Selected pages from

Microfilmed Project Ledgers for Georgia relating to Off.

cial Project 65-1-34-52 (Roll 71W).

(f) Exhibit O—Certified copy of excerpt from minutes

of the City Council of the City of Macon dated February

3, 1920.

(g) Exhibit P—Certified copy of excerpts from minutes

of the City Council of the City of Macon dated February

17, 1920.

(h) Exhibit Q—Certified copy of excerpt from minutes of

the City Council of the City of Macon dated July 21, 1936.

(i) Exhibit R—Certified copy of excerpt from minutes

of the City Council of the City of Macon dated June 21,

1938.

(j) Exhibit S—Certified copy of excerpt from minutes of

the City Council of the City of Macon, constituting the

City Budget for 1939, dated January 10, 1939, page 30.

(k) Exhibit T—Certified copy of excerpt from minutes

of the City Council of the City of Macon, constituting the

City Budget for 1939, dated January 10, 1939, page 31.

(1) Exhibit U—Certified copy of excerpts from minutes

of the City Council of the City of Macon, constituting the

City Budget for 1940, dated December 26, 1939, page 199.

[697] (m) Exhibit V—Certified copy of excerpt from

minutes of the City Council of the City of Macon dated

July 15, 1947.

—

395

~~

A certificate of the Clerk of the City Council of the

City of Macon dated June 27, 1967, and pertaining to reso-

lutions of the City Council of July 22, 1947, and December

93, 1947, was offered into evidence and admitted without

objection in open court at the hearing in this case on June

99, 1967. (See transcript of hearing page 31.) For pur-

poses of the record that document is hereby designated as

Exhibit I.

—3—

The Baconsfield Clubhouse, a building located in Bacons-

field Park was erected with the assistance of federal funds

totaling approximately $16,512.80 furnished by the Works

Progress Administration, an agency of the United States,

in accordance with two projects sponsored by the City of

Macon acting with a group known as the Woman’s Club

House Commission as more fully reflected in Exhibits J;

K, L, M, N and RB attached hereto. In its applications

for federal funds for this project, the City of Macon, by

its Mayor and Treasurer, executed numerous documents

constituting agreements, assurances, certificates, represen-

tations and contracts, which are contained within Exhi-

bits K and M. The City repeatedly represented to the

United States, inter alia, that it was sole owner of the

Baconsfield Park property, that its ownership was per-

petual, that there were no reversionary or revocation

clauses in the ownership documents, that the property was

not private property, and that the proposed project was

for the use [698] or benefit of the public. In a sworn cer-

tificate executed under oath by the Mayor and Treasurer

of the City of Macon on October 14, 1938, and quoted in

full below, the City promised that there would be no dis-

crimination against any group or individual in the use of

396

the property and that the City did not intend to release

jurisdiction of the property during its useful life. The

entire certificate, which is contained in Exhibit K attacheg

hereto, reads as follows:

“With reference to Works Progress Administration

Project Application State Serial No. 6586, this is to

certify that the proposed building referred to in plans,

specifications and other data submitted to support the

project applications, as ‘Baconsfield Club House’ will,

upon completion, be used as a community club honse

for the general use and benefit of the public at large,

without discrimination against any individual, group

of individuals, association, organization, club or other

party or parties who may desire the use of the building

and the property upon which the building is located,

“Tt is further certified that the City of Macon, as proj-

ect sponsor and owner of the property upon which

the building is to be constructed, does not intend to

lease, sell, donate or otherwise convey title or release

jurisdiction of the property together with improve-

ments made thereon, during the useful life of the

improvements placed thereon through the aid of W.

P. A. funds.

“Tt is further certified that the City of Macon, as proj-

ect sponsor, will be responsible to see that the property

together with the improvements made thereon will be

maintained for the general use and benefit of the pub-

lic, and will not be [699] used for the profit or

benefit of any one individual or specific group or

organization; and the management of the property,

together with improvements made thereon, will at all

times be subject to the approval of the designated

city official or officials of the City of Macon who will

—,

397

be responsible to see that the foregoing certification

is adhered to.”

/s/ Cuartes L. Bowpen

Mayor, City of Macon, Georgia

/s/ Frank Branan

Treasurer, City of Macon, Georgia

Sworn to and subscribed before me

this 14th day of October, 1938.

/s/

Notary Public

Bibb County, Georgia

[700] Another certificate or agreement containing as-

surances that the property would not be disposed of to

any private individual and would be operated for the

benefit of the general public, dated September 7, 1938,

was executed by the Mayor and Treasurer of the City of

Macon and by the President and Treasurer of the Women’s

Club House Commission, and is a part of Exhibit M, at-

tached hereto.

It would be a violation of intervenors’ rights under the

due process and equal protection clauses of the Fourteenth

Amendment, as well as a violation of their rights under

the federal statutes pursuant to which the Works Pro-

gress Administration furnished funds for Baconsfield Park,

i, ¢., the several Emergency Relief Appropriations Acts

enacted by the Congress in 1935, 1936, 1937, 1938 and 1939,

for the court to grant the relief requested by the successor

trustees’ motion for summary judgment, and for the court

to refuse to order the continued operation of Baconsfield

as a public park maintained without racial discrimination.

mgr TENET

—

On February 3, 1920, the City of Macon entered into ap

agreement with the Executors and Trustees of the Estate

of Senator A. O. Bacon, with the written assent of all

legatees and beneficiaries of the estate, by the terms of

which the trustees deeded all of the Baconsfield Park

property together with certain bonds and accumulated ip.

terest to the City of Macon, in consideration of various prom.

ises of the City to pay an annuity of $1,665 per annum to

the trustees during the life of Mrs. Mary L. Bacon Sparks,

The terms of the agreement are set out in Exhibit 0 at.

tached hereto. By deed executed February 4, 1920, [701]

and recorded February 10, 1920, in the Clerk’s office of the

Bibb Superior Court in Deed Book 248, page 11 (which

deed has heretofore been filed herein as Exhibit F), all

interests of the trustees and heirs and legatees of Senator

Bacon was conveyed to the City of Macon. The City paid

to the trustees under the will of A. O. Bacon the agreed

annuity for 25 years from 1920 until the death of Mrs.

Mary L. Bacon Sparks in April 1944, that is a total of

$41,625.

On February 3, 1920, the City of Macon, also entered

into an agreement with Custis Nottingham, one of the

executors and trustees under the will of A. O. Bacon,

wherein Nottingham agreed to surrender his occupancy of

a residence at Baconsfield in return for a cash payment

from the City of $5,100. The City appropriated this amount

and paid it to Custis Nottingham. (See Exhibit O, attached

hereto.) Custis Nottingham, by quit claim deed conveyed

all his interest in the said Baconsfield Park property to

the City of Macon. The said deed, previously filed herein

as Exhibit G, was executed February 4, 1920, and recorded

February 13, 1920, in the Clerk’s office of the Bibb Superior

Court in Deed Book 248, page 16.

399

In view of the foregoing the successor trustees under

the will of A. O. Bacon, and all legatees and beneficiaries

of the estate of of A. O. Bacon, are estopped from claiming

any right, title or interest in the Baconsfield trust prop-

erty, and from claiming the relief sought in the successor

trustees’ pending motion for summary judgment. Inter-

yenors also rely upon these facts and circumstances in

connection with their opposition to the grant of relief

sought by the motion for summary judgment based upon

the Fourteenth Amendment to the Constitution of the

United States.

aiiting

[702] An application of the reverter doctrine or other

doctrine finding a failure of the trust on the facts of this

case would amount to a judicial sanction which imposed a

penalty because the agencies managing Baconsfield Park

fulfilled their Fourteenth Amendment obligation to operate

the park on a racially nondiscriminatory basis. The use of

such a judicial sanction in these circumstances would vio-

late the intervenors’ rights under the due process and

equal protection clauses of the Fourteenth Amendment to

the Constitution of the United States.

_

The due process and equal protection clauses of the

Fourteenth Amendment to the Constitution of the United

States require that the racially exclusionary words of

Senator A. O. Bacon’s will relating to Baconsfield Park

be treated by the courts as pro non scripto as though

they were never written. This is required, firstly, because

the racially exclusionary terms were written in the will to

conform to racially exclusionary suggestions and require-

ments of Georgia Code Section 69-504 (Georgia Acts 1905,

p. 117). The racial portions of Section 69-504 are void

under the Fourteenth Amendment, and indeed were void

400

ab initio even under the “separate but equal” doctrine, by

authorizing the total exclusion of Negroes from public

parks, and thus must be regarded as pro non scripto,

Secondly, it is required because by the City’s acceptance

of the park, pursuant to Georgia Code Section 69-505

(Georgia Acts 1905, pp. 117-118), and its operation of the

park in accordance with Bacon’s will, the will was made a

part of the City’s own laws governing the operation and

use of the park, and is to be [703] treated in the same

manner as if the racially exclusionary words appeared in

a city ordinance.

om

There is a public easement in the Baconsfield Park land,

as in the case of a “commons,” which exists separate and

apart from the City’s legal title as trustee, and which may

not be defeated or affected by the termination of the trust.

The Baconsfield Park property was dedicated to the

public and the dedication was accepted, thus the property

may not now be appropriated for private use.

To grant the relief sought by the successor trustees

would be a violation of Georgia Code Section 85-410, which

provides as follows:

85-410. Dedication lands to public use, effect of —

If the owner of lands, either expressly or by his acts,

shall dedicate the same to public use, and the same

shall be so used for such a length of time that the

public accommodation or private rights might be ma-

terially affected by an interruption of the enjoyment,

he may not afterwards appropriate it to private pur-

poses.

a

The City of Macon has not offered any justification for

its request for permission to resign as trustee of Bacons-

—

401

field except in its inability to conform to the racially ex-

dusionary portions of the will of Senator Bacon. The

City Council has not taken any further action renewing

its request to resign as trustee subsequent to the decision

of the United States Supreme Court in this case. Further-

more, the provisions of Senator Bacon’s will plainly con-

templated that the Mayor and [704] City Council of Macon

should select a successor trustee if the City was legally

unable to continue as trustee. The referenced portions of

Senator Bacon’s will, which appear in item 10th of the

will (at page 24 of the record as printed for use in the

Supreme Court of the United States), are as follows:

If for any reason it should be held that the Mayor and

Council of the City of Macon have not the legal power

under the charter of the City to hold said fund in

trust for the purposes specified, then unless said power

is obtained throught appropriate legislation, I direct

that the powers herein expressed be conferred upon @

trustee to be selected by the Mayor and Council of

the City of Macon, with such safeguards and restric-

tions as may be prescribed by them for the perpetual

safekeeping and mangement of the fund. And I give

a similar direction if for any reason it should be

held that the Mayor and Council of the City of Macon

have not the legal power under their charter to hold

in trust for the purposes specfied the property desig-

nated for said park and pleasure ground, unless said

required power is conferred by appropriate legisla-

tion.

gin

By virtue of all the facts and circumstances presented on

the record of this case the City of Macon has so invested

the Baconsfield Park with a public character, and the City

402

has become involved to such an inextricable extent, that

it would be a violation of the intervenors’ rights under the

due process and equal protection clauses of the Fourteenth

Amendment for the state courts to apply any state lay

doctrines [705] (whether relating to trust law, the law of

dedication, real property law, or other principles), so as

to defeat the rights of the intervenors to racially nop.

discriminatory use and access to the park as a public park.

[706] Wuenerorz, intervenors pray that this Court:

(a) Grant them the relief heretofore prayed in their

Response and in their Supplemental Response to the

Motion for Summary Judgment;

(b) Enter an order which will assure and protect their

right to racially nondiscriminatory use and access to

Baconsfield Park and all its facilities; and

(c) Grant them such other and further relief as to this

Court may seem just and proper.

This 9th day of August, 1967.

/s/ Wriu1am H. ALEXANDER

WuuuMm H. ALexanper

859% Hunter St., N. W.

Atlanta, Georgia 30314

Jack GREENBERG

James M. Nasazrr, III

10 Columbus Circle

New York, New York 10019

Attorneys for Intervenors

(Certificate of Service Omitted in Printing.)

Exurir “J”

Arriavit or Wau1am H. ALEXANDER

Gzorcia, Fuuron Counry.

J, Wou1am H. ALEXANDER, one of the attorneys for Rev.

E. S. Evans, et al., intervenors in the case of Charles E.

Newton, et al., v. City of Macon, et al., Bibb Superior

Court, Case No. 25864, being duly sworn, depose and say:

1. That on June 29, 1967, I made an inspection of, and

a personal visit to, the inside of the Woman’s Clubhouse

located on Baconsfield Park in the City of Macon, Georgia.

9. That I was accompanied on said inspection by James

M. Nabrit, III, Esq., one of the attorneys for said inter-

venors.

3 That at the time that I made the said inspection I

saw two plaques bolted to one of the walls inside of the

said clubhouse.

4. That the following are exact copies of the informa-

tion or wording contained on each of the plaques:

Plaque No. 1:

“Baconsfield Woman’s Club

Erected 1939

By Macon Women’s Club

Pilot Club

Business and Professional Women’s Club

With Assistance From

Works Progress Administration

Building Committee

Kate Crump Booth

Odessa Pierce Williams

Mamie Walton Vinson

Ellamae Ellis League

Architect”

[709]

Plaque No. 2:

“Built by

Works Progress

Administration

1939”

This 7 day of August, 1967.

Wiiuiam H. ALEXANDER

William H. Alexander

8591%_ Hunter St., N. W.

Atlanta, Georgia 30314

Subscribed and sworn to before me,

this 7th day of August, 1967.

Aurce M. Lewis

Notary Public

(N. P. Seal)

Notary Public, Georgia State at Large

My Commission Expires June 24, 1968

—

(710)

Exuisit “O”

_ February 3, 1920—Pages 106-107

The following resolution by alderman Merritt and unani-

mously adopted after an explanation of the same made by

the Mayor:

“Be it resolved by the Mayor and Board of Alderman

of the City of Macon, that the Mayor be and is hereby,

authorized in behalf of the City of Macon to make and

enter into a contract with the Executors of the Estate of

A. O. Bacon, deceased, to take possession of the property

known as “Baconsfield” upon the terms and conditions as

set forth in the communication this day submitted to this

Council by R. C. Jordan and Curtis Nottingham, Execu-

tors and Trustees of the Estate of A. O. Bacon, deceased.

“Be it further resolved that the Mayor be, and is hereby,

authorized to make and enter into a contract with Custis

Nottingham to secure the possession of the house now oc

cupied by said Custis Nottingham on said property known

as ‘Baconsfield’, said Custis Nottingham under the terms

of said contract shall surrender and terminate any and all

rights that he may now have—, or hereafter acquire, to

the occupancy of said house or any of the property used in

connection with his occupance of said house.

“Be it further resolved that the said Custis Nottingham

shall be paid a sum not in excess of $5,100.00 as full and

final payment and settlement of his surrender of said

premises, and the termination of such rights of occupancy

as he may hold to said premises, and that the sum of

$5,100.00 be, and is hereby, appropriated for said purpose.”

The following communications were accompanied by said

resolution :

cenit ETL

406

“To the Honorable Mayor and Council of the City of

Macon:

“We beg to advise that we will assent to your immediate

possession of the tract known as ‘Baconsfield’, devised by

Senator Augustus O. Bacon to you as a park. This assent

is predicated upon the signed agreement executed by all

of the legatees and beneficiaries of the estate that yon ac

count to us in the amount of $1,665.00 annually as the

rental value of said property [711] during the life of Mrs.

Marilu Bacon Sparks.

“At the time of delivering possession of this property

to you, we will also deliver to you, under terms 9 and 10

of said will, $10,000.00 in Five Per Cent. Macon Railway

& Light Company Gold Bonds and accrued interest thereon,

amounting to approximately $3,000.00, the aggregate of

which you will cover into your Treasury for the improve-

ment of said park, executing to us an agreement as to

future appropriations for maintenance of park or at least

five per cent annually on said sum of $10,000.00 in five

per cent. gold bonds, plus five per cent. interest on the

amount of accrued interest at the dates said sums are

delivered.

“Tt is also understood that the other estate of Senator

Bacon will not be charged with taxes or other assessments

of any nature or kind against this property accruing after

this property is delivered to you.

“As this Park will not only be of immense benefit to

the City, but is established by the Senator as a memorial

to his deceased Boys, we assure you of our earnest desire

to expedite its enjoyment and improvement.

(Signed) R. C. Jorpan

Custis NorrincHaM

Executors and Trustees of the Estate of

Senator A. O. Bacon.”

_ ———

407

“To the Honorable Mayor and Council of the City of

Macon :

“In consideration of your taking over the property at

BaconsFIELD devised as a Park, I hereby agree that my

occupancy of the residence on same will be adjusted and

terminated on the basis agreed upon between the Mayor.

the Ctiy Attorney and myself, to-wit: Fifty One Hundred

($5100.00) Dollars.

“You may, at any time within fifteen days from this

date, exercise this option and take over said residence.

(Signed) Custis NorrTincHaM.”

[712] I, Alex Cameron, Clerk of the City of Macon, Cer-

tify that the resolution and communications on the attached

page are accurate statements of the official minutes of

the City Attorney and myself, to-wit: Fifty One Hundred

Minutes of the Council dated February 3, 1920, Pages

106-107.

(Signed) Auex B. CaMERoN

Alex Cameron

Clerk, City of Macon, Georgia

(Seal) Seal of the City of Macon, Georgia 1823

408

(713]

Exuisit “P”

February 17, 1920—Page 112

The Mayor called attention to the taking over by the

City of the Baconsfield Park under the will of the late

U. 8. Senator A. O. Bacon. The terms of this will, he

said, provide that the park shall be under the control and

management of four ladies and three men, and that Senator

Bacon had requested that one of the members, at all times

as far as practicable, be one of his blood relations. He

stated that this Board of Control is to be first named by

the Mayor and Council and thereafter is to be self-per-

petuating, vacancies being filled by the remaining men-

bers of the Board and confirmed by the Mayor and Council.

The Council then went into the election of the Board of

Control referred to, the result being as follows:

Mrs. Willis B. Sparks,

Mrs. W. P. Coleman,

Mrs. H. M. Wortham,

Mrs. P. L. Hay,

Mayor G. Glen Toole,

Dr. W. G. Lee,

Mr. John L. Anderson.

In nominating Mayor Toole as a member of this Board,

Alderman Hunnicutt had the Clerk read the following

communication addressed to Mayor by Messrs. R. C. Jordan

and Custis Nottingham, the trustees of the Bacon Estate:

“In turning over to the City of Macon the park devised

to it by Senator Bacon, permit us to express the hope that

this Park will mean all to the white citizens of Macon

that Senator Bacon wished it to mean.

——

409

“The place is one of great natural beauty, but it could

easily be marred by haphazard work. We are sure that be-

fore anything material is done to this property that you,

the City Council, and the Commission appointed by it will

have a well defined and permanent plan of improvement

in view.

“We believe that it is of the utmost importance that you

be a member of this Commission, and wish here to voice

the hope that you will not decline such service from any

false [714] modesty. It will greatly expedite the people’s

enjoyment of this property if the Commission is headed

by the head of our City Government. Differences in opinion

and change of plans will be thus avoided, and the money

essential to the improvement of this property will be ex-

pended by the one charged with raising it.”

The Clerk was directed to notify the members of their

election.

I, Alex Cameron, Clerk of the City of Macon, certify

that the above is an accurate excerpt of the official minutes

of the City Council of the City of Macon as contained in

Minutes of the Council dated February 17, 1920, Page 112.

(Signed) Arex B. CamERon

Alex Cameron

Clerk, City of Macon, Georgia

(SzaL or THE CiTY OF Macon, Gzorcia 1823)

410

(715]

Exuir “Q”

July 21, 1936—Page 427

The Committee on Finance reported on the following

resolution as follows:

REsoLUTION

Wueneas, the late Senator A. O. Bacon, by his last wil]

and testament, set aside property now known as “Bacons-

field Park”, in trust for the sole, perpetual, and unending

use, benefit, and enjoyment of the white women, white

girls, white boys, and white children of the City of Macon,

-to be by them forever used and enjoyed as a park and

pleasure ground, subject to the restrictions, government,

management, rules and control of the Board of Managers,”

and,

Wueneas, the Board of Managers of said property, now

consisting of G. Glen Toole, Chairman, Dr. W. G. Lee,

Secretary and Treasurer, Herbert I. Smart, Mrs. P. L.

Hay, Mrs. Frederick Williams, Mrs. Thomas J. Stewart,

and Mrs. H. M. Wortham, believing that the generous and

kindly purpose of Senator Bacon will be further served,

and the use of “Baconsfield Park” rendered more enjoy-

able to his beneficiaries, have resolved, if possible, to in-

stall and maintain upon “Baconsfield Park” a swimming

pool, to be used by the members of the public described

in the will of Senator Bacon, and,

Wuereas, in order to finance the construction of the

swimming pool, the Board of Managers have resolved that

the funds be secured in three ways, to wit:

(1) By the City of Macon Converting into cash, in ac

cordance with item 10 of the will of Senator Bacon, ten

bonds of the Macon Railway and Light Company, of the

—

411

denomination of $1,000.00 each, which were provided by

Senator Bacon for the upkeep and maintenance of said

“Baconsfield Park;”

(2) By obtaining from an agency of the Federal Gov-

ernment a grant of money to be used for the intended

purpose ;

(3) By obtaining from public spirited citizens of [716]

Macon loans to bear interest at the rate of three (3) per

cent. per annum, and to be repaid pro rata from the net

income derived by the Board of Managers from small

fees charged persons using the swimming pool and facili-

ties ; and,

Wuereas, in reference to the request made of the City

of Macon by the Board of Managers in respect to the ten

bonds of the Macon Railway and Light Company, it is

provided in the will of Senator Bacon, and in Item 10

thereof, “Should the Mayor and Council of the City of

Macon at any time consent to do 80, then I direct that

they be authorized to receive the fund constituted of said

bonds and all additions thereto, and the proceeds thereof,

and cover the same into the treasury of the City, in con-

sideration of the perpetual obligation of the City to be

evidenced by its bond or otherwise, to provide and pay

over annually to the said Board of Managers an amount

equal to five per centum interest upon the sum thus cov-

ered into the treasury, to be devoted by said Board to

the uses hereinbefore specified,”

Now, THEREFORE, the Mayor and Board of Alderman of

the City of Macon, by this resolution endorse the action

taken by the Board of Managers of Baconsfield Park, and

pledge their support of the object sought, calling upon

and enlisting the aid of all citizens in the efforts of the

Board of Managers to obtain a portion of the cost of such

412

swimming pool by loans from citizens, and pledging them.

selves in the name and behalf of the City of Macon to

provide by ordinance or resolution, if legally possible, and

if the Board of Managers is successful in obtaining from

a Federal agency and from the public generally the balance

of the cost of such swimming pool, the proceeds of the

Macon Railway and Light Company bonds, in accordance

with the provisions of Senator Bacon’s will, and to pledge

such proceeds to the cost of the swimming pool and

facilities.

(717)

Report or Finance CoMMITTEE

“Your committee recognizes the importance of a munici-

pal swimming pool in our city, and there has been sub-

mitted to the Public Works Administration in Washington,

D. C., a project for the erection of one.

If and when the necessary funds are secured from the

Federal Government and other sources, we recommend

that these bonds be sold and the proceeds used on the

above named project.” This report was adopted.

I, Alex Cameron, Clerk of the City of Macon, certify

that the above Resolution and Report are accurate copies

of the official minutes of the City Council of the City of

Macon as contained in Minutes of the Board dated Jan-

uary 21, 1936, Page 427.

(Signed) Arex B. Camenon

Alex Cameron

Clerk, City of Macon, Georgia

(Szau or tHe Crry or Macon, Gzorcia 1823)

413

(718)

Exurr “R”

June 2, 1938—page 639

The members of the Baconsfield Club House Commission

composed of representatives of the Macon Women’s Club,

the Business and Professional Women’s Club and the Pilot

Club, were present and Alderman Harrold introduced them

to Council. Mayor Bowden invited them to be heard and

the spokesman, Mrs. Leonard Booth, came forward and

asked permission of Council for the clubs represented by

the Commission to build with W. P. A. assistance, a new

Woman’s Club House in Baconsfield and to tear down the

house now used as a club house by the women and use

such of the materials as are suitable in the construction

of the new building. She said that the new club house would

be a memorial to Senator Bacon and would be a $15000.00

building, of which cost the clubs will obligate themselves

to pay three thousand dollars. She said the clubs will sell

bonds to raise this money.

On motion of Alderman Harrold, seconded by Alderman

Pittman, the permission sought, was granted by the Mayor

and Council.

Mayor Bowden appointed the following gentlemen to be

members of the Housing Authority for the City of Macon

subject to the approval of the Governor of Georgia:

J. Clay Murphey, Chairman, to serve for a period of

five years,

W. T. Anderson, to serve for four years

George R. Wiliams to serve three years

Wallace Cobb to serve two years, and

Ernest D. Black, to serve one year.

Adjournment.

414

[719]

I, Alex Cameron, Clerk of the City of Macon, certify

that the above is an accurate excerpt of the official minutes

of the City Council of the City of Macon as contained ip

Minutes of the Council dated June 21, 1938, Page 639.

(Signed) Arex B. Cameron

Alex Cameron

Clerk, City of Macon, Georgia

(Szau or THE Crry or Macon, Gzorer 1823)

415

(720)

Exar “S”

January 10, 1939—Page 30

93. Central City & Baconsfield Parks

gp LADOT onnnnnnnn-nnsveeneececccrrnnnnnnsssssseceeerenennnen $ 7,000.00

b. Repairs to parts and equipment ...... 800.00

¢. Repairs to Building .. .. 1,200.00

4. Lights Central City no 40.00

~ $ 9,040.00

I, Alex, Cameron, Clerk of the City of Macon, certify

that the above is an accurate copy of the official minutes of

the City Council of the City of Macon as contained in Min-

utes of the Board dated January 10, 1939, Page 30.

(Signed) Auzx B. Camztox

Alex Cameron

Cler, City of Macon, Georgia

(Seu or THE CrTy OF Macon, Gzorcia 1823)

416

[721]

Exurrr “T”

January 10, 1939—Page 31

35. Miscellaneous

a. Baconsfield Park Annuity ............... $ 1,655.00

b. Insurance on Public Property ........ 1,900.43

c. Self Insurance-Compensation Act .. 100.00

d. Auditing 900.00

e. Chamber of Commerce ...................... 500.00

$ 5,065.43

I, Alex Cameron, Clerk of the City of Macon, certify

that the above is an accurate copy of the official minutes of

the City Council of the City of Macon as contained in Min-

utes of the Board dated January 10, 1939, Page 31.

(Signed) Arex B. Cameron

Alex Cameron

Clerk, City of Macon, Georgia

(Szau or THe City or Macon, Georoia 1823)

417

(722)

Exzzrr “U”

December 26, 1939—Page 19

34. Miscellaneous

a. Baconsfield Park Annuity ................ $ 1,665.00

p. Insurance on Public Propery .......... 2,048.50

¢. Self Insurance Compensation Act. 100.00

d, Auditing --.-----------n-eceeeneeeneenessnrennsenseenss 900.00

e. Chamber of Commerce ............---.------ 500.00

$ 5,213.50

I, Alex Cameron, Clerk of the City of Macon, certify

that the above is an accurate copy of the official minutes of

the Board Aldermen of the City of Macon as contained in

Minutes of the Board dated December 26, 1939, Page 199.

(Signed) Arex B. Camenon

Alex Cameron

Clerk, City of Macon

(SzaL or THE CITY OF Macon, Gzorcia 1823)

418

[723]

Exurrr “V”

July 15, 1947—page 458

Mayor Bowden stated to Council that inasmuch as an

appropriation of $100,000.00 has been made by Council to

construct a swimming pool on property under the contro]

of the Baconsfield Park Commission, he believed that con.

struction should be begun as soon as possible so that the

pool might be completed, tested and ready for operation

by the season of 1948.

He suggested that Alderman John A. Jones, Chairman

of the Finance Committee of Council and Alderman Dan I, .

Tidwell, Chairman of the Recreation Committee of Coun. |

cil, together with the Baconsfield Park Commission, or a

Committee of said Commission, be named in a Resolution

to handle the construction of said swimming pool. F

Mayor Bowden also suggested that the $100,000.00 so

appropriated be deposited in a Trust Fund for the sole

and exclusive purpose of constructing a swimming podl

and that Mr. C. E. Newton, Jr., Secretary and Treast

of the Baconsfield Park Commission, be named as the

Officer, and/or Trustee to handle said appropriation

authority to pay amounts from said fund when appre

by the Swimming Pool Committee. J

There being no objection from Council, the Mayor wag

to prepare the Resolution. 4

I, Alex Cameron, Clerk of the City of Macon, certify

that the above statements are accurate statemerits of the

official minutes of the City Council of the City of Macon a

contained in Minutes of the Board dated July 15,

Page 458.

(Signed) Auex B. Cameron q

Alex Cameron 4

Clerk, City of Macon, Georgia

(Sau or tHe Crry or Macon, Georeia 1823)

_— | 419

Exursit “K” -

GENERAL SERVICES ADMINISTRATION

National Archives and Records Service

Go all to fwhom these presents shall come, Greeting:

3 Gertify That the attached copy, or each of the specified number of attached

copies, of the document(s) identified below is a true copy of a document in the legal

custody of the Administrator of General Services and deposited with the National Archives

of the United States.

Records of the Work Projects Administration, Record Group 69

icrofilmed Project Folders, Georgia: Selected Documents from

the Project Folder Relating to Official Project 665-34-2-164

(Roll 2363W).

Bn testimony tohereof, I, ROBERT H. BAHMER, Archivist of the United States, being

duly authorized (41 CFR 101-7.104-3), have hereunto caused

the Seal of the National Archives to be affixed and my name

subscribed bythe Director, Social and Economic

Records Division

of the National Archives, in the District of Columbia,

this 2lst day of July 19 67

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By PEE ad Jat 7.

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meer aged rowrt) by betel bom — RRR RRs 6 YS 8 eG , were

pease (incioding Sopply Fund reserve). baleiciaint 3015200: 9006.00 ' 12021.C0

ae meet 28 75:79) AOD DO. eae ¥e00

identifying eyweeis chal appear ae every pey roth, or other eacumbranse document chargeabie |

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of expenditures to be made frora Federel funds oe the proposal designeted cheve, wa, ||

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do hereby agree that we will finance such part of the entire cnet thereo! as is not to be supplied =|

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BY £ aRANAW, ASST”

—" nekes, ier Pete — i

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ori ALIS

% -« Pangeremee Ree Le I

WORKS PROGAISS ADMINISTRA TION Pole $ BEET OBIT CI

STATEMENT OF PROJECT ESTIMATE DETAIL 4,7evices scttzey

t

eta nences__ __sfeiaay core

sar ts ort pret Geared be to ned ta operation scanty seemed

gqroral of ts presecetion —

me wee

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OP tetetion, § 16L0ROO ____ teatndied tn the Henttation ave wuts ponfente Men, S0RR

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ee ee

wt ra — tas = Flt prep. SAbnbtakalsd SS

ot cxpentinar opuies 009008(9) ry. etna

Tsao

COPY BOUND CLOSE IN CENTER

BEST COPY

AVAILABLE

PUBLISHER’S NOTICE

Material on the following frames is

the best copy available to publisher.

WORKS PROGRESS ADMINISTRATION A reviesé ectimte of au

re ees Brees ame Lp

STATEMENT OF PROJECT ESTIMATE DETAIL ted

ena Bt Leete, One

ise Cay Be SRO PPO! Fy nips fn:

that te work projert deecribad teow te plared 1s operation

red

uve al of us preervven is requested

Ln nn noe MOO Bo etme Me

tae qveted tecel eee! ire a)

r s ‘ = eae 1S Sew —_- — -

Htd © Mace ee ee.

of project (Casey ana”:

of projet ‘

cartrect © poblic commnity clad house in the City of Meo, Bibd Commtys

parting date 1985-88 sescee- ae --. Wetionste§ dete of cangistica SGD oe

of aaa “ nisceciiigianioinaamniicenabenuiann ara? Ne. “ae

0. P, limitation, $ (19513 86 : estiedied te ite Wntation ase watts puapute tien,

* . o-enee — - eee

dixscnctatonamete 3015.08 9006.00

wosLame ;excleding Supply Pund reerrm) . ._...... ~~, SOLS.08 OCT TE

iL LABOR AXD MUWLABOM (excheding Supply Fad reserve), . 333135-00 e006.00! Z21539.00

Trad reserve and morthty limitation... | Lt. ---- 5a & 2 i ; '

mu NOMLARTG (veteding Supply Fund reseste; SO1t 00 __ 9005 900 |. _ 12931,68 :

ae cami: ~ os ea |

° + =seere “ - - -

eee eee ee : ———~ - ee > =

identifying symbols shall appear on every pay rofl, requisition, or <her encumbrance document cheryusbic

poet

anqun O08. O6S S42 166 oo, proce xe SP

Vewepwece 0. of Save fonqwem Agner ’ « |

or expendtere symbol . 08 8008 (9) ;

BAAS. se “|

ee ee

Official pre act No.

ae

THONG pe tess em eree woe eewares + een geese oe

; Appooves: ~ ho fiihe: fe

=P) me.

ee

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EE PR Pe RR IS AYR, CONG ANH

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Division ef on : OLS .; 298

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P. Le Be. 266° 4

Se a ADMINISTRATION A revised estim-e of ©

work pre: <<

STATEMENT OF PROJECT ESTIMATE DET AML eusly oe of oy

pine. Pe. Shearer rea. os neni ai Atlacta, Georgia + ie? a

hot the work projet Geacribed beirw be placed te operation :

approval of ite proercutves m@ requested A

reece .......dPoe Bes 3, Maren, Jorg

(magqneted tare! <a.

Ce ae ee ee ee te eee eee ee

dpojat Bidd - Macs

of project:

Construct @ publie cemmunity elob howee iz the City ef Macon, Bibd count: “4

~ (Commng ond oe:

AE OP ote in DED Eationated date of competion _ 8° 35-39 ; aioe!

vane _._-.City of Maoen 7 manne Spemeare Ma. a

oP hematin, § 12313,99 ) cheded om thus limitatica are werk peemre Nea 8550 a

ES ee Ge ee e+ a ee we re

mperevdes cotimate bearing Sequence Xo 12196 eet ESS

“ a

-- Tat mete

fame and amounts comerme the cost cocmate hereby a7proved, of the sbove-duarribed projet oy portrat

SM RS Hak Nek Bp ON UN cs AWS aan nh fla te oe A Siu a eR

See oer <= wr. > ap | 2. —) i

— a ——s Piuiiesters e

___ 0794.00 _-..... | VR _ |B

ec SS jo, 90D _ |

ie | 9298.00 (9298.00 |)

aT o ean edo nee | A

ws a 4 - Pee eee,

Re iiaitinatdiihl- caine ldiaglin ce 9005.00 | 1182:.30

4 PORLABOR (excheding Suppey Fund reserve)... eOLBeN ce see >i

4 LABOR AND NONLABG (evehedmmg Supply Fant reeerve) . 321135,00 9006.00, ! 222:3.90

neerve and monthly limitetacm —s XXX XN We

as momance (incheting Supply Pand rere 9006209 NPSL

ATTUNED Cunt ROT MATE. gee eeaO We eas Fa ap

- +--+ ee ee ee

identifying syrabvie shall appear on oer) sey roll, remeuitwa, of 420° cacumbrease deremest Curgraba

pact ;

wet eymbt .9°2246 metal prow Na O6B 34-2166 Bork proses Nea 8650 :

, <tg e l

of expenditure symbol eesocg (9) _ 9 -

Aprreeé:

vic 30 1939

“ee ie.< ouetuenmnen sa + ame wrete A dmnerestrates,

. ¢

~ wa% ¢* a@* + Yaul

"(76t) ea yd

WORKS PROGRESS ADMINISTRATION

PROJECT PROPOSAL

queies, ¢ 12518 055 OCT 24 ISihe WPA Work Projet No.

proved, 8 a — __._Serial No. | } 6588 — tha}

—s (Spumeet 4 eo WI.te Shore hae,

spree! So. STE Ee Date f prujneal . p-00-s0

Page | of 5 pages ‘

qe > A

. Project No. .....

io, see — oe

nox or .... oom . /re

» Paocames ApwrxisT@s 3 ae

SO reefers uvder the rules and regulations 4 the Works Progress Adauz.stration.

j 4

iveal: : :

’ made tia; tr followita proposal be reviewed and that e formal application te made for ee ad | Pa

City of Mow pee he ES Ae ee Bibb

oe Po” (apenas 2g eg?) (v@emm wsdren—ciny, weak se

d project Moen ccnenenen nese ne cna cnatecnnonnnnremesene a

4

df estimated costs j

Petered tends |

bese of ores @ |

m im js

eoscipe) .....| O000.20 SRL

equipment, and other eowte. |

ter durwet coma. 16.00 213

forutat f¢) waly

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(763-769 |

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=

‘ated worsens paxt trom Federal fonds, =acmretbs 160 SO oe Ber

tal workers pass trom Federal fondo, MOe-GDanes »........-.-...-. ae ,

filed workers ask by Bpvacor, mam-emnethe SummEesorer 0219-60 208 —_— en

Tote) macmcthe, oll workers ... o semattnieiea-eas tm 166 selkesindiedants —-

Federal expeoceare per mao-year of lave

vont A priject (item 4. cot 2, tne 208 ips

po aon (item & (b)) 7-8 BOBAD

aot preparations will be evmper een Requiges _

A epatreons oi tocamplte A Regatta

' research projects only). ° eaplete specifieaticns, eva A forme, ecbedules, nratams, |

site ae se SESS pitted baww le. 29

mn be tated = ——3B-—— days alter = 4e & proceed, and it ls et.caated that — ae 114 _

be required for evespiation. we

se peamat, pecject i be euperintended by Elilemse 4 ; 2 set!

snd cperstina or putlication of results f completed project will be proviched as fothows: ¥

prom 4

, aaa

ad ook: on.

ae

ad

“ee

s ~ ~ -<c em ao -rectoeer ones se - -

ete at ee AIOE - oars wer amen-- 20 wor acesecce —

_—— eaten + ene ee per eeee sewer es one -o- == - ~~.

OEE LG LE OCOD ee eee ce oe

md has ben epproved by the following pubiie planing or other agrrns concerned: ad ceeaccuniiimcdies 7

Semele Clad 208 City 46 teen an onaeatl

— eee —_— -———-{

-—————— 0 eee mm

ro hp cme reepunsibility tor acts sed will QUEENIE * eorume responsitéiity for com;-tmue my

that (oods allotted t0 proiect are inadequate

2 which project wl be eondacted bs owzed b7 ‘

ee ae

- ~ er ee ee er

hes Ganges’ Sx'aTiction to conduct pruject ve this property.

est bn cower ted as put de preparty of Mate cummey © svat <> Fotens proms. ub praia lomre

pemet 6 es pee ome Wy ements ery re te ma ee wets os mer

ed eva Me ete over las ye pert).

wiiy of tide project quieger ll not)** depeod up a <2 completion of uber p.ie os private work. bipwetaioe

ep

owes - on ome _-

med contruction proivcta caly.) Projert ls ‘e140 @ Feteral Aid Highwey.

Federal ot yor mile: 6... -........- SS Se LS eee ements

‘ RSENS pt mtg ° | ere nk ah atin,

(A short, crane Patement giving reasa « wecessity fue the propresd pr-sect, including any omacnte:

sateenents shrnd tee catered the work |ow 2h ‘itiunal sheet f 12cm we ,

———<—— ee ee ee

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Netw! 207 werwertate claativeti-s Ter wre choad agree w 41 te eter

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ie mew © tt entree to diferectley ot «ree, and Peters ¢ ~-owrsluete Bon dum . - wd 6. ue

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+l @ available lor the proeseution of Protect os nomndeut

CERTIFICATE:

wader the Emergency Keil A Act of i and orders sad reguiations issued thereusder. This |

hut the use of beuefit of the pul i

__. aries ma Sk ae PE on) i. :

(type (Te (ime)

Si lela grat st

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INSTRUCTIONS TO SPONSOR FOR PREPARING THE PROJECT PROPOSAL

of the project proprca! a-4 the furntaliog of supplemer-tary explanaucy date are mapomaibilities 4 the spon

metvieed to conter with inrel and district officer of the Wocks Progress Administration te obtale informetive

sngetional classificstions, wage rates, working hours, and other matters of local application.

propeete, the projeot proposal shoud be accompanied by plans cr drawings and general specifications

48 wey as to permit jntel:igent review. Uther supplementary data, to secompany Le project

COPY PRINTED CLOSE TO EDGE

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456

[S18]

Exnuisit “K”

Copy: Mr. Adrian Newcomer, Macon

October 11, 1938

Application, State

Serial No. 6586

Construct Community

Club House, Macon,

Georgia, Bibb County

Honorable Charles L. Bowden, Mayor

City of Macon

Macon, Georgia

Dear Mr. Bowden:

The proposed project covered in the above identified ap-

plication, is now undergoing final review in this. offiee,

prior to a final decision as to what action will be taken,

In reviewing the information supporting the project ap-

plication, it is noted that the proposed building is referred

to on the plans, specifications and other data as being a

woman's ¢lub building, which would indicate that the

project upon completion would not necessarily be con-

sidered a community club house to be used by and for the

benefit of the general public at large.

It is noted in the statement signed jointly by yourself, the

City Treasurer, and officers of the Woman’s Club House

Commission, dated September 7, that reference is made to

the project as being the Woman’s Club House, and that

the property on which the improvements will be made will

not be disposed of to a nongovernmental body during the

operation of the project. In the prospectus outlining the

437

pose for which the building will be used, which prospec-

ur

Ai is signed by the President and Treasurer of the

Woman’s Club House Commission, it is noted that the club

house will be operated under the jurisdiction of the

Woman’s Club. The prospectus does not bear the signa-

tures of the sponsoring officials.

[819] In order to establish the full purpose for which the

building will be used upon its completion, and to assure

that the property together with the improvements to be

made thereon with the aid of WPA funds, will be main-

tained for the general use and benefit of the public at

large, we consider it necessary to request an additional

statement from the City of Macon, the project sponsor,

similar to the following, making reference specifically to

Project Application State Serial No. .......... :

“With reference to Works Progress Administration

Project Application State Serial No. 6586, this is to

certify that the proposed building referred to in plans,

specifications and other data submitted to support the

project application, as ‘The Woman’s Club House’

will, upon completion, be used as a community club

house for the general use and benefit of the public at

large, without discrimination against any individual,

group of individuals, association, organization, club

or other party of parties who may desire the use of

the building and the property upon which the building

is located.

“It is further certified that the City of Macon, as

project sponsor and owner of the property upon which

the building is to be constructed, does not intend to

lease, sell, donate, or otherwise convey title or release

jurisdiction of the property together with improve-

ments made thereon during the useful life of the im-

a . —_

SGP LEED IES PBA REAL GPEC PENIS LIN IE

SOROS ET

TRE A MAE

PPR REIT or

438

provements placed thereon through the old of WP.A.

funds.

“It is further certified that the City of Macon, as project

sponsor, will be responsible to see that the property

together with the improvements made thereon wil] he

maintained for the general use and benefit of the

public, and will not be used for the profit or benefit of

any one individual or specific group or organization,

and the management of the property, together with

improvements made thereon, will at all times [820] }e

subject to the approval of the designated city official

or Officials of the City of Macon, who will be responsi.

ble to see that the foregoing certification is adhered

to.”

We regret to inconvenience you further for additional in.

formation in connection with the proposed project and

wish to assure you that we will be glad to give the pro.

posed work immediate further consideration upon receiy.

ing a statement in triplicate, similar to the foregoing,

notarized and signed by yourself and the City Treasurer,

together with a certified and signed by yourself and the

City Treasurer, together with a certified copy of the deed

to the property upon which the building is to be located.

Yours very truly,

(Miss) Gay B. Shepperson

Administrator

Administrative Assistant

JJL/MM

—_—

(821)

CITY OF MACON ,

Orrice oF THE Mayor

Henry W. Pittman

Charles L. Bowden

Mayor Pro-Tem

Mayor

October 22, 1938

Hon. John J. Lambert

Administrative Assistant

Works Progress Administration of Georgia

Ten Forsyth Street Building

Atlanta, Georgia

PLEIN EY EN Le

Dear Mr. Lambert:

[ hope that you will pardon our delay in sending to you

certified copy of the deed of Senator A. O. Bacon cover- 7

ing Baconsfield Park property on which Baconsfield Club }

House is proposed to be erected. This is a public park

left to the city by Senator Bacon in his Will and has been j

used for years by the City of Macon.

The Club House will be for the benefit and use of the

public and while the name “Women’s Club House” would

indicate it would not be operated for the public this is

the way it is operated.

The name of the project should be “Baconsfield Club

House” instead of the Woman’s Club House or whatever

name it carried.

ee St a he ee ee

We are enclosing in vriplicate the statement as requested

by you, also copy of that part of the Will relating to this f

property.

440

If there is any further information that you wil] like to

have please let us know.

Most sincerely,

Chas. L. Bowden

Chas. L. Bowden

Mayor

CLB/r

Encl.-4

[822] “With reference to Works Progress Administration

Project Application State Serial No. 6586, this is to certify

that the proposed building referred to in plans, specifica.

tions and other data submitted to support the project ap-

plications, as ‘Baconsfield Club House’ will, upon comple-

tion, be used as a community club house for the general

use and benefit of the public at large, without discriming.

tion against any individual, group of individuals, associa-

tion, organization, club or other party or parties who my

desire the use of the building and the property upon which

the building is located.

“It is further certified that the City of Macon, as project

sponsor and owner of the property upon which the build.

ing is to be constructed, does not intend to lease, sell,

donate or otherwise convey title or release jurisdiction of

the property together with improvements made thereon

during the useful life of the improvements placed thereon

through the aid of W. P. A. funds.

“It is further certified that the City of Macon, as project

sponsor, will be responsible to see that the property to-

gether with the improvements made thereon will be main-

SLOT LOVES LOL IBN CT Gt SA SPL NSH ES ALOE RF

441

tained for the general use and benefit of the public, and

will not be used for the profit or benefit of any one in-

dividual or specific group or organization; and the manage-

ment of the property, together with improvements made

thereon, will at all times by subject to the approval of

the designated city official or officials of the City of Macon,

who will be responsible to see that the foregoing certifica-

tion is adhered to.”

Chas. L. Bowden

Chas. L. Bowden, Mayor

City of Macon, Georgia

Frank Branan

Frank Branan, Treasurer

City of Macon, Georgia

(823) Sworn to and subscribed before me

this 14th day of October 1938

Elizabeth Ledsinger

Notary Public, Bibb County, Georgia

[824]

October 24, 1938

Mr. Adrian Newcomer

Area Engineer

WPA Area No. 3

356 Cherry Street

Macon, Ga.

Dear Mr. Newcomer:

We are returning to you herewith for your files copy of

Project Application Form 306, copy of Sponsor’s Agree.

ment Form 308, copy of Project Proposal Form 301, dupli-

cate copies of Preliminary Project Proposal Form G-141,

copy of a statement signed by the Mayor and City

Treasurer of Macon, that the City does not intend to re-

leased jurisdiction to the property upon which work is

to be performed under the project, copy of a statement,

dated September 7, signed by the Mayor of Macon and

officials of the Woman’s Club that the building will be

maintained for the benefit of the general public, and pros-

pectus of the proposed community club house, all bearing

State Serial No. 65-30-9, which provides for constructing

a community club house building, Macon, Bibb County.

The application is being forwarded to Washington for

approval.

Yours very truly

(Miss) Gay B. Shepperson

Administrator

Administrative Assistant

JJL/MM

[847]

Kxuisir “M”

.

i

j

i

—

——oo

/ GENERAL SERVICES ADMINISTRATION

: National Archives and Records Service

EP SCN TYR MR sel

Go all to ‘hom these presents shall come, Greeting:

3 Certify That the attached copy, or each of the specified number of attached

copies, of the document(s) identified below is a true copy of a document in the legal

custody of the Administrator of General Services and deposited with the National Archives

of the United States.

Records of the Work Projects Administration, Record Group 69

Microfilmed Project Folders, Georgia: Selected Documents from

the Project Folder Relating to Official Project 65-1-34-52

(Roll 2990W).

testimony thereof, 1, ROBERT H. BAHMER, Archivist of the United States, being

duly authorized (41 CFR 101-7.104-3), have hereunto caused

the Seal of the National Archives to be affixed and my name

subscribed by the Director, Social and Economic

Records Division ,

of the National Archives, in the District of Columbia,

2lst day of July 19 67

Sitodt Fra ied. 212.2 2—

Archivist of the Unitdd States

By Hance 7 v4

this

io amt &

ee

——

|

[850]

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450

[874-875]

(See Opposite)

-

.

pee oo omen

qonson’s CERTIFICATE AND AGREEMENT:

Aa &

iver Pevponat NO ilT-8 Dare — outa -

graa! have been checked by the undermined and ere true to the beat of dos

1 propeet is for the use or benent of the prot

vy the Uastad States Treasury onty sgon pey nu.s and vitte

the statermet eoetemed in thre pre

{teed Tite certited that thse propose

Inge 9

iin uralerntex thet Federa. finds is expenial !

ual by tae A ootms Progress AdmutastraGoun

jin further usderetd that the proyert will not he placed in eperetoon uniess and untd @aeorance ts

, et made avaiable ae emecahied in the proposal, ord as required by proynet opereterns

steed thes the work propped, ond all one undee the project. will be dae im conferr:ance with eal)

mente " pulew ar tivg laters tae of the W pursuant to ‘be act oA Cae

orks Progrese Admipisiraiien imued

der whaeks Fodoral favids for the poverecution of the project ere nade avaiable, emd 28 arconiacce With wach

attached hereto

oven thet ibe

jivagreed thet the Works Prigrese Administration under we cbhyatren to initiate sopra tions unler th gre

: wre notte complete the project if placed in operstion Further, in ereamdoration expend: tares

ialeral fume t+» be made on the propert, it is 1af the proprned work te undertaken, that the sponane ull

veh part of the entire erst there d ae 0 not to cupplied from Feder! funda.

Awns0R Cyty of Memmi i AORTA Uy. Tel a leagiaek a

mee Heo, Be. | ellacsalass Pace ch AN cade <iitannites

| “ity of Fy ly

ipnot's ied agent Rabe ae Egdea = Mayor dacun po

(vou «95 @ pom) vm (A

City of J }

Treasure.: Macon “-“*-O* 4, =”

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tem (somerr.

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Phi)

Fl No

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O-4596-Sr-

40058

pAcru otis Ne

COPY BOUND CLOSE IN CENTER

452

[889]

(See Opposite) &*

4g DP

City of Macon

@ 1443 5 @ 14s! G74 1.8

oo“ e°

Septender 7, 1938

' wisreigned eponsors of the WOMAN'S CLL HOUSES,

t ie LO AGKEA THAT Thi PROP: KPY Of

ri park ok TS AILL Bh MALE WILL BJT in. Ladved,

yOWATED Ibs DISPuCeb OF TO ANY PKIVATE

yAL OR CURPOKATIOB, 0% TO A QUASIEPUNLIC GHIANT “AT. IS

+ fis UPGRATI UM Or Pit. PROSZEP?. «IP 13 CUTE AQKEED

‘gy THA ULL: ING TS COMPLZTEKD, IT 13 TO KK MAINTAIN:D

i DANE: arty AND OPSHATED PORK CHE WeiKES 1? UF THe

PINWIC o

fi.

tMé ™ = g £4 70s ener 2..

7 e bYvans

Treesurer, City of Keeon

ae dies te firth

rs. .conard bocth

President, #oman's Club House

Cousnission

f

Y sz.» @ 1 (4A +7 €

Eree ii) Luees

Treesurer, *omn's Club House

ome d 6 81 OB

Y BOUND CLOSE IN CENTER

454

[917]

In THE Superior Court oF Biss County, Groreu

[TITLE OMITTED]

INTERVENORS’ THIRD SuPPLEMENTAL RESPONSE TO Morpoy

FoR SuMMary JupGMeNT FiLep sy Successor Trusregs

Unper THE Wit or A. O. Bacon—Filed August 17, 1967

Come now, Rev. KE. 8S. Evans, Lovis H. Wywnyz, Rey.

J. L. Key, Rev. Booker W. Cuambers, WituiAM Ranpau

and Rey. Van J. Matong, intervenors who file this Third

Supplemental Response to the motion for summary judg.

ment filed by the successor trustees under the will of A, 0.

Bacon, and show the Court the following:

a i

That attached hereto and incorporated herein by refer.

ence are the following exhibits:

(a) Exhibit W—wStipulation between the successor

trustees under the will of A. O. Bacon and Rey. E. §,

Evans, et al., intervenors.

(b) Exhibit X—Letter from Mr. Willis B. Sparks, III,

to Mayor B. F. Merritt, Jr., of Macon, Georgia, dated

May 22, 1964.

(c) Exhibit Y—Letter from Mayor B. F. Merritt, Jr.

of Macon, Georgia to Mr. Willis B. Sparks, III, dated

May 28, 1964.

(d) Exhibit Z—Affidavit of William H. Alexander, one

of the attorneys for Rev. E. S. Evans, et al., intervenors.

[918]

WHEREFORE, intervenors pray that this Court:

(a) Grant them the relief heretofore prayed for in

their Response, Supplemental Response, and in their See-

455

ond Supplemental Response to the Motion for Summary

Judgment ;

(b) Enter an order which will assure and protect their

riglit to racially nondiscriminatory use and access to

Baconsfield Park and all its facilities; and

) Grant them such other and further relief as to this

(¢

Court may seem just and proper.

This 16th day of August, 1967.

/s/ Witu1am H. ALEXANDER

Wiituiam H. ALEXANDER

85914 Hunter St., N. W.

Atlanta, Georgia 30314

JacK GREENBERG

James M. Nasait, III

10 Columbus Circle

New York, New York 10019

Attorneys for Intervenors

456

[919]

Ts

Exuisit “\W

Ix THE SupeRion Court or Biss Country

[TITLE OMITTED}

STIPULATION

The undersigned parties to the above-styled case agree

and stipulate the following:

1.

That Mrs. Mary Lou Bacon Sparks, a surviving daughter

of Senator A. O. Bacon and one of his heirs under his

will, died on May 31, 1944.

2.

That a public school known as Alexander School No, 3

is maintained and operated by the Board of Education of

Bibb County, Georgia, an independent agency created by

the Georgia Legislature, and is located across the street

from one extreme corner of the park area of Baconsfield.

The enrollment of said school during the 1966-67 school

year was approximately 410 children all of whom were

white. There were no negro children in attendance during

that time. The principal of the school is able to make only

a rough estimate of the enrollment for the term begin-

ning in September, 1967. She estimates there will be ap-

proximately 410 white children and 15 negro children in

attendance at that time.

3.

That there are about 12 negro families living within

approximately two or three blocks of the park area.

457

4.

Counsel for the heirs cf Senator Bacon enter into this

1920] stipulation at the request of counsel for the inter-

yenors E. S. Evans, et al and are willing to stipulate the

truth of the above facts but wish to make it crystal clear

that they do not in any way acknowledge that the facts

stipulated are relevant to any issue in the above captioned

case.

/s/ Wiis B. Sparks, 3Rp

Wuius B. Sparks, 3Rp

Of Counsel for the Heirs of

Senator Bacon and the Trustees

Under His Will

August 14, 1967

/s/ Witu1am H. ALEXANDER

Wiutuiam H. ALEXANDER

Jack GREENBERG

James M. Naseer, III

Attorneys for Rev. E. S. Evans,

et al. Intervenors

August 15, 1967

458

[921]

Exuisir “X”

Law OFrrices

JONES, SPARKS, BENTON & CORK

Persons Buripine

Macon, Ga. 31201

C. Baxter Jones A. O. B. Sparks

Edward L. Benton

Charles M. Cork

John W. Smith

A. O. B. Sparks, Jr.

Frank C. Jones

Charles M. Cork, Jr.

Franklin L. Colston

Willis B. Sparks III

Edward Bruce Benton

Carr G. Dodson May 22, 1964

Timothy K. Adams

Mayor B. F. Merritt

c/o Mr. Trammell F. Shi

City Attorney

Southern United Building

Macon, Georgia

Counsel

Dear Mayor Merritt:

I am writing to you as attorney for the Board of

Managers of Baconsfield with respect to the lease dated

December 21, 1948, between the Board of Managers and

the City of Macon. This lease involves property including

the Baconsfield swimming pool and the surrounding area.

| Sis WARIS AERA ADR ENS BARA aa. ela lua NUN TRUE + Aa gs eC alt eR

hen WN? tery

Ta

- 459

About a year ago, during the administration of Mayor

Ed Wilson, the Board of Managers of Baconsfield brought

a suit against the City in the Superior Court of Bibb

County seeking to have the City removed as Trustee of

Baconsfield because it was failing to enforce the racial

imitation essential to the trust purpose of A. O. Bacon.

Of course, when your administration came into office, the

City of Macon through the City Attorney, Mr. Trammell

[922] Shi, quite properly declared in open court its consti-

tutional inability to enforce the trust as set forth by A.

(), Bacon. Having declared its legal inability to enforce

the racial limitation, the City thereupon tendered its res-

ignation as Trustee of Baconsfield.

Since the City of Macon has delared in open court its

legal inability to enforce the racial limitation as required

by Covenant No. 2 on page 3 of the lease dated December

9], 1948, it is the feeling of the Board of Managers that

the lease should be cancelled because of this breach by

the City of that covenant.

Accordingly, I am writing this letter as a five day

notice within the meaning of the final paragraph of the

said lease, which said paragraph reads as follows:

Rowe

a

Peerecy

see

ee eS ye ee a |

BP oreo: alk Faalnn A. ay a ah ee et) donbuat on

460

[923]

Page 2. Ltr. to Mr. Merritt May 19, 1964

“In the event that it breaches any of its covenants, num.

bered 1 to 4, inclusive, and fails to correct such breach

within five days after written notice thereof, to the Mavor

of the City of Macon, then the Board shall have the right

to immediately terminate this contract, assume possession

and control and management of the swimming pool and

the pool area, in which event all rights of The City here.

under, except such rights as it may have with regard to

the net revenue earned to the date of such termination,

shall cease and determine.”

The Board of Managers in pointing out this breach of

the lease is fully aware that the City of Macon is guilty

of neither bad faith nor neglect. Rather, it is obvious

that performance by the City of the second covenent of

the lease has been rendered impossible be decisions of

the Supreme Court of the United States interpreting the

Fourteenth Amendment, such decision having been handed

down since December 21, 1948.

Respectfully yours,

Wiis B. Sparks, ITI

WBSIII :mbs

ae.

461

[924]

Exuzisir “Y”

B. F. MERRITT, JR. W. K. STANLEY, JR.

MAYOR MAYOR PRO-TEM

City Hall

CITY OF MACON

May 28, 1964

Mr. Willis B. Sparks, Ill

Jones, Sparks, Benton and Cork

Attorneys-at-Law

Persons Building

Macon, Georgia 31201

Dear Mr. Sparks:

This will acknowledge receipt of notice given on behalf

of the Board of Managers of Baconsfield of your intention

to cancel the lease on the Baconsfield Swimming Pool to

the City of Macon, unless the breach of said lease is cor-

rected within five days from the receipt of said notice.

Correction of said breach is a legal impossibility and the

City of Macon has no alternative but to consider your

notice as an effective termination of said lease. Acting for

and on behalf of the City of Macon, this will constitute

notice that the City considers the lease effectively termi-

nated immediately and its connection with the Baconsfield

Swimming Pool severed. The property thus reverts to the

control of the Board of Managers of Baconsfield free and

clear of any lease agreement.

Sincerely,

B. F. Menrirt, JR.

B. F. Merritt, Jr., Mayor

BFM :b

462

[930]

In tHe Superior Court ov Biss County

(Title Omitted)

SuppLement To Motion ror Summary JupcMent

As Amenxpep—Filed August 21, 1967

Come now Guyton G, Abney et al as Successor Trustees

undcr the Will of A. O. Bacon and Willis B. Sparks, Jr.

et al as the “Sparks heirs” of tlie said Senator Bacon and

tender this Supplement to the Motion for Summary Judg-

ment of Guyton G. Abney et al as amended. The “Sparks

heirs” have previously concurred in the original motion

for summary judgment and do hereby concur in and adopt

the “Amendment To Motion For Summary Judgment” filed

on behalf of Guyton G. Abney et al as Suecessor Trustees

on June 29, 1967, as well as joining in this Supplement,

By way of this “Supplement” the above named parties

add the following evidence:

1, An affidavit of Alex Cameron, Clerk of the City of

Macon, dated August 16, 1967, attached hereto as Ex-

hibit “E” P

2. An affidavit of Mrs. Kenneth Dunwoody dated Av-

gust 21, 1967, attached hereto as Exhibit “F”

3. An affidavit of Wesley Holley Long, Jr. dated Au-

gust 19, 1967, attached hereto as Exhibit “G”

/s/ Jones, Sparks, Benton & Cork

Jones, Sparks, Benton & Cork

Attorneys for the Heirs of

Senator Bacon and the Trustees

under his Will

(931)

Exuusit “E”

In THE SupeRion Court or Briss County

(Title Omitted)

AFFIDAVIT

The following is a list of Mayors of the City of Macon,

Georgia, from 1910 to 1967 with the years of service of

each Mayor listed out beside his name.

John T. Moore 1910-1913

Bridges Smith 1914-1917

G. Glen Toole 1918-1921

Luther Williams 1922-1925

Wallace Miller 1925-1927

Luther Williams 1927-1929

G. Glen Toole 1929-1933

Herbert Smart 1933-1937

Charles L. Bowden 1937-1947

Lewis B. Wilson 1947-1953

B. F. Merritt, Jr. 1953-1959

Edgar Wilson 1959-1963

B. F. Merritt, Jr. 1963-1967

I, Alex Cameron, Clerk of the City of Macon, do certify

that the above list of Mayors and of the dates of their ser-

vice as such is an accurate reflection of the records in that

464

regard contained in my office. This affidavit is being given

with the understanding that it is to be placed in evidence

in further legal [932] proceedings in regard to Baconsfielg

Park and the contents of this affidavit are matters the

truth of which I could swear to in open court if it were

necessary.

This 16th day of August, 1967.

/s/ ALEX CAMERON

ALEX CAMERON

Clerk, City of Macon, Georgia

(City of Macon, Georgia Seal)

PO pinks,

465

(935]

Exuisir “GQ”

Ix THE SupERIoR Court oF Biss County

[TITLE OMITTED]

AFFIDAVIT

Iam Wesley Holley Long, Jr. I am a resident of Macon,

Georgia living at 3380 Atkins Drive in that City. I am

presently employed at Anderson Chemical Company in

Macon. I served as Comptroller for the City of Macon

from 1962 until December, 1966. My predecessor as

Comptroller of the City of Macon was a Mr. Kelly Gun-

nells who was killed in an automobile accident in 1962.

Prior to his death in 1962 Mr. Gunnells had served as

Comptroller of the City of Macon for approximately

twenty years.

During the time I served as Comptroller of the City

of Macon I was aware that during at least a part of that

time there was an outstanding lease of the Baconsfield

Swimming Pool between the Board of Managers of Bacons-

feld as lessor and the City of Macon as lessee. While

I was not completely familiar with the terms of this lease,

which I knew had been in existence for several years

prior to my taking office as Comptroller, I had read the

lease and did know that the lease provided that if there

was any profit made by the City from gate receipts to

the Pool over and above the City’s expenses for main-

tenance and operation of the Pool that the Board of

Managers of Baconsfield was to be paid a part of that

profit.

(936] It is my understanding as a result of my service

as Comptroller of the City and my association with em-

466

ployees in that office some of whom had been there fo;

several years before 1962, that the City of Macon had

suffered an overall financial loss during the time it

operated the Pool and indeed had suffered a loss each

year the Pool was operated by tae City in the sense that

expenditures for upkeep and maintenance exceeded. the

proceeds of the paid admission of those who came to se

the Pool.

During the term of my office as Comptroller of the

City of Macon I had a request from a member of the

Board of Managers of Baconstield for a financial state.

ment relative to the Pool as to whether any profit had

been realized by the City in regard to the Poe: since its

construction. Such a completely accurate determination

could not be made without a study of various City ree.

ords but I recall notifying the Board after an extensive

study of such records that no profit had been realized.

It is also my understanding from my service as Comp-

troller of the City of Macon that the City at no time

during the term of the lease to the Pool ever paid any

money whatever to the Board of Managers of Bacons-

field pursuant to that provision of the lease which pro-

vided for a division of any profit between the City and

the Board of Managers of Baconsfield.

I am giving this affidavit in order that it may be placed

in evidence in further litigation in the above captioned

case in regard to Baconsfield Park. I could and would, if

necessary, swear to the truth of its contents in open Court.

[937] This 19th day of August, 1967.

467

/s/ Wrstey Houiey Lone, JR.

Wesley Holley Long, Jr.

Personally appeared before me the under-

signed, an officer duly authorized to ad-

minister oaths, Wesley Holley Long. Jr.

who having been placed under oath swears

and affirms that the foregoing statement is

true and correct in every respect. »

This 11th day of August, 1967.

Wis B. Sparks, 3rp (L. 8.) (N. P. Seal)

Notary Public

Bibb County, Georgia

468

[939]

(Title Omitted)

Biss Superior Court

Seconp SuPPLEMENT TO MOTION FoR

Summary JupcMent As AmMenpep—Filed August 28, 1967

Come now Guyton Abney et al as Successor Trustees

under the will of the late A. O. Bacon and W. B. Sparks,

Jr. et al as the “Sparks Heirs” of Senator Bacon, the time

for filing evidence in this case having been informally ex.

tended by the Court from the time set at the hearing on

June 29th so as to include the date of filing this document,

and add the following evidence to their presentation:

1. An affidavit of Mrs. Mary Budd Kearnes with an

attached letter from then City Comptroller Holley

Long to Charles E. Newton, such affidavit being marked

“Exhibit H”.

2. A certified copy of the order of Bibb Superior Court

in a Condemnation Case number 9865-M, such certified

copy being attached hereto as “Exhibit I”.

3. A certified copy of a lease between the Board of

Managers of Baconsfield as lessor and Charles E. Nash

as lessee appearing at Book 588 Pages 147-150 in the

office of the Clerk of Bibb Superior Court, such cer-

tified copy being attached hereto as “Exhibit J”.

4. A certified copy of an amendment to the lease filed

as “Exhibit J”, such amendment appearing at Book 588

Page 146 and said copy of said amendment being at-

tached hereto as “Exhibit K”.

5. A stipulation of Counsel in regard to “Exhibit H”

to “INTERVENORS’ SUPPLEMENTAL Response”, such stip-

ulation [940] attached hereto as Exhibit “L”,

3

<

469

g. An affidavit of Ralph B. Jones identifying certain

graphs as having been taken by him with an

envelope attached containing the photographs so iden-

tified, such affidavit and photographs being attached

hereto as Exhibit “M”.

photo

/s/ Jones, Sparks, Benton & Cork

Joxes, Sparks, Benton & Cork

Attorneys for the heirs of

Senator Bacon and the Trustees

under his Will

FA DIOP Mapes mp mip ERNE NE PER RE PN Reape -

470

[941]

Exuisir “H”

(Title Omitted)

AFFIDAVIT

I am Mrs. Mary Kearnes, an assistant trust officer of

the First National Bank and Trust Company in Macon,

Georgia. I am the same Mrs. Mary Kearnes who testified

on deposition in this proceeding on April 24, 1967,

For several years Charles E. Newton, former Chairman

of the Board of Managers of Baconsfield, served simultane.

ously as head of the Trust Department of the said Bank

and as Chairman of the said Board of Managers during

which years I worked under his direction in the Trust

Department. Various records and checkbooks of the Ba-

consfield Board of Managers were kept at the Bank during

that period because of Mr. Newton’s connection with the

Board and because tlie Trust Department performed cer.

tain bookkeeping functions for the Board. They are still

kept there as of this date, the Bank having an agency agree.

ment with the Board of Managers presently in force.

Mr. Charles E. Newton is not presently discharging any

duties at the Bank having been largely confined to his home

for over a year by ill health after suffering what a layman

might term a “stroke”.

Through my work as an assistant to Mr. Newton I have

become familiar with the set of check books he kept with

regard to the Baconsfield Board of Managers. I know of

my personal knowledge that these records which extend

back from the present day until a time before the construc-

tion of the Baconsfield swimming pool in 1947 or 1948 re-

Pe

471

flect all receipts of income, the sources of said income and

the connection in which said payments were made.

(942] At the request of Mr. Willis B. Sparks, Ill of

Counsel for the heirs of Senator Bacon and the trustees

under his will I have just completed a thorough review of

the said records and can attest that they do not reflect any

payment to the Board of Managers of Baconsfield by the

City of Macon at any time or in any year made pursuant to

the terms of the lease of the said pool by the Board to the

City dated December 21, 1948, by which the Board in a

cause on page 3 of the lease was to have received fifty

percent of any profit made by the City over and above the

City’s expenses for operation and maintenance of the said

pool. On the basis of my review of these records I can

testify with certainty that the City never made any such

payment in any amount to the Board of Managers of

Baconsfield. This, I believe, is also corroborated by the

fnancial statements incorporated in the minutes of the

Board of Managers which statements, I believe, fail to

reflect any payment by the City to the Board pursuant to

the pool lease.

Attached to this affidavit is the original of a letter dated

September 26, 1963, to “Mr. C. E. Newton, Jr.” as “Chair-

man, Board of Managers of Baconsfield” from Mr. Holley

Long as Comptroller of the City of Macon. The letter is

three pages in length including a final page consisting of a

listing of revenue and expenditures in connection with the

City’s operation of Baconsfield Pool year by year from 1948

through 1962. The “Mr. C. E. Newton, Jr.” referred to is

the same person elsewhere referred to herein as Mr. Charles

E. Newton.

This original letter is one kept by the Trust Department

of the First National Bank in the regular course of its

business.

EF pn: Tar Oeil ae ce oe

472

This letter by its terms is one written in reply to letters

to Mr. Long by Mr. Newton dated April 3, 1963, and July 3,

1963. I have been unable to locate the copies of these two

letters written by Mr. Newton in the Bank’s files.

[943] This affidavit with the accompanying letter of they

Comptroller Holley Long are given in order that they may

be placed in evidence in the above captioned case Le. in

further legal proceedings in connection with Baconsfield,

I do swear and affirm that the contents of this affidavit are

true and correct in every respect and that I could and

would, if it were necessary, swear to the truth of these

contents in open Court.

This 25th day of August, 1967.

/s/ Mrs. Mary Kearnes (L.S.)

Mrs. Mary Kearnes

Personally appeared before me an officer

duly authorized to administer oaths Mrs.

Mary Kearnes who having been placed

under oath does swear and affirm that the

contents of the foregoing affidavit are true

and correct in every respect.

This 25th day of August, 1967.

/8/ Mary Hester Ricnarpson (N. P. Seal)

Notary Public,

Bibb County, Georgia

473

(944)

Crry Haun

City or Macon

GEORGIA

Ep Wison Dan TIDWELL

Mayor Mayor Pro-TeM

September 26, 1963

Mr. C. E. Newton, Jr. Baconsfield File

Chairman, Board of Managers of Baconsfield

First National Bank & Trust Company

Macon, Georgia

Dear Mr. Newton:

This letter is in reply to your letters of April 3, 1963 and

July 3, 1963, requesting information concerning revenues

and expenditures at Baconsfield Pool.

Attached you will find a table showing revenues and ex-

penditures for each year, 1948-1962. The information shown

on this table includes total revenues from all sources. The

expenditures on this table indicate routine expenditures

for salaries of personnel employed exclusively in the pool

operation and for minor repairs and general operation of

the pool.

The annual expenditures shown do not include many other

items, such as capital expenditures for improvements.

For instance, we had the following expenditures for im-

provements in the years indicated :

1948 $4,999.57

1960 6,079.21

1962 6,360.55

$17,439.33

oi ms A - SOTO LET LES PIE EPO ; ei CRE be PEAS * — |

i ai ee fi SOV ee MOSES Pee ? ‘

Se pR ing, TBS oP ‘ Pio Pee. ree :

474

There are many other expenditures which would require

a more detailed analysis of city audits to develop specif.

cally. These expenditures include such items as locker

rental (the revenues shown include revenue from renting

lockers to the public) and charge-outs for extensive work

performed by the general labor [945] force of the city.

In my opinion, on the basis of figures already in hand

and on the basis of known expenditures not specifically

accounted for without a more detailed audit, the pool has

shown a net loss since 1948. If you feel that you would

require further detailed information, we will continue to

develop items of cost other than those outlined in this

letter and on the enclosed table, but I am confident that

expenditures will considerably exceed revenues for the

period 1948-62. Of course, I will be happy to meet with

you to discuss the matter or to go over our books with

your accountant, if you think this will be helpful.

Sincerely,

Ho.tiey Lone

Holley Long, Comptroller

City of Macon

HL:mg

EAE OLOE DL IOLE E : OOL REE LR SSRI ILE LOO ES —_—

475

BAcONSFIELD PooL

$174,781.15

Revenue Expenditures

$ 4,407.20 $ 4,407.20

9,304.10 8,210.54

10,068.80 13,341.22

9,837.52 9,904.81

13,163.90 11,359.90

11,201.75 11,119.35

12,649.45 12,040.17

10,914.95 10,733.79

12,037.70 10,118.98

12,276.85 11,550.69

12,599.26 10,183.22

14,748.09 11,001.34

14,253.95 7,130.12

14,551.75 8,249.23

12,765.88 8,118.33

$151,150.56

476

[947]

Exuisit “]”

In tHE Superior Court or Biss County, Georgia

[TITLE OMITTED]

ORDER

Pursuant to the Return of Honorable T. Coleman Blood.

worth, the Special Master appointed and chosen by the

Court to hear evidence and make an award in the above

captioned matter, in which said Return an award was

made to the condemnees in the sum of $131,000.00; and

said amount having been paid into the Registry of the

Court.

Ir IS HEREBY CONSIDERED, ORDERED AND ADJUDGED that

said award be and the same is hereby made the decree of

this Court.

The Clerk of this Court is hereby directed, pending a

final judgment in the case of Charles E. Newton, Jr., et

al v. City of Macon, being Case No. 25864 in the Superior

Court of Bibb County, Georgia, and upon which a final

order in this Court was entered on the 10th day of March,

1964, to deliver said sum unto Mr. C. E. Newton, Jr.,

in his capacity as Chairman of the Board of Managers of

Baconsfield, petitioners in said Case No. 25864; and said

C. E. Newton, Jr., in said capacity, is hereby directed to

invest said funds in short-term United States Govern-

ment securities—-all to be held subject to the further order

of this Court.

la i to ET a A cee a ee —

477

cage

(948)

this 26 day of March, 1964.

So ORDERED, ;

O. L. Lore .

JIS.CMC. i

Fen IN OFFICE, ;

96 day of March 1964 i

w LAVINE

Deputy Clerk

;

AER Ear ee HA

Na ERRORS Oot

ae

MOSTAR

&

5

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478

[949]

Exuisit “J”

588/147

Recorded, Oct. 20, 1948

Georcia Bras County

THIs contract, made and entered into the 17th, day of

October, 1947, by and between the Board of Managers of

Baconsfield, hereinafter called Lessor, the first party, and

Charles E. Nash, of Bibb County, Georgia, hereinafter

called Lessee, the second party,

Witnesseth:

That Lessor, in consideration of the rental herein agreed

to be paid by Lessee, and of the other covenants and agree-

ments, as hereinafter set out, does hereby demise, lease

and grant unto Lessee, upon the terms and conditions

hereinafter set forth, and for the period of time designated,

the following described real estate, to-wit:

Description of Property:

All that tract of parcel of land situate and being in the

East Macon District of Bibb County, Georgia, and in that

tract of land known as “Baconsfield”, devised to the City

of Macon by A. O. Bacon in his last will and testament,

which is on file and of record in the office of the Ordinary

of Bibb County, Georgia, and which is more fully described

as being that part of Baconsfield bounded on the southeast

by Emery Highway, formerly Broad Street; on the north

west by Boulevard Baconsfield, sometimes referred to as

Spring Street, and sometimes as North Avenue; and on

the cast by a forty (40) foot street which extends [950]

———

ASS ES SINE GER RR St Ceram

479

For Transfer to Corp. of Mercer University

See Book 552 Page 671 :

_day of Sept. 1953 |

For transfer & cancel

see Book 552 page 673

Sept 15—1953 B. a.... D. C.

Deep Recorp Boox 588, Biss County, Grorcia

(950] northerly from Emery Highway to Boulevard Bacons-

field, all as will more fully appear by reference to a blue

print copy of a map made by E. L. Gostin, C. E., on Dee. 3,

1945, hereto attached as Exhibit “A” and by reference

made a part hereof. ~

Term of Lease.

This lease shall begin on the date upon which posses-

sion of said premises is delivered to Lessee and shall ex-

tend for a period of ten (10) years from that date.

Delivery of Possession

Within a reasonable time after execution of this lease,

and as soon as Lessor can have the buildings now on the

demised premises vacated, Lessor will deliver possession

of the premises to Lessee. All buildings now on the prem-

ises shall then become the absolute property of Lessee

except the Fruit Stand now occupied by Bowen. Lessee

agrees that he will, as soon after delivery of possession as

possible, and within a reasonable time, remove all buildings

now located on the premises except the Bowen Fruit Stand

which shall be removed by Lessor.

GRADING OF PREMISES:

Lessee Covenants and agrees that immediately upon

being delivered possession of said premises, he will under-

—

FR De SEER ee 8 62 AR ARIST MPO ARES EL Get eee ‘

i aa a |

480

take to grade that portion thereof designated upon said

blue print as “Ravine”, that being all of said tract lying

between the “Brow of hill”, as indicated upon said plat,

and the said forty (40) foot street. In grading or filling

the said ravine Lessee shall construct, or cause to be

constructed, a culvert, or sewer, either of concrete or other

suitable material, over the branch which extends under

Boulevard Baconsfield through the said ravine to Broad

Street, of sufficient size to carry off all water which or.

dinarily drains and all flood waters which occasionally

drain down said branch. The grading shall consist of

filling the said ravine to the level of Boulevard [951]

Baconsfield and thence grading same down to the level of

Broad Street, and shall be so constructed that when the

forty (40) foot street is graded and opened, the grade of

the property demised shall be even with the grade of such

forty (40) foot street as constructed on an invarying

grade between Broad Street and Boulevard Baconsfield,

The cost of removing said buildings (except the Bowen

Fruit Stand) and of such grading shall be borne by Lessee,

In consideration of Lessee bearing this expense, Lessor

contracts and agrees that it will credit Lessee with fifteen

months rental (amounting to $3375.00) which shall acerue

as the first maturing monthly rentals under the terms of

this lease.

RENTAL:

Lessee agrees to pay as rental for said demised premises

the sum of Two Hundred Twenty Five and 00/100 ($225.00)

Dollars a month for each and every calendar month during

the period of this lease, but beginning 90 days after de-

livery of possession to the Lessee, the same to be paid

in advance on or before the 10th, of each month, the rentals

for the month in which the term begins and the month in

REE ROE RAT ON ONT PIL SOT EN Os OR

481

which the term ends to be prorated according to the num-

ber of days in such month.

Use of Premises:

Said premises are to be used by Lessee for the purpose

of conducting thereon, or allowing to be conducted there-

on, a first class, shopping center. No manufacturing busi-

ness and no garage for the repair of automobiles shall

be conducted upon said premises, nor shal! any spirituous

or malt beverages be sold thereon, nor any skating rink

or dance hall conducted thereon.

In defining the use to which these premises can be put,

it is the intention of the parties to provide that no business

perations shall be carried on therein which will be

or 0

offensive or obnoxious.

(952] Improvements By LESSEE

The title and ownership of such buildings as maybe

erected on the demised premises shall be as follows:

If this lease should not be renewed, as herein provided,

at the end of the original term, or at the end of the first

10 year renewal term, then in either of these events all

buildings erected by Lessee, his assigns or sub tenants,

upon the demised premises, shall be and become a part

of the land and revert to Lessor upon reversion of the

land; but if this lease should be renewed for both the

first and second renewal periods of 10 years each by

Lessee or his assigns, then and in that event the buildings

shall not become a part of the land but may be removed

by lessee or his assigns at any time within a period of

four months after the expiration of 30 years from this

date, upon the payment by Lessee of $2500.00 in cash for

this privilege; and in the event of removal of the buildings

AL REE Aah PERT RNR ON aT ER NEE OS

> he ae oe fi

OIE LER Ripe ag RR G Ir TPA RSG NS BNaN EL NPN TN I IAD a

» s Ci eA IES ais Ailes Spi ieee nse

482

by Lessee, he shall be obligated to clear the premises anq

leave the land in good order clear of all debris within

the period of four months. If the buildings are not remoyeq

within the four months period they are to become a part

of the land and revert to Lessor upon reversion of the land.

Insurance:

Lessee contracts and agrees at his own expense to keep

all improvements upon said premises fully insured against

loss and damage by fire and windstorm, by taking out

extended coverage insurance “in the usual form, to the

approximate insurable value of such improvements, in al]

of which policies Lessor and Lessee are to appear as the

named insureds as their interest may appear, and to

cause to be furnished to Lessor certificates of all such

policies. In the event of damage to or destruction of any

improvements upon said premises [953] occurring during

the term of this lease or during any renewal term, here.

inafter provided for, then Lessee agrees to immediately

repair, rebuild and replace all such damaged or destroyed

improvements, with improvements of equal value. Lessor

agrees that the proceeds of all such insurance policies may

be so applied.

Release from Liability

Lessee will make all repairs of every kind to the build-

ings and improvements and Lessor is released and relieved

from any obligation to make such repairs. Lessor is also

released and relieved from any and all obligations to pay

for any city services and from any liability for taxes im-

posed against the demised premises; and is released and

relieved from any obligation to see that all city ordinances

and regulations are complied with.

Lessee hereby released Lessor from any and all liability

for injury to person or property however the same may

BEER OLLIE

483

CAREER ATS

arise during the term of this contract, and covenants to

indemnify Lessor against any loss or damage which it

may sustain on account of any such injury or damages.

SRR Rae

BANKRUPTCY

In the event Lessee shall be adjudicated a bankrupt, or

should a receiver be appointed for Lessee, or any of his

property, then Lessor shall have the option to terminate

this contract immediately and to at once take possession of

the demised premises with all improvements thereon, with-

out any liability to Lessee, or to his trustee in bankruptcy,

or to such receiver, for any unamortized value or cost of

such improvements, and without any liability of such

Lessee, or such Lessee, or such trustee or receiver for

tal after the date upon which possession is so taken.

{POET TCT IT

SR POTENT ES

RIES

ren

Waiver or HoMESTEAD AND AtTorNEYs FEES

Lessee hereby waives and renounces for himself and

family [954] any and all homestead and exemption rights,

which he or they may have under or by virtue of the laws

of Georgia and of the United States as against any liability

that may accrue under this contract.

PRY RRR ANET INE REE

PANE TILDE OEP

Lessee further agrees to pay 10% attorneys fees on any :

part of said rental that may be collected by suit or by an

attorney after the same has become due as provided by law.

ASSIGNMENT AND SuUBLETTING

This contract is assignable and Lessee may sublet all 4

or any portion of the demised premises and of any im- }

provement which may be constructed thereon but all as-

signees and all statements shall hold subject to all of the

terms, provisions and conditions of the contract.

After buildings and improvements to the value of at

least $50,000.00 shall have been erected on the demised

Sree ae + iz PE) OMEEL DG E AP DS CIN

484

premises, Lessee may transfer and assign all his interest

in this lease contract to a corporation and in that event

and upon such corporation’s asumption by proper corpo-

rate action, of this lease and of all and singular, the duties,

obligations and liabilities herein imposed upon Lessee,

Lessor will accept such corporation as its lessee and re.

lease Lessee (the lessee named herein) from all future

liability under this lease, such transferee or assignee there.

after to hold under and subject to all other terms, proyi.

sions and conditions of this lease.

DeFavuLt By LESSEE

It is agreed that if as many as two installments of rent

herein contracted to be paid by Lessee shall be in arrears

at any one time, or if the Lessee shall fail to perform any

of the terms covenants and conditions hereof, and such

default continue after thirty days written notice to pay

or perform be served upon Lessee, then Lessor, if it so

elects, may enter upon said premises, and repossess and

enjoy the same as though this lease had not been made and

without any accountability to Lessee for any unamortized

value or cost of any improvement upon sold premises.

In the event possession is taken by Lessor because of

default, as herein provided, whether through legal pro-

ceedings or otherwise, such repossession [955] shall not

be considered as relieving Lessee from his obligation to

pay the rent up to the date upon which possession was so

taken and further in such event, Lessee shall have no

further right, title or interest in and to such demised

premises, and this contract shall be considered as ter-

minated.

These rights of Lessor are cumulative and are not re-

strictive of any other rights which Lessor has under the

—— — 2 PAT, EBs AnD wa EP LEY

2 LP am DR ay

law, and failure of these privileges at any particular time

shal] not be construed to constitute a waiver thereof. |

ReqUIREMENTS AS TO NorIcE

The mailing of a letter or other written notice addressed ;

to Lessee at 431 Nottingham Drive Macon, Georgia, or

the direct delivery of any such letter or written notice i

to Lessee, shall be a sufficient compliance by Lessor with :

any requirement as to a written notice herein provided

for, such notice to be deemed as given at the time of such

mailing or such personal delivery. It is provided, however,

that Lessee shall have the privilege of designating an ;

FR Neo)

agent resident of the City of Macon to so receive a copy B

of any such notice, with the further privilege of changing ;

from time to time the address to which such notice shall ;

be mailed to Lessee and of changing from time to time

the agent upon whom such copy shall be so served.

es he

(956]

RENEWALS;

So long as Lessee is not in default hereunder, either as

to the payment of rental, or as to compliance with any of

the terms, provisions and covenants of this lease, Lessee

shall have the privilege at any time prior to the expira-

tion of the ninth year of the term of this lease, of renew-

ing the same for an additional period of ten years, at the

same rental, and upon the same terms, conditions and pro-

visions as herein provided for; and likewise, shall have

the additional privilege during the first nine years of such

renewal term of so renewing this lease for an additional

such ten year period. No such option to renew, however,

shall extend beyond the second renewal term of ten years,

so this lease cannot be extended beyond a period of thirty

PRP TN TART RT OS eM

4

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=

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}

4RF

486

years from the date upon which the same begins except

by a new agreement between the parties.

CovVENANT OF PEACEABLE Possession

Lessor covenants with Lessee that it has the right to

lease the premises for the term and upon the conditions

herein specified and that Lessee on paying the said Renta)

and upon keeping and performing the covenants herein

specified by him to be kept and performed, may and shall

peaceably and quietly have, hold and enjoy the said de-

mised premises for the term hereinabove specified and for

the two additional renewal terms in the event of the exer.

cise of the options to renew as hereinbefore provided.

Successors aNp AssIGNs:

This contract in its entirety shall bind the successors in

office of the first party and the heirs, executors, admin.

istrators, successors and assigns of the second party.

APPROVAL BY ATTORNEYS FoR LESSEE

The title of Lessor and its power and authority to make

this lease shall be subject to approval by attorneys for

Lessee, [957] and if in the opinion of Lessee’s attorney it

is necessary to have any court order to perfect title or to

authorize the making of the lease, such order shall be ob-

tained by Lessor. In the event Lessor is unable to obtain

such order of court as may be required by Lessee’s attor-

ney after making a reasonable effort to do so then this

lease shall be void, and of no further force or effect and

neither party hereto shall be under any further duty, obli-

gation or liability to the other hereunder or in reference

hereto.

In Witness Whereof, the parties hereto, Lessor (acting

by and through its officers duly authorized by its resolv-

487

tion), have hereunto set their hands and affixed their seals,

the day and year first above written.

Boarp or MAnacers or BaconsFIELD (seal)

By: Dr. W. G. Lee

Chairman of the Board

Attest: C. E. Newton Jr.

Secretary of the Board

Lessor:

Charles E. Nash (seal)

Lessee

Signed, sealed and delivered by Lessee in

the presence of:

Rosa B. Morgan

Celia S. Lucas (N. P. Seal)

Notary Public, Ga., State at Large.

Plat recorded in

Plat Book 20, Folio 32

(C.G.) (2-28-50)

Signed, sealed and delivered by Lessor in

the presence of :

Rosa B. Morgan

(Celia S. Lucas (N. P. Seal)

Notary Public, Ga.

Notary Public, Georgia, State at Large

My Commission expires January 20, 1950

Filed in Office: Oct. 20, 1948 at: 9 A.M.

Recorded, Oct. 21, 1948

ASAE ORME SET MEE ONY AAS

LIT ALN AE REE RN NL IE,

POLAT

4

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:

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ta

488

[959]

Exuisir “K”

Book 588, Page 146

This Contract, made and entered into the 30th day, of

March, 1948, by and between the Board of Managers of

Baconsfield, hereinafter called Lessor, the first party, and

Charles E. Nash, of Bibb County, Georgia, hereinafter

called Lessee, the second party,

Witnesseth :

That for

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Appendix — Evans v. Abney · 396 U.S. 435 | Frix