Opposition Brief — Evans v. Abney

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INDEX.

Page

Question accdeboscces dcedeshe Keres esses 1

Statement of the Case ........-..--ee cere ee eeeeeee 3

ccc sdhcbehebehervarsvernevesvsadncess 4

SE ND cbc ooer ts vonecivecrsnsesrvesesens 8

City Activity ........-.eseeeeeeeeeerececececees 9

Reasons for Not Granting the Writ ..............-- 11

Summary of Argument ...........sseecceccscees 11

Argument .......--.-seeeeeeerceeceeccccecccrccees 15

The State Court Decision .......cccsccccccscces 15

The Decision of the Georgia Court Does Not ‘‘Frus-

trade This Court’s Mandate in Evans v. Newton,

eS oes dcenauceerendtaee 15

The Decree of the Court Below Is Not Hostile to

the Petitioners’ Right to Immunity From Racial

a et eet Reed eke en wees 16

A. The Decision of the Georgia Supreme Court

Did Not Infringe Upon Any Rights Guaran-

teed Petitioners by the Fourteenth Amend-

ment. Nor Does It Encourage Racial Dis-

crimination. The Decision Involved Nothing

More Than the Construction of a Georgia

Will by a Georgia Court in Accordance With

Siicesuwesekesu nee ons van eekee 16

B. The Decision of the Georgia Court Rests

Solely Upon a Construction of Bacon’s Will,

and in No Way Rests Upon Any Proposition

That the Presence of Negroes Would Affect

the Enjoyment of a Park by White Persons.. 26

rt 7

a

il

C. The Racial Restrictions in Bacon’s Will Could

Not, Under Any Theory, Have Been Treated

by the Georgia Court, or Any Other Court,

as ‘‘Nullities’’. The Georgia Court, in Con.

struing Bacon’s Will, Had to Consider These

Provisions Along With All Other Provisions

sbi ecbcige EE OT ET Pe aah, 30

NO bp ica nd sed send wwanss UxSanene wns %

Table of Cases.

American Railway Express Company v. Common-

wealth of Kentucky, 273 U. S. 269 hf eae 1)

Charlotte Park and Recreation Commission v. Bar-

ringer, 252 N. C. 311, 88 S. E. 2d 114 (1955), cert.

denied 350 U. S. 983 (1956) .................... 19, 25

Commonwealth of Pennsylvania vy, Brown, 392 F. 2d

120 (3rd Cir. 1968), cert. denied 391 U. §. 921

GEE Kee UR Ti cathe saveukseleucaeet sixs ec eee 34

DeCosta v. DePas, Amb. 228, 2 Swanst. 487 (1754) . .28, 99

Evans v. Newton, 382 U.S, 296 (1966) . .11, 13, 15, 17, 18, 34

Evans v. Newton, 220 Ga. 280, 138 S. E. 2d 573 ( 1964) 33

Houston v. Mills Memorial Home, Inc., 202 Ga. 540,

ee ED pei di céhdes ees cle 33

Jones v. Habersham, 107 U. S. 174 ................ 28

Lyeth v. Hoey, 305 U. S. 180 GME Weenuinseuceus 15,17

Marsh v. Alabama, 326 U. S. 501 SR bi bcccecs: 33, 34

Plessy v. Ferguson, 163 U. S. 537 EE keceekeot: 33

“ee eee eees

ee ee eeees

SP PCOS CC ADO EOS

OR LTD YT LPI AE a A RR FRR PS UPR RSS =

ill

Strother v. Kennedy, 218 Ga. 180, 127 S. E. 2d 19

7) ee ee 33

Sweet Briar Institute v. Button, 280 F. Supp. 312

(W. D. Va. 1967), rev’d. per curiam, 387 U. 8S. 423,

decision on the merits, 280 F. Supp. 312 (1967) .. 34

Tyler v. U. S., 281 Ce ee CEE nko vsceceds canes 15

Yerby v. Chandler, 194 Ga. 263 (1942) ............ 18, 24

Statutes.

Georgia Code, Section 69-504 ............-..eeeee 32, 33

Georgia Code, Section 108-106 (4) ............... 16, 33

Other Authorities.

39 Am. Jur., Parks, Squares and Playgrounds, Sec-

ON Rr rr errr: terre rrr e errr rr er re 25

4 Boott, Travia (26 G6. BOGS). cc ccvccccssesssevase 23, 28

37 Law Week 4107, 4110 (January 27, 1969) ...... 20

tiie

IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1968.

No. 1106.

REVEREND E. S. EVANS, et al.,

Petitioners,

Vv

GUYTON G. ABNEY, et al.,

Respondents. .

BRIEF

In Opposition to Petition for Writ of Certiorari

to the Supreme Court of Georgia.

QUESTION PRESENTED

Where a testator devises land in trust with the direction

that said land be used as a park for the white persons,’

and only for the white persons, of the community, and

states as the reason for the racial limitation his positive

disapproval of the two races using recreation grounds

1 The property was devised in trust “for the sole... use

of the white women, white girls, white boys, and white children

of the City of Macon .. .” The Board of Managers in which

management of the park was vested was given the authority to

admit “the white men of the City of Macon and white persons

of other communities.”

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together and in common, and where it is subsequently

held by the United States Supreme Court that the prop.

erty cannot continue to be used as a park for white per.

sons only, are Negro citizens of the community denied

any Federal constitutional rights by a judgment of 4

state court recognizing that (as a matter of state law

and of the interpretation of the particular will under

consideration) the trust has failed, and the property has

reverted to the heirs of the testator?

STATEMENT OF THE CASE

Respondents incorporate by reference the statement of

the case contained in the opinion of the Supreme Court

of Georgia, which opinion is included in the appendix

to the Petition for Writ of Certiorari (Petition, P. 16a

et seq.). Generally speaking, and except as hereinafter

commented upon, petitioners have made a relatively

accurate summary of most of the evidence which is in

the record. However, as far as the issues are concerned,

we view the great bulk of material in the record as being

largely, if not entirely, irrelevant. This is so because

the disposition of this case in the Georgia courts was

controlled by the clear and unambiguous terms of the

will of A. O. Bacon interpreted in the light of well-

settled principles of Georgia law.

Petitioners state at page 5 of their petition that the

Baconsfield property was ‘‘left to the City of Macon’’.

Since petitioners have, throughout this litigation, tended

to overemphasize and exaggerate the role of the City,

it should be noted that the property was not devised

to the City of Macon outright, but instead the City’s

interest in the property was as the passive title holder,

and the use of the property was subject to certain spe-

cifie conditions (as well as the continuing control of the

Board of Managers).

Petitioners are in error when they state on page 7 that

the motion of respondents in Bibb Superior Court asked

that court to ‘‘rule that Senator Bacon’s trust had be-

come unenforceable, and that the Baconsfield property

had reverted . . .’’. That the trust had become unen-

foreeable had already been recognized by the Georgia

Supreme Court and respondents’ motion for summary

judgment took note of this:

“On January 17, 1966, Bacon’s trust became un-

enforceable and the funds held for its support re-

wins

verted at that time into Bacon’s estate by operation

of law. On March 14, 1966, the Georgia Supreme

Court recognized that this had occurred, saying, ‘We

are of the opinion that the sole purpose for which

this trust was created has been terminated.’ This

judgment declaring what had transpired in regard

to the title is now the law of the case. It remains

only for this court at this time to give effect to said

reversion of title.’ Respondents’ Motion for Sum-

mary Judgment, paragraph 2 (R. 127).

The ‘‘secondary contentions’? which the Georgia Su.

preme Court directed Bibb Superior Court to consider,

were those contentions resulting from the decision that

the Baconsfield property could not be used in accordance

with the provisions of Bacon’s will, that the trust had

failed and the property had reverted into Bacon’s estate.

The Georgia Supreme Court having ruled that the trust

had failed and the property had reverted, the only real

question before Bibb Superior Court involved a deter-

mination as to the individuals in whom title had vested

by operation of law.

The Will

In view of the fundamental importance of Bacon’s will,

those passages from Items IX and X which are control-

ling are quoted herewith:

“é

.

. it is my will that all right, title and in-

terest in and to said property hereinbefore described

and bounded, both legal and equitable, including all

remainders and reversions of every estate in the

? Page references are to the record in the Georgia Supreme

Court, as respondents do not have access to the record in the

United States Supreme Court. The record in the United States

Supreme Court is (for the most part) a photostatie copy of the

record in the state court, and therefore the court will have be-

fore it the state court record’s page numbers,

Fee Aes tee —— — Sens aR Usd eee es

RTA ERTL IR TSE MOT et tre A NI SERVATION

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same of whatsoever kind, shall thereupon vest in

and belong to the Mayor and Council of the City

of Macon, and to their successors forever, in trust

for the sole, perpetual and unending, use, benefit and

enjoyment of the white women, white girls, white

boys and white children of the City of Macon to be

by them forever used and enjoyed as a park and

pleasure ground, subject to the restrictions, govern-

ment, management, rules and control of the Board

of Managers hereinafter provided for; the said prop-

erty under no circumstances, or by any authority

whatsoever, to be sold or alienated or disposed of,

or at any time for any reason devoted to any other

purpose or use excepting so far as herein specifically

authorized. For the control, management, preserva-

tion and improvement of said property there shall

be a Board of Managers consisting of seven persons

of whom not less than four shall be white women,

and all seven of whom shall be white persons. The

Members of this Board shall first be selected and

appointed by the Mayor and Council of the City of

Macon, or by their successors in said trust; and all

vacancies in said Board shall be filled by appoint-

ments made by the Mayor and Council of the City

of Macon, or their successors, upon nomination made

by the said Board of Managers and approved by the

said Mayor and Council of the City of Macon or

their successors. If practicable, I desire that there

shall be as a member of said Board of Managers

at least one male or female descendant of my own

blood, not only in the Board as at first constituted,

but at all times thereafter. The said Board of Man-

agers shall at all times have complete and unre-

stricted control and management of the said property,

with power to make all needful regulations for the

preservation and improvement of the same, and rules

for the use and enjoyment thereof, with power to

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exclude at any time any person or persons of either

sex, who may be deemed objectionable, or whose

conduct or character may by said Board be adjudged

or considered objectionable, or such as to render for

any reason in the judgment of said Board their

presence in said grounds inconsistent with or preju-

dicial to the proper and most successful use and

enjoyment of the same for the purposes herein ¢op.

templated. The Board of Managers shall have the

power to admit to the use of the property white

men of the City of Macon, and white persons of

other communities, with the right reserved to at any

time withhold or withdraw such privilege in their

diseretion. To enable the Board of Managers to have

a fund for the payment of necessary expenses eop-

nected with the management, improvement, and

preservation of said property, including when pos-

sible drives and walks, casinos and parlors for

women, play grounds for girls and boys and pleasure

devices and conveniences and grounds for children,

flower yards and other ornamental arrangements, |

direct that said Board may use for purposes of in-

come in any manner they may deem best that portion

of the property that lies Easterly of the road known

as Boulevard Baconsfield (more particular deserip-

tion of property omitted), but in no event and under

no circumstances shall any part of the property

herein conveyed and bounded and platted be ever

sold or otherwise alienated or practically disposed

of by any person or authority whatsoever, and ex-

cepting the portions of the property which may be

used for purposes of revenue as aforesaid all the

remainder of said property shall forever and in per-

petuity be held for the sole uses, benefits and en-

joyments as herein directed and specified . . .”

‘““. . . I take occasion to say that in limiting the

use and enjoyment of the property perpetually to

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white people, I am not influenced by any unkindness

of feeling or want of consideration for the Negroes,

or colored people. On the contrary I have for them

the kindest feeling, and for many of them esteem and

regard, while for some of them I have sincere per-

sonal affection.

“T AM HOWEVER, WITHOUT HESITATION IN

THE OPINION THAT IN THEIR SOCIAL RELA-

TIONS THE TWO RACES SHOULD BE FOREVER

SEPARATE AND THAT THEY SHOULD NOT

HAVE PLEASURE OR RECREATION GROUNDS

TO BE USED OR ENJOYED, TOGETHER AND

IN COMMON. I am moved to make this bequest of

said property for the use, benefit and enjoyment of

the white persons herein specified by my gratitude

to and love for the people of the City of Macon from

whom through a long life time I have received so

much of personal kindness and so much of public

honor; and especially as a memorial to my ever

lamented and only sons, Lamar Bacon who died on

the 21st day of December, 1884, and Augustus Oc-

tavius Bacon, Jr., who died on the 27th day of the

same year. And I conjure all of my descendants to

the remotest generation as they shall honor my

memory and respect my wishes to see to it that this

property is cared for, protected and preserved for-

ever for the uses and purposes herein indicated... .’’

‘*. . . 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 through appropri-

ate legislation, I direct that the powers herein ex-

pressed be conferred upon a trustee to be selected

by the Mayor and Council of the City of Macon,

with such safeguards and restrictions as may be

prescribed by them for the perpetual safekeeping

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and management 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 haye

not the legal power under their Charter to hold in

trust for the purposes specified the property desig.

nated for said park and pleasure ground, unless said

required power is conferred by appropriate legisla.

tion...”

**. . . As there will be no one of my descendants

who now bears my name either by right of birth,

or through voluntary choice, an additional reason

is furnished why I should deem it proper that in

devoting this property to the uses specified, I should

at the same time link their memories with the pleas.

ures and enjoyments of the women and children ang

girls and boys of their own race in the community

of which they once formed a happy part...” (R.

14-21) (emphasis supplied),

The 1920 Deed

The statement on page 13 that ‘‘the City of Macon thus

paid a total of $41,625.00 to the trustees under Bacon’s

will in order to acquire Baconsfield’’ is inaccurate, The

City of Macon’s limited interest in the Baconsfield prop.

erty was acquired by virtue of the provisions of Bacon’s

will, and not because of the 1920 deed. Under the terms of

Bacon’s will, the park was not to come into being until

the deaths of Bacon’s wife and two children. However, the

trustees and Bacon’s sole surviving daughter were appar-

ently of the opinion that it would be desirable to proceed

with an earlier development of Baconsfield than antici-

pated by Bacon’s will. Therefore, the trustees advised the

City of Macon that they would permit the City to take

possession of Baconsfield prior to the death of Bacon’s sur-

viving daughter provided the City would agree to pay an

annual rental during her lifetime (R. 689). Thus the sole

purpose of the deed of February 4, 1920 was to permit

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the development of Baconsfield as a park prior to the

death of Bacon’s surviving daughter (who had a beneficial

life estate in the property).

City Activity

On page 14, petitioners state that the Superintendent of

Parks of the City of Macon ‘‘exercised general supervision

over Baconsfield for many years.’’ This is not true.

Baconsfield was ‘‘supervised’’ and operated by the Board

of Managers which Bacon provided for in his will:

‘‘The said Board of Managers shall at all times

have complete and unrestricted control and manage-

ment of the said property, with power to make all

needful regulations for the preservation and improve-

ment of the same. . .’”’ (R. 17).

The Board of Managers of Baconsfield functioned en-

tirely independent of the City and it always exercised to

the fullest those powers granted under Bacon’s will. In

none of its duties was the Board made answerable to the

City; nor did the City, as Trustee, have the right to re-

move any member of the Board.

That the Board, and not the City, operated the park is

evidenced by the minutes of the Board of Managers from

1936 to 1964. (See Intervenors’ Exhibits ‘‘A’’ and ‘‘B’’,

7

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R. 361 et seq.) These minutes which take up approxi- f

mately 150 pages and summarize action taken at some 53

separate meetings during the period covered show that the f

Board of Managers dealt with the minutest details of the ‘

operation of the park. Furthermore, a financial statement :

is attached to the minutes of each meeting and a rough {

calculation shows that a total of some $95,000.00 was spent

by the Board in the operation of the park. (These funds '

were derived from Bacon’s commercial properties. ) ;

Petitioners seem to try to create the impression that i

governmental units have constructed numerous physical t

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improvements on the park area. That this is not so is

illustrated by the aerial photographs included in the rec.

ord (R. 646-657). From these it may be seen that Bacons.

field is largely a matter of trees, shrubbery and grass,

with only one real structure upon it, to-wit, the Womans

Clubhouse (which itself comprises a very small portion

of the park area).

Petitioners have greatly overemphasized the role of the

City in the development of Baconsfield, especially when

they attempt to convey the idea that City funds have been

used to greatly enhance the value of the property. The

activities of the City in assisting in the upkeep of the

park, while beneficial, did little to increase the intrinsic

value of the land. Also, it should be remembered that dur.

ing this period of time a substantial number of taxpayers

were entitled to use the park.

The pool which was constructed in 1948 was operated

by the City pursuant to the terms of a lease agreement

with the Board of Managers as lessor. Under the terms

of the agreement, the Board could terminate the lease at

will at two-year intervals, or by giving notice of a breach

of any one of a number of stated conditions (See copy of

lease attached to Amendment to Motion for Summary

Judgment as Exhibit **D’’, R. 660). The relationship be-

tween the City of Macon and the Board of Managers was

that of lessor and lessee. A fundamental element of such

a relationship is. that when the lease expires, or is ter-

minated, any improvements that might have been made to

the land will remain as a part of the land, and the lessee

has no further rights or interest in either the land or the

improvements.

We see no particular need to comment further on the

statement of facts, except, perhaps to note once again that

petitioners’ ‘‘history’’ of Baconsfield Park had no bearing

on the issues before the Georgia court.

BIASES ON ALGER ALA ROA OS, RPL EIA LO EO. ES AM IE BREE Rb Ki

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REASONS FOR NOT GRANTING THE WRIT

Summary of Argument

The decision of the Georgia Supreme Court involved

nothing more than the construction of a Georgia will in

accordance with well-settled principles of Georgia law,

and no rights guaranteed petitioners by the Fourteenth

Amendment, or any other provision of the Federal Con-

stitution, have been denied.

When A. O. Bacon devised his farm, ‘‘Baconsfield’’,

to the City of Macon, in trust, he clearly provided that his

property was to be used as a park only for the ‘‘white

women... and white children of the City of Macon...’

In limiting the use of the property to white persons, Bacon

was not motivated by any feeling of hostility toward col-

ored persons, nor was he prompted by a desire to be

charitable only to persons of his own race. Instead, it

was that as a matter of personal social philosophy Bacon

was of the firm conviction that, “the two races should

be forever separate and ... should not have pleasure of

recreation grounds to be used or enjoyed, together and

in common.’’

*

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SEO PR A PAT Agee

Some fifty years after the probate of Bacon’s will, this

Court, in Evans v. Newton, 382 U. S. 296 (1966) ruled

that Bacon’s property could no longer continue to be used

as a park for white persons only. Upon remand of the

case to the Georgia Supreme Court, it then became the

duty of that court to consider, and construe, Bacon’s will

in the light of the decision of this Court.

STITT IP PE EEL ORE RR SIRT

The Georgia court had before it two basie ‘‘facts’’,

viz. (1) Bacon’s clear expression of intention that he

wanted his property used as a park only for white per-

3 See Footnote 1.

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sons, and that he was opposed to his property being used

as a park on an integrated basis and, (2) this Court's

ruling that the property could not continue to be used

as a park if it were not operated on an integrated basis,

The purpose for which the trust had been established (to

wit, a park for the sole use of the ‘white women ... and

white children of the City of Macon . . .”’) had obviously

become impossible of accomplishment. Furthermore, that

the use of Bacon’s property for an integrated park would

be directly contrary to Bacon’s clearly expressed intep.

tion was a fact which the Georgia court had to accept,

And it was a fact totally apart from the wisdom of

Bacon’s social philosophy; for the Georgia court was con-

strained to consider, not what it might want, but rather

only what Bacon would have wanted. Under Georgia

law, property devised in trust for a charitable use cap.

not be diverted from that use to one not intended or

authorized by the testator, and a fortiori, it cannot be

devoted to a use of which the testator has expressly stated

he disapproves. Thus, as a matter of basic Georgia law,

the court had to recognize that the purpose for which the

trust had been established had become impossible of ae-

complishment, that the trust had failed, and that the

property had reverted into Bacon’s estate by operation

of law.

In construing Bacon’s will, it was incumbent upon the

Georgia court to construe the will as a whole, and to

consider all parts and provisions thereof, including those

provisions which limited the use of Bacon’s property to

white persons. Contrary to the contention of petitioners,

under no theory could the court have considered any pro-

vision of the will as being a ‘‘nullity’’. If a charitable

trust fails because an indispensable provision of the trust

is deemed to be unenforceable, the result is not an ipso

facto elimination of that provision from the will, but in-

stead it then becomes the duty of the court to decide

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whether under the circumstances then existing cy pres 3

should, or should not, be applied. Under no cireum-

stances can the testator’s intention simply be disregarded :

or ignored.

The Georgia court was correct in not applying cy pres,

| for this is an intent-enforcing doctrine and it can be

| applied only for the purpose of carrying out what prob-

ably would have been in accordance with the intention

of the testator. It can never be applied where the result

would be contrary to the express desire of the testator,

and it cannot be denied that for Bacon’s property to be ;

used as a park open to both races would be directly con-

trary to his wishes. :

Contrary to the contention of petitioners, the Georgia ;

court was not concerned with whether Negroes might spoil

the use of the park for white persons, or whether, as a

matter of fact white persons would ‘‘enjoy’’ using the

property as a park on an integrated basis. The court’s

only concern was whether such use would violate Bacon’s

restriction that the property be used by white persons

only, and clearly it would.

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No Federal rights have been denied petitioners, as the

‘‘Federal interest’’ of petitioners is no more than that if

Baconsfield were continued in existence as a park, it

would have to be operated on a non-discriminatory basis.

This the Georgia Court recognized and accepted. There

was no Federal requirement that the Georgia court con-

strue Bacon’s will in such a manner that would result in

Baconsfield continuing as a park, when such construction

would not be authorized by the will, and would be con-

trary to the laws of Georgia.

ESET SILER SEW LENE REINER TIR ST

Any possible question of racial discrimination, or of

impermissible state action, was eliminated by this Court’s

decision in Evans v. Newton, supra, for with the failure

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of the trust, and the reversion of the property into the

estate of A. O. Bacon, the property has been removed

from the ‘‘public’’ sphere. In the decision under op.

sideration, there is no question of anyone being dis.

criminated against because of race, nor is it conceivable

that the decision could be considered as one which would

encourage racial discrimination. On the contrary, the

Georgia courts expressly recognized that Bacon’s prop-

erty cannot be used as a park on a racially discriming.

tory basis,

In summary, it is the position of respondents that this

case involves the construction of a Georgia will by a

Georgia court in accordance with Georgia law, and noth.

ing else, and in no way have any rights guaranteed pe-

titioners by the Federal Constitution been denied.

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The State Court Decision

ARGUMENT

Respondents submit that the petition for a writ of

certiorari should be denied because the decision of the

Supreme Court of Georgia involved nothing more than

the application of well-settled principles of Georgia law

to a Georgia will. No rights guaranteed petitioners by

the Fourteenth Amendment have been denied; nor is the

decision of the Georgia court in any way inconsistent with

the decision of this court in Evans v. Newton, 38? U. 8.

296 (1966).

This Court has scrupulously adhered to the rule that

the highest court of a state may administer its statutory

and common law according to its own understanding and

interpretation (see, e. g., American Railway Express Co.

y. Commonwealth of Kentucky, 273 U. S. 269 (1927)), and

especially where the law which is being administered by

the state tribunal is property law (see Tyler v. U. 8., 281

U. S. 497 (1930)), or where the case involves the con-

struction of a will. As this Court stated in Lyeth v. Hoey,

305 U. S. 180, 59 S. Ct. 155 (1938):

‘“‘The local law determines the right to make a

testamentary disposition . . . and the condition es-

sential to the validity of wills, and the state courts

settle their construction.’’ 59 S. Ct. at 158. (Empha-

sis supplied.)

The Decision of the Georgia Court Does Not ‘‘Frustrate

This Court’s Mandate in Evans v. Newton, 382 U. S&S.

296 (1966)’’

The thrust of this Court’s decision in Evans v. Newton,

supra, as we understand it, was only that if Baconsfield

continued in existence as a park, it would have to be open

to members of both races. Contrary to the contention of

Demag 7

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petitioners, we do not construe the decision of this Court

as including a direction to the Georgia Supreme Court to

reappoint the City of Macon as trustee. Instead, it was

the duty of the Georgia Supreme Court to consider the

entire case (and not just the limited question relating tg

the resignation of the City as trustee and the appointment

of new trustees) in the light of the decision of this Court

that Bacon’s property could not be used as a park for

white persons only.

While it is true that the order appointing new trustees

had been reversed, and the ‘trust’? was without a trustee,

the controlling consideration was the fact that a common

sense construction of Bacon’s will in the light of the deci,

sion of this Court led the Georgia Supreme Court to the

inescapable conclusion that the purpose for which the

trust had been created had become impossible of accom.

plishment; and, consequently, under Georgia law, the trust

had terminated. Furthermore, under Georgia law, where

a trust fails, and where there is no gift over, a resulting

trust is implied for the benefit of the heirs of the testator.

Ga. Code, Sec. 108-106 (4). The question, therefore, of

whether or not to order the reinstatement of the City of

Macon as trustee was obviously moot, for there was no

longer a trust.

The Decree of the Court Below Is Not Hostile to the

Petitioners’ Right to Immunity From Racial Dis.

crimination

A. The Decision of the Georgia Supreme Court Did Not

Infringe Upon Any Rights Guaranteed Petitioners by the

Fourteenth Amendment; Nor Does It Encourage Racial

Discrimination. The Decision Involved Nothing More Than

the Construction of a Georgia Will by a Georgia Court

in Accordance With Georgia Law.

The ‘‘immediate contemporary facts’’ with which peti-

tioners choose to begin their Fourteenth Amendment ar-

: _—

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ment are not the ‘‘facts’’ with which the Georgia court

was directly concerned. On the contrary, the Georgia

court had only two basic ‘‘facts’’ to consider, one being

this Court’s decision in Evans v. Newton, 382 U. S. 296

(1966), and the other, of course, being Bacon’s will. The

fact that Negroes had used the park in violation of the

terms of the trust, and that the City had not taken affirm-

ative action to enforce the racial provisions in the trust,

had nothing directly to do with the decision of the Geor-

gia court which is herein complained of. These were mat-

ters which had transpired prior to this Court’s decision

in Evans v. Newton, supra. The ‘‘showing’’, then, upon

which the Georgia court acted was this Court’s ruling that

Bacon’s property could not be used as a park on other

than an integrated basis, something which would be con-

trary to Bacon’s express wishes; and the basis of the

Georgia decision was a construction of Bacon’s will in the

light of this ruling, and in the framework of Georgia’s

laws relative to wills and trusts.

The ‘‘federal interest’’ of petitioners is no more than

that if Baconsfield were continued in existence as a park,

it would have to be operated on a non-discriminatory

basis. This, of course, the Georgia court recognized and

accepted. There is no basis for the implication that there

was an additional federal requirement that the Georgia

court construe Bacon’s will in such a manner that would

result in Baconsfield continuing as a park, when such con-

struction would not be authorized by Bacon’s will, and

would be contrary to the laws of Georgia. The construc-

tion of Bacon’s will was peculiarly a matter which ad-

dressed itself to the state court. See, e. g., Lyeth v. Hoey,

305 U. S. 180, 59 S. Ct. 155 (1938). And as Mr. Justice

Black observed in his dissenting opinion in Evans v.

Newton:

‘So far as I have been able to find, the power of a

state to decide such a question (reversion) has been

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taken for granted in every prior opinion this Court

has ever written touching the subject.’’ Evans v.

Newton, 382 U. S. 296 (1966).

Petitioners’ characterization of the Georgia judgment

as being a ‘‘penalty’’ which was imposed upon the City of

Macon because of its inability to enforce racial segrega-

tion at Baconsfield does not comport with the facts. Petj-

tioners are trying to find impermissible state action where

none exists. In so doing, they paint a totally false picture;

one which is clearly refuted by the record. Reversion 0c-

curred only because the trust failed, and the trust failed,

not because the City did not undertake to enforce the

racial restriction, but because this Court had ruled that

an indispensable element of Bacon’s plan for Baconsfield

could not be complied with, regardless of who the trustee

was. The Georgia Supreme Court did not look to the will

to ‘‘justify’’ its judgment. It looked to the will to deter.

mine what its judgment had to be.

Accurately speaking, the actual decision of the Georgia

court had nothing whatever to do with racial discrimina.

tion as such. This issue had been completely eliminated

by the decision in Evans v. Newton, 382 U. S. 296 (1966),

The decision of the Georgia court was based upon a set of

facts which can, and must, be divorced from any consid-

eration of the merits of Bacon’s social philosophy. The

Georgia court had to start with the fundamental proposi-

tion that in construing Bacon’s will all parts and provi-

sions of the will had to be considered. See Yerby v.

Chandler, 194 Ga. 263, 21 S. E. 2d 436 (1942). The wisdom

of these provisions was not in issue. Thus, the Georgia

court had before it on the one hand Bacon’s clear expres-

sion of intention that he wanted a park only for ‘‘white

women, white children . . .’’, and that he was unequivo-

cally opposed to the two races using recreation grounds

“‘together and in common’’. On the other hand, this

court had ruled that Bacon’s property could not be used

| ——— one canes ir

a os

as a park unless it was open to members of both races.

Certainly, it cannot be denied that for the property to be

used as a park open to members of both races would

be directly contrary to the clearly expressed intention

of Bacon. That was a fact which the Georgia Court had

to accept. As a matter of Georgia law, property de-

vised in trust for a charitable use cannot be diverted from

that use to one not intended or authorized by the testator, 7

and a fortiori, it cannot be devoted to a use of which the ;

testator has expressly stated he disapproves. Therefore, :

accepting the foregoing as facts which the Georgia court

could not blithely ignore (even if perhaps the members of

the court might personally have disagreed with Bacon’s so-

cial philosophy), the court had no alternative but to recog- 4

nize that as a matter of Georgia law the trust had failed.* ;

We say, without hesitation, that race had nothing to do

with the decision of the Georgia Court.

We disagree with the assertion that the Georgia deci-

sion will be cited for ‘‘the proposition that state courts

may generally decree reversion of property for breach of

a racial condition.’’ Petitioners overlook the fact that

this case does not involve property which had been pur-

chased subject to a racial condition. This was Bacon’s

property and it is fundamental that a person who creates

a charitable trust can make the use of his property sub-

ject to conditions. That is not to say that a testator

NR OES ONE PIN

4 For the Georgia Court to have failed to recognize that the

trust had failed would have resulted in a deprivation of respond-

ents’ property without due process of law. See Charlotte Park

& Recreation Commission v. Barringer, 252 N. E. 311, 88 S. E.

2d 114 (1955), cert. denied, 350 U. S. 983 (1956).

> As Justice Harlan noted in his concurring opinion in Pres-

byterian Church in the United States v. Mary Elizabeth Blue

Hull Memorial Presbyterian Church: “I do not, however read

the Court’s opinion to go further to hold that the Fourteenth

Amendment forbids civilian courts from enforcing a deed or

will which expressly and clearly lays down conditions limiting

8 AC Ea

_— von

could require that his property be used in a manner con-

trary to law, but it does mean that under no circumstances

could the property be used in a manner violative of the

express conditions imposed upon the use of the testator’s

property. It is one thing for a court to say, in effect, that

as a matter of public policy we are not going to let a tes.

tator’s property be used in the manner he would like it

to be, and indeed, quite another to go further and say that

since the property cannot be used in the prescribed man-

ner, it will be put to another use even though the testator

specifically stated that he disapproved of such use.

Contrary to the contention of petitioners (Petition, pp.

33 and 36), the decision of the Georgia court is not at all

inconsonant with Reitman v. Mulkey, 387 U. S. 369 (1967)

(or with any other decision of this court). In Reitman,

supra, it was found that the state had involved itself in

private racial discrimination to an unconstitutional de-

gree. There, and in the other cases cited at page 33 of the

petition which relate to racial discrimination, the courts

were concerned with state involvement in actual racial

discrimination, both present and prospective. In the de-

cision under consideration, there is no question of anyone

being discriminated against because of race; and, certainly

there is nothing which would remotely suggest that the

state has encouraged, or been in any way involved with

constitutionally impermissible racial discrimination. It

was Bacon, not the State of Georgia, who decreed that

his property would not be used as an integrated park, and

no one has any right, federal or otherwise, to require that

the property be used in a manner contrary to the re-

a religious organization’s use of the property which is granted.

If, for example, the donor expressly gives his Church some

money on the condition that the Church never ordain a woman

as a minister or elder . . ., or never amend certain specified

articles of the Confession of Faith, he is entitled to the money

back if the condition is not fulfilled.” 37 Law Week 4107, 4110

(January 27, 1969).

a,

—

strictions placed upon the use of the property by Bacon.

And, of course, with the removal of the property

from the ‘‘public’’ to the private sphere any possible

question of state action which would violate the Four-

teenth Amendment has been eliminated. It is indeed diffi-

cult to conceive how the Georgia decision, which expressly

recognized that Bacon’s property could not continue to be

used as a segregated park, could in any way ‘‘encourage

racial discrimination. ”’

Although the construction of wills is peculiarly a matter

for the application of state law by state courts, petitioners

urge upon this Court the contention that the Georgia court

incorrectly construed Bacon’s will. Looking at the will in

even a cursory manner, one cannot help but be impressed

by the fact that Bacon planned for his park with the great-

est of care and deliberation. This park, which was to be a

memorial to Bacon’s two sons, was by no means to be just

another ‘‘city park.’’ Instead, Bacon’s park was to be

subject to conditions not applicable to other parks; and the

operation and management of the park were vested in a

Board of Managers which was to (and did) function en-

tirely independent of the City and its governing body.

As for the racial restriction, we can hardly imagine

Bacon having used language which would have more

clearly indicated his intent that the use of his property

should be extended to white persons only, or which would

have more clearly indicated that this limitation was an es-

sential and indispensable part of his plan for Baconsfield.

Indicative of Bacon’s careful planning in this regard is

the fact that not only was he careful to limit Baconsfield

to white persons, but also he provided that the white men

of Macon, and white persons from other communities,

would be admitted only at the pleasure of the Board of

Managers. Furthermore, he authorized the Board to ‘‘ex-

clude at any time any person or persons of either sex, who

may be deemed objectionable.’’

SEE IRS POL LRE AEE MEAD PLETE 9 SEDO PVTE VL LVN ALE LLL ALLRED EPEAT

—.

Insofar as this litigation is concerned, obviously, the

most significant passage in Bacon’s will is that which ey.

plains why he so carefully limited the use of Baconsfield

to the ‘‘white women, white girls, white boys, and white

children of the City of Macon.’’ The racial limitation was

not included because of any feeling of hostility toward eo].

ored people, nor was it prompted by a desire to be char.

itable only to persons of his own race, or because Bacon

felt that the presence of Negroes would ‘‘spoil’’ the park

for white persons. Instead, it was that as a matter of per-

sonal social philosophy, Bacon was:

‘*. . . without hesitation in the opinion that in their

social relations the two races should be forever sepa-

rate and that they should not have pleasure or recrea-

tion grounds to be used or enjoyed, together and in

common’’ (R. 18).

Petitioners have suggested several reasons why they

think the Georgia court erred in its construction of

Bacon’s will, none of which, we submit, has any merit.

First, they argue that neither Bacon nor any other per-

son ‘‘has any lawful power’’ to exclude Negroes from

Baconsfield park. As has been pointed out, there is no dis-

pute about the fact that Bacon’s property cannot now be

used for a park operated on a segregated basis. How-

ever, at the time Bacon’s will was probated, and up until

this Court’s decision in 1966, there was no constitutional

prohibition against the operation of Baconsfield in a man-

ner consistent with the requirements set forth in Bacon’s

will. The fact that some 50 years after the probate of

Bacon’s will it was decided by the United States Supreme

Court that the park which Bacon created cannot continue

to be operated for white persons only did not give the

Georgia court, or any court, the right to rewrite Bacon’s

will and to delete those restrictions relative to the use of

the park by white persons. There is clearly a difference

%

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= a

between a court determining that a trust cannot continue

to be operated in accordance with the testator’s intent

because such operation would be contrary to law, and a

holding that because of this, the ‘‘illegal’’ words will

simply be disregarded. In such a situation as existed in

this case, a court would in any event have to construe the

will under consideration in light of the failure of the trust,

and would have to determine whether or not cy pres could

be applied, and if it could not, then the property would

revert by operation of law. In no event could the testa-

tor’s intention simply be disregarded or ignored.

The second consideration advanced by petitioners re-

lates to the fact that Bacon did not expressly provide for

reverter upon failure of the trust. It is probable that

Bacon never actually considered that his trust would fail,

for at the time he drafted his will (and up until 1966) his

plan for Baconsfield was entirely lawful. The absence of

a clause providing for express reversion is of no signifi-

cance insofar as Georgia law is concerned. As the Georgia

Supreme Court pointed out, the property reverted, not

under the terms of the will, but because of Ga. Code Sec.

108-106 (4) which provides that upon the failure of an ex-

press trust, a resulting trust is implied for the benefit of

the grantor, or testator, or his heirs.

In not expressly providing for reversion, Bacon was

not unlike other testators. As has been noted:

‘‘Indeed, it is ordinarily true that the testator does

not contemplate the possible failure of his particular

purpose, and all that the court can do is to make a

guess not as to what he intended but as to what he

would have intended if he had thought about the mat-

ter.”’ IV Scott, Trusts, Sec. 399.2, at 2832 (2d ed.

1956).

We submit that a fair and reasonable reading of Bacon’s

will leads to the undeniable conclusion that under no cir-

. —_ i

— =a

cumstances could Bacon’s property ever be used as an

integrated park. While Bacon may not have specifically

contemplated a trust failure, he did expressly state that

he was ‘‘without hesitation in the opinion that in their

social relations the two races should be forever separate

and . . . they should not have pleasure or recreation

grounds to be used or enjoyed together and in common,”

Bacon’s will is certainly not ‘silent on this point.’’

Petitioners are in error when they suggest that the

Georgia court should have considered what “‘a Georgian

who died over 50 years ago’’ would prefer (Petition, p,

38). The Georgia court was constrained to consider only

what Bacon (and no one else) would have wanted had he

known that his plan for Baconsfield would someday be.

come impossible of accomplishment; and, in answering

this question, the Georgia court could look only to Bacon’s

will. That is to say, the court could not speculate as to

what a hypothetical Georgian might have desired; nor

could it engage in speculation as to what use might be

made of the property upon reversion. There is no law,

state or federal, which would permit a court to **update”’

a testator’s social philosophy. Suffice it to say, the Georgia

court was bound by Bacon’s intention as manifested in

all of the provisions of his will. See Yerby v. Chandler,

194 Ga. 263, 21 S. E. 2d 636 (1942).

Petitioners suggest that the activity of the City during

the period it was trustee was relevant to the issues before

the Georgia court. We disagree. The fact that during the

period of years when the park was being operated by the

Board of Managers in accordance with Bacon’s will, work-

men from the City worked at Baconsfield, or that the City

had any other contact or connection with the park, had no

bearing on the question of whether or not there had been

a trust failure, and likewise had no bearing on the ques-

tion of reversion, or the applicability of the doctrine of

a SN

cy pres. It would indeed be a radical introduction into the

: law of trusts for a court to hold that a trustee (or anyone

else) could, in effect, alter the provisions of a testamen-

tary charitable trust by spending money (or doing any-

thing else) in connection with the trust property. Cer-

tainly, a trustee could never acquire title to the trust

property in the absence of action on the part of the per-

son who established the trust. This is true no matter how

much money the trustee might spend on the trust prop-

erty. In essence, the Georgia court was concerned solely

with the question of whether or not the trust had failed

and (upon recognizing that it had) whether or not cy pres

should be applied. What might have happened between the

time the trust became operative and the date of termina-

tion was of no relevance.

The case illustrative of the fact that the expenditure

of funds by a municipality in connection with trust prop-

erty would not prevent reversion is Charlotte Park &

Recreation Commission v. Barringer, 252 N. E. 311, 88

S. E. 2d 114 (1955), cert. denied, 350 U. S. 983 (1956).

In that case it was stated:

‘If Negroes use the Bonnie Brae Golf Course, the

determinable fee . . . automatically will cease and

terminate by its own limitation expressed in the deed,

and the estate granted automatically will revert to

Barringer.’’ 88 S. E. 2d at 123.

Also, see 39 Am. Jur., Parks, Squares and Playgrounds,

Sec. 21, where it is stated that where land is dedicated to

a municipality as a park, it ‘‘must be preserved or the

land will revert to the original proprietor.’’

While we do not view the activity of the City as hav-

ing any bearing on the issues which were before the

Georgia court, as a matter of interest, we would point out

that there is nothing at all inequitable about the fact of

=

Senin — Sag 2 Dent EAST IO = oh a

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reversion, as during the period of time the City was trus.

tee, a large segment of the community was entitled to use

Baconsfield. The situation is not at all unlike that where

a municipality leases property to be used as a park. (Cer.

tainly, no one would suggest that the City could acquire

any greater rights in the land than provided for in the

contract with the owner.

B. The Decision of the Georgia Court Rests Solely Upon

a Construction of Bacon’s Will, and in N» Way Rests

Upon Any Proposition That the Presence of Negroes

Would Affect the Enjoyment of a Park by White Persons,

The contention that the Georgia Supreme Court based

its decision upon the ground that the presence of Negroes

“‘spoils’’ a park for whites is totally without merit, or

justification. The Georgia court was not in the least con.

cerned with any factual consideration of whether or not

the presence of Negroes might ‘‘frustrate’’ the enjoyment

of a park by whites, nor was the court concerned with the

question of whether or not the property was large enough

to accommodate both the whites and Negroes of the com.

munity. Simply stated, petitioners miss the point when

they talk solely in terms of ‘‘enjoyment’’. Whether or

not white persons in the community might actually

“‘enjoy’’ using Baconsfield in conjunction with Negroes,

was not the question. Instead, the court’s only concern

was whether such use would violate Bacon’s restriction

that his property be used by white persons only. Clearly

it would, for Bacon’s concern was not that Negroes might

adversely affect the enjoyment of the park by white per-

sons, but rather it was that he was opposed to the mixing

of the races in social relations. Stated differently, Bacon

viewed an integrated park as being affirmatively objec-

tionable, and regardless of the fact that many white per-

sons might not object to using such a park, Bacon did not

want his property so used.

mpc

— a

Petitioners speak in terms of the ‘‘affirmative purpose

of the trust’? (Petition, p. 41), as if to imply that the

Georgia court would have been justified in disregarding

the racial restriction on the ground that such restriction

was ‘‘negative’’. The Georgia court, of course, had to

construe the will as a whole and to give consideration to

all of its parts, including those which qualified the use

of the property. Under a proper construction of Bacon’s

will, Bacon had only one intent, one purpose, to-wit, to

ereate a park... ‘‘for the sole .. . use, benefit and en-

joyment of. the white women, white girls, white boys and

white children of the City of Macon... .’’ His plan for a

park for these persons was a comprehensive, cohesive, in-

terlocking one which may not be divided into sections or

parts.

In Bacon’s mind, a park which would be used by both

races was significantly different from a park which would

be used only by members of one race, in that a park of the

former type would be contrary to his personal social phil-

osophy. While Bacon wanted to furnish a park for white

persons in the community, his charitable intention was ob-

viously conditioned upon the park being used by white

only. Otherwise, his property would be put to a use which

he considered wrong, to-wit, a recreation ground used

jointly by members of both races.

Petitioners suggest that the Georgia court could have

reached the result which petitioners deem to be socially

desirable by applying the doctrine of cy pres. Cy pres,

however, is not applied as a matter of course in every

instance of charitable trust failure. It is an intent-enfore-

ing doctrine and whether or not it can, or should, be ap-

plied depends upon a construction of the particular will

under consideration. Cy pres can be applied ‘‘only for

the purpose of carrying out what would probably have

been in accordance with the intention of the testator.’’

a “ nec 0 ny

—

IV Scott, Trusts, Sec. 399.1, at 2831 (2d ed. 1956). It ean

never be applied where the result would be contrary to

the express desire of the testator. Ibid.

For a Georgia court (and surely this was a matter fo,

the state court to decide) to have applied cy pres in the

manner sought by petitioners, would have resulted in

Bacon’s property being put to a use of which he very

clearly and expressly disapproved, and to apply cy pres

in this manner would be contrary to Georgia law.

Actually, the result desired by petitioners (under any

of their theories) could be obtained only by returning to

our jurisprudence the rightfully rejected doctrine of the

royal perogative. This doctrine, which was a part of the

early English common law, permitted the sovereign in a

situation such as this to apply property for any charitable

purpose he might deem appropriate. According to Scott:

‘“‘The exercise of the perogative power by a biased

or cynical or whimsical king sometimes resulted in

devoting the property of the testator to purposes of

which he never would have approved, purposes which

might run entirely counter to his wishes, . . .” IV

Scott, Trusts, Sec. 399.1, at 2829 (2d ed. 1956).

This doctrine is not accepted in any of the states, and

certainly not in Georgia. In Jones v. Habersham, 107

U. S. 174, it was stated, ‘‘. . . the law of charities is fully

adopted in Georgia, as far as is compatible with a free

government where no royal perogative is exercised . . .”

Scholars who wish to point out the obvious evils of the

doctrine of the royal perogative cite as a classic case of

injustice, DeCosta v. DePas, 1 Amb. 228, 2 Swanst 487

(1754). In that case, a Jewish testator had left money in

trust to establish an assembly for reading Jewish law and

instructing people in the Jewish religion. This was deemed

to be illegal as promoting a religion contrary to the estab-

———

lished religion of the state. The king thereupon diverted

the trust fund so that it would be used to instruct persons

in the Christian religion.

Bacon’s great emphasis on his racial limitation and his

express disapproval of recreational areas which would be

used by members of both races together and in common

show that a ‘‘desegregated”’ park would indeed be as

contrary to his wishes as the final disposition in DeCosta

y. DePas, supra, would have been to the testator in that

case.

Petitioners charge that the Georgia court ‘‘necessarily

decided that the racial limitation in Senator Bacon’s will

was of more dignity and importance than his equally or

more solemn and explicit provisions for the perpetuity of

this trust’’ (Petition, p. 47). This is wrong. The racial

limitation in the will was entitled to, and given, no more

‘dignity’? than any other provision of Bacon’s will; but

it was entitled to consideration in its proper perspective,

and this is something petitioners refuse to recognize.

Giving the provisions relative to the racial restriction

their common sense meaning, and construing the will as

a whole, it can hardly be denied that cy pres could never

be applied in such a manner that would result in Bacon’s

property being used as an integrated park. If there was

any ‘‘policy decision’? made by the Georgia court, it was

only that the end does not justify the means, and thus

cy pres was not used as an unauthorized means to ration-

alize a result not authorized by Bacon’s will or Georgia

law.

Petitioners do a serious injustice to the members of the

Georgia Supreme Court when they charge that the judg-

ment of that court ‘‘implies espousal . . . of an estimate

that racial mixture is crucially undesirable’’ (Petition,

p. 48). There is nothing in the record which would justify

iammninaeerne

a

anyone concluding that the members of the Georgia court

shared Bacon’s feelings on race. The merits (or demerits)

of Bacon’s philosophy were not in issue. The Georgia

court had to accept wuat it found, and regardless of the

personal opinions of the individual members of the

Georgia court, the racial limitation which Bacon placed

upon the use of his property could not be ignored.

— we

In summary, whether or not the presence of Negroes

spoils a park for whites was not in issue. Rather, the

controlling consideration was Bacon’s will and, notwith.

standing the fact that whites might enjoy using a park

in conjunction with Negroes, it is clear that an integrated

park would be directly contrary to Bacon’s intentions as

expressed in his will.

C. The Racial Restrictions in Bacon’s Will Could Not,

Under Any Theory, Have Been Treated by the Georgia

Court, or Any Other Court, as ‘‘Nullities’’. The Georgia

Court, in Construing Bacon’s Will, Had to Consider These

Provisions Along With All Other Provisions of the Will

Petitioners are indeed urging a radical departure from

fundamental concepts of will-construction when they talk

about treating any provision of a will as being a mere

‘‘nullity’’ which can be disregarded, as if it did not ap-

pear in the will. They are, in effect, saying that the

Georgia court should have ‘‘rewritten’’ Bacon’s will so

that what they would consider to be a socially desirable

result would have been obtained. This is simply not the

law. As has been discussed, if a charitable trust fails

because an indispensable provision thereof is deemed to

be unenforceable, the result is not an ipso facto elimina-

tion of that provision from the will, but instead it then

becomes the duty of the court to decide whether under the

circumstances then existing cy pres should, or should not,

be applied.

—-_

axe $5 ou

Petitioners offer as their first reason why Bacon’s will

should be accorded such unusual treatment the novel

proposition that the provisions of Bacon’s will relative

to Baconsfield Park ‘‘became tantamount to City ordi-

nances’’ (Petition, p. 50). Petitioners cite no authority in

support of this unusual proposition, and, of course, there

is none. A will does not lose its identity or status as a

will simply because a municipality is named as the trustee

of a testamentary trust.

Ordinances are commonly understood to be enactments

of the legislative body of a municipal corporation. If a

court accepted the proposition that the provisions of a

will could somehow be considered to become city ordi-

nances, then it would logically follow that the governing

body of the city would have the power to alter the provi-

sions of the will in the same manner they could amend

‘other city ordinances.’’ We can hardly imagine a more

fundamental (or more unacceptable) departure from the

law of wills.

The ‘‘factual’’ reasons which petitioners cite in sup-

port of their argument that Bacon’s will should be treated

as a city ordinance are without merit. There is certainly

no basis for the statement that the provisions of Bacon’s

will were ‘‘promulgated and espoused by the City with

respect to the conduct of its parks’’ (Petition, p. 50).

First, of course, it was Bacon, and not the City of Macon,

who promulgated these provisions and, second, the provi-

sions of Bacon’s will had nothing whatever to do with the

conduct of the City of Macon’s parks. They affected only

Baconsfield, and the management of Bacon’s park was

vested, not in the City, but in the Board of Managers

whose sole responsibility was the management of the park

in accordance with Bacon’s will.

The contention that Bacon intended for the provisions

of his will to ‘‘achieve very quickly the status of City

es

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Ordinances’’ (Petition, p. 51) is not only without founda.

tion, it is pc ¢ fantasy. There is not the slightest indica.

tion in the will that Bacon had any such intention. Fur.

thermore, had Bacon intended to involve the City to such

an extent (and under Georgia law, we know of no way

for him to have elevated his will to the status of a City

Ordinance) it hardly seems likely that he would have

provided for the park to be managed by the Board of

Managers rather than by the City.

Petitioners also argue that Bacon’s will ‘‘rested”’ upon

Georgia Code Section 69-504, and since this statute has

always been unconstitutional (so petitioners erroneously

contend) those provisions of Bacon’s will which provide

for the racia) restriction should simply be stricken. As-

suming arguendo that 69-504 was in fact unconstitutional,

its provisions could be (to use petitioners’ word)

‘‘stricken’’ only because the statute was promulgated by

the state legislature, and the 14th Amendment forbids

State sponsored racial discrimination. Bacon’s will, of

course, was solely the product of Bacon, a private citi-

zen, and no matter how discriminatory the provisions

of his will might be, they cannot be treated in the same

manner as a state statute, for the 14th Amendment does

not reach private discrimination. While Bacon’s plan

can no longer be carried out, there is no law, state or Fed-

eral, which would authorize any court to ‘‘strike out’? any

part of the will, leaving those portions pleasing to pe-

titioners to stand.

The Georgia Supreme Court considered the contention

that Georgia Code Section 69-504 was unconstitutional,

even at the time it was enacted, and correctly concluded

that for it to ‘‘hold that the trust provision of Senator

Bacon’s will was made pursuant to an unconstitutional

Code Section, would have the effect of making the trust

impossible of performance (Smith v. DuBose, 78 Georgia

413, 434), and thus cause a reversion under Code Section

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108-106 (4)’’ (Opinion of Georgia Supreme Court, Appen-

dix to Petition, p. 22a).

We agree with the Georgia Supreme Court that

whether or not Section 69-504 was, or was not, con-

stitutional at the time of its enactment has no bearing

on the issues in this ease for the same result obtains in

either event. Nevertheless, we would note in passing, and

in defense of Section 69-504, that this statute was in fact

constitutional ‘‘even under Plessy v. Ferguson.’’ Section

69-504 has absolutely nothing whatever to do with a

city’s park system and whether or not a system provided

for ‘‘separate but equal’? parks would obviously depend

upon an examination of the particular park system under

consideration. Furthermore, neither the State of Georgia

nor the City of Macon has ever had a statute or ordinance

requiring racial segregation in parks; therefore, the ‘‘sep-

arate but equal’’ doctrine could hardly be in issue.

It also should be noted that while Section 69-504 au-

thorized a testator to provide for a park that would be

racially segregated, it did not require that such a park

necessarily be segregated (Evans v. Newton, 220 Ga. 280,

138 S. KE. 2d 573 (1964); nor was there any reason under

Georgia Law why Bacon’s provision for a racially segre-

gated park would . :i have been entirely valid even in

the absence of Section 69-504. See Strother v. Kennedy,

218 Ga. 180, 127 S. E. 2d 19 (1962) and Houston v. Hills

Memorial Home, 202 Georgia 540, 43 S. E. 2d 680 (1947).

The ‘‘philosophy’’ of Marsh v. Alabama, 326 U. S. 501

(1946), has no application to the case under consideration.

The situation in the case at hand differs markedly from

that which existed in Marsh v. Alabama, supra. The

fundamental difference (and the only one necessary te

comment upon) is that, with the failure of the trust,

Bacon’s property has been completely removed from the

‘public sphere’’; and, therefore, there can be no ques-

tion of anyone being denied any constitutional rights.

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While Marsh v. Alabama, supra, might have been of

possible relevance to the question of whether Bacon’s

property could continue to be used as a segregated park,

it is of no significance whatever insofar as the state law

question of trust failure is concerned.

Nor can petitioners find support in either Gommon.

wealth of Pennsylvania v. Brown, 392 F. 2d 120 (3rd Cir.

1968), cert. den. 391 U. S. 921 (1968) or Sweet Briar In.

stitute v. Button, 280 F. Supp. 312 (W. D. Va. 1967)

rev’d per curiam, 387 U. S. 423, decision on the merits,

280 F. Supp. 312 (1967), for in neither of these cases

was trust failure (and reversion) in issue. The de.

cision of the Georgia Court is completely consistent with

these decisions, for it was expressly recognized that the

racial restriction could not be enforced.

We do not share petitioners surprise that the Georgia

Supreme Court did not deem it necessary to discuss pe-

titioners contentions with respect to dedication (Peti-

tion, p. 55). That there had been no dedication to the

public was so obvious as not to require elaboration. The

very words of the will clearly negate any intention on

Bacon’s part to ‘‘dedicate’’ his property to the use of

the general public. On the contrary, Bacon was spe-

cific in limiting the use of his property to a particular

segment of the community.

Dedication is by definition a matter of property law,

and whether or not a tract of Georgia property has been

dedicated to the general public is very fundamentally a

consideration controlled by Georgia law. The federal law

command, as expressed in this Court’s decision in Evans

v. Newton, 382 U. S. 296 (1966), is only that if Bacon’s

property were to be continued to be used for a park, it

would have to open to members of both races. This,

we submit, has nothing whatever to do with the state

law question of whether or not, when Bacon executed his

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| will, he ‘‘dedicated’’ his property to the use of the gen-

eral public.

In summary, under no theory could any provision of

Bacon’s will have been treated as a nullity for it was the

obligation of the Georgia court to construe the will as a

whole, and to consider all parts and provisions thereof,

including those provisions which limited the use of the

property.

CONCLUSIONS.

For the foregoing reasons, it is respectfully submitted

that the petition for writ of certiorari should be denied. :

Respectfully submitted,

FRANK C. JONES,

TIMOTHY K. ADAMS,

CHARLES M. COREL,

500 First National Bank Building,

Macon, Georgia 31201,

Attorneys for Respondents.