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.
Certiorari was granted to review a judgment from the Supreme Court of Georgia affirming a lower court's judgment that held that a testator had the right to give and bequeath his property for use as a city park that excluded black citizens. The testator's will provided for a tract of land to be held in trust to be used as a segregated park. The trust's board of managers brought a suit against the city and the trustees of the residuary beneficiaries. The board of managers sought to enforce the racial limitations of the will. The state supreme court held that the testator had a right to leave his property to a limited class of beneficiaries and that charitable trusts were subject to the supervision of an equity court, which could appoint new trustees to avoid failure of the trust
Did the public character of the park require that it be treated as a public institution subject to the command of the Fourteenth Amendment, regardless of who presently had title under state law?
The Court held that under the circumstances of the case, the public character of the park required that it be treated as a public institution subject to the command of the Fourteenth Amendment, regardless of who had title under state law. Furthermore, the Court held that the tradition of municipal control of the park was firmly established; therefore, the Court could not take judicial notice that mere substitution of trustees instantly transferred the park from the public to the private sector.