Evans v. Abney/Dissent Douglas

Mr. Justice DOUGLAS, dissenting.

Bacon's will did not leave any remainder or reversion in 'Baconsfield' to his heirs. He left 'all remainders and reversions and every estate in the same of whatsoever kind' to the City of Macon. He further provided that the property 'under no circumstances, or by any authority whatsoever' should 'be sold or alienated or disposed of, or at any time for any reason' be 'devoted to any other purpose or use excepting so far as herein specifically authorized.'

Giving the property to the heirs, rather than reserving it for some municipal use, does therefore as much violence to Bacon's purpose as would a conversion of an 'all-white' park into an 'all-Negro' park.

No municipal use is of course possible where the beneficiaries are members of one race only. That was true in 1911 when Bacon made his will. Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256, decided in 1896, had held that while 'separate' facilities could be supplied each race, those facilities had to be 'equal.' The concept of 'equal' in this setting meant not just another park for Negroes but one equal in quality and service to that municipal facility which is furnished the whites. See Sweatt v. Painter, 339 U.S. 629, 633-634, 70 S.Ct. 848, 849-850, 94 L.Ed. 1114. It is apparent that Bacon's will projected a municipal use which at the time was not constitutionally permissible unless like accommodations were made for the Negro race.

So far as this record reveals, the day the present park was opened to whites it may, constitutionally speaking, also have been available to Negroes.

The Supreme Court of Georgia stated that the sole purpose for which the trust was created had become impossible. But it was impossible in those absolute terms even under the regime of Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256. As to cy pres, the Georgia statute provides:

'When a valid charitable bequest is incapable for some reason     of execution in the exact manner provided by the testator      donor, or founder, a court of equity will carry it into      effect in such a way as will as nearly as possible effectuate      his intention.' Ga.Code. Ann. § 108-202 (1959).

The Georgia court held that the doctrine of cy pres 'can not be applied to establish a trust for an entirely different purpose from that intended by the testator.' 224 Ga. 826, 830, 165 S.E.2d 160, 164. That, however, does not state the issue realistically. No proposal to bar use of the park by whites has ever been made, except the reversion ordered to the heirs. Continuation of the use of the property as a municipal park or for another municipal purpose carries out a larger share of Bacon's purpose than the complete destruction of such use by the decree we today affirm.

The purpose of the will was to dedicate the land for some municipal use. That is still possible. Whatever that use, Negroes will of course be admitted, for such is the constitutional command. But whites will also be admitted. Letting both races share the facility is closer to a realization of Bacon's desire than a complete destruction of the will and the abandonment of Bacon's desire that the property be used for some municipal purpose.

Bacon, in limiting the use of this park property 'to white people,' expressed the view that 'in their social relations the two races (white and negro) should be forever separate and that they should not have pleasure or recreation grounds to be used or enjoyed, together and in common.' Can we possibly say that test puts a curse on each and every municipal use-music festivals, medical clinics, hospitals?

Moreover, putting the property in the hands of the heirs will not necessarily achieve the racial segregation that Bacon desired. We deal with city real estate. If a theatre is erected, Negroes cannot be excluded. If a restaurant is opened, Negroes must be served. If office or housing structures are erected, Negro tenants must be eligible. If a church is erected, mixed marriage ceremonies may be performed. If a court undertook to attach a racial-use condition to the property once it became 'private,' that would be an unconstitutional covenant or condition.

Bacon's basic desire can be realized only by the repeal of the Fourteenth Amendment. So the fact is that in the vicissitudes of time there is no constitutional way to assure that this property will not serve the needs of Negroes.

The Georgia decision, which we today approve, can only be a gesture toward a state-sanctioned segregated way of life, now passe. It therefore should fail as the imposition of a penalty for obedience to a principle of national supremacy.