Community Chautauquas, Inc. v. Caverly , 244 F. 893 ( 1917 )

HOUGH, Circuit Judge

(after stating the facts as above). The sole ground of jurisdiction set up in this bill is diversity of citizenship, and the prayer of the bill is that defendants “be restrained from making or enforcing any order designed to prevent the performance of the contracts” of plaintiff to give chautauquas in Vermont. The reason of the bill and thiá prayer is that the order in question “unjustly discriminates against the plaintiff and against the entertainments to be given by the plaintiff.” It appears from argument, however, that the discrimination complained of is not thought to rest upon any personal prejudice against plaintiff or‘its entertainments, but upon the proposition outlined in the bill, asserted in affidavits, and presented in argument, that public gatherings induced by an intellectual entertainment such ás a chautauqua do not tend to spread infection, and that such is the opinion of some doctors.

[1] Thus the question primarily presented to this court is whether the professional opinion of a board of doctors, honestly exercised, shall be overturned by the chancellor on the ground that it is “unreasonable.” It is said that State v. Speyer, 67 Vt. 502, 32 Atl. 476, 29 L. R. A. 573, 48 Am. St. Rep. 832, upholds this view. Undoubtedly there are cases (and the case cited is one of them) wherein police regulations cannot be held justifiable “unless there are reasonable grounds for a belief that the necessary protection of the public health” requires their passage. This is a simple doctrine, and means no more than that it is the duty of the court to examine into the facts of every case, and if a responsible, honest, and presumably reasonable body of professional opinion is found on the side of the regulation, it is the duty of the court to uphold it, even though the chancellor should entertain the view of professional dissidents.

The point is not whether the court agrees with the professional conclusion of a body of doctors, or engineers, or clergymen, but whether it is evident that the professional view is a reasonable view for men of the proper profession to entertain. They may be wrong, but is there any reasonable probability of their being right? If that question is answered in the affirmative, the professional regulation cannot be said to be unreasonable, as a matter of law. This is the view taken in State v. Morse, 84 Vt. 387, 80 Atl. 189, 34 L. R. A. (N. S.) 190, Ann. Cas. 1913B, 218, and the whole matter is covered by the remarks of Holmes, J., quoted, at page 397, from Laurel Hill Cemetery v. San Francisco, 216 U. S. 358, 30 Sup. Ct. 301, 54 L. Ed. 515.

I am. therefore not called upon to come to any conclusion as to whether the propagation of poliomyelitis is actually assisted by crowds, but I am persuaded: (1) That a very responsible body of professional opinion is that way; (2) that the Vermont board of health shares that view; (3) that it has just as much right to entertain that view as I have 'to entertain an opinion upon a point of law; and (4) that such a point of view cannot be held to be unreasonable.

[2] Although the bill does not in terms rest upon any constitutional point, such point is necessarily presented. Thus the bill prays to have certain contracts preserved — preserved from what? From an exercise of the police power of the state in accordance with a responsible body of professional opinion. An act of the Legislature thus impairing a contract is not unconstitutional. Manigault v. Ward (C. C.) 123 Fed. 707, affirmed 199 U. S. 473, 26 Sup. Ct. 127, 50 L. Ed. 274. That the prevention of disease, or its spread, by any means based on responsible medical opinion is a competent and constitutional exercise of police power is a proposition so plain as scarcely to require citation. The Legislature might have said that there should be no gatherings at all except by license (Davis v. Commonwealth, 167 U. S. 43, 17 Sup. Ct. 731, 42 L. Ed. 71), and discrimination or classification is frequently based, not on medical opinion, but merely on matters of taste. Of this perhaps the best illustrations are the “Ice Cream Cases,” of which Hutchinson Ice Cream Co. v. Iowa, 242 U. S. 153, 37 Sup. Ct. 28, 61 L. Ed. 217, Ann. Cas. 1917B, 64-3, is the latest so far as I know. That the hoard of health acted within its statutory authority is, I think, plain from chapter 194, Vermont Laws of 1917, which explicitly authorizes local health officers (such as most of the defendants herein) to “forbid and prevent the assembling of people in any place, when the state board of health deems that the public health and safety so demand.”

[3] This is not a delegation of lawmaking authority, for the Assembly laid down the law, but intrusted its application to medical men who would presumably be better informed as to local conditions. If this matter be regarded as one of local Jaw, only cognizable in the United States courts because of diversity of citizenship, I think the matter fairly within the ruling in State v. Morse, supra; if (looking beyond the form of pleading) other questions be. considered, no constitutional rights of plaintiff have been invaded. Therefore the application cannot be granted, a result the more willingly reached because the papers presented (especially the results of poliomyelitis observations in Vermont for some years past) conclusively show to me that the moves of this mysterious disease are so little understood that any honest medical efforts to effect its extermination should meet with assistance rather than hostility.

The restraining order is dissolved, and preliminary injunction denied.

A motion to amend the bill was made at the hearing, and no objection made thereto. If the form of the amendment is transmitted to me through the clerk of court, it will be formally allowed so far as can now be seen.