A tract of land was willed in trust to the Mayor and City
Council of Macon, Georgia, as a park for white people, to be
controlled by a white Board of Managers. When the city ultimately
desegregated the park, the individual Managers brought this suit in
a state court against the city and the trustees of residuary
beneficiaries and asked for the city's removal as trustee and the
appointment of private trustees to enforce the racial limitations
of the will. The city, which had alleged that it could not legally
enforce segregation, asked to resign as trustee after intervention
of Negro citizens who claimed that the racial limitations violated
federal law. Other heirs of the testator who had also intervened
asked, along with the individual defendants, for reversion of the
property if the prayer of the petition was denied. The Georgia
court, without passing on the heirs' other claims, accepted the
city's resignation as trustee and appointed three new trustees. The
Negro intervenors appealed. The Georgia Supreme Court affirmed,
holding that the testator had a right to leave his property to a
limited class and that charitable trusts are subject to the
supervision of an equity court, which could appoint new trustees to
avoid failure of the trust. Held:
1. Where private individuals or groups exercise powers or carry
on functions governmental in nature, they become agencies or
instrumentalities of the State. and subject to the Fourteenth
Amendment. P. 382 U.S.
2. Where the tradition of municipal control and maintenance had
been perpetuated for many years, proof of the substitution of
trustees is insufficient per se
to divest the park of its
public character. P. 382 U. S.
3. The services rendered by a park are municipal in nature, and,
under the circumstances of this case, the park is subject to the
equal protection requirements of the Fourteenth Amendment. Pp.
382 U. S.
220 Ga. 280, 138 S.E.2d 573, reversed.
Page 382 U. S. 297
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
In 1911, United States Senator Augustus O. Bacon executed a will
that devised to the Mayor and Council of the City of Macon,
Georgia, a tract of land which, after the death of the Senator's
wife and daughters, was to be used as "a park and pleasure ground"
for white people only, the Senator stating in the will, that while
he had only the kindest feeling for the Negroes, he was of the
opinion that "in their social relations, the two races (white and
negro) should be forever separate." The will provided that the park
should be under the control of a Board of Managers of seven
persons, all of whom were to be white. The city kept the park
segregated for some years, but, in time, let Negroes use it, taking
the position that the park was a public facility which it could not
constitutionally manage and maintain on a segregated basis.
Thereupon, individual members of the Board of Managers of the
park brought this suit in a state court against the City of Macon
and the trustees of certain residuary beneficiaries of Senator
Bacon's estate, asking that the city be removed as trustee and that
Page 382 U. S. 298
appoint new trustees, to whom title to the park would be
transferred. The city answered, alleging it could not legally
enforce racial segregation in the park. The other defendants
admitted the allegation and requested that the city be removed as
Several Negro citizens of Macon intervened, alleging that the
racial limitation was contrary to the laws and public policy of the
United States, and asking that the court refuse to appoint private
trustees. Thereafter, the city resigned as trustee and amended its
answer accordingly. Moreover, other heirs of Senator Bacon
intervened, and they and the defendants other than the city asked
for reversion of the trust property to the Bacon estate in the
event that the prayer of the petition were denied.
The Georgia court accepted the resignation of the city as
trustee and appointed three individuals as new trustees, finding it
unnecessary to pass on the other claims of the heirs. On appeal by
the Negro intervenors, the Supreme Court of Georgia affirmed,
holding that Senator Bacon had the right to give and bequeath his
property to a limited class, that charitable trusts are subject to
supervision of a court of equity, and that the power to appoint new
trustees so that the purpose of the trust would not fail was clear.
220 Ga. 280, 138 S.E.2d 573. The case is here on a writ of
certiorari. 380 U.S. 971.
There are two complementary principles to be reconciled in this
case. One is the right of the individual to pick his own associates
so as to express his preferences and dislikes, and to fashion his
private life by joining such clubs and groups as he chooses. The
other is the constitutional ban in the Equal Protection Clause of
the Fourteenth Amendment against state-sponsored racial inequality,
which of course bars a city from acting as trustee under a private
will that serves the racial segregation cause. Pennsylvania v. Board of
Page 382 U. S. 299
230. A private golf club, however, restricted to either Negro or
white membership, is one expression of freedom of association. But
a municipal golf course that serves only one race is state activity
indicating a preference on a matter as to which the State must be
neutral. [Footnote 2
] What is
"private" action and what is "state" action is not always easy to
determine. See Burton v. Wilmington Parking Authority,
365 U. S. 715
Conduct that is formally "private" may become so entwined with
governmental policies or so impregnated with a governmental
character as to become subject to the constitutional limitations
placed upon state action. The action of a city in serving as
trustee of property under a private will serving the segregated
cause is an obvious example. See Pennsylvania v. Board of
Directors of City Trusts, supra.
A town may be privately owned
and managed, but that does not necessarily allow the company to
treat it as if it were wholly in the private sector. Thus, we held
in Marsh v.Alabama, 326 U. S. 501
that the exercise of constitutionally protected rights on the
public streets of a company town could not be denied by the owner.
A State is not justified, we said, in "permitting a corporation to
govern a community of citizens so as to restrict their fundamental
liberties. . . ." Id.
at 326 U. S. 509
We have also held that where a State delegates an aspect of the
elective process to private groups, they become subject to the same
restraints as the State. Terry v. Adams, 345 U.
. That is to say, when private individuals or
groups are endowed by the State with powers or functions
governmental in nature, they become agencies or instrumentalities
of the State and subject to its constitutional limitations.
Yet generalizations do not decide concrete cases. "Only by
sifting facts and weighing circumstances"
Page 382 U. S. 300
(Burton v. Wilmington Parking Authority, supra,
365 U. S. 722
can we determine whether the reach of the Fourteenth Amendment
extends to a particular case. The range of government activities is
broad and varied, and the fact that government has engaged in a
particular activity does not necessarily mean that an individual
entrepreneur or manager of the same kind of undertaking suffers the
same constitutional inhibitions. While a State may not segregate
public schools so as to exclude one or more religious groups, those
sects may maintain their own parochial educational systems.
Pierce v. Society of Sisters, 268 U.
If a testator wanted to leave a school or center for the use of
one race only, and in no way implicated the State in the
supervision, control, or management of that facility, we assume
that no constitutional difficulty would be
encountered. [Footnote 3
Page 382 U. S. 301
This park, however, is in a different posture. For years, it was
an integral part of the City of Macon's activities. From the
pleadings we assume it was swept, manicured, watered, patroled, and
maintained by the city as a public facility for whites only, as
well as granted tax exemption under Ga.Code Ann. § 92-201. The
momentum it acquired as a public facility is certainly not
dissipated ipso facto
by the appointment of "private"
trustees. So far as this record shows, there has been no change in
municipal maintenance and concern over this facility. Whether these
public characteristics will, in time, be dissipated is wholly
conjectural. If the municipality remains entwined in the management
or control of the park, it remains subject to the restraints of the
Fourteenth Amendment, just as the private utility in Public
Utilities Comm'n v. Pollak, 343 U. S. 451
343 U. S. 462
remained subject to the Fifth Amendment because of the surveillance
which federal agencies had over its affairs. We only hold that,
where the tradition of municipal control had become firmly
established, we cannot take judicial notice that the mere
substitution of trustees instantly transferred this park from the
public to the private sector.
This conclusion is buttressed by the nature of the service
rendered the community by a park. The service rendered even by a
private park of this character is municipal in nature. It is open
to every white person, there being no selective element other than
Page 382 U. S. 302
clubs, social centers, luncheon clubs, schools such as Tuskegee
was at least in origin, [Footnote
] and other like organizations in the private sector are often
racially oriented. A park, on the other hand, is more like a fire
department or police department that traditionally serves the
community. Mass recreation through the use of parks is plainly in
the public domain, Watson v. Memphis, 373 U.
; and state courts that aid private parties to
perform that public function on a segregated basis implicate the
State in conduct proscribed by the Fourteenth Amendment. Like the
streets of the company town in Marsh v.Alabama, supra,
elective process of Terry v. Adams, supra,
and the transit
system of Public Utilities Comm'n v. Pollak, supra,
predominant character and purpose of this park are municipal.
Under the circumstances of this case, we cannot but conclude
that the public character of this park requires that it be treated
as a public institution subject to the command of the Fourteenth
Amendment, regardless of who now has title under state law. We may
fairly assume that, had the Georgia courts been of the view that,
even in private hands, the park may not be operated for the public
on a segregated basis, the resignation would not have been approved
and private trustees appointed. We put the matter that way because,
on this record, we cannot say that the transfer of title per
disentangled the park from segregation under the municipal
regime that long controlled it.
Since the judgment below gives effect to that purpose, it must
be, and is,
Watson v. Memphis, 373 U. S. 526
And see Mayor & City Council of Baltimore v. Dawson,
350 U.S. 877 (beaches and bathhouses).
Holmes v. City of Atlanta,
350 U.S. 879; New
Orleans City Park Improvement Assn. v. Detiege, 358 U. S.
It is argued that this park was a product of Georgia's policy to
allow charitable trusts of public facilities to be segregated. A
Georgia statute permitted any person to grant a municipal
corporation land in trust to the public use as a park on a racially
segregated basis. Ga.Code Ann. § 69-504. And a companion measure
authorized municipal corporations to accept such grants, and to
enforce the racial limitations. Id.,
§ 69-505. This
policy, it is urged, had a "coercive effect" (Lombard
v.Louisiana, 373 U. S. 267
373 U. S. 273
implicating Georgia in racial discrimination, for, without that
legislative pattern for segregation, a testator would have had to
travel an uncertain course to reach that end. Before § 69-504 was
enacted in 1905, an attempt to establish a trust such as this would
have faced numerous difficulties. The pre-1905 statutory law did
not expressly include parks as a proper subject of charitable
trusts, although it was specific in other regards. See
Ga.Code § 4008 (1895). And Georgia's public parks were conceived of
as "dedicated" commons, with an easement in favor of the general
public. See Mayor & Council of Macon v. Franklin,
Ga. 239. The concept of dedication meant that the property was to
benefit the public as a whole. Ford v. Harris,
95 Ga. 97,
101, 22 S.E. 144, 145; East Atlanta Land Co. v. Mower,
Ga. 380, 388, 75 S.E. 418, 422. It would have posed conceptual
difficulties, to say the least, to dedicate land to the public as a
whole, at the same time excluding the members of the Negro race.
Cf. Brown v. Gunn,
75 Ga. 441, in which this point was
disposed of only by finding that, on the particular facts of that
case, there was no "dedication." We think it likely that it was the
very difficulties discussed here that § 69-504 was intended to
eliminate. We do not, however, reach the question whether the State
facilitated, through this legislative action, the establishment of
Ala.Laws 1880-1881, pp. 395-396; Ala.Laws, 1882-1883, pp.
MR. JUSTICE WHITE.
As MR. JUSTICE BLACK emphasizes, this case comes to us in the
very narrow context of a state court judgment
Page 382 U. S. 303
accepting the resignation of a trustee and appointing successor
trustees. The lower court judgment does not enjoin the new trustees
to comply with the racial restriction in the trust, and there is
therefore not presented for decision the question whether, should
the trustees fail to exclude Negroes from the park, state judicial
enforcement of the racial restriction would constitute
discriminatory state action forbidden by the Equal Protection
Clause of the Fourteenth Amendment. See Bell v.Maryland,
378 U. S. 226
378 U. S.
-331 (dissenting opinion). But we do have properly
before us, in my opinion, the question of whether the Fourteenth
Amendment prohibits the new trustees from voluntarily excluding
Negroes. This is so because decision of the state law questions in
this case was not independent of that federal question. The city's
resignation, its acceptance by the state courts, and the
appointment of new trustees were all based on the premise that the
city could not, but private trustees could, obey the racial
restriction in the trust without violation of the Federal
Constitution. If that premise was incorrect, this Court should
vacate the judgment below and remand for further consideration of
the state law issues free from the compulsion of an erroneous view
of federal law. Missouri ex rel. Southern R. Co. v.
Mayfield, 340 U. S. 1
340 U. S. 5
Minnesota v. National Tea Co., 309 U.
; State Tax Commission v. Van Cott,
306 U. S. 511
That the Fourteenth Amendment prohibits operation of the park on
a segregated basis so long as the city is trustee is, of course,
not disputed. See
cases cited by the majority,
1. Whether the
successor trustees may themselves operate the park on a segregated
basis is the question. The majority holds that they may not. I
agree, but for different reasons.
To a large extent, the majority grounds its conclusion that
exclusion of Negroes from the park after the change
Page 382 U. S. 304
in trustees would be state action, and thus violative of the
Fourteenth Amendment on the existence of prior municipal
involvement in the operation of the park.
"The momentum [the park] acquired as a public facility is
certainly not dissipated ipso facto
by the appointment of
'private' trustees. So far as this record shows, there has been no
change in municipal maintenance and concern over this facility.
Whether these public characteristics will in time be dissipated is
wholly conjectural. . . . We only hold that, where the tradition of
municipal control had become firmly established, we cannot take
judicial notice that the mere substitution of trustees instantly
transferred this park from the public to the private sector."
p. 382 U. S. 301
It is equally evident that the record does not show continued
involvement of the city in the operation of the park -- the record
is silent on this point. On the contrary, the city's interest would
seem to lead it to cut all ties with the operation of the park. It
must be as clear to the city as to this Court that, if the city
remains "entwined in the management or control of the park, it
remains subject to the restraints of the Fourteenth Amendment,"
p. 382 U. S. 301
and, should segregation in the park be barred, the residuary
beneficiaries would undoubtedly press their claim that failure of
the trust purpose expressed in the racial restriction results in
reversion of the park property. It seems unlikely that the city
would act so as unnecessarily to jeopardize the continued existence
of this centrally located park, which comprises about 100 acres and
is one of the city's largest parks.
That the city's own interest might lead it to extricate itself
at once from operation of the park does not, of course, necessarily
mean that it has done so, and I am no more inclined than the
majority to resolve this question
Page 382 U. S. 305
by conjecture. I refer to possible inferences from the city's
self-interest solely to emphasize that the record affords
absolutely no basis for inferring continued involvement of the city
in the management and control of the park. What the majority has
done is to raise a presumption of one fact by showing the absence
of proof of the converse. To postulate in this manner that the
city's involvement has not been dissipated is simply a disguised
form of conjecture and, I submit, is an insufficient basis for
decision of this case.
I would, nevertheless, hold that the racial condition in the
trust may not be given effect by the new trustees, because, in my
view, it is incurably tainted by discriminatory state legislation
validating such a condition under state law. The state legislation
to which I refer is §§ 69-504 and 69-505 of the Georgia Code, which
were adopted in 1905, just six years before Senator Bacon's will
was executed. Sections 69-504 and 69-505 make lawful charitable
trusts "dedicated in perpetuity to the public use as a park,
pleasure ground, or for other public purpose," and provide that
"the use of said park, pleasure ground, or other property so
conveyed to said municipality [may] be limited to the white race
only, or to white women and children only, or to the colored race
only, or to colored women and children only, or to any other race,
or to the women and children of any other race only. . . .
Page 382 U. S. 306
As this legislation does not compel a trust settlor to condition
his grant upon use only by a racially designated class, the State
cannot be said to have directly coerced private discrimination.
Nevertheless, if the validity of the racial condition in Senator
Bacon's trust would have been in doubt but for the 1905 statute,
and if the statute removed such doubt only for racial restrictions,
leaving the validity of nonracial restrictions still in question,
the absence of coercive language in the legislation would not
prevent application of the Fourteenth Amendment. For such a statute
would depart from a policy of strict neutrality in matters of
private discrimination by enlisting the State's assistance only in
aid of racial discrimination and would so involve the State in the
private choice as to convert the infected private discrimination
into state action subject to the Fourteenth Amendment. Compare
Robinson v. Florida, 378 U. S. 153
Lombard v.Louisiana, 373 U. S. 267
Peterson v. City of Greenville, 373 U.
. Although there are no Georgia decisions directly
on the point, and the question is therefore not free from doubt,
the available authorities
Page 382 U. S. 307
have led me to conclude that §§ 69-504 and 69-505 did involve
the State in the private choice by favoring private racial
discrimination over private discrimination based on grounds other
Apart from §§ 69-504 and 69-505, the Georgia statute governing
the determination of permissible objects of charitable trusts is §
108-203. [Footnote 2/2
statute "almost copies the statute of 43d Elizabeth," Newson v.
46 Ga. 88, 92 (1872), and has the effect of fully
adopting in Georgia the common law of charities, Jones v.
Habersham, 107 U. S. 174
107 U. S. 180
We may therefore expect general charitable trust principles to be
as fully applicable in Georgia as elsewhere in the several States.
Under such principles, there is grave doubt concerning whether a
charitable trust for a park could be limited to the use of less
than the whole public.
In the leading case of Commissioners for Special Purposes of
Income Tax v. Pemsel,
 A.C. 531, 583, Lord Macnaghten
established the classification of charitable trusts that, with some
modifications, has since prevailed:
"'Charity,' in its legal sense, comprises four principal
divisions: trusts for the relief of poverty; trusts for the
Page 382 U. S. 308
of education; trusts for the advancement of religion; and trusts
for other purposes beneficial to the community, not falling under
any of the preceding heads."
See also Restatement (Second), Trusts § 368 (1959). A more
general test of what is charitable is whether the accomplishment of
the trust purpose "is of such social interest to the community as
to justify permitting property to be devoted to the purpose in
perpetuity." IV Scott on Trusts § 368 at 2629-2630 (2d ed. 1956).
The first three categories identified by Lord Macnaghten designate
trust purposes that have long been recognized as beneficial to the
community as a whole -- whether or not immediate benefit is
restricted to a relatively small group -- and that therefore
satisfy the general test stated by Professor Scott. See
Restatement (Second), Trusts § 374, comment a (1959). But the
present trust falls under the fourth category, and can therefore be
sustained as charitable only because the generality of user
beneficiaries establishes that it is beneficial to the community.
Otherwise, a trust to establish a country club for the use of the
residents of the wealthiest part of town would be charitable.
Professor Scott states this principle as follows:
"As we have seen, a trust to promote the happiness or wellbeing
of members of the community is charitable, although it is not a
trust to relieve poverty, advance education, promote religion or
protect health. In such a case, however, the trust must be for
the benefit of the members of the community generally,
merely for the benefit of a class of persons."
IV Scott on Trusts § 375.2 at 2715 (2d ed. 1956). (Emphasis
added.) Accord, Trustees of New Castle Common v.
1 Boyce 361, 376, 77 A. 565, 571
Page 382 U. S. 309
(trust for town common was charitable; "[i]t is public, because
it relates to all the inhabitants of a particular community, and
not to any classification of such inhabitants, or to any group
thereof separately from the other inhabitants by any distinction of
race, creed, social rank, wealth, poverty, occupation, or business.
. . ."); Restatement, Trusts § 375, comments a and c (1935);
Restatement (Second), Trusts § 375, comment a (1959); see
Bogert on Trusts § 378 (2d ed. 1964). [Footnote 2/3
Page 382 U. S. 310
from the present case, no Georgia cases dealing with trusts for
general community purposes have been found, see
Validity of Charitable Gifts in Georgia, 1 Ga.B.J. 16, 26-27 (Feb.
1939), but the available Georgia authorities are consistent with
the rule enunciated by Scott. Compare Bramblett v. Trust Co. of
182 Ga. 87, 185 S.E. 72 (1936) (trust to establish
"home for gentlewomen" not charitable), with Houston v. Mills
202 Ga. 540, 43 S.E.2d 680 (1947) (trust for
Negro old folks' home is charitable). [Footnote 2/4
] On the whole, therefore, I conclude that,
prior to the 1905 legislation, it would have been extremely
doubtful whether § 108-203 authorized a trust for park purposes
when a portion of the public was to be excluded from the park.
Sections 69-504 and 69-505 clearly permit exclusion of a portion
of the public if such exclusion is on racial grounds. At the same
time, those sections appear to make nonracial restrictions on the
user of a park created by trust even more doubtful. Section 69-504
authorizes the conveyance of land "dedicated in perpetuity to the
public use as a park," and also provides that such a conveyance may
limit user on racial grounds. The natural construction of this
provision would be that it authorizes a trust only for the use of
the whole public
Page 382 U. S. 311
or for the use of a racially designated subpart of the public,
but not for the use of some other portion of the public such as men
only or Irish persons only. Such an interpretation follows from the
maxim expressio unius est exclusio alterius
and from the
dedication cases to which the majority refers, ante
382 U. S.
-301, which indicate that the expression "dedicated
in perpetuity to the public use as a park" means dedication to the
public as a whole, and not some portion of the public. See also
Western Union Telegraph Co. v. Georgia R. & Banking Co.,
227 F. 276, 285 (D.C.S.D.Ga.1915). ("There can be no dedication,
strictly speaking, to private uses, nor even to uses public in
their nature, but the enjoyment of which is restricted to a limited
part of the public.") One commentator has suggested that § 69-504
was intended to expand clause 4 of § 108-203, see
fn2/2|>note 2, supra, i.e.,
"public works" or "public conveniences" to include public parks or
pleasure grounds. . . ." Smith, The Validity of Charitable Gifts in
Georgia, 1 Ga.B.J. 16, 27 (Feb. 1939). On that assumption, the sole
authority for holding gifts in trust for park purposes to be
charitable would be § 69-504, and that section clearly makes
nonracial restrictions on use of such parks more doubtful than
racial restrictions. Even if § 69-504 is regarded as a
clarification of prior law, rather than an addition to it, it has
the same effect of casting doubt on the validity of nonracial
This case must accordingly be viewed as one where the State has
forbidden all private discrimination except racial discrimination.
As a result, "the State, through its regulations, has become
involved to such a significant extent" in bringing about the
discriminatory provision in Senator Bacon's trust that the racial
restriction "must be held to reflect . . . state policy and
therefore to violate the Fourteenth Amendment." Robinson
Page 382 U. S. 312
378 U. S. 153
378 U. S.
-157. For the reasons stated, I would vacate the
judgment of the Georgia court and remand the case for further
"69-504. Gifts for public parks or pleasure grounds.
Any person may, by appropriate conveyance, devise, give, or grant
to any municipal corporation of this State, in fee simple or in
trust, or to other persons as trustees, lands by said conveyance
dedicated in perpetuity to the public use as a park, pleasure
ground, or for other public purpose, and in said conveyance, by
appropriate limitations and conditions, provide that the use of
said park, pleasure ground, or other property so conveyed to said
municipality shall be limited to the white race only, or to white
women and children only, or to the colored race only, or to colored
women and children only, or to any other race, or to the women and
children of any other race only, that may be designated by said
devisor or grantor; and any person may also, by such conveyance,
devise, give, or grant in perpetuity to such corporations or
persons other property, real or personal, for the development,
improvement, and maintenance of said property."
"69-505. Municipality authorized to accept.
municipal corporation, or other persons natural or artificial, as
trustees, to whom such devise, gift, or grant is made, may accept
the same in behalf of and for the benefit of the class of persons
named in the conveyance, and for their exclusive use and enjoyment;
with the right to the municipality or trustees to improve,
embellish, and ornament the land so granted as a public park, or
for other public use as herein specified, and every municipal
corporation to which such conveyance shall be made shall have
power, by appropriate police provision, to protect the class of
persons for whose benefit the devise or grant is made, in the
exclusive used [sic
] and enjoyment thereof."
Ga.Code Ann. §§ 69-504 and 69-505 (1957).
"108-203. Subjects of charity.
-- The following
subjects are proper matters of charity for the jurisdiction of
"1. Relief of aged, impotent, diseased, or poor people."
"2. Every educational purpose."
"3. Religious instruction or worship."
"4. Construction or repair of public works, or highways, or
other public conveniences."
"5. Promotion of any craft or persons engaging therein."
"6. Redemption or relief of prisoners or captives."
"7. Improvement or repair of cemeteries or tombstones."
"8. Other similar subjects, having for their object the relief
of human suffering or the promotion of human civilization."
Ga.Code Ann. § 108-203 (1959).
This precise question had been mooted in England a few years
before the 1905 Georgia enactment in the case of In re
Christchurch Inclosure Act,
38 Ch.D. 520 (1888),
 A.C. 1, and it appears the English rule may
differ from the American rule. The Christchurch Inclosure Act gave
tenants in certain cottages the right in a designated common to cut
turf for fuel. In the case before the court, it was clear the act
had to be given effect in some manner, but the court expressed
great difficulty in giving it effect as creating a charitable
"For, although the occupiers of these cottages may have been,
and perhaps were, poor people, the trust is not for the poor
occupiers, but for all the then and future occupiers, whether poor
or not. Moreover, the trust is not for the inhabitants of a parish
or district, but only for some of such persons."
Id. at 530. Nevertheless, the court felt bound to hold such a
trust was charitable on the authority of a dictum by Lord Selborne
in Goodman v. Mayor of Saltash,
7 App.Cas. 633, 642 (1882)
(trust for a fishery for the use of all "free inhabitants of
ancient tenements" held charitable), that
"[a] gift subject to a condition or trust for the benefit of the
inhabitants of a parish or town, or of any particular class of such
inhabitants, is (as I understand the law) a charitable trust. . .
Lord Blackburn dissented in Goodman v. Mayor of
"though there are many cases to the effect that a trust for
public purposes, not confined to the poor, may be considered
charitable for many purposes, I do not know of any that say that
such a trust as is now supposed would be taken out of the rule
against perpetuities. . . ."
at 662. No doubt Lord Selborne's view of what
constituted a trust for the benefit of the public generally was
colored by feudal traditions and the long history of royal charters
to the burghers, or "free inhabitants" of a town (in fact, the
trust in Goodman v. Mayor of Saltash
was a fictional one
created by supposing the prior existence of such a charter, now
lost), while the American rule enunciated by Scott is in keeping
with the American democratic tradition, which, in turn, is
reflected by the Georgia cases regarding dedication of land to
public use discussed by the majority, ante
at 382 U. S.
-301, n. 3.
The trust in Mills Memorial Home
recognized as charitable by § 108-203(1) ("Relief of aged,
impotent, diseased, or poor people"), see 382
fn2/2|>note 2, supra,
while the trust in
would be classifiable as one to promote the
happiness or wellbeing of members of the community at large, and
would thus be tested by the standard of generality stated by
MR. JUSTICE BLACK, dissenting.
I find nothing in the United States Constitution that compels
any city or other state subdivision to hold title to property it
does not want or to act as trustee under a will when it chooses not
to do so. And I had supposed until now that the narrow question of
whether a city could resign such a trusteeship and whether a state
court could appoint successor trustees depended entirely on state
law. Here, however, the Court assumes that federal power exists to
reverse the Supreme Court of Georgia for affirming a Georgia trial
court's decree, which, as the State Supreme Court held, did only
these "two things: (1) Accepted the resignation of the City of
Macon as trustee of Baconsfield; and (2) appointed new trustees,"
220 Ga. 280, 284, 138 S.E.2d 573, 576.
The State Supreme Court's interpretation of the scope and effect
of this Georgia decree should be binding upon us unless the State
Supreme Court has somehow lost its power to control and limit the
scope and effect of Georgia trial court decrees relating to Georgia
wills creating Georgia trusts of Georgia property. A holding that
ignores this state power would be so destructive of our state
judicial systems that it could find no support, I think, in our
Federal Constitution or in any of this Court's prior decisions. For
myself, I therefore accept the decision of the Georgia Supreme
Court as holding only what it declared it held, namely, that the
trial court committed no error under Georgia law in accepting the
City of Macon's resignation as trustee and in appointing successor
trustees to execute the Bacon trust.
I am not sure that the Court is passing at all on the only two
questions the Georgia Supreme Court decided
Page 382 U. S. 313
in approving the city's resignation as trustee and the
appointment of successors. If the Court is holding that a State is
without these powers, it is certainly a drastic departure from
settled constitutional doctrine, and a vastly important one which,
I cannot refrain from saying, deserves a clearer explication than
it is given. Ambiguity cannot, however, conceal the revolutionary
nature of such a holding, if this is the Court's holding, nor
successfully obscure the tremendous lopping off of power heretofore
uniformly conceded by all to belong to the States. This ambiguous
and confusing disposition of such highly important questions is
particularly disturbing to me because the Court's discussion of the
constitutional status of the park comes in the nature of an
advisory opinion on federal constitutional questions the Georgia
Supreme Court did not decide. Consequently, for all the foregoing
reasons and particularly since the Georgia courts decided no
federal constitutional question, I agree with my Brother HARLAN
that the writ of certiorari should have been dismissed as
Questions of this Court's jurisdiction would be different, of
course, if either the mere resignation or appointment of trustees
under a will was prohibited by some federal constitutional
provision. But there is none. The Court implies, however, that the
city's resignation and the state court's appointment of new
trustees amounted to "state-sponsored racial inequality," which, of
course, if correct, would present a federal constitutional
question. This suggestion rests on a further implication by the
Court that the Georgia court's decree would result in the operation
of Baconsfield Park on a racially segregated basis. The record
here, for several reasons, can support no such implications: (1)
the State Supreme Court specifically limited the effect of the
decree it affirmed to approval of the city's resignation as trustee
and the appointment of new ones; (2) the new
Page 382 U. S. 314
trustees were not directed to operate the park on a
discriminatory basis; and (3) there is no indication that they have
done so. Furthermore, where a valid law makes a certain use of
property held in trust illegal, responsibility for its illegal use
cannot be escaped by putting it in the hands of new trustees.
Cf., e.g., Mormon Church v. United States, 136 U. S.
, 136 U. S.
The ambiguous language used by the Court even casts doubt upon
Georgia's power to hold that the trust property here can revert to
the heirs of Senator Bacon if the conditions upon which he created
the trust should become impossible to carry out. The heirs of
Senator Bacon raised the issue of reversion below, but neither
court reached it. So far as I have been able to find, the power of
a State to decide such a question has been taken for granted in
every prior opinion this Court has ever written touching this
subject. I believe that Georgia's complete power to decide this
question is so clear that no doubt should be cast on it, as I think
the Court's opinion does. But if this Court is to exercise
jurisdiction in this case and hold, despite the fact that the state
court's decree did not adjudicate any such question, that the new
successor trustees cannot constitutionally operate the park in
accordance with Senator Bacon's will, then I think that the Court
should explicitly state that the question of reversion to his heirs
is controlled by state law, and remand the case to the Georgia
Supreme Court to decide that question.
Nothing that I have said is to be taken as implying that
Baconsfield Park could at this time be operated by successor
trustees on a racially discriminatory basis. Questions of equal
protection of all people without discrimination on account of color
are of paramount importance in this Government dedicated to equal
justice for all. We can accord that esteemed principle the
Page 382 U. S. 315
it is due, however, without distorting the constitutional
structure of our Government by taking away from the States that
which is their due.
MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART joins,
This decision, in my opinion, is more the product of human
impulses, which I fully share, than of solid constitutional
thinking. It is made at the sacrifice of long established and still
wise procedural and substantive constitutional principle. I must
In my view, the writ should be dismissed as improvidently
granted because the far-reaching constitutional question tendered
is not presented by this record with sufficient clarity to require
or justify its adjudication, assuming that the question is
presented at all.
In the posture in which this case reached the state courts, it
required of them no more than approval of the city's resignation as
trustee under Senator Bacon's will and the appointment of successor
trustees. Neither of these issues, of course, would in itself
present a federal question. While I am inclined to agree with my
Brother BLACK that this is all the state courts decided, I think it
must be recognized that the record is not wholly free from
ambiguity on this score. Even so, the writ should be dismissed. To
infer from the Georgia Supreme Court's opinion, as the majority
here does, a further holding that the new trustees are entitled to
operate Baconsfield on a racially restricted basis is to stretch
for a constitutional issue. This plainly contravenes the
established rule that this Court will not reach constitutional
questions if their decision can reasonably be avoided. Peters
v. Hobby, 349 U. S. 331
United States v.
Page 382 U. S. 316
345 U. S. 41
Charles River Bridge v.
Proprietors of Warren Bridge,
11 Pet. 420,
36 U. S. 553
Application of that doctrine is especially called for here, where
decision should require precise knowledge of the factual details
and nuances that only time and a complete record can bring into
focus. Dismissal of the writ should thus follow.
On the merits, which I reach only because the Court has done so,
I do not think that the Fourteenth Amendment permits this Court in
effect to frustrate the terms of Senator Bacon's will, now that the
City of Macon is no longer connected, so far as the record shows,
with the administration of Baconsfield. If the majority is in doubt
that such is the case, it should remand for findings on that issue,
and not reverse.
The Equal Protection Clause reaches only discriminations that
are the product of capricious state action; it does not touch
discriminations whose origins and effectuation arise solely out of
individual predilections, prejudices, and acts. Civil Rights
Cases, 109 U. S. 3
. So far
as the Fourteenth Amendment is concerned, the curtailing of private
discriminatory acts, to the extent they may be forbidden at all, is
a matter that is left to the States acting within the permissible
range of their police power.
From all that now appears, this is a case of "private
discrimination." Baconsfield had its origin not in any significant
governmental action [Footnote 3/1
or on any public land,
Page 382 U. S. 317
but rather in the personal social philosophy of Senator Bacon
and on property owned by him. The City of Macon's acceptance and,
until recent years, its carrying out of the trusteeship were both
entirely legitimate, and indeed in accord with the prevailing mores
of the times. When continuance of its trusteeship became
incompatible with later changes in constitutional doctrine, the
city first undertook to disregard the racial restrictions imposed
by the will on the use of the park, and then, when that action was
appropriately challenged, resigned as trustee. The state courts,
obedient to federal commands, Pennsylvania v. Board of
Directors of City Trusts, 353 U. S. 230
have accepted the resignation of the city and, to prevent failure
of the trust under their own laws, have appointed new trustees. I
can see nothing in this straightforward
Page 382 U. S. 318
train of events which justifies finding "state action" of the
kind necessary to bring the Fourteenth Amendment into play.
The first ground for the majority's state action holding rests
on nothing but an assumption and a conjecture. The assumption is
that the city itself maintained Baconsfield in the past. The
conjecture is that it will continue to be connected with the
administration of the park in the future. The only underpinning for
the assumption is the circumstance that, over the years,
Baconsfield has geographically become an adjunct to the city's park
system, and the admitted fact that, until the present proceeding,
title to it was vested in the city as trustee. The only predicate
for the majority's conjecture as to the future is the failure of
the record to show the contrary.
If speculation is the test, the record more readily supports
contrary inferences. Papers before us indicate that Senator Bacon
left other property in trust precisely in order to maintain
Baconsfield. [Footnote 3/2
should it be assumed that these resources were not used in the past
for that purpose, still less that the new trustees, now faced with
a challenge as to their right to effectuate the terms of Senator
Bacon's trust, will not keep Baconsfield privately maintained in
all respects? Further, the city's and state courts' readiness to
sever ties between the city and park in derogation of the will, let
alone the city's earlier operation of the park on a nonsegregated
basis despite the terms of the will, strongly indicates that they
will not flinch from completing the separation of park and state if
any ties remain to implicate the Fourteenth Amendment.
Page 382 U. S. 319
For me, this facet of the majority's opinion affords a wholly
unacceptable basis for imputing unconstitutional state action,
resting as it does on pure surmise and conjecture, and implausible
ones at that. [Footnote 3/3
Quite evidently uneasy with its first ground of decision, the
majority advances another which ultimately emerges as the real
holding. This ground derives from what is asserted to be the
"public character" (ante,
p. 382 U. S. 302
of Baconsfield and the "municipal . . . nature" of its services
p. 382 U. S.
). Here it is not suggested that Baconsfield will use
public property or funds, be managed by the city, enjoy an
exclusive franchise, or even operate under continuing supervision
of a public regulatory agency. State action is inherent in the
operation of Baconsfield quite independently of any such factors,
so it seems to be said, because a privately operated park whose
only criterion for exclusion is racial is within the "public
382 U. S. 302
Except for one case which will be found to be a shaky precedent,
the cases cited by the majority do not support this novel state
action theory. Public
Page 382 U. S. 320
Commission of District of Columbia v. Pollak,
343 U. S. 451
applied due process standards, limited like equal protection
standards to instances involving state action, to certain action of
a private citywide transit company. State action was explicitly
premised on the close legal regulation of the company by the public
utilities commission and the commission's approval of the
particular action under attack. The conclusion might alternatively
have rested on the near-exclusive legal monopoly enjoyed by the
company, 343 U.S. at 343 U. S. 454
n. 1, but, in all events, nothing was rested on any "public
function" theory. Watson v. City of Memphis, 373 U.
, ordering speedy desegregation of parks in that
city, concerned recreation facilities concededly owned or managed
by the city government. See
303 F.2d 863, 864-865.
] The only Fourteenth
Amendment case [Footnote 3/5
finding state action in the "public function" performed by a
technically private institution is Marsh v.Alabama,
326 U. S. 501
holding that a company-owned town of over 1,500 residents and
effectively integrated into the surrounding area could not suppress
free speech on its streets in disregard of constitutional
Page 382 U. S. 321
While no stronger case for the "public function" theory can be
imagined, the majority opinion won only five of the eight Justices
participating, one of whom also concurred separately, and three
spoke out in dissent. The doctrine of that case has not since been
the basis of other decisions in this Court, and certainly it has
not been extended. On the contrary, several years after the
decision, this Court declined to review two New York cases which,
in turn, held Marsh
inapplicable to a privately operated
residential community of apartment buildings housing 35,000
residents, Watchtower Bible & Tract Soc'y v. Metropolitan
Life Ins. Co.,
297 N.Y. 339, 79 N.E.2d 433, certiorari
335 U.S. 886, and to a privately owned housing
development of 25,000 people alleged to discriminate on racial
grounds, Dorsey v. Stuyvesant Town Corp.,
299 N.Y. 512, 87
N.E.2d 541, 14 A.L.R.2d 133, certiorari denied,
981. See also Hall v. Virginia,
335 U.S. 875, dismissing
the appeal in 188 Va. 72, 49 S.E.2d 369.
More serious than the absence of any firm doctrinal support for
this theory of state action are its potentialities for the future.
Its failing as a principle of decision in the realm of Fourteenth
Amendment concerns can be shown by comparing -- among other
examples that might be drawn from the still unfolding sweep of
governmental functions -- the "public function" of privately
established schools with that of privately owned parks. Like parks,
the purpose schools serve is important to the public. Like parks,
private control exists, but there is also a very strong tradition
of public control in this field. Like parks, schools may be
available to almost anyone of one race or religion but to no
others. Like parks, there are normally alternatives for those shut
out, but there may also be inconveniences and disadvantages caused
by the restriction. Like parks, the extent of school intimacy
varies greatly depending on the size and character of the
Page 382 U. S. 322
For all the resemblance, the majority assumes that its decision
leaves unaffected the traditional view that the Fourteenth
Amendment does not compel private schools to adapt their admission
policies to its requirements, but that such matters are left to the
States acting within constitutional bounds. I find it difficult,
however, to avoid the conclusion that this decision opens the door
to reversal of these basic constitutional concepts, and at least in
logic, jeopardizes the existence of denominationally restricted
schools while making of every college entrance rejection letter a
potential Fourteenth Amendment question.
While this process of analogy might be spun out to reach
privately owned orphanages, libraries, garbage collection
companies, detective agencies, and a host of other functions
commonly regarded as nongovernmental though paralleling fields of
governmental activity, the example of schools is, I think,
sufficient to indicate the pervasive potentialities of this "public
function" theory of state action. It substitutes for the
comparatively clear and concrete tests of state action a
catch-phrase approach as vague and amorphous as it is far-reaching.
It dispenses with the sound and careful principles of past
decisions in this realm. And it carries the seeds of transferring
to federal authority vast areas of concern whose regulation has
wisely been left by the Constitution to the States.
The majority disclaims reliance on the early Georgia charitable
trust statutes authorizing the establishment of racially restricted
parks and permitting a city to act as trustee under such a trust.
My Brother WHITE, however, finds that the mere existence of those
statutes, enacted in 1905, "incurably taint[s]" the racial
conditions of Senator Bacon's will (ante,
p. 382 U. S.
). For several reasons, that thesis seems to me to
fall short. First, it is by no means clear that Georgia common law
would not have permitted user restrictions on such a park in trust,
so that the statute was but declaratory of existing law pro
tanto. See, e.g., Houston v. Mills Memorial Home,
Ga. 540, 43 S.E.2d 680 (permitting trust for home for Negro aged).
Thus, even on my Brother WHITE's premise that a State, in allowing
discrimination, may not discriminate among possible user
restrictions, the proper course would be to remand to the Georgia
courts to determine whether user-restricted trusts such as Senator
Bacon's were in any event valid under the state common law. Second,
in order to find an "incurable taint" of the racial conditions,
rather than an arguable claim turning on state common law, it is
apparently suggested that the state statutes invalidly "removed . .
. doubt only for racial restrictions" (ante,
382 U. S. 306
and by this clarification improperly encouraged Senator Bacon to
discriminate. There is, however, absolutely no indication whatever
in the record that Senator Bacon would have acted otherwise but for
the statute, a gap in reasoning that cannot be obscured by general
discussion of state "involvement" or "infection." Third, it could
hardly be argued that the statute in question was unconstitutional
when passed, in light of the then-prevailing constitutional
doctrine; that being so, it is difficult to perceive how it can now
be taken to have tainted Senator Bacon's will at the time he made
his irrevocable choice.
R. 20, 22, for provisions of Senator Bacon's will
allotting property for "the management, improvement and
preservation" of the park.
Twice in its opinion, the majority intimates it might reach a
different conclusion on the city's involvement if it had a fully
developed record before it. At p. 382 U. S. 301
the Court says,
"We only hold that where the tradition of municipal control had
become firmly established, we cannot take judicial notice that the
mere substitution of trustees instantly transferred this park from
the public to the private sector."
And in concluding at p.
382 U. S. 302
the opinion reads:
"We put the matter that way because, on this record, we cannot
say that the transfer of title per se
park from segregation under the municipal regime that long
These cautions seem to reinforce the point made at the outset of
this dissent that the Court should have refused to adjudicate the
constitutional issue on this cloudy record. See Rescue Army v.
Municipal Court, 331 U. S. 549
The majority's language directly following its Watson
p. 382 U. S. 302
"and state courts that aid private parties to perform that
public function [mass recreation through the use of parks] on a
segregated basis implicate the State in conduct proscribed by the
-- quite evidently is oblique reliance on Shelley v.
Kraemer, 334 U. S. 1
the majority does not even cite. Whatever may be the basis of that
inscrutable decision, certainly nothing in it purports to rest on
anything resembling the "public function" theory.
In Terry v. Adams, 345 U. S. 461
cited by the Court, none of the three prevailing opinions garnered
a majority, and some commentators have simply concluded that the
state action requirement was read out of the Fifteenth Amendment on
that occasion. Lewis, The Meaning of State Action, 60 Col.L.Rev.
1083, 1094 (1960); Note, The Strange Career of "State Action" Under
the Fifteenth Amendment, 74 Yale L.J. 1448, 1456-1459 (1965).