Evans v. Newton


No. 61 Argued: November 9-10, 1965 --- Decided: January 17, 1966
MR. JUSTICE DOUGLAS delivered the opinion of the Court.

In 1911, United States Senator Augustus O. Bacon executed a will that devised to the Mayor and Council of the City of Macon, Georgia, a tract of land which, after the death of the Senator's wife and daughters, was to be used as "a park and pleasure ground" for white people only, the Senator stating in the will that, while he had only the kindest feeling for the Negroes, he was of the opinion that, "in their social relations, the two races (white and negro) should be forever separate." The will provided that the park should be under the control of a Board of Managers of seven persons, all of whom were to be white. The city kept the park segregated for some years, but, in time, let Negroes use it, taking the position that the park was a public facility which it could not constitutionally manage and maintain on a segregated basis. [n1]

Thereupon, individual members of the Board of Managers of the park brought this suit in a state court against the City of Macon and the trustees of certain residuary beneficiaries of Senator Bacon's estate, asking that the city be removed as trustee and that the court [p298] appoint new trustees, to whom title to the park would be transferred. The city answered, alleging it could not legally enforce racial segregation in the park. The other defendants admitted the allegation and requested that the city be removed as trustee.

Several Negro citizens of Macon intervened, alleging that the racial limitation was contrary to the laws and public policy of the United States, and asking that the court refuse to appoint private trustees. Thereafter the city resigned as trustee and amended its answer accordingly. Moreover, other heirs of Senator Bacon intervened and they and the defendants other than the city asked for reversion of the trust property to the Bacon estate in the event that the prayer of the petition were denied.

The Georgia court accepted the resignation of the city as trustee and appointed three individuals as new trustees, finding it unnecessary to pass on the other claims of the heirs. On appeal by the Negro intervenors, the Supreme Court of Georgia affirmed, holding that Senator Bacon had the right to give and bequeath his property to a limited class, that charitable trusts are subject to supervision of a court of equity, and that the power to appoint new trustees so that the purpose of the trust would not fail was clear. 220 Ga. 280, 138 S.E.2d 573. The case is here on a writ of certiorari. 380 U.S. 971.

There are two complementary principles to be reconciled in this case. One is the right of the individual to pick his own associates so as to express his preferences and dislikes, and to fashion his private life by joining such clubs and groups as he chooses. The other is the constitutional ban in the Equal Protection Clause of the Fourteenth Amendment against state-sponsored racial inequality, which, of course, bars a city from acting as trustee under a private will that serves the racial segregation cause. Pennsylvania v. Board of Trusts, 353 U.S. [p299] 230. A private golf club, however, restricted to either Negro or white membership is one expression of freedom of association. But a municipal golf course that serves only one race is state activity indicating a preference on a matter as to which the State must be neutral. [n2] What is "private" action and what is "state" action is not always easy to determine. See Burton v. Wilmington Parking Authority, 365 U.S. 715. Conduct that is formally "private" may become so entwined with governmental policies or so impregnated with a governmental character as to become subject to the constitutional limitations placed upon state action. The action of a city in serving as trustee of property under a private will serving the segregated cause is an obvious example. See Pennsylvania v. Board of Trusts, supra. A town may be privately owned and managed, but that does not necessarily allow the company to treat it as if it were wholly in the private sector. Thus, we held in Marsh v. Alabama, 326 U.S. 501, that the exercise of constitutionally protected rights on the public streets of a company town could not be denied by the owner. A State is not justified, we said, in "permitting a corporation to govern a community of citizens so as to restrict their fundamental liberties. . . ." Id. at 509. We have also held that, where a State delegates an aspect of the elective process to private groups, they become subject to the same restraints as the State. Terry v. Adams, 345 U.S. 461. That is to say, when private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State, and subject to its constitutional limitations.

Yet generalizations do not decide concrete cases. "Only by sifting facts and weighing circumstances" [p300] (Burton v. Wilmingtor Parking Authority, supra, at 722) can we determine whether the reach of the Fourteenth Amendment extends to a particular case. The range of governmental activities is broad and varied, and the fact that government has engaged in a particular activity does not necessarily mean that an individual entrepreneur or manager of the same kind of undertaking suffers the same constitutional inhibitions. While a State may not segregate public schools so as to exclude one or more religious groups, those sects may maintain their own parochial educational systems. Pierce v. Society of Sisters, 268 U.S. 510.

If a testator wanted to leave a school or center for the use of one race only, and in no way implicated the State in the supervision, control, or management of that facility, we assume arguendo that no constitutional difficulty would be encountered. [n3] [p301]

This park, however, is in a different posture. For years, it was an integral part of the City of Macon's activities. From the pleadings, we assume it was swept, manicured, watered, patrolled, and maintained by the city as a public facility for whites only, as well as granted tax exemption under Ga.Code Ann. § 92-201. The momentum it acquired as a public facility is certainly not dissipated ipso facto by the appointment of "private" trustees. So far as this record shows, there has been no change in municipal maintenance and concern over this facility. Whether these public characteristics will in time be dissipated is wholly conjectural. If the municipality remains entwined in the management or control of the park, it remains subject to the restraints of the Fourteenth Amendment just as the private utility in Public Utilities Comm'n v. Pollak, 343 U.S. 451, 462, remained subject to the Fifth Amendment because of the surveillance which federal agencies had over its affairs. We only hold that, where the tradition of municipal control had become firmly established, we cannot take judicial notice that the mere substitution of trustees instantly transferred this park from the public to the private sector.

This conclusion is buttressed by the nature of the service rendered the community by a park. The service rendered even by a private park of this character is municipal in nature. It is open to every white person, there being no selective element other than race. Golf [p302] clubs, social centers, luncheon clubs, schools such as Tuskegee was, at least in origin, [n4] and other like organizations in the private sector are often racially oriented. A park, on the other hand, is more like a fire department or police department that traditionally serves the community. Mass recreation through the use of parks is plainly in the public domain, Watson v. Memphis, 373 U.S. 526, and state courts that aid private parties to perform that public function on a segregated basis implicate the State in conduct proscribed by the Fourteenth Amendment. Like the streets of the company town in Marsh v. Alabama, supra, the elective process of Terry v. Adams, supra, and the transit system of Public Utilities Comm'n v. Pollak, supra, the predominant character and purpose of this park are municipal.

Under the circumstances of this case, we cannot but conclude that the public character of this park requires that it be treated as a public institution subject to the command of the Fourteenth Amendment, regardless of who now has title under state law. We may fairly assume that, had the Georgia courts been of the view that, even in private hands, the park may not be operated for the public on a segregated basis, the resignation would not have been approved and private trustees appointed. We put the matter that way because, on this record, we cannot say that the transfer of title per se dissentangled the park from segregation under the municipal regime that long controlled it.

Since the judgment below gives effect to that purpose, it must be and is


1. Watson v. Memphis, 373 U.S. 526. And see Mayor & City Council of Baltimore v. Dawson, 350 U.S. 877 (beaches and bathhouses).

2. Holmes v. City of Atlanta, 350 U.S. 879; New Orleans Park Assn. v. Detiege, 358 U.S. 54.

3. It is argued that this park was a product of Georgia's policy to allow charitable trusts of public facilities to be segregated. A Georgia statute permitted any person to grant a municipal corporation land in trust to the public use as a park on a racially segregated basis. Ga.Code Ann. § 69-504. And a companion measure authorized municipal corporations to accept such grants and to enforce the racial limitations. Id. § 69-505. This policy, it is urged, had a "coercive effect" (Lombard v. Louisiana, 373 U.S. 267, 273) implicating Georgia in racial discrimination, for, without that legislative pattern for segregation, a testator would have had to travel an uncertain course to reach that end. Before § 69-504 was enacted in 1905, an attempt to establish a trust such as this would have faced numerous difficulties. The pre-1905 statutory law did not expressly include parks as a proper subject of charitable trusts, although it was specific in other regards. See Ga.Code § 4008 (1895). And Georgia's public parks were conceived of as "dedicated" commons with an easement in favor of the general public. See Mayor & Council of Macon v. Franklin, 12 Ga. 239. The concept of dedication meant that the property was to benefit the public as a whole. Ford v. Harris, 95 Ga. 97, 101, 22 S.E. 144, 145; East Atlanta Land Co. v. Mower, 138 Ga. 380, 388, 75 S.E. 418, 422. It would have posed conceptual difficulties, to say the least, to dedicate land to the public as a whole, at the same time excluding the members of the Negro race. Cf. Brown v. Gunn, 75 Ga. 441, in which this point was disposed of only by finding that, on the particular facts of that case, there was no "dedication." We think it likely that it was the very difficulties discussed here that § 6504 was intended to eliminate. We do not, however, reach the question whether the State facilitated, through this legislative action, the establishment of segregated parks.

4. Ala.Laws 1880-1881, pp.395-396; Ala.Laws, 1882-1883, pp. 392-393.


No. 61 Argued: November 9-10, 1965 --- Decided: January 17, 1966

As MR. JUSTICE BLACK emphasizes, this case comes to us in the very narrow context of a state court judgment [p303] accepting the resignation of a trustee and appointing successor trustees. The lower court judgment does not enjoin the new trustees to comply with the racial restriction in the trust, and there is therefore not presented for decision the question whether, should the trustees fail to exclude Negroes from the park, state judicial enforcement of the racial restriction would constitute discriminatory state action forbidden by the Equal Protection Clause of the Fourteenth Amendment. See Bell v. Maryland, 378 U.S. 226, 328-331 (dissenting opinion). But we do have properly before us, in my opinion, the question of whether the Fourteenth Amendment prohibits the new trustees from voluntarily excluding Negroes. This is so because decision of the state law questions in this case was not independent of that federal question. The city's resignation, its acceptance by the state courts, and the appointment of new trustees were all based on the premise that the city could not, but private trustees could, obey the racial restriction in the trust without violation of the Federal Constitution. If that premise was incorrect, this Court should vacate the judgment below and remand for further consideration of the state law issues free from the compulsion of an erroneous view of federal law. Missouri ex rel. Southern R. Co. v. Mayfield, 340 U.S. l, 5; Minnesota v. National Tea Co., 309 U.S. 551; State Tax Comm'n v. Van Cott, 306 U.S. 511.

That the Fourteenth Amendment prohibits operation of the park on a segregated basis so long as the city is trustee is, of course, not disputed. See cases cited by the majority, ante, n. 1. Whether the successor trustees may themselves operate the park on a segregated basis is the question. The majority holds that they may not. I agree, but for different reasons.

To a large extent, the majority grounds its conclusion that exclusion of Negroes from the park after the change [p304] in trustees would be state action, and thus violative of the Fourteenth Amendment on the existence of prior municipal involvement in the operation of the park.

The momentum [the park] acquired as a public facility is certainly not dissipated ipso facto by the appointment of "private" trustees. So far as this record shows, there has been no change in municipal maintenance and concern over this facility. Whether these public characteristics will in time be dissipated is wholly conjectural. . . . We only hold that, where the tradition of municipal control had become firmly established, we cannot take judicial notice that the mere substitution of trustees instantly transferred this park from the public to the private sector.

Ante at 301. It is equally evident that the record does not show continued involvement of the city in the operation of the park -- the record is silent on this point. On the contrary, the city's interest would seem to lead it to cut all ties with the operation of the park. It must be as clear to the city as to this Court that, if the city remains "entwined in the management or control of the park, it remains subject to the restraints of the Fourteenth Amendment," ante p. 301, and, should segregation in the park be barred, the residuary beneficiaries would undoubtedly press their claim that failure of the trust purpose expressed in the racial restriction results in reversion of the park property. It seems unlikely that the city would act so as unnecessarily to jeopardize the continued existence of this centrally located park, which comprises about 100 acres and is one of the city's largest parks.

That the city's own interest might lead it to extricate itself at once from operation of the park does not, of course, necessarily mean that it has done so, and I am no more inclined than the majority to resolve this question [p305] by conjecture. I refer to possible inferences from the city's self-interest solely to emphasize that the record affords absolutely no basis for inferring continued involvement of the city in the management and control of the park. What the majority has done is to raise a presumption of one fact by showing the absence of proof of the converse. To postulate in this manner that the city's involvement has not been dissipated is simply a disguised form of conjecture. and, I submit, is an insufficient basis for decision of this case.

I would nevertheless hold that the racial condition in the trust may not be given effect by the new trustees because, in my view, it is incurably tainted by discriminatory state legislation validating such a condition under state law. The state legislation to which I refer is §§ 69-504 and 69-505 of the Georgia Code, which were adopted in 1905, just six years before Senator Bacon's will was executed. Sections 69-504 and 69-505 make lawful charitable trusts "dedicated in perpetuity to the public use as a park, pleasure ground, or for other public purpose," and provide that

the use of said park, pleasure ground, or other property so conveyed to said municipality [may] be limited to the white race only, or to white women and children only, or to the colored race only, or to colored women and children only, or to any other race, or to the women and children of any other race only. . . . [n1] [p306]

As this legislation does not compel a trust settlor to condition his grant upon use only by a racially designated class, the State cannot be said to have directly coerced private discrimination. Nevertheless, if the validity of the racial condition in Senator Bacon's trust would have been in doubt but for the 1905 statute, and if the statute removed such doubt only for racial restrictions, leaving the validity of nonracial restrictions still in question, the absence of coercive language in the legislation would not prevent application of the Fourteenth Amendment. For such a statute would depart from a policy of strict neutrality in matters of private discrimination by enlisting the State's assistance only in aid of racial discrimination, and would so involve the State in the private choice as to convert the infected private discrimination into state action subject to the Fourteenth Amendment. Compare Robinson v. Florida, 378 U.S. 153; Lombard v. Louisiana, 373 U.S. 267; Peterson v. City of Greenville, 373 U.S. 244. Although there are no Georgia decisions directly on the point, and the question is therefore not free from doubt, the available authorities [p307] have led me to conclude that §§ 69-504 and 69-505 did involve the State in the private choice by favoring private racial discrimination over private discrimination based on grounds other than race.

Apart from §§ 69-504 and 69-505, the Georgia statute governing the determination of permissible objects of charitable trusts is § 108-203. [n2] This statute "almost copies the statute of 43d Elizabeth," Newson v. Starke, 46 Ga. 88, 92 (1872), and has the effect of fully adopting in Georgia the common law of charities, Jones v. Habersham, 107 U.S. 174, 180. We may therefore expect general charitable trust principles to be as fully applicable in Georgia as elsewhere in the several States. Under such principles, there is grave doubt concerning whether a charitable trust for a park could be limited to the use of less than the whole public.

In the leading case of Commissioners for Special Purposes of Income Tax v. Pemsel, [1891] A.C. 531, 583, Lord Macnaghten established the classification of charitable trusts that, with some modifications, has since prevailed:

"Charity," in its legal sense, comprises four principal divisions: trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement [p308] of religion, and trusts for other purposes beneficial to the community, not falling under any of the preceding heads.

See also Restatement (Second), Trusts § 368 (1959). A more general test of what is charitable is whether the accomplishment of the trust purpose "is of such social interest to the community as to justify permitting property to be devoted to the purpose in perpetuity." IV Scott on Trusts § 368, at 2629-2630 (2d ed.1956). The first three categories identified by Lord Macnaghten designate trust purposes that have long been recognized as beneficial to the community as a whole -- whether or not immediate benefit is restricted to a relatively small group -- and that, therefore, satisfy the general test stated by Professor Scott. See Restatement (Second), Trusts § 374, comment a (1959). But the present trust falls under the fourth category, and can therefore be sustained as charitable only because the generality of user beneficiaries establishes that it is beneficial to the community. Otherwise, a trust to establish a country club for the use of the residents of the wealthiest part of town would be charitable. Professor Scott states this principle as follows:

As we have seen, a trust to promote the happiness or wellbeing of members of the community is charitable, although it is not a trust to relieve poverty, advance education, promote religion or protect health. In such a case, however, the trust must be for the benefit of the members of the community generally, and not merely for the benefit of a class of persons.

IV Scott on Trusts § 375.2, at 2715 (2d ed.1956). (Emphasis added.) Accord, Trustees of New Castle Common v. Megginson, 1 Boyce 361, 376, 77 A. 565, 571 (Sup.Ct. Del.1910) [p309] (trust for town common was charitable; "[i]t is public because it relates to all the inhabitants of a particular community, and not to any classification of such inhabitants or to any group thereof separately from the other inhabitants by any distinction of race, creed, social rank, wealth, poverty, occupation, or business . . ."); Restatement, Trusts § 375, comments a and c (1935); Restatement (Second), Trusts § 375, comment a (1959); see also Bogert on Trusts § 378 (2d ed.1964). [n3] Apart [p310] from the present case, no Georgia cases dealing with trusts for general community purposes have been found, see Smith, The Validity of Charitable Gifts in Georgia, 1 Ga.B.J. 16, 26-27 (Feb. 1939), but the available Georgia authorities are consistent with the rule enunciated by Scott. Compare Bramblett v. Trust Co. of Georgia, 182 Ga. 87, 185 S.E. 72 (1936) (trust to establish "home for gentlewomen" not charitable), with Houston v. Mills Memorial Home, 202 Ga. 540, 43 S.E.2d 680 (1947) (trust for Negro old folks' home is charitable). [n4] On the whole, therefore, I conclude that, prior to the 1905 legislation, it would have been extremely doubtful whether § 108-203 authorized a trust for park purposes when a portion of the public was to be excluded from the park.

Sections 69-504 and 69-505 clearly permit exclusion of a portion of the public if such exclusion is on racial grounds. At the same time, those sections appear to make nonracial restrictions on the user of a park created by trust even more doubtful. Section 69-504 authorizes the conveyance of land "dedicated in perpetuity to the public use as a park," and also provides that such a conveyance may limit user on racial grounds. The natural construction of this provision would be that it authorizes a trust only for the use of the whole public [p311] or for the use of a racially designated subpart of the public, but not for the use of some other portion of the public such as men only, or Irish persons only. Such an interpretation follows from the maxim expressio unius est exclusio alterius and from the dedication cases to which the majority refers, ante at 300-301, n. 3, which indicate that the expression "dedicated in perpetuity to the public use as a park" means dedication to the public as a whole, and not some portion of the public. See also Western Union Telegraph Co. v. Georgia R. & Banking Co., 227 F. 276, 285 (D.C.S.D.Ga.1915). ("‘There can be no dedication, strictly speaking, to private uses, nor even to uses public in their nature, but the enjoyment of which is restricted to a limited part of the public.'") One commentator has suggested that § 69-504 was intended to expand clause 4 of § 108-203, see note 2, supra, i.e., "to enlarge ‘public works' or ‘public conveniences' to include public parks or pleasure grounds. . . ." Smith, The Validity of Charitable Gifts in Georgia, 1 Ga.B.J. 16, 27 (Feb.1939). On that assumption, the sole authority for holding gifts in trust for park purposes to be charitable would be § 69-504, and that section clearly makes nonracial restrictions on use of such parks more doubtful than racial restrictions. Even if § 69-504 is regarded as a clarification of prior law, rather than an addition to it, it has the same effect of casting doubt on the validity of nonracial restrictions.

This case must accordingly be viewed as one where the State has forbidden all private discrimination except racial discrimination. As a result, "the State, through its regulations, has become involved to such a significant extent" in bringing about the discriminatory provision in Senator Bacon's trust that the racial restriction "must be held to reflect . . . state policy, and therefore to violate the Fourteenth Amendment." Robinson v. Florida, [p312] 378 U.S. 153, 156-157. For the reasons stated, I would vacate the judgment of the Georgia court and remand the case for further proceedings.


69-504. Gifts for public parks or pleasure grounds. -- Any person may, by appropriate conveyance, devise, give, or grant to any municipal corporation of this State, in fee simple or in trust, or to other persons as trustees, lands by said conveyance dedicated in perpetuity to the public use as a park, pleasure ground, or for other public purpose, and in said conveyance, by appropriate limitations and conditions, provide that the use of said park, pleasure ground, or other property so conveyed to said municipality shall be limited to the white race only, or to white women and children only, or to the colored race only, or to colored women and children only, or to any other race, or to the women and children of any other race only, that may be designated by said devisor or grantor, and any person may also, by such conveyance, devise, give, or grant in perpetuity to such corporations or persons other property, real or personal, for the development, improvement, and maintenance of said property.

69-505. Municipality authorized to accept. -- Any municipal corporation, or other persons natural or artificial, as trustees, to whom such devise, gift, or grant is made, may accept the same in behalf of and for the benefit of the class of persons named in the conveyance, and for their exclusive use and enjoyment; with the right to the municipality or trustees to improve, embellish, and ornament the land so granted as a public park, or for other public use as herein specified, and every municipal corporation to which such conveyance shall be made shall have power, by appropriate police provision, to protect the class of persons for whose benefit the devise or grant is made, in the exclusive used [sic] and enjoyment thereof.

Ga.Code Ann. §§ 69-504 and 69-505 (1957).


108-203. Subjects of charity. -- The following subjects are proper matters of charity for the jurisdiction of equity:

1. Relief of aged, impotent, diseased, or poor people.

2. Every educational purpose.

3. Religious instruction or worship.

4. Construction or repair of public works, or highways, or other public conveniences.

5. Promotion of any craft or persons engaging therein.

6. Redemption or relief of prisoners or captives.

7. Improvement or repair of cemeteries or tombstones.

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

Ga.Code Ann. § 108-203 (1959).

3. This precise question had been mooted in England a few years before the 1905 Georgia enactment in the case of In re Christchurch Inclosure Act, 38 Ch.D. 520 (1888), aff'd, [1893] A.C. 1, and it appears the English rule may differ from the American rule. The Christchurch Inclosure Act gave tenants in certain cottages the right in a designated common to cut turf for fuel. In the case before the court, it was clear the act had to be given effect in some manner, but the court expressed great difficulty in giving it effect as creating a charitable trust.

For, although the occupiers of these cottages may have been, and perhaps were, poor people, the trust is not for the poor occupiers, but for all the then and future occupiers, whether poor or not. Moreover, the trust is not for the inhabitants of a parish or district, but only for some of such persons.

Id. at 530. Nevertheless, the court felt bound to hold such a trust was charitable on the authority of a dictum by Lord Selborne in Goodman v. Mayor of Saltash, 7 App.Cas. 633, 642 (1882) (trust for a fishery for the use of all "free inhabitants of ancient tenements" held charitable), that

[a] gift subject to a condition or trust for the benefit of the inhabitants of a parish or town, or of any particular class of such inhabitants, is (as I understand the law) a charitable trust. . . .

Lord Blackburn dissented in Goodman v. Mayor of Saltash, saying that,

though there are many cases to the effect that a trust for public purposes, not confined to the poor, may be considered charitable for many purposes, I do not know of any that say that such a trust as is now supposed would be taken out of the rule against perpetuities. . . .

Id. at 662. No doubt Lord Selborne's view of what constituted a trust for the benefit of the public generally was colored by feudal traditions and the long history of royal charters to the burghers, or "free inhabitants" of a town (in fact, the trust in Goodman v. Mayor of Saltash was a fictional one created by supposing the prior existence of such a charter, now lost), while the American rule enunciated by Scott is in keeping with the American democratic tradition, which, in turn is reflected by the Georgia cases regarding dedication of land to public use discussed by the majority, ante at 300-301, n. 3.

4. The trust in Mills Memorial Home was specifically recognized as charitable by § 108-203(1) ("Relief of aged, impotent, diseased, or poor people"), see note 2, supra, while the trust in Bramblett would be classifiable as one to promote the happiness or wellbeing of members of the community at large, and would thus be tested by the standard of generality stated by Professor Scott.