Earl Warren: Mr. Claiborne.
Louis F. Claiborne: Mr. Chief Justice, may it please the Court. Let me begin at the end and say a word first about the appropriate remedy as we view it in this case. For our part, we have some doubt whether this Court may properly require the Georgia courts to refuse to accept the resignation of the city and to enjoin those courts from appointing substitute trustees. The appropriate ruling here, we think is the Baconsfield so long as it remains essentially a public park and no matter who the trustee is, no matter who the Board manages maybe cannot exclude Negroes as such consistently with the Fourteenth Amendment. Now that is not a request for an advisory opinion. All the pleadings in this case and the rulings of the Georgia courts are expressly premised on the assumption that private trustees, unlike the city, will be able to effectuate the test status discriminatory purpose which the city admittedly cannot do. Accordingly, the appropriate disposition here it seems to us, if the Court accepts our argument on the merits, is for the Court to declare that the park, no matter by whom it ministered, cannot be operated on a racially discriminatory basis, yo vacate the judgment below, because it is based on an incorrect premise and to remand the case to the judge of course, first affording the city an opportunity to withdraw its resignation in light of the ruling that that resignation is ineffective insofar as it permits the effectuation of the trustee's racial restriction. If the city should choose not to withdraw that resignation, then the remand to afford the Georgia courts an opportunity to determine as a matter of local law whether a resignation as it were without cause, a pointless resignation, is or should be accepted a new trustee's appointment.
Potter Stewart: Mr. Claiborne and I, perhaps you told us but I -- so I didn't get it. Do you think that anything this Court can or should do to prevent the property reverting to the senator's heirs?
Louis F. Claiborne: Mr. Justice Stewart, we take no position on that question. We do not think it's before the Court. We do not think the judgment we suggest would have any effect on that question which clearly expressly too was not passed on by the judge of courts. The request of the heirs that the property be reverted to them in the event the restriction could not be carried out was not ruled on below and it seems to us cannot be ruled on here.
Abe Fortas: Mr. Claiborne, if I correctly understand your position, you're asking for a relief beyond that that the petitioner is asking here and you're really asking for a relief which would in effect invalidate the racial restriction in the will?
Louis F. Claiborne: Mr. Justice Fortas, in their pleadings below, the petitioners did ask that the racial restriction be stricken. They also asked that the cy-pres doctrine be applied by striking that racial restriction and effectuating what they view is the primary purpose of testator retained the city as trustee.
Abe Fortas: Well perhaps --
Louis F. Claiborne: Here as I understand it, the petitioners are at least alternatively arguing for the same ruling that we think is appropriate.
Abe Fortas: But perhaps I misunderstood, Mr. Greenberg yesterday but as I listened to him, I thought that his position was that what this Court -- he was asking this Court to invalidate the city's resignation and the appointment of private trustees. Perhaps, I was wrong about it. Now as I understand it, what you're asking us to do is -- goes far beyond that and to decide that the park cannot be operated on a discriminatory basis. And the question that I'm asking you is whether the net affect of that is not to invalidate the racial covenant in the will which would mean perhaps I'd like to comment on this that the question of a reversion of a property to the heirs would be academic because the net effect would be that the racial covenant would be invalidated and therefore, it would perhaps -- the result would be that there would be no reason, no occasion, no basis for a reversion of the property.
Louis F. Claiborne: Mr. Justice Fortas, we don't view the ruling we suggest here as having any such effect. We simply say that the Court should declare that so long as the park remains essentially a public park, it cannot discriminate on the ground of race. We do not say that the heirs have no right to reversion if this condition in the will is unenforceable.
Abe Fortas: But how do you make on a public park that that reverts to the heirs, that is to say aren't those -- isn't that essentially contradictory -- you'd have to --
Louis F. Claiborne: We assume --
Abe Fortas: -- illuminate -- what you mean by public parks so far as I'm concerned?
Louis F. Claiborne: I will do that, Mr. Justice Fortas but as we view the reversion to the heirs, it would then cease to be a property dedicated to public uses in perpetuity, would then become the private property of the heirs to do with as they chose to use for business purposes, to subdivide as housing or otherwise to use it in nonpublic way. Because if --
Abe Fortas: Well what you're doing is suggesting a different form of words but essentially the same result is that -- is that wrong, that is to say that the net effect of the relief that I understood Mr. Greenberg would be asking was that the effort by the city to convert this into some sort of a privately managed park would be invalidated. Then it would be up to the state court to determine whether that invalidates the request to advice in the will. And then the Court would have to determine whether it reverts to the private persons and the private heirs. And as I understand you now, you're saying exactly the same thing.
Louis F. Claiborne: It does come to the same thing, Mr. Justice Fortas. However, we have -- we simply have doubt whether the appropriate remedy is to direct the Georgia courts to refuse his resignation. For all we know, Georgia law would permit the city to resign without cause and if that is so, there is no federal question involved there. If on the other hand Georgia law only permits a resignation for cause and that cause is constitutionally prohibited, then perhaps the proper solution is to bar the substitution of trustees.
Abe Fortas: Well I hope you'll forgive for taking so much of your time but what is the trouble with the -- that you have with the direct approach or what seems to the petitioner at any rate I assume would be the direct approach, that is to say that the -- just to this Court to consider holding that a city is attempting to evade a constitutional duty, the constitutional duty being to operate this public facility on a – on a non-segregated basis. Of course, there are a lot of problems implicit in that but it seems to me that -- that was the representation that they were making to this Court as appropriate relief. I take it that you have some questions as to the power of this Court to do that?
Louis F. Claiborne: We agree that the effort of the city to perpetuate segregation through its resignation if -- if that should maybe properly so viewed is an ingredient in this case, a meaningful one. On the other hand, if the law of Georgia be that the city can resign for no cause then it seems to us perhaps irrelevant that their clause in this case was the bad one. But our primary point is that a public park, no matter by whom operated cannot stand consistently with the Fourteenth Amendment, that racial restriction in such park cannot stand consistently with the Fourteenth Amendment.
Potter Stewart: The way of -- that's being the question if you -- a private park certainly can be operated cannot it not in a discriminatory way?
Louis F. Claiborne: Mr. Justice Stewart, it depends on how one defines the private park suppose as a public park.
Potter Stewart: Yes, but I suggested that if you were beginning with your answer, when you said -- when you refer to this as a public park.
Louis F. Claiborne: But the ingredient which --
Potter Stewart: I suppose a person can leave a piece of property and say, “I want this property be used for a playground for colored children and administered by private trustees.” I suppose that would not be unconstitutional, would it?
Louis F. Claiborne: I think that --
Potter Stewart: Even though we're not open to any adults of any race or to any children of the White race.
Louis F. Claiborne: I think it is true, Mr. Justice Stewart but the more limited the class of beneficiaries in terms of age, in terms of minority, the less public the facility and therefore the less governmental the function being exercised. The less effect or impact the discrimination will have on the community as a whole and the less the Fourteenth Amendment command applies to that park. Here we have essentially --
Potter Stewart: It's a matter of degree, a little less or a little more. I was suggesting that the Fourteenth Amendment wouldn't apply at all in a case of a private testator who left his piece -- his vacant lot to be used as a playground for colored children and administered by private trustees. Now do you think that this is a matter of the Fourteenth Amendment applying somewhat but not very much?
Louis F. Claiborne: No, sir. I would say that whether the Fourteenth Amendment applies at all has to be determined by looking at the character of the facility, the admissions policy whether it is generally open to the public and excludes only a very limited class or rather whether it is designed to benefit of a small class and excludes the public at large. That that determination comes first and decides whether the Fourteenth Amendment command is applicable.
Speaker: [Inaudible]
Louis F. Claiborne: Considerations which lead to that result, it seems to me are in large part determined by the class of beneficiaries, the size of the class of beneficiaries, the nature of the facility involved, the impact of the discrimination, and --
Byron R. White: Mr. Claiborne, I gather then anything is -- would be public and your definition if -- if it's open to everybody in the community except one defined class, say Negroes even though that the city or the governmental authorities have no ownership to control, as Mr. Justice Stewart posed the private park, run by private trustees. I suppose that would go for any other facility wouldn't it that -- that was run by a private organization like the business organization?
Louis F. Claiborne: No, Mr. Justice White.
Byron R. White: It also (Voice Overlap)
Louis F. Claiborne: I don't think that necessarily follows. One ingredient is certainly the class of beneficiaries who enjoy the facility. If this is the public as a whole, that is one ingredient in making the facility a public quasi governmental facilities. But there are other important critical factors, and certainly, the character of the facility, the fact that this is a park and not a business. The fact that it is a large park said to be located in the city is relevant.
Byron R. White: Well what about a school, private school?
Louis F. Claiborne: Well the fact that it is free of course is relevant, that it is dedicated to public use. If it's a free school, it comes close to this case. If it's a school that has an admissions policy which charges tuition, which necessarily has a limited category of beneficiaries, then it may fall in the private area rather than the public sector.
Byron R. White: What about a church?
Louis F. Claiborne: A church very plainly is not covered by our argument. There are several reasons for that. First, the church does have a limited class as beneficiaries. It is by definition for one sect and not for the public at large. Secondly, --
Byron R. White: Well yes but that's -- that just means that the -- all that means is that only a few people in the community may choose to join the church but it's open. It's open that if anybody wants to join it can join it and come to this church, and come to the services the fact the public is invited all the time except one class.
Louis F. Claiborne: Because there is also the fact that this in no sense can be viewed as the discharge of a governmental function. It's not the business and cannot be the business of government to establish and operate churches.
Byron R. White: Is this essential in your --
Louis F. Claiborne: It is an ingredient in our --
Byron R. White: It's performing a governmental function?
Louis F. Claiborne: This park is very plainly, performing a governmental function.
Byron R. White: But it is -- that is essential in your analysis?
Louis F. Claiborne: It is essential in our analysis. Here we have a public park. Most parks are, as a matter of fact, state or municipally owned. Private parks as oppose to country clubs are very much the exception.
Potter Stewart: How about an orphanage or a hospital or a home for unmarried mothers or a day nursery, just to think of a few things at random. Are you suggesting that a testator could not establish an orphanage for protestant -- White protestant orphans or a hospital for --
Louis F. Claiborne: I speak with --
Potter Stewart: -- colored unmarried mothers or a -- or a day nursery for working women of the Jewish faith?
Louis F. Claiborne: Mr. Justice Stewart, I don't want to pretend to resolve --
Potter Stewart: Overall functions which here and there are performed by government.
Louis F. Claiborne: I don't want to pretend to resolve all of those cases. I would say that the hospital case is perhaps one closer to this one. Hospitals do perform an important public function which is traditionally at least today performed by government, by municipalities. An orphanage may fall into the same category though it has the more limited membership. Another ingredient in our case is the importance of countervailing elements of privacy -- of private choice of association where the relationship between the beneficiaries has some element of -- which may properly be left to private choice. Some ingredient of a long lasting intimate relationship such as perhaps an old folk's home, one can more easily understand that the Fourteenth Amendment was not meant to follow that sort of choice of association. But here --
Potter Stewart: How about a school? Can a private testator leave several million dollars for the establishment of a school for the limited to the children of impoverished Italian immigrants or what -- or would that school have to be open to everybody and break his will in order to do so?
Louis F. Claiborne: I think that is a close case, Mr. Justice Stewart. Again the category of beneficiaries is very limited. It doesn't pretend to be a facility open to the general public. On the other hand, I think as this case goes so might go the Girard College case which was open at least to all orphans within the city except Negroes. Within the class, at least, there was a broad invitation to the public and I do think it's crucial that this is a charitable institution that is one that charges no admission. The private college or the private facility which has either a restricted admission's policy or the charged with (Voice Overlap)
Potter Stewart: (Voice Overlap) restricted admission policy. Again you're -- you're beginning with the answer
Louis F. Claiborne: The primary dominant characteristic of this park is that it's open generally without any discrimination to all the residents for that matter to nonresidents to the City of Macon.
Potter Stewart: Well I thought that the primary -- your market as a park whether it was closed to colored people and therefore was not public, it was operated on a discriminating or discriminatory basis confined to the White race.
Louis F. Claiborne: I assume that in Macon, the White race predominates and that therefore, they cons -- they constitute majority of the community. In any event, the park does not discriminate on any other basis. The discrimination on account of race has no legitimate justification here in terms of the proprietor's interest in selecting those who will use park or in terms of any long lasting and meaningful association between the persons who use the park.
Abe Fortas: Mr. Claiborne, I thought that your position was that this was fairly clear situation here in terms of both the governmental and the public function that the testator intended for this park to have that is to say the fact that he left it to the Mayor and Council of the City. He did not leave it to private trustees. Number one and two that the intended benefit went to all -- to all White people of the City of Macon so that you had those two aspects of the testator's intention and therefore, no matter how you define it for purposes of close cases, I thought it was your position that this was a clear case involving both governmental and public aspects. Am I correctly stating it?
Louis F. Claiborne: That's entirely true, Mr. Justice Fortas. Here it is relevant that first that Georgia provided that such trust users be administered by the city, that Senator Bacon quite naturally chose the city as his trustee which is normal for a park, normally in municipal operation. It is equally relevant that the City of Macon did for 50 years administer this park as a municipal park. And of course, it's relevant that the city during that administration did impose a racial restriction which is now thought to be perpetuated by quasi public -- quasi private board.
Speaker: [Inaudible]
Louis F. Claiborne: There is at least one meaningful difference between that case and this, Mr. Justice Harlan. The decision by the now owner of property to lend it temporarily and subject to his own ability to change the condition to a public purpose is different from a charitable trust made in perpetuity which continues long after the decease of the testator and which is beyond his ability to control in anyway that the heirs owned this property and chose to dedicate it temporarily to a public park, they would retain a measure to control over the right to sell it, the right to restrict it, the right to change its use, and it would be less --
Speaker: [Inaudible] permanent park?
Louis F. Claiborne: If they dedicate it as a permanent park, then as a matter of Georgia law I gather, it would have to be open to the entire public. But in any event in that case, it would become a full pledge municipal activity. It would dedicate it permanently, irrevocably dedicated to public use. It would be administered by the city and would be --
Speaker: [Inaudible]
Louis F. Claiborne: Well I was -- I'm sorry, I misunderstood. There is a distinction in Georgia between dedication and the creation of this sort of facility by a charitable trust. Dedication is viewed as a complete severance of claim by the owner whereas the trust has some elements that retain control, and some elements that a private or appointed board of administrators. Well the dedicated park as I view it would be wholly operated by the municipality and with all purposes be viewed as a municipal park.
Speaker: [Inaudible]
Louis F. Claiborne: I think it is relevant that we do have that additional ingredient of city administration and it's at the Bacons choice of the city as trustee. I'm not sure that the result would be different if those elements were lacking. But we do since we -- since they're all present in this case, I think they add to the stated park in this facility.
William J. Brennan, Jr.: Mr. Claiborne --
Hugo L. Black: Those who had been set up as self-perpetuating board such as [Inaudible] what would you say then?
Louis F. Claiborne: That the board was self-perpetuating should make little difference, I should think. Now I -- I would repeat the answer I gave to Mr. Justice Harlan. I think it is relevant here that the city was made trustee rather than a self-perpetuating board. Those being the -- the only two alternatives I see or a board appointed by the city but that would amount to a -- to the city.
Hugo L. Black: Do you think the argument here that's been in park, infringes on the holding in [Inaudible]
Louis F. Claiborne: I think not, Mr. Justice Black because Dartmouth College was a wholly different case involving a different constitutional provision, the Contract Clause. It doesn't follow that what is governmental action under the Contract Clause is governmental action or it's not governmental action under the Fourteenth Amendment.
Hugo L. Black: What is the basic into saying things to how long -- I'm not saying whether Dartmouth College was right or wrong, so how long would a man give his owns -- gives it away, how long can he keep his control on that property through his heirs or his chosen representatives? Isn't that about what this case involved?
Louis F. Claiborne: That isn't but certainly an important aspect to this case, Mr. Justice Black. I think it does matter what sort of restriction he -- he wants to impose forever.
Hugo L. Black: Of course they were valid when made but later on they want to make it invalid.
Louis F. Claiborne: I think they must be done in some instances. And it -- it would be strange if the Senator Bacon's trust in this case is valid when made. But which could not be made today would be perpetuated in Macon for all ages to come even when the city as we are told have desegregated its own facilities, when the privately owned places of public accommodation in the city have been desegregated, in a day when all vestiges of the color line had gone, if this provision is sustained because it is part of a charitable trust, because it is perpetual, it could last indefinitely. The law must have the remedy.
Hugo L. Black: Suppose he had made his -- his trustee his heir from time to time, they would have a remedy. He just decided that he want to leave his family with the power to run this place, own it and run it and he hope he'd run it for the last of it [Inaudible]
Louis F. Claiborne: If that would merely a hope and not a requirement binding on his trustees, then they would be in the same position as present private owners and there wouldn't be this perpetual dedication to the public which is attempted to be binding at all time.
Hugo L. Black: Would they lose their property if it had been conveyed in that way if they didn't operate it as the state said they should operate it? Could the State penalize it and take it without being involved?
Louis F. Claiborne: Certainly, I wouldn't -- I would not think so, Mr. Justice Black. I think this is a meaningful -- meaningfully different case because it does involve this element of a perpetual dedication to public use and one that is perhaps more than any other we can think of, a governmental, typically governmental operation and of course the physical characteristics of this park must put in mind. If this can be done in Macon, it can be done in the city which only has one park and the impact of that exclusion --
Hugo L. Black: It doesn't affect the constitutionality of [Inaudible]
Louis F. Claiborne: It seems to me it should bear on the question whether public parks unlike perhaps other facilities are susceptible of or subject to the Fourteenth Amendment. It does matter that parks are few in number and therefore the impact of discrimination there is greater.
Hugo L. Black: Do we not -- do we not find against that really, this case to the question of whether in our private ownership system, we won't allow people of one generation who own that property, control its disposition thereafter.
Louis F. Claiborne: I think that is the important question of the case.
William J. Brennan, Jr.: Why is that Mr. Claiborne, do you find anything in our action the second time in the Girard College case? The question begins with the position that you take.
Louis F. Claiborne: Mr. Justice Brennan I read as -- as Mr. Greenberg does the dismissal of the appeal in the second case has meaning no more than it did in the first, therefore, not as being ruling on the merits and of course, the denial of certiorari of the second case cannot be read as any decision of the merits. I would say that it may have been an element in the Court's decision to deny certiorari in second case that there was a Pennsylvania statute which apparently though it was subsequently was held not to require the opening out of Girard College to all races. The case perhaps seemed to be close to becoming moot. I would also say that a school, unlike a park, does have more elements of privacy. And a school which is restricted to orphans only is not quite as public, not quite as available to the public at large as it is the large public park like Baconsfield.
Hugo L. Black: Suppose that the school is restricted to a member of one pretending to be owner, or one religious [Inaudible]
Louis F. Claiborne: That becomes a traditional object of private philanthropy. It is filling a need which government cannot fill at least in the case of the church. And is therefore one which it does not stand in the place of a governmental function because no government could establish a school for one church only. And of course again, the class of beneficiaries is much smaller and the impact of the exclusion there is very limited.
Earl Warren: Mr. Jones.
C. Baxter Jones: Your Honors, I approach this case, arguing for the respondent essentially from the premise that what we are looking for is what can fail and be found as state action in connection with the facts of this case as disclosed by the record. Accordingly, it occurs to me since there is no suggestion made and certainly no suggestion which could reasonably be made that the Court has jurisdiction except in the event of an element of state involvement that the critical and important question which we are ultimately trying to decide is just where that state involvement is. And that can only be determined by a critical, accurate, and rather complete examination of the facts of the case as disclosed by the record. Now the most vital and in fact the only document which is involved which does have the elements of a contract is of course the will of Senator Bacon. And it seems to me that the first thing I would like to approach is that which is suggested by Mr. Claiborne's opening remarks in which he places emphasis upon the fact that this was a public place equating it I suppose in some sense to governmental operations and I have assumed that that contention having full made was more less based upon inferences that might be drawn from the Marsh versus Alabama decision. There is of course a vital difference there and irrespective of Marsh, it maybe that viewing a public park in the charitable sense, simply by itself and without relation doing a precedent, it maybe that this Court would reach the same conclusion here that they did in Marsh. But of course, the Court is entirely aware that in the Marsh case, we were dealing with a community which I believe Mr. Justice Frankfurter in a concurring opinion, stated to be a town as might so as in the other town that is slangily expressed by me, a town is a town and that is that. But in the Marsh case, the language in the majority opinion clearly discloses the broad ambit of community life which was carried on there with shops, [Inaudible] building run into the post office department were used by the United States government, the delivery of mail involving so far a -- the -- the complete orbit of community life as to constitute it a governmental operation in the same sense that a town chartered by the State would be so considered. Now getting back to the Baconsfield case then --
Hugo L. Black: May I ask you this --
C. Baxter Jones: Yes sir.
Hugo L. Black: Is this -- has this park not been operated just the same as the city would run a park?
C. Baxter Jones: No sir, I -- I really appreciate that question because at an appropriate time, I was going take some exception to remarks about -- I'll do it right now. I'd like to do it right now. A statement has been made; I think rather glibly and a little bit carelessly that the city has administered this park. The truth of the business is that the city has never had any connection with this park of any sort or character except to hold a legal, naked title as trustee. The will in the most pointed language provides for the appointment of a Board of Managers. It says in words which are comprehensive and complete that the Board of Managers shall have a complete, the unrestricted, the unrestrained, control, management, maintenance of the park entirely free from any interference, I believe substantially those words being used and the will set up funds of which would produce an income to maintain its operation. Now --
Hugo L. Black: You say managers, who were the managers?
C. Baxter Jones: The Board of Managers was seven persons to be appointed under the will as a Board of Managers in the first instance by the City of Macon. I said that they had never had anything to do with it except to hold the Macon title, I was going to add and accept the purely ministerial function of selecting and naming the original Board of Managers and thereafter filling vacancies on recommendation of the Board of Managers or remaining members of the Board of Managers itself. That is a function which obviously the executor could have performed himself in the first instance by himself selecting the members he wanted to serve on this Board of Managers or he might have delegated that to the executor or to the private trustees who had the property for sometime before it passed interest to the city. But it actually was a function delegated to the City of Macon or their successors, or their successors and trust I believe the exact language is. So that it was -- it was a -- a ministerial function vested by the senator in his will in the City of Macon or the trustee who might succeed the City of Macon. That -- that's what I'm trying to say is the extent to which the City of Macon has administered this trust. (Voice Overlap)
Abe Fortas: May I ask you whether you construe the words successors there in the will to mean their successors in those offices. In other words as I've read this and perhaps I'm wrong, as I read this it's not only the initial Board of Managers, but the subsequent boards were to be appointed by the Mayor and the City Council. And when the will refers to their successors that is to say the successors of the Mayor and the City Council, it meant the people holding those official positions. Do you disagree with that?
C. Baxter Jones: That is of course a possible construction. I do not place the same construction on it myself and for this reason. The title --
Abe Fortas: What's actually happened? Has there been time enough to know whether the Mayor and the City Councils and successive of Mayors and (Voice Overlap)
C. Baxter Jones: The Mayor and Council of the City of Macon in formal meeting assembled have placed, named the original members of the Board and have in some instances named successors.
Abe Fortas: And successor Mayors and City Councils have exercised that power?
C. Baxter Jones: Well I would -- I would find that they made the distinction between the Mayor and members of City Council.
Abe Fortas: I want to ask this as a matter of fact what happened with [Inaudible]
C. Baxter Jones: I beg your pardon. I didn't --
Abe Fortas: As a matter of fact, what has happened is successors to the original Mayor and City Council made appointments.
C. Baxter Jones: Oh, Yes, yes, of course.
Abe Fortas: So that in practical effect, the construction of this will has been that the appointment of the Board of Managers has been made by those persons and from time to time have held the positions of Mayor and City Council.
C. Baxter Jones: That is correct. That is the governing body of the City of Macon and it has been so named. I assume that you're suggesting a possible distinction between applying the term successors to the city as trustee and to the members of the City Council including the Mayor who (Voice Overlap)
Abe Fortas: I wasn't suggesting that --
C. Baxter Jones: That's right.
Abe Fortas: You may suggest --
C. Baxter Jones: No sir. I -- I wanted to make it entirely clear that the time the Mayor and Council of the City of Macon was the charter name given to the City of Macon and that was the name so used in 1911 when this will was drawn.
William J. Brennan, Jr.: Mr. Jones, I take it that there are expenses of maintenance of the park?
C. Baxter Jones: Obviously yes.
William J. Brennan, Jr.: And where -- what funds?
C. Baxter Jones: They are -- the fund is the revenue which is produced by the Board of Managers from the use of property which was left for that specific purpose.
William J. Brennan, Jr.: That is property other than the park?
C. Baxter Jones: It's actually a part of the tract of land which is known as Baconsfield, but it was separated by a street from the larger part and provision was made for using the land on the south side of the street for commercial development and for renting and leasing purposes to provide income.
William J. Brennan, Jr.: And even this for general municipal funds (Voice Overlap).
C. Baxter Jones: None whatsoever so far as I know. Policemen -- policemen have been through there certain sanitary services which are available to public at large have been lending, things of that sort.
Earl Warren: What do you mean by sanitary services, restrooms?
C. Baxter Jones: No sir, they are none on the grounds anywhere. I did not – it was a rather careless use. I was merely thinking of street sanitation and clean up of sanitation in that sense.
Earl Warren: (Voice Overlap) the streets in there?
C. Baxter Jones: I'm not -- I'm quite certain that the city did. They are public streets and certainly, we do not question the fact that the streets which are in the area are public streets and are open entirely to the public and always have been, no questions have been raised about it.
Earl Warren: The entire public?
C. Baxter Jones: Yes of course, that's right.
Earl Warren: May I ask you this, Mr. Jones. In your city planning in the -- and particularly in the planning of your park system, was -- was this considered as a part of the development of the entire system?
C. Baxter Jones: I'm afraid I can't answer that question. There is of course a zoning and planning commission which has plans for the zoning of the city and --
Earl Warren: Well not zoning but let's say acquisition -- the acquisition and the development of parks for the -- for the benefit of the public as all cities have.
C. Baxter Jones: They have -- they do have parks for the benefit of the subject and I would not be able to answer to what extent they may have been influenced by the fact that this park was available. I just have no information.
Earl Warren: You do not think that might be important?
C. Baxter Jones: I think it could be if the -- if the case was presented in that posture.
Earl Warren: Is there any 100-acre park in the – in the city or anything comparable to it -- for Negroes?
C. Baxter Jones: Yes. There's a park in the City of Macon such things, they're larger than a 100 acres which is called the Central City Park and which is a public park owned by the city, operated by the city, managed by the city which is open to the public at large.
Earl Warren: How long has that been open?
C. Baxter Jones: Before I was born Your Honor.
Earl Warren: Open to all – all people in the public park.
C. Baxter Jones: Yes, all people in the public park. There's never been any question about that at all. There has never been an ordinance on the books of the City of Macon prescribing segregation or any form of discrimination on racial grounds or other grounds insofar as parks are concerned. There's never been a statute in the State of Georgia which prescribed that insofar as parks are concerned. There has been some other areas where there has been some discriminatory statute or ordinance.
Earl Warren: Yes, I see.
William O. Douglas: Is there any playground, facilities or other improvements on the park?
C. Baxter Jones: As a fact, there are, I believe three tennis courts. Some three or four softball-baseball diamonds and I think that's all, Your Honor.
William O. Douglas: No buildings at all?
C. Baxter Jones: There's only one structure on the park and that was the house which was there when Senator Bacon was living and which has been maintained and preserved. And it is surrounded by some 10 or 15 acres of lawn or grass and it's used by some groups for meeting places. That's -- that's the only structure on the property at all other than the cons -- the buildings which are commercially dealt with on the other side of the street.
William O. Douglas: Employees that [Inaudible]
C. Baxter Jones: No, sir there's been no person in charge there to control that at all.
William O. Douglas: No city employees
C. Baxter Jones: None whatever, no sir.
Byron R. White: Who operates the park now?
C. Baxter Jones: The Board of Managers -- the Board of Managers which was named as a successor Board of Managers after the city resigned and its resignation was accepted then the old Board of Managers also resigned. And the new trustees appointed a new Board of Managers and they are now technically at least, the managing body of the park.
Byron R. White: The trustees were appointed by the court?
C. Baxter Jones: The trustees, the successor trustees were appointed by the Court in this proceeding, yes sir.
Byron R. White: [Inaudible]
C. Baxter Jones: No, it's the superior court of Bibb County which is the Court of General Trial jurisdiction and which it has jurisdiction over, equitable jurisdiction over trust.
Byron R. White: Mr. Jones you said there were public streets that go through the park way.
C. Baxter Jones: Yes sir, yes sir.
William J. Brennan, Jr.: And those – without regard to race, any person --
C. Baxter Jones: Certainly.
William J. Brennan, Jr.: Right or wrong, well I gather the -- this means that if they're Negroes they can cross on the roads to it (Voice Overlap) it out and search them wrong.
C. Baxter Jones: Quite possible that's what it means. Actually, I -- I'm not sure that that's a very happy situation but I was -- last summer in West Palm Beach, Florida and I rode down the public street. There's a home over there boarded up and walled up that I think was occupied by the late President Kennedy's father and I couldn't get in there. If I could -- I could -- I could get on the street by the side of it, but it was completely barricaded and restricted so far as my coming in is concerned. And of course that not suggesting a racial discrimination at all, but I -- I don't see that the fact that there is a street which divides portions of the park which is completely open to the public and which is not controlled -- which are not controlled in any way, shape or manner affects the question of the constitutional question which we are --
Abe Fortas: Mr. Jones, as I read the will, there is also some bonds -- there were also some bonds that were not by Senator Bacon to the Mayor and Council. The income of those bonds has been used for the maintenance of this property, isn't that true?
C. Baxter Jones: There were -- there were $10,000 of bonds that were left to the city as trustee. The income to be turned over to the Board of Managers and to be used by the Board of Managers in the operation of the park. Actually, the entire principle in income with the Board -- of the bonds were long since turned over to the Board of Managers and have been kind of disappeared and no longer exist.
Abe Fortas: To be used for the park.
C. Baxter Jones: For the park, that's right.
Abe Fortas: Mr. Jones, as the record show of what the income is from this trust for the purposes of maintaining this --
C. Baxter Jones: The record shows nothing or whatever.
Earl Warren: Do you have any knowledge as to how much the (Voice Overlap) for maintaining the park--
C. Baxter Jones: The -- the present expense of maintaining, it is quite limited because since this situation arose, nothing has been done there. The thing is really in that quite status quo and nothing is being spent except for laundering the grass and keeping it clean. And that is done --
Earl Warren: Even those things -- even those things --
C. Baxter Jones: That's right but I believe --
Earl Warren: -- of course cost quite a bit of money --
C. Baxter Jones: -- I believe -- that's cost around $1400 a month or what is the amount thus far.
Speaker: [Inaudible]
C. Baxter Jones: The basic cost for just manicuring in the lawns and cost is a very substantial item but that is completely covered by the income which is available for that purpose. Now you asked me if the record showed that facts and practically everything we've been talking about here is not in the record. And that -- that -- that brings me, if Your Honor please, to a point that I did want to emphasize. If -- if the -- well to begin with and going back one step, in the state courts where these case originated where it was before it came here, there was never at any time emphasis placed upon the fact that this was in the nature of a public facility. The emphasis was placed upon this city and the legislative influence upon that and to the extent that it's all participation, but the significance of that is that there was absolutely nothing in the record put there by either side presenting the character, the physical character of this park. The actual use that was made of it such as it seems to me would be essential when this Court is now asked to say that it's a park of such magnitude and such importance and vital significance in the life of the whole community of Macon that it stems itself completely as something completely different from the ordinary public charity which is more private in which it's restricted to less people.
Earl Warren: How did the --
C. Baxter Jones: It looks to me like there would have to be a record here on which this Court would be able to throw a judgment that this is a park of a character to come within that sweeping problem.
Earl Warren: How did the -- how did the city get the title to the -- to the land for highway purposes?
C. Baxter Jones: I imagine that it was simply by the roadway being opened up and public use being allowed to it and thus becoming a street. I'm quite sure there was never any formal passage of title to the street.
Earl Warren: You meant they did it without the allowed reference to the -- to the trustees at all, just did it themselves as the municipal fare.
C. Baxter Jones: Well yes, exactly. I mean that when one or two lanes or streets were opened up through the park and made available to the public, they became so far as the public was concerned, public streets and within the jurisdiction of the city for supervision and maintenance.
Earl Warren: How long --
C. Baxter Jones: You're asking me a question, Your Honor. Your Honor actually, I have no knowledge of the details and manner in which those things happened. They were many, many years ago. 50 years is really not so long as some younger people might think it to be, but still it is a long time ago so far as the -- as pointing out the actual manner in which some of these things occurred.
Earl Warren: Well I was wondering if this was -- if this was an irrevocable dedication only for White persons. If the fact that the -- that the city many years ago, I presume, actually opened to that for streets and highways for the use of both Blacks and Whites in the community was not just as much a departure from the will as what is -- what will be?
C. Baxter Jones: Might well have been. I wouldn't -- I wouldn't be too certain of this.
Earl Warren: But wouldn't that indicate that this was a part of a -- of their park system and used as such and considered as such and therefore it needed streets to go -- and highways to go through it for the -- for the use of those who -- who are using the park?
C. Baxter Jones: I wouldn't think so, if Your Honor please, if it was merely for the use of those who were using the park, they could have been made private lands and could -- would not have been within the city's jurisdiction at all. Actually, the -- one street which is a significant -- well to begin with, when the will was drawn, the park laid partly on the side of one major -- one street which is now a major, east west boulevard in the city so that the park itself was already separated by a public street and that was always a public street. But then another street is – goes through the park -- a park which is used by people coming in, in any direction and going to another direction just purely to travel. And that street, when it was open and its use was allowed for that purpose, did become a public street.
Hugo L. Black: May I ask you? Maybe you have to go outside of the record. Did you say that park had 100 acres?
C. Baxter Jones: Yes, may I -- may I anticipate your question or may I answer that specific question? Under the will, the property is described by courses by boundary courses and distances. It has been estimated by the government in its brief that that contains approximately 100 acres and that is a substantial to fair accurate, I would say 100 acres. However, may I add this? They made reference in their brief to an interstate highway that runs through it and they attach a map of the City of Macon which does give us a picturization of the park in some measure. This interstate highway was taken by the highway department as part of the nice little expressway system. It's a non-access highway. It contains, according to computations which can easily be made. Itself over 25 acres, it sentence -- separates and assess all between it and the banks of the river which is referred to another 25 acres which is bottom land, which has never been used for park purpose which now actually, is not available for park purposes. There is also another 10 or 15 acres on the south side of Spring Street which is the commercial part of it, leaving actually 40 acres which is park land. Now I'm sort of whittling this 100 acres down to 40.
Hugo L. Black: When you said it was taken, how was it taken?
C. Baxter Jones: It was condemned in the Court proceeding.
Hugo L. Black: The state consented.
C. Baxter Jones: The state consented against the Board of Managers.
Hugo L. Black: Who did it pay?
C. Baxter Jones: Paid the Board of Managers. I beg your pardon. Yes, they paid the Board of -- no.
Byron R. White: Paid by the city, isn't it?
C. Baxter Jones: The -- the city
Byron R. White: It is city's property.
C. Baxter Jones: The city at that time had resigned as trustee and they paid the successor trustee as I believe that's accurate in [Inaudible] but never mind.
Earl Warren: What was that transaction again? I didn't quite understand.
C. Baxter Jones: The State Highway Department acquired 25 acres of this 100-acre tract for an interstate non-access highway and they condemned the property and the money is now being held, I can answer the question to this extent, I know exactly where the money is now, is now being held by the successor private trustees who appointed under instructions from the Court to hold it until they was certain they have a right to it pending the outcome of this litigation.
Hugo L. Black: That must be this other 40 acres --
C. Baxter Jones: Yes
Hugo L. Black: Is it just an ordinary park with trees --
C. Baxter Jones: It's -- it's a broken --
Hugo L. Black: Does it have a playground.
C. Baxter Jones: It does not have a playground as such.
Hugo L. Black: What does it has?
C. Baxter Jones: It has --
Hugo L. Black: Tennis court.
C. Baxter Jones: -- three tennis courts, two or three softball, baseball diamonds at the east side of it. It has a house surrounded by some 10 or 15 acres of lawn which is well maintained and well kept and attractive on the east side of the tennis courts and then half of the 40 acres, to the north is wooded land with some flowers, and plants, and shrubs.
Hugo L. Black: So you would conceded I'm sure that the city owned this and runs it, [Inaudible] to the city operating it as the park, you could not possibly constitutionally exclude colored people from this, would you not?
C. Baxter Jones: Well certainly if the city owned it and was operating as a park so that would be conceded if that's the -- if I understood your question. The city doesn't own it now at all, they did on it is as trustee.
Hugo L. Black: And they couldn't do it by any substitute, probably it's the same trust.
C. Baxter Jones: Exactly, that's right. And -- and if -- if the city at anytime owned it, they couldn't buy subterfuge accomplished segregation by divesting themselves for that purpose or under other limitations of the property which they are not (Voice Overlap)
Hugo L. Black: I suppose even if the city doesn't know it. It's owned by a private owner if it's utilized as a park so as to make it what it is something like the Marsh case. They just used there -- they've got the highways and everything else that so long as you operate it as a park, you couldn't exclude colored people –
C. Baxter Jones: No, I certainly do not, Your Honor. I don't -- I don't -- I don't think I could possibly make that concession of -- if -- if it were -- if the city had nothing to do with it, the fact that's in a city doesn't make it a city operated park.
Hugo L. Black: But I suppose it has a street going through it and the city simply lets them have the naked title but the city has -- does everything else, supplies it like it supply any other part of the city.
C. Baxter Jones: Which they don't do.
Hugo L. Black: Well that's it. I'm trying to get what your issue really is.
C. Baxter Jones: My issue is –
Hugo L. Black: On that part of the case.
C. Baxter Jones: Yes, of course my issue is the one that they made for me and I have to, myself, know what it is before I know exactly what the issue is, but I take the issue to be as lately expressed by Mr. Claiborne in his remark whether or not, this park has such public, governmental characteristics as comparable to that involved in the Marsh case or on some extent you know the doctrine of the Marsh case as to make it beyond the appeal of private ownership and complete private control within the limitations of the Fourteenth Amendment. Now that's what I understand to be the issue posed by Mr. Claiborne.
Hugo L. Black: Well I might certainly know that nothing else, just pure naked ownership and somebody else --
C. Baxter Jones: That's right.
Hugo L. Black: -- is not enough --
C. Baxter Jones: Exactly.
Hugo L. Black: To let that owner defy people of constitutional right in connection with that topic?
C. Baxter Jones: Quite so, yes. May or naked ownership by the private corporation which owned it because they had made out of it a community, a town. And since it was a town, it was part of the public life or public governmental life, public political life, with shops open to the public and used by the public all the way through it with the post office there that served not only the people in there, but elsewhere where they received mail for the delivery. It had -- it had by practice and usage there and by characterization by this Court become insofar a town as to be a town in exactly the same sense that any other town chartered by the State Board. Now that -- that's the impression which I have of the Marsh case, but I said -- I say that they cannot place this case in that category merely by calling it a park.
Hugo L. Black: Not by calling it, but they could by the way it functioned --
C. Baxter Jones: But they haven't -- that isn't in the record. They haven't brought that here. They didn't insist on that in the trial court. And -- and this Court now would -- I've got no objection of course to the Court having all the information that's in my power to give along and anybody else's power for that matter but I don't think that this case is in its present posture before this Court presents that question because they're simply -- it was never made in the lower court. It -- it isn't in such shape that this Court --
Byron R. White: What was it in the record Mr. Jones?
C. Baxter Jones: I beg your pardon.
Byron R. White: What is in the record?
C. Baxter Jones: The characterization of this park as such -- as being such a public activity irrespective of ownership as to bring it within the scope of the Marsh decision as we've been discussing.
Byron R. White: What part of the record you suppose would be made if --
C. Baxter Jones: Well I would say that --
Byron R. White: What kind of record that you have made as you put it to [Inaudible]
C. Baxter Jones: If that issue had been tended to the lower court, I would have shown the limited facilities there, the limited size which is available for any enjoyment by any part of the public. I would have shown the pictures I suppose, the absence of any buildings of any sold out character which were used by the persons who enjoyed the park. And generally, I would have let this Court know that it wasn't of the magnitude, and size, and characteristic which I think they have the burden of showing if they want this Court to act on that.
Abe Fortas: Is there any -- anything on the property that indicates that Senator Bacon was the original benefactor of this property?
Speaker: There is a small marker.
C. Baxter Jones: There's a small marker, I would say about the size of this dice which names that park Baconsfield and I believe some things that the Bacon mean, is that right?
Speaker: There is a memorial –
C. Baxter Jones: That's right in memorial of the Senator, the plaque of state that is a memorial to Senator Bacon's family or whoever the person memorialize was. There's -- there's nothing on the property in a way of a sign. There's nothing on the property in the way of gates or closed structures except that there is a very small bronze marker which shows that it was given by Senator Bacon as a memorial to some members of his family.
Earl Warren: What is the house used for, Mr. Jones?
C. Baxter Jones: The house is used by some women's groups who go over there and meet and have tea or meals for the social purpose.
Earl Warren: Is this limited to certain women's groups?
C. Baxter Jones: Not limited at all. You asked what it was used for.
Earl Warren: Yes, yes.
C. Baxter Jones: I don't know if there's such a limitation. That is the actual use which is made of it. I do not know of any rules that they have that would deny use for any other purpose so that I just happen to know that that is the practical use which is made of it. I don't think there had been any rules limiting its use for other purposes.
Abe Fortas: Mr. Jones, as the record set forth what this marker says, you referred to the bronze marker --
C. Baxter Jones: No sir. That's entirely out of the record. Nothing of that sort is in the record.
Abe Fortas: If you stopped when you were reciting it that says --
C. Baxter Jones: I don't -- I don't know it.
Abe Fortas: You don't know it.
C. Baxter Jones: -- I have seen it. I know it's a small marker. I never paid attention to it much Mr. Sparks was helping me a little bit because he lives in that area, the one reason he has lived there and he has seen it himself and it's in the nature of a simple marker indicating a memorial to some members (Voice Overlap)
Abe Fortas: Yes, I was just wondering of course whether the marker said that Senator Bacon had left it to the city –
C. Baxter Jones: Do you know, Mr. Sparks what it says? If he doesn't, I'm sure I don't.
Speaker: [Inaudible] passed this from the will and says in commemoration and the honor bestowed by the city, he leaves the park in memorial to his two sons taken from the will and that's about all --
C. Baxter Jones: Did Your Honor hear that? He says that it contains some quotations from the will of some Senator Bacon and state that it was left by him as a memorial to two members of his family.
Speaker: Did he say it was left to the city?
C. Baxter Jones: Did he --
Speaker: The city as trustee.
C. Baxter Jones: To the city as trustee.
Abe Fortas: Thank you.
C. Baxter Jones: I hope that answers. That's the answer I have from Mr. Spark.
William J. Brennan, Jr.: I was thinking Mr. Jones, the property is tax exempt?
C. Baxter Jones: Yes, sir, it is tax exempt except the course not the commercially used part of it which is --
William J. Brennan, Jr.: Tax exempt in what category of exemption?
C. Baxter Jones: Public charity.
William J. Brennan, Jr.: Public charity.
C. Baxter Jones: As all --
William J. Brennan, Jr.: Not as municipally owned --
C. Baxter Jones: No, sir, not at all, it is exempt as a public charity.
Arthur J. Goldberg: Did I understand you to say that they served lunch in the house.
C. Baxter Jones: I say that they serve tea as I think they also serve lunch to -- for luncheon meetings there. That's correct, yes.
Arthur J. Goldberg: [Inaudible]
C. Baxter Jones: No sir, it's a [Inaudible] which are served -- it does not serve lunch. It does -- it does not serve meals in the sense of being open at any hour. They serve merely prepare luncheon for certain groups.
Arthur J. Goldberg: Public accommodation.
C. Baxter Jones: It would not be a public accommodation if I understand --
Arthur J. Goldberg: [Inaudible]
C. Baxter Jones: Yes, I've gathered so it -- it has arrangement there whereby a group would have lunch prepared for that group at -- on reservation or specifications when groups were meeting there. I think the --
Potter Stewart: The -- is the park system or the other parks or the ordinary parks are making the administrative board by park board, do you have?
C. Baxter Jones: Yes sir, the City of Macon has a park -- Mayor and City Council of Macon has a park committee which actually administers. They have a superintendent of parks in an organization. They have playground directors and park supervisors and functionaries of that sort and that is actually not handled by park commission but by the Mayor and Council through a committee.
Potter Stewart: To a committee?
C. Baxter Jones: Yes.
Potter Stewart: And is that -- was it within -- was this property while the legal title is in the city, was this property under the jurisdiction of committee?
C. Baxter Jones: I could not answer that question, Your Honor. It's certainly not by any formal action. I -- I don't know if it had been at all although they didn't have anything to do with it. It's always been recognized as being managed by and under the complete control and supervision of the Board of Managers.
Potter Stewart: Did the Board of Managers have anything to do with any of the other parks in the city?
C. Baxter Jones: No, sir, none or whatever. Purely under -- purely and solely and exclusively for this particular park --
Potter Stewart: For this particular park as well as I gather administering the income --
C. Baxter Jones: That's right.
Potter Stewart: Or the income (Voice Overlap) Senator Bacon --
C. Baxter Jones: That's right. The trustee holds a legal title to the commercial property. The Board of Managers manages it and controls and uses the income from it.
Potter Stewart: I suppose that your point that the Marsh case supports you insofar as it holds that who has the naked legal title is not the dispositive issue, is that right?
C. Baxter Jones: No, I hadn't gone that far because I think that as long as the City of Macon holds a legal title, I think we are completely restricted by the decision of this Court in the Girard College case, the first Girard College case where among other things, it seem to me that the -- to rest upon the narrow fact, although other facts existed, the narrow fact that --
Potter Stewart: That there was a public trustee?
C. Baxter Jones: That -- that -- there was a public trustee, that's right. So now we are dealing with the question which came up in the second Girard as to what happens when the public trustee (Voice Overlap) --
Potter Stewart: Public trustee resigns from --
C. Baxter Jones: That's right, exactly.
Byron R. White: Well Mr. Jones lets assume that it were held that this park could not be operated on a restricted basis on discriminatory basis. Has the issue of reversion to the heirs are not been resolved in the lower court?
C. Baxter Jones: No sir it has not --
Byron R. White: Is there anything been done that would preclude the either side from taking any position they wanted to --
C. Baxter Jones: I don't think so Your Honor. I would be shocked to find that something had been done that were preclude it. They -- the -- the heirs came in at a stage while this case was pending and actually came in in support of the charity that is it came in to lend weight of their support to the charity and to the preservation of the park as a charity within the terms of the Senator's will, but they say it alternatively that if it could not be operated for the purposes and for the benefits expressed in Senator Bacon's will then they would -- they wanted to exercise their power of reversion. Well when the Court accepted the resignation of the city as trustee and appointed successor trustees, that at least for the time being satisfied any question which the -- which the heirs had raised in there and left nothing, the Court says specifically that since they've got what they asked for insofar as this Court is concerned, that question is not that for decision, so no decision has been made about it at all and that was the posture in which it left the Supreme Court of Georgia there also --
Byron R. White: So whether -- as I pray or not, without prayed hasn't been decided either.
C. Baxter Jones: Yes sir. The Supreme Court of Georgia said it would not. In this particular --
Byron R. White: What's does that -- what does that mean?
C. Baxter Jones: It -- the -- the -- we have never relayed on --
Abe Fortas: Yes, but what -- what -- what -- what does that mean? Georgia -- Georgia Supreme Court decided what?
C. Baxter Jones: Oh, I beg your pardon. I thought you mean what did this decision mean? The Georgia Supreme Court said that supra was not involved. The Georgia Supreme Court said the supra was not involved at all for several reasons. In the first place, it was not claimed in the Court below by anybody.
Byron R. White: Well so what was passed on?
C. Baxter Jones: It would not passed on (Voice Overlap)
Byron R. White: I ask whether it'd been passed on or not. It has not been passed on?
C. Baxter Jones: No sir. They have not -- they have not applied [Inaudible] in the sense.
Byron R. White: They haven't said they wouldn't either?
C. Baxter Jones: No sir they've said they wouldn't. They said they had no occasion to in that case.
Byron R. White: Because that would may -- would probably determine a reversion, wouldn't it?
C. Baxter Jones: If they have said that it might, they -- they did not. In the Supreme Court of Georgia they -- plaintiffs -- the interevenors in the lower court and the petitioners in this Court asserted that the Trial court should have applied the supra section of the Georgia Court that when a charitable request is incapable of some reason of this -- is incapable for some reason of the exact execution and the exact manner provided by the testator, a court of equity will carry it into effect in such way as nearly as possible to effect his intention. The first answer was that the application was not invoked in the second case and then they said there was no testimony in the record of any nature or character that the Board of Managers provided by the will -- the Board of Managers provided by the will into then situation could not operate the park pursuant to the terms and conditions of the will that was --
Byron R. White: Well what do you think the attitude that Georgia Court's was in regard to the resignation that it was required because of the restriction in the will or that the city was just up for the resigning.
C. Baxter Jones: No. The contention was made that they couldn't resign because the will made it mandatory that they remain trustees perpetually and forever, notwithstanding the references to their successes and trust. The Court said that -- it wasn't necessary to decide that question. The simple fact was they had resigned and that having resigned, it was the duty and function of the trial court to appoint successors to the trustees. That's all they said about that.
Earl Warren: Mr. Jones do you -- are there any other places in the city given tax exemption for women's clubs to -- to have a home and gather and have lunches and so forth to -- for any limited group not for the public generally but for any limited group?
C. Baxter Jones: No sir, I don't know of any.
Earl Warren: Could you certainly do that?
C. Baxter Jones: In order for any --
Earl Warren: I beg your pardon.
C. Baxter Jones: In order for a tax exemption to be afforded to any group, that group must qualify as a charity and that would mean within the functions of -- the scope of the charitable objective as recognized in Georgia, I would say that -- I would find it very difficult to myself to suggest that a place maintained merely for the purpose of committing certain limited groups to come here and to have meetings would qualify to have the charity within that sense. I don't know of any instance where such thing is attempted.
Earl Warren: Now here you have a house, how big is this house?
C. Baxter Jones: It probably has got five or six or seven rooms in it, moderate size --
Earl Warren: Here you have a house and you say about 15 acres of -- of lawn around it and this is all given tax exemption for an exhibit --
C. Baxter Jones: As part of the whole --
Earl Warren: -- and is limited to -- to the use of White women's clubs and all of the public pays the burden of that.
C. Baxter Jones: The burden of the public of course all -- all of the public of course always pay as part of the burden or pays the burden of any tax exemption.
Earl Warren: Okay. Do -- do you think that the present time that a person would give -- could execute a trust such as the senator did and leave it for White persons only and acquire tax exemption for that purpose?
C. Baxter Jones: With private trustees?
Earl Warren: Yes.
C. Baxter Jones: With private trustees?
Earl Warren: Yes, with private trustee.
C. Baxter Jones: Yes. I think they could Your Honor under the Georgia law. I think the question of tax exemption under the Georgia law is granted or withheld under the Georgia laws and I think as it now constitute if we could qualify that as a charity, we would be entitled with the exemption, yes.
Earl Warren: If you could qualify it as a charity, but could you qualify it as a charity where it was on for that purpose only and have the streets through it and things of that kind (Voice Overlap)
C. Baxter Jones: You mean for the purpose only of a meeting place for groups of women?
Earl Warren: Yes.
C. Baxter Jones: I doubt it. No I wouldn't think so, but bear in mind that this is --
Earl Warren: Then doesn't that go to the question of whether this was used as a public facility rather than whether it was a private affair run by private trustees?
C. Baxter Jones: It's quite difficult for me to see that.
Earl Warren: You see no difference.
C. Baxter Jones: I -- I see a great deal of difference in this particular case, but I'm not sure that I see a difference in the operation by private or public trustees insofar as solely the question of tax exemption is involved in an instrument which had no other function than to leave a house with some grounds around it to be used by certain limited groups of people. I -- I just would never myself be able to contend that that was a charity --
Earl Warren: Yes.
C. Baxter Jones: -- all by itself, but I don't think it prevents the park from being the charity under its administration even by the city or private trustees and the fact that the Board of Managers that that the use which is made of a particular structure on that house is largely as a practical manner confined to that practical use. I just don't -- I just -- I just -- I don't -- don't see the follow up of that situation to the question which Your Honor wish to point. Your Honors will recognize I'm sure that I'm in the same position that Mr. Claiborne was that -- I still have my notes here and haven't covered much of this case. However everything that I would say here is also in the brief and I think I don't know exactly the situation of the time. I should now turn this over to my associate for -- and I might explain that several times Mr. Justice Brennan particularly has referred to Girard. We think that Girard has a very definite impact upon this case and I'm sure that one is not the main matter which Mr. Jones will follow would be the Girard case -- may provide Your Honors with some of the answers that you've been suggesting. Thank you.
Earl Warren: Mr. Jones.
Frank C. Jones: Mr. Chief Justice and may it please the Court. In view of the several questions that have been asked about the Girard litigation and also because of the fact that it was referred to by the Supreme Court of Georgia and has been felt throughout this litigation to be of significance, I would like to comment briefly about the further proceedings in particular that took place following the 1957 decision by this Court in the first Girard case. Your Honors recall of course that Mr. Girard died in 1831 living the sum of $2 million in trust for a college for four male White orphans that the college was subsequently established in 1948 that the City of Philadelphia first served as trustee but subsequently, the Pennsylvania legislature created a Board of City Trust which in 1869 succeeded to that function and served thereafter continuously until the time of this litigation. Also that that Board included the Mayor of Philadelphia, the president of City Council and various private citizens. After this Court held in 1957, that the application of two Negro orphans who were otherwise fully qualified could not be denied solely because of race with the Board as a city agency serving as trustee. It was then amended by this Court for further proceedings below not inconsistent with that opinion. I would like to deviate at that point and make the observation that prior to the case reaching this Court in 1957 the part had been made very strongly both in the Orphans' Court of Philadelphia where the litigation originated and later in the Supreme Court of Pennsylvania that in the event that it was ruled that the Board of City Trust could not continue constitutionally to carry out the intention manifested in Girard will that then would become necessary that substituted trustees be appointed for that purpose, so that that contention was a -- a question which existed in the litigation almost from the very outset. Following the remand by this Court, the Supreme Court of Pennsylvania then remanded the case to the orphans' court also for further proceedings not inconsistent with that opinion. The Court will recall that the orphans' court after delay of some two months, removed the Board of City Trust as trustee and appointed as substituted to trustees 13 private persons, six of them incidentally had up until that time served on the Board of City Trust. It dismissed the application of the two Negro orphans. Both the city and the State Pennsylvania and the applicants then appealed to the Supreme Court Pennsylvania. Our view of the briefs that were filed in that litigation has impressed us very much that virtually, every contention which is made in the present litigation was made in a most forceful amount in the Supreme Court of Pennsylvania. Now that court ruled that Steven Girard had a constitutional right of property in the execution of his testamentary benefaction that the trust was a private one, that the orphans' court had the inherent power to remove the trustee and that there was not discrimination. We attach considerable significance subsequently ruling by this Court in denying the appeal and in dismissing the appeal and denying the application for certiorari for several reasons, among the them being that the matter of substituted trustees have been an extremely important consideration from the very outset of litigation and particularly of course in the orphans' court and in the Supreme Court of Pennsylvania. It's seems to us Your Honor that the conclusion by this Court that there was not such a case that would justify further review on certiorari was widely interpreted at the time and certainly it seems to us by the Supreme Court of Georgia in this case as being most significant decision. Again, I would point out to this Court that almost to every contention that was made in the present case at any stage of litigation was made in the Supreme Court of Pennsylvania and in the record that came to this case in second Girard. It was contended for example that Girard's primary object was trusteeship by the city rather than the establishment of a college for four male White orphans. That contention was rejected in the very extensive decision by the Supreme Court of Pennsylvania. We would point out that in the present case this deals with one point that was raised earlier. That there is the use of language in item nine of Senator Bacon's will, following the naming of the Mayor and Council or their successors and trust. There is a provision to the effect that in the event that the city could not serve as trustee that the city would be authorize to a point a trustee, presumably a private person to function in that capacity. The fact that a designation of the body to appoint, the initial Board of Managers and the approval of subsequent nominees for that office was designated as the Mayor and Council and then the language or their successors powers, certainly illustrates to us that the word successors were not necessary as referring to the Mayor and Council because that was the correct corporate name of the City of Macon at that time and certainly manifested the intention or contemplation on the part of the testator that a trustee other than the City of Macon might serve in that capacity. The point was also made most forcefully in that litigation that after a 126 years of exceedingly active state and city participation in the administration of the trust, the Girard College had become a public institution so that even if the board of trust should be replaced as trustee, it remained such a public institution as would cause the Fourteen Amendment to continue to be applicable and to forbid discrimination in carrying out the testimator's scheme.
Abe Fortas: Mr. Jones --
Frank C. Jones: Yes Your Honor.
Abe Fortas: -- you stated that will, item nine authorizes the Mayor and the City Council to appoint another trustee if they could not serve?
Frank C. Jones: Your Honor, that particular reference was to item 10 the -- there was also language in item nine. The language in item 10, if the Court would like me to refer to it is on page 24 of the record in this case. It is to the effect if any reason it should held that the Mayor and the Council of the City of Macon have not the legal power under the charter of the city to hold said fund and trust for the purposes specified then unless said the powers obtain through appropriate legislation, direct to the powers herein expressed to be conferred upon a trustee to be selected by the Mayor and Council of the City of Macon was such safeguard and reflection to it etcetera.
Abe Fortas: I think that's a misprint in this record, but are you reading from the record on the file?
Frank C. Jones: Yes Your Honor.
Abe Fortas: It seems to me it didn't complete the sentence from here.
Frank C. Jones: This is at the top of page 24 Your Honor, beginning in the first line here for any reason.
Abe Fortas: Oh, I see. I was looking further down.
Frank C. Jones: There is further reference about to 10th to 12th line and I give a similar direction if any reason it should be held that the Mayor and Council of the City of Macon have not the legal power under the charter to hold in trust for the purposes specified etcetera.T hat is not the exact procedure of course, it was followed in this instance but I cite it because it certainly evidence to contemplation on the part of the testator that the city it might not always serve as trustee and that it might become necessary that a successor trustee be appointed.
Abe Fortas: But does that provision refer to the land itself to be held as a part or just to the front from the [Inaudible]
Frank C. Jones: Both Your Honor, there are separates sentences. One refers to holding the park and the other refers to holding the front.
Abe Fortas: And that's in item 10?
Frank C. Jones: Yes Your Honor and the other language that I refer to or their successors appears in the item nine on page 19 of the record where the statement is made. 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 trust. My point is that since the Mayor and Council of the city of Macon was the correct corporate name of the City of Macon, there was no necessity for that following language to be used to refer to their particular successors as persons. And that the language evidences the contemplation on the part the testator that someone other than the Mayor and Council at any particular time might succeed as trustee.
Earl Warren: Well wouldn't that language on the top of page 19 that conflicts with that a little, that says “It is my will that all right, title and interest in and to a said property herein before described and founded both legal and equitable including all remainders in reverse in every estate in the same of whatsoever kind so thereupon passed in and belong to the Mayor and Council of the City of Macon and to their successors forever.”
Frank C. Jones: Your Honor, I don't think so. I would make the observation; first of all, that that's customarily language are used in Georgia trust instruments and secondly, the language and to their successors forever is capable of either of two constructions. First of all, the particular persons who might succeed as the Mayor and the members of Council or to whoever might say other than the Mayor and Council as trustee. And it seems to me that then the further reference in that same item to -- or to their successors and the particular reference in item 10 to the selection by the city itself of a successor trustee makes clear that Senator Bacon definitely contemplated the possibility that someone other than the Mayor and Council might serve in that capacity. Your Honor, I was making that point that in the Girard litigation, the second Girard case both in the courts of Pennsylvania and in the record in this Court, the point was made most forcefully that because of 126 years of active operation and administration by the city and state, the growth of the $2 million fund to a $100 million, the growth of the college saw that there was an enrollment of over 1000 and all of the many facets of state and -- city and state relationship including the existence of some five different Pennsylvania statutes on the subject. The Girard College had become a public institution and that the mere replacement of the trustee could not change its essentially public character. That contention was rejected most forcefully by the Supreme Court of Pennsylvania. The point was made that merely because they had been put on in a skillful management of the trust by the Board of Trust will not change its essential character that it was created as a private charity although it had certain public characteristics of course and that it remained so and despite the fact of that statutory or framework which had come in to existence in the other matters which it mentioned. Again, I would deviate at this point to make the point which we feel is most important that the degree of city and state connection with Baconsfield park has been exceedingly limited, far less significant and existed in Girard case, really being confined as we see it to first of all, the meaning of the city as the naked legal trustee and secondly to giving the right to the city initially to name the Board of Managers and subsequently to approve nominations to the Board with no further rights and when the City of Macon resigned as trustee, as we see it, there was a complete severance of any further city or state connection in the relationship with Baconsfield Park.
Speaker: Subsequently, Girard College was desegregated, wasn't it?
Frank C. Jones: Your Honor that is not my understanding. I cannot speak authoritatively other than what has come to me second hand, but it is my understanding that at the present time, it's still being operated as it was in 1957 and that the same policy which existed in 1957 and which caused that litigation to come to this Court is still the policy at Girard College and admission is being limited to full male white orphans. Your Honor, there are a great many other arguments that were made in Girard including the contended application of Shelley versus Kraemer in other cases that in the interest of time, I won't undertake to treat them in the oral argument because we have covered those matters in our brief. I would though in concluding my remarks like to make the point that we are unable to distinguish between the Girard situation and the Baconsfield situation.
William J. Brennan, Jr.: Well may I ask Mr. Jones --
Frank C. Jones: Yes sir.
William J. Brennan, Jr.: -- same question I asked other Jones. What significance will you give to our actions in the second Girard?
Frank C. Jones: Your Honor, I have read the brief that was filed in opposition to the appeal in the certiorari in second Girard and I'm aware that a number of different reasons partly jurisdictional, partly otherwise were asserted as to why the appeal should not be entertained by this Court and should be dismissed. I of course have no personal knowledge of what particular reason may have impressed the Court as being the best one or be best ones and as to why the appeal would dismissed. However, as far as the denial of certiorari is concerned, I do attach great significance to that and I think national significance has been attached to it. I know the Supreme Court of Georgia attached significance.
William J. Brennan, Jr.: Well ordinarily, our cases have suggested that the denial of certiorari really -- if it doesn't mean precisely nothing at least it doesn't mean necessarily or it's all approval of the decision which we refuse to review, but we have here the complication that there was a dismissal except what I have suggested the significance with the denial of certiorari. What about the significance of the [Inaudible]
Frank C. Jones: Your Honor, quite frankly, I won't be able to answer that question because the only thing that has come to my attention is the fact that a number of different grounds for dismissal raised by the respondents in that case including the fact that there was no Pennsylvania statute, the constitutionality of which had been brought an issue in the lower Court proceedings. The point I was making was that in as much as the further proceedings --
Byron R. White: Well how could the dismissal then on the merits that went through?
Frank C. Jones: I beg your pardon?
Byron R. White: How could the dismissal then on the merits if what you said was true?
Frank C. Jones: I hope I haven't misstated my position Your Honor. I was not contending that of course that the ruling on certiorari was on the merits.
Byron R. White: How about the dismissal? Do you contend the dismissal was on the merits?
Frank C. Jones: Your Honor I'm not making contention one way or the other in that regard.
Byron R. White: Oh you're not?
Frank C. Jones: The significance that I was seeking to attach to the action of this Court in the second Girard case was that both the Orphans' Court and the Supreme Court of Pennsylvania were under the mandate of this Court that their further proceeding should not be inconsistent with the first 1957 opinion of this Court and in as much as both before the first opinion of this Court in 1957 and thereafter, it had been in a most forceful way brought out that the Board of City Trust would if necessary be removed as trustee and the private trustees would be appointed for the express purpose of carrying out the restriction contained in Mr. Girard's will. It seems to me that that is the reason why the denial of certiorari carried unusual significance as far as its interpretation is concerned. Your Honor, I believe my time is up and I would say simply in conclusion that we believe that there is such a total lack of state involvement following the resignation of the city which was accepted as a matter of state law as we interpret the Supreme Court of Georgia decision that there is no reason why the provisions of Senator Bacon's will could not be carried out as a private charity. We think that to rule otherwise would take the props completely out from under the Girard Collage situation and would affect as previous questions of this Court have suggested when posed to Mr. Claiborne not only a park and a collage but many, many other forms of private charities as well.
Earl Warren: Mr. Greenberg.
Jack Greenberg: May it please the Court. I would like to emphasize something which was touched upon in the various arguments following mine and that is there's an aspect of this case that is overlooked when people talk about whether a private individual can segregate on his property or even can a private trust segregate or even can a -- ones heirs be required to segregate and that is the aspect of perpetuity. This charitable trust has been endowed by the State of Georgia with a quality that private property transactions normally don't possess. The Congress of the United States has passed the Civil Rights Act of 1964 and the nation has acquiesced in this and has endorsed it and then there has been the Civil Rights Act of 1965 and I imagine the time that will not be far from now in the State of Georgia and the City of Macon may have comparable legislation and indeed may have a comparable spirit among the people which won't require any legislation. And if this were a private property transaction or these merely were a private trust in time, the dead-hand of the testator would be removed from it and people would change their minds and local and national laws perhaps could be able to affect it. But we have here a situation in which when everything else has changed in the City of Macon both in law and in the hearts of the people, the dead-hand of this testator will remain in Baconsfield if the contentions of the respondents are right will forever remain a segregated park ultimately by operation of the law of charitable trust of the State of Georgia.
Potter Stewart: Now, there's nothing peculiar about the law of chari -- charitable trust in this respect of the State of Georgia is (Voice Overlap)
Jack Greenberg: No, no this would -- this -- this -- this would.
Potter Stewart: This is the characteristic of all charitable trust (Voice Overlap) speaking everywhere, isn't it?
Jack Greenberg: Well, to the extent that -- that any of the state would enforce as yes. But the point I've been --
Potter Stewart: Not only this charitable trust but all the charitable trust. I thought I don't know the laws of 50 states and I presume you don't either but I thought that this was a characteristic of a charitable trust.
Jack Greenberg: That -- that is correct. But when we get for the racial aspect of it, we would submit that the Fourteenth Amendment to the United States Constitution supersedes that and various state constitutions might superseded as well so far as a racial restriction being enforced by the state through the law of charitable trust.
Potter Stewart: But the Fourteenth Amendment doesn't say anything about race at all. If you're right wouldn't that apply to all -- any kind of restrictions, sexual or to say that you will set up a school for boys --
Jack Greenberg: Mr. Justice Stewart --
Potter Stewart: -- because that would violate the Fourteenth Amendment if you're right.
Jack Greenberg: Of course that type of question arises time and time again in cases in which an objection is made to racial segregation being enforced in some sense by the state. And I believe the answer to that of course is what was stated in the Slaughter House cases and elsewhere that the primary and the fundamental purpose of the Fourteenth Amendment was to strike down racial discrimination and while of course it radiates elsewhere and deals with other things different questions of reasonableness in degree and countervailing considerations are taken into effect, but when we're dealing with race and the state has its hand and its out that would be my answer to that.
Potter Stewart: Well surely if the state -- if this is the state public governmental functional what you say is correct about race. I would suppose it would also be true that you couldn't have a park for Protestants only or for Jewish people only and so I'm suggesting only that the -- the --
Jack Greenberg: Well I would say that's correct, but of course then we get to the religious cases and I certainly don't want to get into that problem. But different considerations are then taken into account when you deal with those other kinds of problems. This of course is -- is not merely a question of the charitable trust because here we were faced with the situation in which the senator had two incompatible irreconcilable desires set forth in his will. On the one hand, he wanted public trusteeship and that was very clear, that was just not a fleeting thought that he had and said, gee, you know, perhaps we ought to have a public trustee. He set this forth a number of times as to the realty, as to the personality and then if the city by its charter and he had this in mind, fit the city by a charter or unable to serve the city would then appoint the private trustee or some other trustee and then not merely appoint it but the city council who laid down rules and regulations under which this new trustee would function, so public control is a matter of very great concern to him. And if on the one hand we have this deep interest in public control and in the other hand we have this deep concern for racial segregation, the Court was not enforcing the private will of the testator, it was making a choice between two incompatible wills and that was the action of the Court. This is quite unlike Shelley against Kraemer where there was just a single univalent will of a -- of a -- of a property owner. This was a case in which there were two incompatible wills and indeed the will to segregate was infected by the state action legislation that Section 69-504 that I talked about a great deal yesterday. So how this can be viewed as a simple, private property matter in which a living person does something with the part of land that he owns during his lifetime without regard to the state either controlling it forever into all time or without regard to the state influencing him or selecting racial segregation as against another equally strongly expressed desire escapes to me. This is a question of state action from beginning to end.
Potter Stewart: Now you are talking particularly about the Court's action? The courts having made a choice as (Voice Overlap)
Jack Greenberg: Yes. The Court made a choice -- the Court made a choice between two incompatible desires and the desire to segregate cannot as a matter of law be considered as a personal desire merely stemming out of his own heart and mind. It was infected by Section 69-504 which would have influenced any careful lawyer to set up the will in this kind of way and perhaps even encourage Bacon to make this kind of will.
Byron R. White: Well Mr. Greenberg didn't you suggest just -- at least you argue in your brief I gather that except for that Section 69-504, this could never have been done --
Jack Greenberg: Yes.
Byron R. White: -- on the previous law of Georgia.
Jack Greenberg: That -- we ague that but we -- we have to realize we're standing here and they were writing the will way back there. In any event that the minimum that influenced him to write it but our appraisal of the law then is that but for the law, he couldn't have done it, yes.
Byron R. White: But there's -- is there any -- there's no Georgia decision against you on that point.
Jack Greenberg: No, no. We've been unable to find any, our opponents haven't suggested any that you could set up a will either by dedication or by trust or rather a part by dedication and trust and in any event, but for the statute he could not have set -- set up this kind of will. We respectfully submit that the judgment below should be reversed and I state that not merely in a formal stance, but the judgment below is the judgment that excepted the resignation of the city as a trustee if that were reversed, we would be in a situation which the Constitution would be satisfied and the intervenors would be able to freely use the Court in accordance with the Constitution.