Warren E. Burger: You may proceed whenever you're ready.
Frank C. Jones: Thank you sir. Mr. Chief Justice and may it please the Court. Before attempting to reply in detail that the arguments of counsel for the petitioners and the assistance list to general. I would like to address myself briefly to the record, particularly, because when this case was here before there was no factual record before the court. It seems to us, first of all, that the exact language of either man of Senator Bacon's will is of great importance to every question which is presented in this litigation. After first directing that this property something over a hundred acres originally, beheld entrust for the benefit of his wife and two daughters during their lifetimes. Senator Bacon then provided following the death of the last of them for the creation of this charitable trust. Using the following language and with the indulgence I quote “entrust for the sole, perpetual and on and then use benefit and enjoyment of the white women, white girls, white boys, and white children of the City of Macon to be by them forever use then enjoyed us a park and pleasure ground subject to the restrictions Government, Management rules and control of the Board of Managers is here enough to provide it for.” The said property onto no circumstances or at any time for any reason devoted to any other purpose or use except in so far as here ends specifically authorized. He further stated and I quote, “I thank occasion to say that I'm limiting the use and enjoyment of this property perpetually to white people. I am not influenced by any on kindness or feeling or one of consideration for the Negroes. I am however without hesitation and the opinion that are in the social relations for two races white and negro should be forever suffered and that they should not have pleasure or recreation grounds to be use or enjoyed together and in common.” In family, in explaining the motivation for this request Senator Bacon stated first of all that it was in appreciation to the citizens of Macon a propaganda that had been bestowed upon him. But especially, it was a memorial to his two decease sons. Using the language, I should at the same time link their memories with the pleasures and enjoyments of the women and children and girls and boys of there own race in the community of which they once belong to happy the part. Now, we submit that Senator Bacons purpose and intent was stated as clearly as is possible in the English language. There are no conflicts or inconsistencies in this language. He spelled out one purpose and one purpose only and that was the operation of a park on a racially restricted basis for the sole and exclusive benefit of the white citizens or segment of them of the city of Macon.
John M. Harlan II: What was the provision and will is with respects the use of authority with white adult?
Frank C. Jones: It was provided, Your Honor, that with the permission on of the Board of Managers which how speak about in just a moment that white men and the community would be permitted to use authority. That was a discretionary use so in the discretion of the Board of Managers.
John M. Harlan II: How would the direct and how that provision is administered?
Frank C. Jones: Yes sir, I think of fast statement is that the record indicates that white men were permitted over the years to use authority freely without restriction. It seems to us that the argument that there with two purposes. A preeminent park on the one hand and a park only for white persons on the other simply cannot be supported by any fair reading of the language of the will itself. Next, I'd like to direct the attention of the Court briefly to the matter of city control of the park. It seems to us that opposing counsel have attempted to create the impression that the City of Macon somehow round up with a matter to this simple ownership of this property. We say the record not only fails to support this conclusion but clearly shows a contrary was true. To begin with, all though Senator Bacon and the will named the City of Macon as the trustee and authorized it to appoint the first Board of Managers. He gave the city no power or whatever with respect to the operation of the park. Instead, he provided that the seven member Board of Managers which would be a self perpetuating body accepted only to the right of the city to confirm any successor appointment to that board, “shall at all times they have complete an unrestricted control and management of the said property with power to make all need for regulations for the preservation and improvement of the same and rules for the use and enjoyment there on. With power to exclude it anytime, any place on all person of either sex and maybe deemed objectionable on whose conduct or character made by said Board be a judge or considered objectionable or such as to render for any reason and the judgment of said board. Their presence and said grounds inconsistent with on prejudicial that a proper and law successful use and enjoyment of the same for the purposes here in contemplated.” Again, it seems to us that by the clearest possible language Senator Bacon best total control of the operation of the park not in the City of Macon but in this independent group of private citizens. He authorized the board, furthermore, to use a portion of the property lying to the east of a street man owners North Avenue “in any amount of they may deem best” for producing income to defray expenses connected with the operation management and preservation of the property and in various other way is given total and absolute control. The Board of Managers was not made answerable at any way of a city and the city had no authority to remove any member of the board or otherwise to exercise supervision over at in any way. The record further shows that the Board of Managers did in fact exercise complete management that control exactly as contemplated by Senator Bacon. The record include detailed the minutes of many leadings of the board over a period of 30 years in which the most minute matters were carefully considered and decided. The record shows a city that did nothing without the authorization and approval of the board. The serious conduct in interest in Baconsfield were at all times completely consistent with its limited status as holder of the naked legal title. In no time that the city treat the property as being “public property” as it has been referred to in the brief of opposing counsel. The city did not treat this property in the same way at all that the city treated the 40 or 50 other city parks which won in free sample by city. I think an excellent example of this is the way in which the swimming pool has been referred to in this case before it was handled. The land on which this pool was constructed was not in the park proper but in the income producing area lying to the east of what is now known as North Avenue. The pool was constructed in 1948. It was constructed on a property that was leased by the Board of Managers to the City of Macon. Copy of the lease is in the record. I think of reference to it clearly demonstrates that it is a standard lease similar to the other types of leases of property and income producing area. The lease capital resides that the premises and the pool to be constructed by the city shall be use and operated in accordance with item 9 of Senator Bacons will. And in accordance with the rules and regulations of the Board of Managers and it was provided that the board contaminate the agreement in the event of a breach not corrected within five days after written notice. I'll take it a self evident that if the City of Macon at ever --at any time regarded this as being public property in the sense in which that expression has been use in the brief of opposing counsel. There would never had been in any such a lease arrangement is that why that with respect to the swimming pool. Counsel has suggested in this case that there is some significance of a special nature to the 1920 deed that's been referred to. I think as we've pointed out completely in our brief that that had absolutely no effect upon the nature of the interest of a city. It was provided as I pointed out that the charitable trust would not come into being until after the death of the survivor of Senator Bacon's widow and two children. And the sold papers as the record clearly shows of a 1920 deed was to make it possible for the vesting of possession in the city as trustee to commence in 1920 rather than being postponed until the death of the survivor of those three members of Senator Bacon's family. Mr. Chief Justice and may it please the Court. When this case was here before there was no factual record of any kind before the Court. There was nothing specifically to show the extend of the city involvement at that time. In consequently the assumption is recorded in the majority opinion that it was assumed that there was a continuation of city involvement in the operation of the park. The record mail before the Court is a fully developed record. It shows clearly and without contradiction that since 1964 when the City of Macon resigned its trustee and its resignation was accepted by the trial court. The city has had no involvement of any kind or character with Baconsfield Park. No funds had been provided. No city employees have assisted in maintenance or preservation has been absolutely nothing in the way of involvement or a connection by the City of Macon with the operation or maintenance of this park. The Board of Managers since 1964 has provided all of the funds for the operation and maintenance of the park using the income produced from the leases of property and the income producing area for that purpose. In 1968 to complete the record on that park, receivers were appointed by the trial court and a continuing to operate the park gestures of the Board of Managers had done part of that time pending the final outcome of this litigation.
Hugo L. Black: How many acres of land in this park?
Frank C. Jones: Your Honors as we now estimated that's about 50 to 60 acres of substantial portion of the acre. It was taken by a condemnation for an understate highway. That 50 to 60 acres, we believe includes not only the park property proper but also the income producing area of some 5 to 10 acres lying to the east of North Avenue.
Hugo L. Black: Who got the money for the condemn property?
Frank C. Jones: That money was received by the Board of Managers and expressed with being held by the receivers appointed by the trial court pending the final disposition of this litigation. Now with respect to the city and the park --
Byron R. White: You say the city is never treated this property as public property?
Frank C. Jones: Yes sir.
Byron R. White: Did it treated as public property of dealing with the United States?
Frank C. Jones: Your Honor that is perhaps the sole exception to the statement that I made. It is correct that Mr. Nabrit and Mr. Claiborne had pointed out. That certain representations were made in documents furnished by the City of Macon in connection with the WPA financing. As to why that happened or the circumstances that surrounding it, the record itself. There is nothing in the record to show that the Board of Managers in any way authorized or consented to those representations by the city and save and accept that sole dealing with the Federal Government. I know of no enters in this record in which the city has treated this as public property. Certainly as far as in relations between the city and the Board of Managers are concerned, every action of the city has been consistent with its limited status as trustee and with the recognition of complete control on the part of the Board of Managers.
Byron R. White: But they've been in charged of the improvements placed on this property haven't they?
Frank C. Jones: No sir, the Board of Managers has been in charged of the improvements. It is correct as the record shows that city employees have assisted in the operation and preservation of the park and city farms of obviously to that extent were involve. At the same time, the Board of Managers as I was about to point out in connection with pre 1964 involvement have utilized perhaps $100,000.00 or I think you're right in that neighborhood of money made available from the income producing property also for the preservation and maintenance of the park.
William J. Brennan, Jr.: For what proportion of the maintenance cost to pay the city funds?
Frank C. Jones: Mr. Justice Brennan, that's very difficult to the term when precisely from the record but I was about to make a statement that it appears that at least 50% of the total cost of operation and maintenance found its source and the income produce from the income producing property left by Senator Bacon. And the perhaps 50% or less of the total cost of operation and maintenance is attributable to city funds directly or indirectly. The record as completed this as is simply impossible mathematically to determine the exact percentage of support from the city and from the Board of Managers. In our view of the evidences as to pre 1964 involvement by the city is largely immaterial to the issues that are presented in the present posture of this case. And I mention these facts solely because in our judgment with due respect opposing counsel if greatly over emphasized the extent in nature of that involvement. It is true as I have already pointed out that WPA funds were made available in 1935 in connection with the development of the park and cities labor was made available thereafter for a period of perhaps 30 years in connection with the operation of the park. But I would ask the Court to keep in mind as the record shows that this property consists largely of grass and strawberry and trees. Well over 50% out of it or at least 50% is in trees. The only structure of any kind on the property other than in the income producing area to the east of North Avenue is the club house that has been referred to by counsel in the argument yesterday. As I mentioned just a moment ago during the same period perhaps a $100,000.00 of income attributable to Senator Bacons own the quest has also been use in the operation and maintenance of the park. We would also direct the Courts attention to the fact that the record shows that in 1920 when the early vesting of possession in the city was agreed upon at that same time $13,000.00 in bonds and interest that had been left by Senator Bacon for this purpose were turned over to the city. And the city agreed to make a 5% annual payment on the $13,000.00 or $650.00. I think this is of significance in the total picture I would calculate that the amount of the principal and interest of the bonds that were turned over to the city in 1920, plus the 5% payments that it was obligated to make went over the year have amounted to about $43,000.00. So that to that extent that part of the city involvement is attributable directly to funds left by Senator Bacon himself four years in connection with the development of the property. That in addition to the about $100,000.00 it came from the income on the income producing property to the east. Finally with respect to that evidence, again I'll make the statement that the record never shows in anyway that the city is sole to exercise control in its dealings with the Board of Managers. But instead everything that it did in those dealings was entirely consistent with its limited status as hold her own leave the naked legal title recognizing complete control on the Board of Managers. This case, may it please the Court, has been before the Supreme Court of Georgia on three occasions. Twice seems the decision of this Court and Evans versus Newton. Shortly after Evans versus Newton was handed down in March of 1966, the Supreme Court of Georgia held at the sole purpose for which the trust was created has become impossible of accomplishment and has been terminated. This being based upon the decision of this Court and Evans versus Newton that it was impossible for Senator Bacons trust to be carried out on the Court with a racial restriction. To respond that held by the Supreme Court that a resulting trust under a Georgia statute was implied for the benefit of the heirs of the testator. Incidentally, I checked on that statute suggest today and I find that it's been in the Georgia law at least since the code of 1863 which was the earliest available code from my inspection. So far as I know, it's purely declaratory of the common law and has been in the Georgia code since the first code was prepared. The case was remanded by the Supreme Court of Georgia to the trial court for determination and ask to who were the heirs of Senator Bacon. In the third and final appearance of this case before the state Supreme Court in December 1968, the decision with respect towards the writ was granted. The Supreme Court reiterated its holding that the trust terminated under state law. Noting that petitioners had sought no review of that ruling by this Court. He held further that the cy pres doctrine could not be applied on the Georgia law and rejected various other contentions of petitioners including all of those urge before the Court yesterday and today. It held that in short applying state law or trust created under a Georgia will and relating to Georgia property had failed. And again on the state law, the property had reverted to the heirs of the testator.
Hugo L. Black: I'd like to ask you a question Mr. Jones.
Frank C. Jones: Yes sir. Perhaps the petition also answered. Is there any contention in this case that in dealing with desired first statute your decide first statute of the Georgia Court and parted when the Courts decision as doctrine involved when the general under Georgia law. In other words, is there any contention with this case that is been discriminatory applications aside for the statute of the Georgia Court?
Frank C. Jones: Your Honor as I understand that position, they claim only to this discriminatory and its effect.
Hugo L. Black: Yes, that's not my question.
Frank C. Jones: I do not understand their contention to be that there's been an in discriminatory application of the doctrine itself.
Hugo L. Black: Or completely if one note to go of the Georgia cy pres decisions which were discern in those decisions something that indicates a different result with the brief been reach to this instance.
Frank C. Jones: Absolutely not. Your Honor, I think as we've developed fully in our brief the holding of the Georgia Supreme Court with respect to cy pres is completely consistent with the body of law that has been developed in the state and the state Supreme Court apply the cy pres doctrine as we read the decision in as I understand what they did totally without regard to the racial limitation being a feature in this instance. It was simply an application of state law to a will drawn by Georgia testator.
Byron R. White: Mr. Jones, let us assume that the testator leaves a sum of money to build a hospital to serve exclusively tubercular patients. And as this time goes on the other treatment for tuberculosis and the patients run out. I suppose, their scores of tuberculosis hospital around the country that had been cy pres in the serving other purposes. Eventhough the testators have clearly indicated that they wanted the hospitals limited to protrude tubercular patients and now what was the calculus who entered into the Georgia Supreme Courts decision here that no cy pres? Clearly it's just like in a tubercular case specified that the park was to be limited to whites but that's only the beginning of the question of the argument, isn't it?
Frank C. Jones: Yes sir. I would answer that in two ways. First of all, the Supreme Court of Georgia construed the will particular the language which are quoted at the outset of my argument are saying, that not just a purpose but the sole and exclusive purpose of the will was to provide for the park --
Byron R. White: I would suggest that there are a lot of wills and gives on tuberculosis -- to tuberculosis hospitals. It is said sole purpose is that so and so made them cy pres.
Frank C. Jones: Your Honor. We'll further develop that.
Byron R. White: Well, go ahead that is that the sole purpose and therefore what?
Frank C. Jones: They said the sole purpose was the operation of a park for white citizens on racially restricted basis and furthermore, that under Georgia Law which I take is also a general law but at least a state law that the cy pres doctrine can never be applied in a way to defeat the intention of the testament.
Byron R. White: Yes, yes, but you say the cy pres doctrine in Georgia has never been applied to cy pres into a different use in a situation where the testators said, its the sole use.
Frank C. Jones: Your Honor --
Byron R. White: Sole use. Now that's the end of the – is that the end of the argument then?
Frank C. Jones: I don't think that the Georgia Supreme Court decision was based simply on the language with the sole purpose.
Byron R. White: Well, let go ahead. What else?
Frank C. Jones: In addition to saying the sole purpose, it was further stated to be use exclusively by them and so forth. And then the spelling out of Senator Bacons personal and social philosophy that he was fundamentally opposed to the mixing of the races. And finally, the underscoring of this entire motivation with the reference to the his two decease sons and the use enjoyment of members their race only of this park. I'm not seeking to justify that philosophy but the Supreme Court of Georgia construed all of that language together on the settled principles of state law as manifesting the sole and indivisible purpose. But did not --
Byron R. White: Do you think they meant this to ask to what would Senator Bacon have done, if he had known that a restricted park was unconstitutional?
Frank C. Jones: Are you asking me sir if the Supreme Court --
Byron R. White: It is -- I just wonder if that's the approach they took or?
Frank C. Jones: I don't think they took that approach at all. I think they look solely to the --
Byron R. White: Well, how can they say what his intention was it if they didn't
Frank C. Jones: Under state law Your Honor, by looking to the language of the will itself.
Byron R. White: Well, I know but what question are they answering? What would he have done if he had known that a restricted part was unconstitutional?
Frank C. Jones: No sir, I don't think that's the approach. It has to be --
Byron R. White: Then you are talking about his intention, are you?
Frank C. Jones: I think it divides into two branches. Mr. Justice White first of all I think the inquiry of the state Supreme Court laws. What was the purpose of the trust as expressed by the creator himself? And secondly, having ascertained what that purpose was could operate be applied? They concluded first of all that the sole purpose was I've stated and secondly, that under the Georgia cy pres statute. Cy pres applies only first of all where there is a general charitable intent and where there is simply a failure of the mode of carrying that intend into effect and secondly, cy pres is never applied where it would defeat the purpose of the intention of the testator.
Byron R. White: Well, that's cy pres is I would suggested in Georgia the cy pres is applied all the time to defeat the purpose of a trust because as if you suddenly find a trust serving a different purpose then it was, don't you?
Frank C. Jones: I don't believe it. Obviously, I can't speak with authority with respect to the cy pres law of any other state. But I don't interpret the holding of the state Supreme Court as being what you just suggested.
Byron R. White: Anytime it's suggested the trust serve a different purpose that it did that the suggestion is refuse.
Frank C. Jones: No sir, I supposed and all can do would be a question of degree. That if there is a slight inability to carry out the terms of a trust that would be one matter. But the Georgia Supreme Court felt it from the language that we use very precisely and fully by Senator Bacon. That the assembly was a total failure of carrying out of this trust because of the decision of this Court and Evans versus Newton that is it was impossible to operate a racially restricted park and if that was a sole and exclusive purpose of the creator of the trust. I don't think they'd all directed the inquire to what Senator Bacons faults or intention may have been 50 years later, if he had been a way of a change of social philosophy and a change of illegal rulings as well.
Hugo L. Black: May I ask you one question about that.
Frank C. Jones: Yes sir.
Hugo L. Black: Judgment at the Supreme Court of Georgia rendered after the case went bad, first judgment. Did you say that those who have contesting this now did not appear in that case?
Frank C. Jones: No, sir. They did appear on that case. They have appeared on both occasions since the case went back from this Court.
Hugo L. Black: And what position did they take in that case?
Frank C. Jones: Your Honor, there was no oral argument before the court and briefs was submitted or memorandum was submitted by the parties in response to a request from the Supreme Court of Georgia. And somewhat on – that is not in the record and I'm a little uncertain to the exact position that was taken by counsel with petitioners at that time perhaps Mr. Nabrit could respond to that.
Hugo L. Black: I assume that wouldn't change the aspect to the legal questions?
Frank C. Jones: No , sir not the slightest in our judgments. Dealing with the questions one by one very briefly. We submit, first of all, that all of the petitioners contentions in this case ignore the distinction that must made between the Federal question of the manner in which the park would have to be operated if it continued in existence as a park. And the state law questions involving the construction of Senator Bacon will. As we see it, the federal interest of petitioners is simply that if Baconsfield will continued an operation as a park. It would have to be operated on a nondiscriminatory basis by whoever save this trustee in obedience to Evans versus Newton. There is no basis in Evans versus Newton as we read it on the other hand or any other decision of this Court for petitioner's argument that there is an additional federal requirement that the state courts must construed Senator Bacon will and an amount of it will resolved in Baconsfield continuing as a park. When such a construction would be directly contrary to the clear expression of the testator himself. As we understand the proud decision of this Court, the construction of a will and the determination of the matter of reversion or state law questions to be determined by state courts. As responded out by Mr. Justice Black in the descending opinion on Evans versus Newton. So far as I have been able to find the power of the state to decide such a question that of reversion has been taken for granted and every proud opinion in this Court is ever written in touching the subject. We ask that the Court keep in mind that this was in its some exceptions Senator Bacons private property. It never became ‘public property”. It was left and trust for the exclusive benefit of a limited class of persons. The racial limitation was a product exclusively of Senator Bacons personal social philosophy and not that of the city or state. As we see it when this case was remanded to the Supreme Court of Georgia by this Court and Evans versus Newton. The Supreme Court of Georgia had before it two facts that were controlling upon it. First of all, this Court that held at Baconsfield could not be operated in accordance with the racial restriction contained in Senator Bacons will by anyone its trustee. And secondly, the will itself is clear that he wanted a park operated only in accordance with the racial restriction and not otherwise that was further found as a matter of an interpretation of the will by the Supreme Court of Georgia itself.
Hugo L. Black: -- dispute on that because you ask for that position?
Frank C. Jones: No, sir. I understood Mr. Nabrit to say to the Court yesterday that he conceded that the sole purpose of Senator Bacon was the operation of a park on racially restricted basis. But he has sought to develop the thesis that two purposes can be found. One a preeminent park; And secondly, a racially restricted park.
Byron R. White: But didn't he say in this argument that the certainly its purpose was to have a park for whites and you can still have a park for white. And that the reversion defeats the purpose to have a park for white?
Frank C. Jones: Your Honor, I understand this argument to be that, yes. But its base on that to abiding the purposes and into two parts --
Byron R. White: There was a purpose to have a park for the white, wasn't there?
Frank C. Jones: There was a purpose to have a park for whites only.
Byron R. White: And then you are used at the answer that he was also however didn't want a park for Negro and whites together?
Frank C. Jones: No, sir. If I may respectfully disagree. The Supreme Court of Georgia and we interpret the will not as saying two things but is saying one thing and that is the operation of a park only for white persons and not with the mixing of the races. Not to tell what two purpose is one to have a park for whites, and secondly, a purpose that there not be a mixing of the races in the park but a single indivisible purpose. And that was a construction and interpretation of the will placed upon it on the state law by the Supreme Court of Georgia. Face as we see at with the impossibility of reconciling those two facts. The Supreme Court then held or Georgia held that on the state law that trust had failed and the property had reverted. It seems to us that the state Supreme Court decision had nothing to do with racial discrimination as such because that issue was eliminated by this court and Evans versus Newton. Holding the park could no longer be operated on accordance with the racial limitation. We disagree very strongly with the statement in their brief and I believe Mr. Nabrit repeated this in oral argument that the Georgia decision might be sided, “for the proposition that state court may generally decree reversion of properties for a breach of a racial condition.” It seems to us that by that argument they forget that this should not involve property of pledge to a subject to a racial condition nor doesn't involve property that was originally perfect nor does involve property between public properties in the full sense of that time. It was an inception of Senator Bacon's property and it is fundamental as we understand the law that a person who creates a charitable trust may condition the use of his property. We do not argue with the testator can require that its property be use in a manner contrary to law. But on the other hand, we do say that this property may not be use in a manner of violating above the expressed conditions or imposed upon the use of a property. But under those circumstances, there would be a failure of the trust and the property would go according to whatever the applicable law of this state might be. It seems to us further that that contention that Negroes might be discourages by the decision of the Georgia Supreme Court from asserting their rights as a hollow argument. This was not again public property in the usual sense of that time. It was trust property. The use of which was subject to condition set for in the Senator Bacon's will. As a practical matter furthermore, it seems to us unlikely that there is a similar situation in existence anyway on the country and more over, the Georgia decision could hardly encourage some of the testamentary trust because Evans versus Newton is now the law of the land establishing that first of all a person cannot effectively device all conveyors property to municipal corporation and trust where racial condition. And secondly, a municipality cannot accept such a trust to his trustee. So, we don't see have a decision of the Georgia Court which is an obedience to that mandate of this court could be set in any respect to encourage similar or racially oriented testamentary trust. As we understand the effect of the argument that's being made by petitioners. They say that the Supreme Court of Georgia or not in applying federal law but in its determination and application of state law. I'd like to comment specifically on that in more detailed and just a moment in replying to the argument of Mr. Claiborne for the United States. Finally with reference to this branch in my argument, it seems to us that the mere recognition by the state's Supreme Court that the trust is failed does not end of itself constitute impermissible state action. The fact that the Georgia Court run to decision which is not in accord with the contention of the petitioners, doesn't mean in and out itself that the state has denied them any constitutionally protected rights. As we see it one must have a right before it can be denied and neither the negro citizens nor the whites citizens of the City of Macon have the right on the federal state law to require that Bacons property be use as an integrated park in direct violation of the expressed terms of his will. We don't believe at persons belonging to a particular class or group or religion may create rights simply by setting claims in the state court and having them denied and as we see it that is the effect of the position of the petitioners in the present case.
Byron R. White: What would you suppose what have happen or what would be the law if the city had simply opened the park to white person or to the Negros and why is it like?
Frank C. Jones: Rather than resigning as trustee?
Byron R. White: Any guess? And then the -- then the heirs of Senator Bacon's sue?
Frank C. Jones: Your Honor, I think the posture of the case would still be the same when it got back to the Supreme Court following Evans versus Newton. If the trial court originally had same feat to remove the city as trustee in voluntarily. If the trial court had removed the city in voluntarily and this case had come to the Court as indeed an Evans versus Newton. The same result would have taken place that is a holding that the park could not be operated as a racially restricted park. I don't believe the Court meant to suggest in Evans versus Newton that the city could be compelled to save his trustee against his wishes.
Byron R. White: You think the state is entitled to the use its courts to enforce a private discriminatory decision?
Frank C. Jones: No, sir --
Byron R. White: I refer to the contrary to the desires of those presently in position?
Frank C. Jones: We do not take that position and don't feel that that's what been done in this case. We feel that --
Byron R. White: What is that have been done in the case I closed?
Frank C. Jones: I think in view of the holding in Evans versus Newton that that would have been the effect of it. Yes, because this court is now establish to the law of this case that the park cannot be operated either by the city or by private trustees and according to the racial restriction. And that being so, I think their involuntarily removal of the city as trustee would have been held by this Court to have been impermissible state action. We are not seeing this as involving state action at all, however, and what took place following Evans versus Newton because it was purely and simply a question of whether not the trust had fail and that event what happen on the state.
Byron R. White: If the city hadn't resigned and they had merely open the park to whites and blacks alike, and if then the state could not have been forced with private restriction in its course. Should this case be any different its because the city resigned?
Frank C. Jones: In the final analysis, I don't think the fact that the resignation was voluntarily and it makes any difference on the question that are now presented to the court because in like ultimately the question, same question would have risk in either one of them. First of all the purpose of the trust that failed and secondly and so what happened to the property on the state law. With reference to the cy pres doctrine itself, again, I've largely set forth my thoughts and response to questions about it. But again, I would make the point that the only concern of the state Supreme Court was rather the use of the park by Negroes would violate Bacon's restriction. As a matter of his personal social philosophy, he expressed the purpose set forth in this trust. As we see it the argument of cy pres is directly contrary to state law and has been so held by the state Supreme Court based on the two propositions I mentioned. First of all, cy pres is applied only where there is a general charitable intent and a failure of the mode of execution of it. And secondly, on the state law is never applied would be directly contrary to the intent of the testator.
Potter Stewart: Mr. Jones, in that connection.
Frank C. Jones: Yes sir.
Potter Stewart: And parking back to the earlier question put to you by Mr. Justice Harlan as I read the petitioners brief, they claim at least that this was a new application basically of the cy pres law of Georgia and I'm reading from page 57 of their brief. Briefly, they say after the case of Evans that didn't pass and we remember what that was. No Georgia case has been found in which a trust was allowed to fail on that beneficiaries and trustee were still on being and when the intended benefit could still be received merely because the trust could not be carried out in a manner directed by the said law or because its benefit were extended to a larger class without it anyway diminishing the enjoyment of the intended beneficiaries and then they put note to your position that speaks to the case it barres having been decided under well settled principles of Georgia law but point out that you site an old cases anywhere to back up that statement as if.
Frank C. Jones: Your Honor, I will answer that this way that the will settled principles of state law or two codes sections which obviously set forth the law of the state as clearly as possible. Secondly, we know of no case factually related that it is all some of this under the law of Georgia. But I take it that the best authority would be one of the highest Court of the state held itself with respect to this very of question phrase.
Potter Stewart: Not in this case?
Frank C. Jones: Yes sir.
Potter Stewart: But --
Frank C. Jones: I would assume that to be the most respectable possible authority that we could site to this Court.
Potter Stewart: But I gather as I said the claim is made that this case is noble application or failure to apply the cy pres.
Frank C. Jones: Yes, we disagree with that most strongly if it suggests novelty as far as the law is concerned. I think its noble only in the factual situation that was presented to the Court.
Warren E. Burger: Will you distinguish which is I follow your argument Mr. Jones between the situation in which the cy pres doctrine could be applied so as to have a results which was within reason consistent with the original intent and one which is diametrically opposed than you say as I understand that that there is no purpose to which they could put this park as a park.
Frank C. Jones: Yes sir.
Warren E. Burger: Which would not be diametrically opposed to the expressed intents, is that your argument?
Frank C. Jones: Yes sir, that is it exactly and I think that argument is well founded, first of all, in the language of the will itself; And secondly, the will has been so interpreted on the rules of construction by the state Supreme Court. But there was a single sole indivisible exclusive purpose and it would not be possible now to operate the park without doing so directly in violation of the terms of Senator Bacon's will. And at that and that alone is a reason trust failed under the state law.
Warren E. Burger: And do you think it makes no difference that those terms are terms which are no longer constitutionally permissible?
Frank C. Jones: Your Honor obviously, that made a difference in Evans versus Newton. I don't think it make a difference in applying the rules of state law. It would apply on remand to the Georgia Supreme Court. I don't think you can ignore any part of the will, eventhough, it may have become constitutionally impermissible because of decisions of this Court. Still on the set of rules of construction had becomes the burden of the state court to determine first of all the purpose of the creator; And secondly, if that purpose has failed and specified whether or not cy pres could be applied and they resolved both of those questions unfavorably to the position of the petitioners in this case.
Warren E. Burger: On that theory, if I follow your argument on that point. Constitutional factors come into play only as to the use of the park not as to the reversion?
Frank C. Jones: Yes, sir. As Mr. Justice Black stated in this dissenting opinion, so far as he had found at that time there has been no proud to say into this court questioning the fact that the matter of reversion is a state law of question. I've -- we've decided in our briefs other cases to the same effects such as a holding of this court in Marsh versus Alabama were the appoint was made on a footnote very effectively lived dedication has always been regarded as a state law question that is whether there was a dedication of this and so of the extent of dedication. And as our position and answer that question that those are state law questions. My time is about up soon if I could take the last remaining moment to reply briefly to the contentions of Mr. Claiborne. We received that memorandum only this passed out of the end. I would respectfully request leave to make brief written response to it. We have no opportunity to do so proud to the hearing of yesterday and today.
Warren E. Burger: That would be granted.
Frank C. Jones: Secondly, as we see it the entire burden of the memorandum filed by the Solicitor General is at this Court should not accept the judgment of the state Supreme Court as to what a state law but instead should make its own independent determination of what is state law. As we see it that would be an ultimately if it's followed to its logical conclusion destructive of the state judicial assistance. As we see it all of the proud decisions of this Court if recognized as on state law questions the decision of the highest Court of the state will be accepted by this Court.
Warren E. Burger: Thank you Mr. Jones. Mr. Nabrit you have about five minutes left.
James M. Nabrit, III,: Thank you, Mr. Chief Justice and may it please the Court. It seems to me that Mr. Claiborne yesterday post the question that I suggest must be confronted. Isn't it really true as he said that the state statute which provide and in terms of what has actually been done in this case would be pretty obviously on Constitution? That hypothetical law would say something like this that even if a testator expresses no intent on the issue of reversion. And even if there were no difficulties in administering apart nonracially and even if the name beneficiaries could still get benefit and there benefit was not diminish. For the charitable trust to the way racial limitation fails if Federal law prevents that racial limitation from being imposed. As I hear urge yesterday, I don't think if really can make a difference that the rule have just stated is not Georgia's common law and not a statute law rule. The essence of the case I think is simply that Georgia acting through its Courts has chosen to give special emphasis to the racial rule and to destroy a public park and give it away or rather to have it integrated. By this decision the state is chosen to regard the racial rule as the essential and to reject the idea that a perpetual park is the purpose. A park for the benefit of white people is not becoming possible or illegal and this is clear I think, if one accepts the simple proposition the park still benefits white people even if Negroes are admitted to the park at the same time. And today, if maybe supposed that the Alexander school number three, a public school right across the street from the park is using that playground then white - negro children at that school are playing in the park today. The judgment stands this will be destroyed. Mr. Justice Harlan asked yesterday, if our position would be different. If the testator provided for a racial reverted and I said, no. I think, I should add to my answer that the definitive article on this subject was written by Professor Hilarious Clark in the LRU in 1957. In that article I think, contains all the arguments that charitable trust are really totally involved in state action. But the case relied on by the heirs, this North Carolina Barringer case. I think, it shows the difference between that kind of case, on the present one. In that case which is discussed at pages 47 and 48 of our brief, the North Carolina Court had two deeds before it. And one deed had an expressed racial reverted and the Court gave effect to it. And we think that was wrong not for the reasons I have expressed yesterday. But the other deed in that case didn't have it good -- it had a racial limitation but didn't provide a condition and the North Carolina Court said, it wouldn't step in and make the racial choice. That's what -- and it said second situation that something comfortable to that second deed in the North Carolina case that we have here. It's the Georgia Court that stepped in and made the choice that today no park is to be preferred to an integrated park and Bacon really didn't make that choice. Now --
Potter Stewart: That's -- what is that case?
James M. Nabrit, III,: That's the case is at the citation of the bottom of page 47 of our brief. It's called Charlotte Park and Recreation Commission against Maryland, the decision of the North Carolina Supreme Court.
Potter Stewart: Thank you I understood.
Warren E. Burger: Mr. Nabrit you have just said that Senator Bacon did not make that choice. The Georgia Court is of course said if I didn't read there opinion correctly that he did make that choice. Do you agree that that's the predicate of the Georgia Supreme Court holding?
James M. Nabrit, III,: No, no, I think not. I think that they don't -- I don't read them to interpret Bacon's will to me that this will do me anything other than what we contend. That he wanted a park, that they wanted it for white people and they didn't want Negroes in it, that's the purpose of the park. There is no -- their decision was that when Negroes had to be admitted to the park somehow it became impossible to have a park, did become impossible to have an all white park. I make to be sure there is a kind of equality created by destroying the park for everyone since before only Negroes were excluded and now everyone is excluded. But that kind of superficial equality doesn't for me fulfill the states obligation to afford Negroes. The equal protection of the laws but we object to it the forfeiture itself. And the message of that kind of forfeiture decreed by state law it seems to me is pretty plain. Says something like this to Negroes, it says that the law honor us a will leaving land to a city for whites only. More than it honors your right to come on city property and says that your presence eventhough lawful, so it changes the character of a public park that the law prefers no park to a park open to you.
Warren E. Burger: I think your time is up Mr. Nabrit. I think I may have interrupted someone on this side of the bench to who have a question?
James M. Nabrit, III,: I think I have.
Hugo L. Black: I have two questions on Mr. Nabrit. What do you say before your views to whether or not these holdings to the state of Georgia cases are recommended to or did not give a deviation according to law?
James M. Nabrit, III,: My view is that there were no Georgia cases which clearly determined this that the statute Mr. -- these two statutes Mr. Jones has referred to set out on page 55 of our brief. Our what the Georgia Court was using and if those statutes only have any meaning when the testators intend can't be follow. That's the only time that you use this statutes it is the first one, when a valid charitable be quest is incapable for some reason of execution in the exact manner provided by the testator, donor or founder. The Court of Equity will carried into effect in such a way as will as nearly as possible effectuate is intention. Obviously, Bacon's will couldn't be carried out exactly as he intended it.
Hugo L. Black: Well, as I understand at Georgia Courts opinion said as I phrase statute didn't come in to play at all because under Georgia law given the provision to Mr. Bacon's will, Senator Bacon's will, there you were selecting the general charitable purpose and my question is, if that holding represent a deviation beside Georgia law?
James M. Nabrit, III,: My answer is the same I think, we don't contend that we've no found any case like that.
Hugo L. Black: I have just have one other question. Supposing this has been entirely city owned property and run no desegregation this is of course would the city would abandon that park?
James M. Nabrit, III,: Well, I think that wherever city makes a present political judgment, prudential judgment that it wants to abandon a public facility that maybe done. However, I think that kind of decision is subject to examination by a proper court as to whether or not to substitute is to whether they are really doing this as a method affording desegregation, for example.
Hugo L. Black: But that's that they'll be no federal right involved with the city makes abandon?
James M. Nabrit, III,: I think the qualification for practical purposes the qualification I made is the important thing because here the purpose is admitted there is no doubt at all. But the purpose --
Hugo L. Black: Where do you find that discriminatory involvement issues hence that in may have whether that you would say that did regards to the federal court?
James M. Nabrit, III,: I find that the discriminatory motive in this case from the start to the finish really from the 1905 statute which would started all off, from the action of the Georgia Courts in running heir as a white only park all those years using the taxpayers money, in the Georgia perhaps city running at all issues using the taxpayers money. From the action of the Georgia Courts in trying to evade the admission of Negroes by removing the city's trustee and now in the present decision to close the park rather than that they have Negroes in it. So, I think the state action in that case start to finish. Thank you --
Warren E. Burger: Thank you Mr. Nabrit. Case is submitted. Thank you Mr. Jones, Mr. Nabrit, Mr. Claiborne for your submissions.