author: OAKES, Circuit Judge:

text:
    Saul OLZMAN et al., Appellants, v. LAKE HILLS SWIM CLUB, INC., Appellee.
    No. 427, Docket 73-1626.
    United States Court of Appeals, Second Circuit.
    Argued Feb. 11, 1974.
    Decided April 19, 1974.

      Michael N. Pollet, New ^ York City (Marvin M. Karpatkin, New York City; Harvey A. Silverglate, Boston, Mass.; Nancy Gertner, Boston, Mass., of counsel; Karpatkin, Ohrenstein & Karpatkin, New York City, and Zalkind & Silverglate, Boston, Mass., on the brief), for appellants.

      James L. Goldwater, New York City (Goldwater & Flynn, New York City), for appellee.
    Before ANDERSON, MANSFIELD and OAKES, Circuit Judges.

       Brief of amicus curiae urging reversal was filed by Richard P. Bellman, Suburban Aetion Institute, Tarrytown, N.Y. (J. Christopher Jensen, on the brief).

   OAKES, Circuit Judge:

This appeal is from the grant of summary judgment against plaintiffs who allege racially discriminatory operation of a swimming club. The appellants include members of the Lake Hills Swim Club, Inc. (the club), as well as representatives of a group of black children from Roslyn, Long Island, New York, who were invited by those members to use the facilities of the defendant club as guests of the plaintiff members. The action was brought in August, 1969, but was not decided by the court below until February 15, 1978. The appeal did not reach us for about a year and thus we are to consider the serious questions involved some five years after the event on the basis solely of affidavits submitted and available to the court below. The suit claims violation of the thirteenth and fourteenth amendments to the United States Constitution, Title 2 of the Civil Rights Act of 1964, 42 U.S. C. § 2000a et seq. and 42 U.S.C. §§ 1981, 1982. For reasons that will appear, not the least of which is the Supreme Court’s decision in Tillman v. Wheaton-Haven Recreation Association, Inc., 410 U.S. 431, 93 S.Ct. 1090, 35 L.Ed.2d 403 (1973), made shortly after the decision below, we reverse and remand for further findings. The non-summary “summary judgment” of the court below theretofore is reversed.

The defendant club was incorporated in April, 1960, under the Membership Corporations Law of New York (repealed in 1970 and replaced with the Not-for-Profit Corporation Law, McKinney’s Consol. Laws, c. 35) to operate a private, non-profit swimming pool with associated facilities and amenities for the use of members living in the community known as Lakeville Estates Park in East Hills, New York. At the time of this formation, Lakeville Estates was under development and was one of several developments in the incorporated Village of East Hills. In December, 1960, at the request of persons interested in the club, the Village of East Hills adopted an ordinance amending its zoning law to provide that a building and lot of land could under certain conditions be used for a swimming pool and accessory purposes “by an association or membership corporation (all directors, officers, and members of which shall be resident owners of real property within the Village) and which is not conducted for profit or gain . . . .” The ordinance provided that any permit granted under it to a club could “prescribe reasonable rules and regulations for the operation, maintenance and use of such swimming pool and any accessory structures.” In February, 1961, the board of trustees of the Village, after making certain findings, granted a temporary permit to the defendant club conditional on several bases, including the requirement that the membership be limited to 100 bona fide residents of the incorporated Village of East Hills. The club acquired pool property which includes a swimming pool, a parking area, related wading pool and bathhouse, with a little snack bar at which snacks and soft drinks can be obtained and which operates at a loss. The club has no liquor license and does not serve meals. All of the members do come from East Hills, and all but a few of them from Lakeville Estates. Under the club bylaws, acquiring membership requires the payment of $2,000 and withdrawal from membership involves a partial loss of the membership investment, even though a new member paying the full fee acquires the retiring member’s membership. The bylaws also permit members who sell their residences to transfer their certificates of membership to the new owners without the necessity of approval by the board of directors, that transfer automatically taking precedence over the waiting list of the time.

I.

The first question is whether the club is genuinely private within the meaning of 42 U.S.C. § 2000a(e) so as to exempt it from the operation of § 2000a(a). Cf. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972); Daniel v. Paul, 395 U.S. 298, 89 S.Ct. 1697, 23 L.Ed.2d 318 (1969). The district court found the club to be private. The decision of this question is important not only as to the effect of § 2000a(a) but perhaps in respect to the effect of §§ 1981 and 1982. See Tillman v. Wheaton-Haven Recreation Association, 410 U.S. at 438-439, 93 S.Ct. 1090. The facts in Tillman and Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969), which denied “private club” status to the swimming pool and park therein, closely parallel those here. In each case membership was generally restricted to persons living within a particular geographic area; in Tillman there was a stated maximum number of memberships; and in each case there was a requirement of formal board or membership approval. Indeed, here there is not even any approval requirement with regard to applicants who have bought houses belonging to former members. These applicants automatically become members upon paying their membership fees without ever having to progress through the waiting list. In short, here “there was no plan or purpose of exclusiveness.” Sullivan v. Little Hunting Park, 396 U.S. at 236, 90 S.Ct. at 404.

Appellee argues that because the club is open only to 110 residents and their families out of 2,300-odd homeowners in the community of East Hills, it is not open to the general public and hence should fall within the exemption of § 2000a(e). The same argument failed in Tillman, as it must have; if limitation on the number of users were the test, every restaurant or night club limited by law or fire regulations to a given number of occupants at a given time would be magically transformed into a “private club.” Accordingly, we have no difficulty in following the lead of Tillman and Sullivan and finding that the Lake Hills Swim Club, Inc., is not a “private club” within the meaning of § 2000a(e), and therefore is not exempt from the prohibitions of § 2000a et seq., as well as the broad sweep of §§ 1981 and 1982.

II.

Having determined that plaintiffs’ claim is not foreclosed by 42 U.S.C. § 2000a(e), we turn to their claims under 42 U.S.C. §§ 1981 and 1982 and 2000a. Here appellee argues that the club’s adoption of the amended guest rules violated no rights protected by §§ 1981 and 1982; that persons not residing in East Hills have no standing to sue and plaintiff Olzman lacks standing because he has since moved away; and that in any case there was no showing in the record of discrimination on the basis of race. To understand these arguments it is necessary to set forth the controversy in greater detail.

All the plaintiffs are present or, in the case of Olzman, former members of the club except plaintiffs Terry and Hilton. Plaintiff Terry is pastor of a Baptist church in Roslyn Heights, and his congregation includes the black children who have been barred from using the club’s pool under the circumstances hereinafter set forth. Plaintiff Hilton is a parent of some of the Roslyn children who have been prevented from the use of the pool as guests of club members.

The dispute began early in June, 1968. As might be expected, the affidavits are not consistent, but apparently plaintiff Olzman invited a business associate to bring a group of black children to the pool on a Saturday. This plan apparently bore no fruit but later attempts to invite black underprivileged children from nearby Roslyn through the Rev. Mr. Terry were more successful. Apparently after the first “day the children were brought in” a meeting of the executive board discussed how to deal with the problem of underprivileged children as guests. The focus of discussion was how to keep the underprivileged children out, and there were numerous suggestions. One person suggested that all guest privileges be eliminated. Another suggested that underprivileged children and adults not be admitted as guests. It was asked why these children did not go somewhere else. Later it would be suggested that the club pay for the children to be taken somewhere else, so as to keep them from using the pool. There was a motion to redefine “guest” as a relative or friend of a member and to exclude individuals or groups from public or private charitable or benevolent organizations “without regard to race, color or creed.” This motion was carried. Some, however, suggested that there was a possibility for compromise between what were fast becoming entrenched opposition groups. And, indeed, compromise was reached. Those wishing to bring the underprivileged children in as guests would be allowed to do so each Monday morning during this one summer, Monday being the day when the pool was least used, but this would be the only day of the week they could do so. This “arrangement” brought a measure of quiet to the club which was being rent apart by this dispute. As the court below put it, the meetings and exchanges, “in which everyone put forward his worst foot, were full of recriminations, rich in objurgative expression on both sides and replete with competing claims of ‘liberalism’ and ‘private club.’ ” In less euphemistic terms, one side claimed that the other was expressing an intent to keep the “nigger kids” out, while the other side hotly denied any such thing.

In any ease, the dispute was at least put off by the “arrangement.” During the summer of 1968 at the pool, all went smoothly, and the presence of black children on Monday mornings apparently went without incident, if not without comment, either on the part of the guests, the children of members or the members themselves.

Subsequently, however, a committee was formed to make revisions in the bylaws generally. This committee divided into a majority group which wished to vest the power to make rules concerning guests in the board, and a minority group which wished to provide in the bylaws that members could invite guests of their own choosing. The majority carried the day, and the bylaws vesting the power in the board were adopted on March 24, 1969. The directors established a Rules and Regulations committee which drafted a new set of guest rules which were in turn adopted by the board on May 12, 1969. There were a number of changes in the guest rules, but most striking was the addition of three new sections — as the first three sections of the rule — which have the effect of denying the plaintiff members from inviting underprivileged children to the pool as they had done the year before under the then existing rules. The first change was to define “guest” as being limited to a friend or relative of a member. Next, it was stated that no member would be entitled to “include among his guests any group or groups of persons in concern and in conjunction with other members . . .” without permission from the board. Finally, no individual was allowed to be a guest more than twice in a season.

More or less contemporaneously, Camp Unity, apparently the formal name attached to the group from which the black children had been invited, applied to the board for permission to use the pool on a once weekly basis during the six week period from June 30 to August 8. The pool was sought for the hours of 10 to 12 in the morning for about 15 children and five counselors. The board discussed Camp Unity’s request and then voted on it, nine of the 11 members voting to deny the request. At a general membership meeting several members attempted to have a vote taken by the membership regarding Camp Unity’s request, although it was acknowledged that such a vote would be only advisory to the board. Finally on July 21, 1969, plaintiff OIzman requested permission of the board to bring ten black children from Roslyn to the club on Thursday, July 24, indicating that his request was not an isolated act but was intended to become a continuing practice. The board after advice from counsel offered to allow the use of the club on two Mondays, July 28 and August 11, to OIzman and his associates. OIzman never replied to this offer, but instead began this action shortly thereafter.

From these facts essentially two questions emerge: (1) whether a prohibition against bringing black guests to a. pool club involves any rights protected by §§ 1981, 1982 and 2000a et seq.; (2) if it does, whether the rule changes made by the Lake Hills Swim Club, Inc., violate any of those rights by discriminating against black persons. In order to answer the first question, we must accept plaintiffs’ claims as alleged.

Section 1982 provides that all citizens shall have the same right as white citizens “to inherit, purchase, lease, sell, hold, and convey real and personal property.” While the condition of being a guest is not normally considered a “property” right one can “hold,” there-is authority and justification for considering it such under § 1982. As the Supreme Court stated in the pivotal case of Jones v. Alfred H. Mayer Co., 392 U.S. 409, 432, 88 S.Ct. 2186, 2199, 20 L.Ed.2d 1189 (1968), one of the “great fundamental rights” sought to be preserved by the Civil Rights Act of 1866 was “the right to go and come at pleasure. . . . ” It is reasonable to characterize the freedom of blacks to go and come as guests of a swim club member as sufficiently pertaining to a condition of property to be a right capable of being held under § 1982. Upon being invited by a member of the club, a black child becomes an invitee of that member with certain rights pursuant thereto. Walker v. Pointer, 304 F.Supp. 56, 62 (N.D.Tex.1969). Whether these rights are denominated licenses, easements or usufructs, the guest has an interest in his guest status which the law may protect from certain invasions. Cf. Terry v. Elmwood Cemetery, 307 F.Supp. 369, 373-74 (N.D.Ala. 1969). Thus, if during 1968, while the black children were guests in accordance with the guest rules, the club had forcibly ejected them, the children’s right to be guests and to exercise the rights pursuant thereto would be “property” held by them sufficient to be protected by § 1982. While this did not occur here, what is alleged is closely analogous. Here plaintiffs allege that the rule change was a direct result of the black children being invited as guests and of their acceptance of that invitation. As such, the allegation states a cause of action under § 1982, because so to change the guest rules would be to penalize the black guests for exercising their “property” rights, thereby violating § 1982.

Section 1981 provides that “All persons within the jurisdiction of the United States shall have the same right . to make and enforce contracts . as is enjoyed by white citizens .” This has been interpreted to require swimming pool owners and operators to sell tickets of admission to blacks. Valle v. Stengel, 176 F.2d 697 (3d Cir. 1949); Williams v. Kansas City, 104 F.Supp. 848 (W.D.Mo.1952), aff'd, 205 F.2d 47 (8th Cir.), cert. denied, 346 U.S. 826, 74 S.Ct. 45, 98 L.Ed. 351 (1953). See also Scott v. Young, 421 F.2d 143, 145 (4th Cir.), cert. denied, 398 U.S. 929, 90 S.Ct. 1820, 26 L.Ed.2d 91 (1970). Here entry to the pool is not obtained simply by payment of a fee as was the case in the above cases. Nevertheless, under the 1968 guest rules, once the guest was invited and accompanied by a member and met the requirements of not being a resident of East Hills, admission then was conditioned only upon payment of a fee (except on the free days, which were not utilized by the black guests or their white hosts). This entry conditioned on payment of a fee thereby became a contract between the guest and the club (or between the member and the club to which the black guest would be a third-party beneficiary, able to enforce the contract). Scott v. Young, 421 F.2d at 145. To change the guest rules so as to exclude black guests would at the same time prevent them from making these contracts, if not penalize them for having made them in the past. This would constitute a violation of § 1981.

To be sure, there is an overlap of §§ 1981 and 1982, and Tillman, supra, as we have said, note 10 supra, while not discussing these points directly, nevertheless gives some indication that they do provide protection for black guests, as would be expected from statutes enacted for the purpose of eliminating the “badges and incidents” of slavery, see The Civil Rights Cases, 109 U.S. 3, 20, 3 S.Ct. 18, 27 L.Ed. 835 (1883); The Slaughterhouse Cases, 83 U.S. (16 Wall.) 36, 71-72, 21 L.Ed. 394 (1873). We are obliged not to forget the broad and sweeping nature of the protection meant to be afforded by these statutes. Sullivan v. Little Hunting Park, 3.96 U.S. at 237, 90 S.Ct. 400, 4 L.Ed.2d 386.

Section 2000a(a) states that
All persons shall be entitled to the full and equal enjoyment of the . facilities, privileges, advantages ... of any place of public accommodation, as defined in this section, without discrimination . on the ground of race. .

Thus, if the Lake Hills Swim Club, Inc., is a “public accommodation, as defined in this section,” a rule prohibiting guests on the basis of race would be prohibited by § 2000a(a). We have already discussed the § 2000a(e) exemption for private clubs, and why it does not apply here. Daniel v. Paul, supra, indicated that swimming pools may qualify as places of entertainment within the meaning of § 2000a(b)(3). The only other requirement to bring the Lake Hills club within the meaning of a public accommodation is that its operations “affect commerce.” While the record is not as complete as we might wish, a number of factors suggest that the club’s operations may well affect commerce. We note reference to club luncheons (to which guests may be invited) and club movift nights. See Twitty v. Vogue Theatre Corp., 242 F.Supp. 281, 287-288 (M.D.Fla.1965). Both of these activities presumably would involve goods traveling in interstate commerce. The snack bar operated on the club’s premises also presumably serves food which travels in interstate commerce. See 42 U.S.C. §§ 2000a(b)(2), 2000a(c)(2). Cf. Lehrman v. Gulf Oil Corp., 464 F.2d 26, 35 (5th Cir.), cert. denied, 409 U.S. 1077, 93 S.Ct. 687, 34 L.Ed.2d 665 (1972). Such activities and facilities are sufficient to bring the entire club within the broad scope affecting interstate commerce. § 2000a (b)(4). While the overall effect of Lake Hills Swim Club, Inc., on interstate commerce may be minuscule, this would not remove it from the coverage of the statute; when taken together with other clubs and pools and snack bars similarly situated the effect is no longer so trivial. Katzenbach v. McClung, 379 U.S. 294, 300-301, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964); Wooten v. Moore, 400 F.2d 239 (4th Cir. 1968), cert. denied, 393 U.S. 1083, 89 S.Ct. 866, 21 L.Ed.2d 776 (1969).

The above discussion goes to establish only the answer to the first question, whether §§ 1981, 1982 and 2000a protect black guests from racially discriminatory guest rules at the Lake Hills Swim Club, Inc. It does not answer the question whether the rules actually adopted in 1969 were racially discriminatory. Nor is that a question this court can answer merely on the affidvits and record before it.

The court below found that nothing in the formal structure of the club bylaws or rules and regulations was discriminatory on its face. Accepting that as true arguendo, however, we are far short of the analysis we are called upon to make by a number of cases. Cf. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1972) (Title VII); Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971), modified on other grounds, 452 F.2d 327 (en banc), cert. denied, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338 (1972) (Section 1981). Here one of the major changes in the rules was the definition of a guest as a friend or relative of a member. As in Griggs, where the requirement of a high school diploma was instituted for entry into certain jobs, such a rule or rule change is facially neutral. If, however, we look to its effect, then it may no longer be neutral. In Griggs it was shown that such a requirement weeded out blacks disproportionately to the population at large. This shifts the burden of justifying the requirement onto the employer. Here it might be shown that the rule change had the effect of discriminating against blacks, because apparently none of the relatives and few of the friends of members were black. Cf. United States v. Local 357, IBEW, 356 F.Supp. 104, 116 (D.Nev.1973); Hunt v. Arnold, 172 F.Supp. 847, 849 (N.D.Ga.1959). This would presumably shift the burden of justifying the change by showing that the rule was actually adopted for a reasonable purpose and not for discriminatory purposes. Cf. Chance v. Board of Examiners, 458 F.2d 1167 (2d Cir. 1972); Dean v. Ashling, 409 F.2d 754 (5th Cir. 1969).

In addition to the possible discriminatory effect involved in the guest rule change is the possibility of a discriminatory intent in adopting a facially neutral role. See Hawkins v. North Carolina Dental Society, 355 F.2d 718, 723-724 (4th Cir. 1966); Meredith v. Fair, 298 F.2d 696, 701-702 (5th Cir.), cert. denied, 371 U.S. 828, 83 S.Ct. 49, 9 L.Ed. 2d 66 (1962). In Meredith, for example, the University of Mississippi began requiring of applicants for admission, shortly after the Supreme Court’s decision in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), recommendations from five alumni of the school which theretofore had admitted only whites. It should be needless to say that where a rule is made with discriminatory intent, that rule must fall regardless of any possible reasonable explanation that may in hindsight be proclaimed. Were the allegations submitted by plaintiffs given credence despite the denials by defendant’s witnesses, discriminatory intent might be found. The court below did find solely on the basis of the affidavits that the changes in the rules with respect to requiring specific approval by the directors of members’ cooperating to invite a group of black children as their guests, as well as to redefining guest, were a

direct consequence of [the] intraclub controversy occasioned by the 1968 bringing of black children to the club. There can be no doubt that the invitations extended with club approbation in 1968 occasioned the change in Rules and Regulations . . . . [I]t is indubitably the fact that the change in the Rules and Regulations was precisely intended to prevent a repetition of the group invitation of 1968.

The court below, however, apparently viewed the change in the rule as to groups of guests as not discriminating racially, even if racially inspired, because it treats groups of blacks and whites alike. Upon remand this view should be reexamined in the light of the realities of the situation, including the fact that the ultimate decision as to who may be invited apparently rests in the discretion of the board of directors, not in the rule itself. The court should determine whether only black children have ever sought permission of the board to be guests as a group and whether only one “group” of black children has been invited to the club. That is to say, however racially neutral the rule as to group invitations may appear on its face, one inquiry the court below must make is whether it was adopted to keep certain black children out, who theretofore were eligible to be guests of members, or whether the group rule had some other real basis in fact. If the former be the case, then these “unidentified, but identifiable” black children, Barrows v. Jackson, 346 U.S. at 254, 73 S.Ct. 1031, 97 L.Ed. 1586, could be found to have been personally discriminated against. A principal question for resolution is thus whether the supposedly neutral rule was nothing more in reality than a smokescreen to cover the actual intent and effect or whether it was factually grounded in non-racial motivations and operative non-discriminatorily.

Summary judgment for defendant vacated and cause remanded for further proceedings consistent with this opinion.

      . In June, 1962, the permit was amended, however, to provide that the club could accept membership to the extent of 110 such residents of the village, though it appears that there were in fact only 100 members at the time of decision below.

      . The provisions of this subchapter shall not apply to a private club or other establishment not in fact open to the public, except to the extent that the facilities of such establishment are made available to the customers or patrons of an establishment within the scope of subsection (b) of this section.

      . All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.

      . Membership in the Lake Hills Swim Club, Inc., is restricted to residents of East Hills both by virtue of its own bylaws, the conditional use permit under which the club operates, and the zoning ordinance under which the permit was issued.

      . Membership in the club is restricted by the conditional use permit to 110 bona fide residents of East Hills, while the bylaws apparently restrict membership to 100 members only.

      . A Membership Committee is chosen by the board of directors of the Lake Hills Swim Club, Inc., from members of the club outside the board to consider applications and to recommend to the board acceptable applicants. There is no indication that any applicant has ever been rejected.

      . Article VI, Section 7, of the Bylaws of the Lake Hills Swim Club, Inc.

      . 42 U.S.C. §§ 1981 and 1982 are traceable to the Civil Rights Act of April 9, 1866, eh. 31, § 1, 14 Stat. 27, which was reenacted by the Civil Rights Act of May 31, 1870, § 16, 16 Stat. 144. See Tillman v. Wheaton-Haven Recreation Ass’n, 410 U.S. 431, 439^440 n.11, 93 S.Ct. 1090 (1973).

      . Under the guest rules then in effect members were allowed to bring up to two guests a day before July 1 and after August 23, and no more than four guests a day between those dates. The plaintiffs, by pooling their guest privileges, were thus able to bring more than enough children to the pool. Moreover, there was evidence that it was common practice for a member to utilize another member’s guest privileges in addition to his own in order to bring in more guests than he would be allowed alone. There was a $2.00 fee per guest per day on the weekdays, except that between July 2 and August 22 Tuesdays and Wednesdays were free guest days. Guests were required to be accompanied by a member and the member bringing the guest was responsible for him.

      . It should be sufficient to note that implicit in the Supreme Court’s statement in Tillman, 410 U.S. at 440, 93 S.Ct. at 1095 (footnote omitted), that “[o]n remand the District Court will develop any necessary facts concerning the ■ adoption of the guest policy and will evaluate the claims of the parties free of the misconception that Whea-ton-Haven is exempt from §§ 1981, 1982 and 2000a,” is an indication that a discriminatory guest policy can be a deprivation of rights protected by those sections.

        . On the question of standing, it is enough to say that the plaintiffs who are present members have standing as did the Tillmans on behalf of their guest, Mrs. Rosner, 410 U.S. at 439, 93 S.Ct. 1090 or as did Sullivan “as an effective adversary” on behalf of his tenant, Freeman, in Sullivan, 396 U.S. at 237, 90 S.Ct. 400, 24 L.Ed.2d 386. See also Barrows v. Jackson, 346 U.S. 249, 257-260, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953); Walker v. Pointer, 304 F.Supp. 56 (N.D.Tex. 1969). Inasmuch as this is an action for an injunction, it is unnecessary to determine whether the Rev. Mr. Terry, Mrs. Hilton or Mr. OIzman also have standing.

      . It is not to be supposed that Congress in enacting a law to eliminate racial discrimination in public accommodations would have intended a narrow interpretation of “affecting commerce.” Rather we may view that intent as embracing a broad, liberal construction that would reach the constitutional limits of the commerce clause. Accord, Miller v. Amusement Enterprises, Inc., 394 F.2d 342, 351-353 (5th Cir. 1968) (en banc). A number of courts have gone quite far in finding operations affecting commerce under § 2000a. See, e. g., Scott v. Young, 421 F.2d 143 (4th Cir.), cert. denied, 398 U.S. 929, 90 S.Ct. 1820 (1970) (canoes and umbrellas were purchased out of state); United States v. Deetjen, 356 F.Supp. 688 (S.D.Fla.1973) (piano, juke box, color television and alcohol at bar all originated out of state) ; United States v. Vizena, 342 F.Supp. 553 (W.D.La. 1972) (amusement devices in bar originated out of state).

      . Affidavits by plaintiffs allege, e. g., that members were heard trying to figure out liow to define guest so as to preclude blacks; that the present president of the club and former executive board member said, “If the majority do not want blacks— than the minority should accept that”; and that the husband of the secretary of the club said, “Who the hell are you to bring niggers into my pool?” Other allegations are even more explicit.


source: Caselaw Access Project

author: STEPHENSON, Circuit Judge. HEANEY, Circuit Judge,

license: Public Domain

text:
    George W. NYBERG et al., Plaintiffs-Appellees, v. The CITY OF VIRGINIA et al., Defendants-Appellants.
    No. 73-1686.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 12, 1973.
    Decided Feb. 19, 1974.
    Rehearing and Rehearing En Banc Denied June 3, 1974.

      O. C. Adamson, II, Minneapolis, Minn., for defendants-appellants.
    Newton S. Friedman, Duluth, Minn., for plaintiffs-appellees.
    Before BRIGHT and STEPHENSON, Circuit Judges, and STUART, District Judge.

       W. C. STUART, District Judge, Southern District of Iowa, sitting by designation.

   STEPHENSON, Circuit Judge.

The single issue to be decided in this case is the constitutionality of a resolution adopted by' the"'municipal hospital at Virginia, Minnesota. The resolution prohibits the use of hospital facilities for the performing of any abortion which is not necessary to preserve the life of the mother.' Because we find that the resolution unduly restricts what the United States Supreme Court has held to be a fundamental right, we are compelled to hold the resolution unconstitutional. We therefore affirm.

The Virginia Municipal Hospital is a public hospital operated by the City of Virginia, Minnesota through a hospital Commission. The Commission adopted Resolution 2606 on February 5, 1973 and reaffirmed the resolution on February 19, 1973.

Appellants sought relief pursuant to 28 U.S.C. §§ 1331, 1343 and the Civil 'Right Acts, 42 Ü.S.C. §§ 1981, 1983, and 1985 claiming that the resolution was an encroachment of their constitutionally guaranteed rights.

The District Court dismissed the Ny-bergs, the Arpis, Melodie Wilson and James E. Williams, leaving the two physicians, Doctors Mock and Tietz with standing to bring the action. The City of Virginia was dismissed as a party defendant by the court.

Resolution No. 2606 was declared by the court to be null and void and further:

Defendants are permanently enjoined from attempting to enforce Resolution No. 2606 or any similar resolution or regulation and are required and mandated to make the Virginia Municipal Hospital facilities available to any duly licensed physician within a period of 30 days from date hereof for the performance of female abortions within and subject to the rules and principles stated in Roe v. Wade, 410 U.S. 153 [113] at p. 164 [93 S.Ct. 705, 35 L.Ed.2d 147] (1973).

The members of the hospital commission and the hospital administrator appeal.

Appellants initially contend that the appellee-doctors have no standing to bring this action. Standing, of course, entails

such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962).

We think that the Supreme Court in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973) has clearly paved the way for physicians to assert their constitutional rights.to practice medicine, which now includes the right to advise and perform abortions. Justice Blackmun writing for the Court in Roe v. Wade, supra at 163, of 410 U.S. at 732 of 93 S.Ct. stated:

[F]or the period of pregnancy prior to this “compelling” point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that', in his medical judgment, the patient’s pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.

The opinion states further at 165, 93 S. Ct. at 733:

[This] decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.

The impact of the court’s discussion cannot be fairly said to limit standing to sue in abortion cases to pregnant women. Neither can these opinions be read so narrowly as to accord standing only to a physician threatened with criminal prosecution. See Doe v. Bolton, supra at 188-189 of 410 U.S., 93 S.Ct. 739. Clearly the claims of medical doctors to “freely practice medicine according to the highest medical standards without arbitrary outside restraints” are inextricably bound up with the privacy rights of women who seek abortions. YWCA v. Kugler, 342 F.Supp. 1048, 1055 (D.N.J.1972). This is sufficient to present a justiciable controversy and confer standing on the physicians who bring this action. See Griswold v. Connecticut, 381 U.S. 479, 481, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Abele v. Markle, 452 F.2d 1121, 1125 (CA2 1971); stay granted, 409 U.S. 908, 93 S.Ct. 212, 34 L.Ed.2d 169 (1972), remanded for consideration in light of Roe and Doe, 410 U.S. 951, 93 S.Ct. 1417, 35 L.Ed.2d 683 (1973); Doe v. Turner, 361 F.Supp. 1288, 1289 (D.Iowa 1973) (3 judge court); Freeman & Bass, P. A. v. State of N. J. Com’n of Invest., 359 F.Supp. 1053, 1059 (D.N.J.1973); cf. O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). Furthermore, the practical effect of the stringent limitation on the use of hospital facilities for performing abortions is to arbitrarily bar the physicians from activities that directly affect their economic interests. Abele v. Markle, supra, 452 F.2d at 1125; see also, Data Processing Service v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968).

Turning to the merits, we find the focal point to be whether a public hospital can deny its facilities to doctors and their patients who seek abortions, using the same basic language that the Supreme Court has held to be unconstitutional in statutes providing criminal penalties.

The language of Roe v. Wade and Doe v. Bolton expressed the plain view that the abortion decision and its implementation is a fundamental right of personal liberty embraced within the Due Process Clause of the Fourteenth Amendment and is thereby protected from undue infringement by the State. In other words, absent compelling circumstances of state interest, regulation of “certain fundamental rights,” including abortion, is unconstitutional. Roe v. Wade, supra at 155 of 410 U.S., 93 S.Ct. 705, 708 and citations.

The “compelling point” was set out in a tripart test by the Supreme Court in Roe v. Wade. The district court quoted the test and we quote it again here:

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment for the preservation of the life or health of the mother.

While the Roe and Doe decisions dealt with state statutes providing criminal penalties, those decisions cannot be read so narrowly. As the several noncriminal cases cited by the court in Roe v. Wade point out, the issue is the existence of certain fundamental rights. If any of the defined fundamental rights is found to be present the state must then show “compelling state interest” if it wishes to limit or regulate. Roe v. Wade, supra at 155-156, 93 S.Ct. 705 and citations; Roe v. Wade, supra at 211, 93 S.Ct. 705 (Mr. Justice Douglas concurring); Hathaway v. Worcester City Hospital, 475 F.2d 701, 705 (CA1 1973) & n. 2.

We find — as have several courts ' before us, including the district court in the instant case — that a plain reading of the Roe and Doe decisions can lead to only one conclusion: Where the state fails to take cognizance of the separate trimesters of pregnancy in its regulation of abortion procedures, the regulation is overbroad and invalid. Doe v. Bolton, supra at 195 of 410 U.S., 93 S.Ct. 739; Roe v. Wade, supra at 163 of 410 U.S., 93 S.Ct. 705; Roe v. Wade, supra at 218, 93 S.Ct. 705 (Mr. Justice Douglas concurring); Nyberg v. City of Virginia, supra at 939 of 361 F.Supp.; Doe v. Woodahl, 360 F.Supp. 20 (D.C.1973); Doe v. Israel, 482 F.2d 156, 159 (CA1 1973); cf. Hathaway v. Worcester City Hospital, supra at 706 of 475 F.2d.

Appellant frames the issue to be whether the state has an affirmative duty under Roe and Doe to provide abortion facilities. This record does not’ present a situation where the hospital would be required to establish new or different facilities and staff in order to perform the operations. For reasons set out below, we find that the district court in this case was correct in ordering the Virginia Municipal Hospital to make its existing facilities available for the performing of abortions.

The First Circuit Court of Appeals stated in Hathaway v. Worcester City Hospital:

But it seems clear, after Roe and Doe, that a fundamental interest is involved, requiring a compelling rationale to justify permitting some hospital surgical procedures and banning another involving no greater risk or demand on staff and facilities.
* * * * * *
[I] t is clear under Roe and Doe that a complete ban on a surgical procedure relating to the fundamental interest in the pregnancy decision is far too broad when other comparable surgical procedures are performed. 475 F.2d 701, 705-706.

The court concluded:

[0]nee the state has undertaken to provide general short-term hospital care, as here, it may not constitutionally draw the line at medically indistinguishable surgical procedures that impinge on fundamental rights. 475 F.2d 701, 706.

The trial court here, as did the First Circuit in Hathaway, felt required to hold that an outright ban on nonthera-peutic abortions (Hathaway dealt with a municipal hospital's ban on sterilization operations) was unconstitutional under the teachings of Doe and Roe. We agree.

The record in this case demonstrates no compelling circumstances which would mandate this hospital’s abortion restricting rules. Nothing on this record indicates that the performance of abortions will interfere with the normal hospital routine or require further staff and facilities. The ban on all abortions other than those to. save the mother’s life serves neither the hospital nor the state. Doe v. Bolton, supra at 198 of 410 U.S., 93 S.Ct. 739.

The trial court observed and we reiterate and adopt as our view, guided by the Supreme Court decisions in Roe and Doe: The administrators of the Virginia, Minnesota municipal hospital may not arbitrarily preclude abortions from the variety of services offered which require no greater expenditure of available facilities and skills. 361 F. Supp. 932, 938.

See also Doe v. Beilin Memorial Hospital, 479 F.2d 756, 759 (CA7 1973); Klein v. Nassau County Medical Center, D.C., 347 F.Supp. 496, 500 (1972), remanded for consideration in light of Doe and Roe, 412 U.S. 924, 93 S.Ct. 2747, 2748, 37 L.Ed.2d 151 (1973).

The abortion decision and its effectuation is left by the Court to the patient and her attending physician. In the second and third trimesters of pregnancy the state may regulate abortions so long as the regulation is fashioned to accommodate the conflicting rights of pregnant women and the interests of the state. The sweeping hospital resolution in question here cannot withstand the constitutional parameters framed by Doe and Roe. It would be a nonsequitur to say that the abortion decision and its effectuation is an election to be made by the physician and his patient without interference by the state and then allow the state, through its public hospitals, to effectively bar the physician from using state facilities to perform the operation.

Appellant contends that because the Supreme Court in Doe v. Bolton did not strike down a provision of the Georgia statute which left a hospital free to deny admission to patients seeking abortions we must reach that same result here. The reading of Doe and Roe together, as the court instructs that the opinions should be read, does not allow that result. The impact of Doe and Roe is to defined yet another fundamental right secured by the Constitution which may not be infringed under color of any state “statute, ordinance, regulation, custom or usage.” 42 U.S.C. § 1983. We are not dealing here with the denominational hospital or the religious or moral convictions of any individual. Instead, we deal with unnecessary restrictive rules imposed by a state facility upon a constitutionally protected choice.

For the reasons set out above, while we propose to fashion no specific procedures which must be followed nor to require any individual staff members to participate in abortion procedures, we do hold that the hospital facilities must be made available for abortion services, as they are for other medical procedures, to those physicians and their patients who have a right to and request such facilities.

Affirmed.

On Petition for Rehearing.

HEANEY, Circuit Judge,

joined by GIBSON, Circuit Judge (dissenting from denial of the petition for rehearing en banc.

We would grant the petition for rehearing en bane. Two questions deserve more thorough consideration: (1) Do staff physicians of a public hospital have standing to maintain an action against that hospital to require it to permit non-therapeutic abortions in the hospital; and (2) do Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), and Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), require that every public hospital make its facilities available for non-therapeutic abortions.

STANDING

The District Court gave the physicians standing on two grounds:

(1) They have a right to practice medicine according to the highest medical standards without arbitrary restraints — a right inextricably bound up with the private rights of a woman seeking an abortion.

(2) They cannot be arbitrarily deprived of an opportunity to perform abortions which may account for a portion of their livelihood.

This Court adopted the trial court’s reasoning. It held that the physicians had standing on both of the grounds set forth by the District Court. With respect to ground (1), this Court went further than other courts, in granting standing to physicians who failed to allege or prove "that“they had patients who desired to have abortions performed.

The Supreme Court stated in Roe that a childless married couple lacked standing because:

* " * their alleged injury rests on possible future contraceptive failure, possible future pregnancy, possible future unpreparedness for parenthood, and possible future impairment of health. * * *

Roe v. Wade, supra at 128.

Dr. Mock and Dr. Tietz appear to be in substantially the same position as the childless couple in Roe. Their injury, if any, appears to rest on their acquiring patients in the future who may wish to have abortions performed in the municipal hospital. We are reluctant to extend Roe and give standing to these physicians without a more thorough consideration of the implications of that extension.

With respect to ground (2), Dr. Mock simply alleged and proved that he was a practicing physician on the staff of the Virginia Municipal Hospital, and Dr. Tietz simply alleged and proved that he was a gynecologist on the staff of the Virginia Municipal Hospital. Neither physician alleged nor proved that his economic interest would be adversely affected by the hospital policy. The trial court recognized that fact in its findings when it stated that the hospital could not deprive the physicians of an opportunity to “perform abortions which may account for a portion of their livelihoods.” 361 F.Supp. 932, 936 (D. Minn.1973) (Emphasis added.). It, nonetheless, found that the potential economic injury was sufficient to give standing.

This Court, perhaps realizing the difficulty of granting standing on such a tenuous ground, found that the physicians’ economic interests were in fact directly affected. It stated:

* * * the practical effect of the stringent limitation on the use of hospital facilities for performing abortions is to arbitrarily bar the physicians from activities that directly affect their economic interests. * * *

George W. Nyberg et al. v. The City of Virginia et al., 495 F.2d 1342, p. 1344 (8th Cir. 1974).

We would have no quarrel with extending standing to physicians who allege or prove that their economic interests has been or will be directly affected. We do question the extension of standing to physicians who fail to allege or prove that their economic interests have been or will be directly affected. Cf., Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972).

MERITS

This Court appears to hold that all public hospitals with adequate facilities must permit qualified staff members to perform abortions in such hospitals. They seem to assume that Doe and Roe require this result. We find no such compulsion in those decisions and are reluctant to extend their holdings without more careful consideration.

Doe and Roe are primarily concerned with protecting the right of a pregnant woman to have an abortion. If that right can be reasonably protected without compelling every public clinic and hospital in the United States to perform the procedure, consideration should be given to doing so. An inquiry should perhaps be made into the question of whether the order is reasonably necessary to protect the constitutional rights of pregnant women. Central to such an inquiry would be the cost and availability of alternate facilities, the effect on-the staff and routine of the hospital being asked to perform the procedure, and whether public assistance is available to assist the person in having the abortion performed at another public or private facility willing to undertake the procedure.

In Minnesota, for example, many public and private clinics and hospitals perform abortions in accordance with the decisions in Doe and Roe. It may be, therefore, that the rights of those desiring abortions who live in the Virginia area are not significantly dampened by the policy of the municipal hospital in that community. We believe that a decent regard for the deep-seated convictions of those in the community who favor abortions, as well as those who oppose abortions, can be recognized by determining whether the rights of pregnant women desiring abortions can be reasonably protected without requiring the municipal hospital to perform abortions against its will. At least, the full Court should consider the alternative before a far-reaching precedent is established.

      . The text of Resolution No. 2606 is not a part of the record. The parties agree, however, that the thrust of the enactment is to proscribe the performance of abortions at the Virginia Municipal Hospital except when necessary to save the life of the mother.

      . The court’s memorandum in support of its • order is reported at 361 F.Supp. 932 (D. Minn.1973).

      . The record supports the trial court’s determination that there is state involvement here constituting “state action” for 42 U.S. C. § 1983 purposes. The parties do not contest the fact.

      . Roe v. Wade, supra at 163, 93 S.Ct. at 742.

      . Contrary to the view taken by appellant, Roe and Doe do not suggest and no hospital need provide facilities for an abortion merely upon a mother’s demand. Conversely, the court said:
      Roe v. AVade, ante, sets forth our conclusion that a pregnant woman does not have an absolute constitutional right to an abortion on her demand. Doe v. Bolton, supra at 189 of 410 U.S., at 746 of 93 S.Ct.

        See also Roe and Doe, supra at 208 (Mr. Chief Justice Burger concurring).

      . The Supreme Court had this to say regarding the Georgia statutes provisions :
      These provisions obviously are in the statute in order to afford appropriate protection to the individual and to the denominational hospital. Doe v. Bolton, supra, at 198, 93 S.Ct. at 750.

        See Doe v. Bellin Memorial Hosp., 479 F.2d 756 (CA7 1973).

      . In Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), the physicians alleged that they were regularly consulted by pregnant women desiring abortions. In Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), the physician involved had given birth control advice to married persons and was convicted for doing so. In Abele v. Markle, 452 F.2d 1121 (2nd Cir. 1971), the physicians alleged that they had pregnant patients who in their medical judgment should have abortions. In Young Women’s Christian Ass’n of Princeton, . N. J. v. Kugler, 342 F.Supp. 1048 (D.N.J. 1972) (3-judge court)',) the physicians alleged fKeWwere-forced — to"turn away patients interested in abortions. In Doe v. Turner, 361 F.Supp. 1288 (S.D.Iowa 1973) (3-judge cotirt), the physicians alleged that they had pregnant patients who wanted abortions.


author: STEPHENSON, Circuit Judge.

text:
    Parker H. WORD, M.D. and Reproductive Health Services, Inc., Plaintiffs-Appellants, v. John H. POELKER, Mayor of the City of St. Louis, Missouri, and Colonel Eugene J. Camp, Chief of Police, City of St. Louis, Missouri, Defendants-Appel-lees.
    No. 73-1739.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec 12, 1973.
    Decided Feb. 20, 1974.
    Rehearing and Rehearing En Banc Denied March 21, 1974.
    Frank Susman, Susman, Wilier & Rimmel, St. Louis, Mo., for plaintiffs-appellants.
    Eugene P. Freeman, Deputy City Counselor, St. Louis, Mo., for defendants-appellees.
    Before BRIGHT and STEPHENSON, Circuit Judges, and STUART, District Judge.

       W. O. Stuart, District Judge, Southern District of Iowa sitting by designation.

   STEPHENSON, Circuit Judge.

This appeal concerns a constitutional attack on St. Louis City Ordinance No. 56579. The ordinance defines, requires a city permit for, regulates, and restricts abortion clinics. The district court abstained. We reach the merits and hold the ordinance to be unconstitutional.

The ordinance in question which is set out in full as Appendix A of this opinion, attempts to regulate any public place wherein abortions are performed with the exception of public hospitals. Abortions as defined by the ordinance include “the termination of human pregnancy * * * except those found on advice of a licensed physician to be necessary to preserve the life of the mother.” The penalty for noncompliance constitutes a misdemeanor carrying a fine of from $250 to $500 or 90 days imprisonment or both. See Appendix A.

The plaintiff-appellants are Dr. Parker H. Word, M. D., a practicing St. Louis, Missouri physician and Reproductive Health Services, Incorporated, a non-profit medical service corporation existing under the laws of Missouri.

United States District Judge Regan invoked the doctrine of abstention and dismissed the case without prejudice urging that “plaintiffs should institute and prosecute in the state courts an appropriate proceeding respecting the validity of the ordinance on state as well as federal grounds.” Plaintiffs appeal.

On October 17, 1973 this court granted appellants’ motion for injunction pending appeal and expedited the appeal.

Abstention

It is now clear from the decisions in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973) that a sweeping regulation of the abortion decision and its implementation raises clear questions of constitutional dimension regarding a medical doctor’s right to practice. Doe v. Bolton, supra at 188, 93 S.Ct. 739; Roe v. Wade, supra at 165 of 410 U.S., 93 S.Ct. 705. See also Nyberg v. City of Virginia, 495 F.2d 1342 (CA8 1974) also decided today. Abstention would serve no valid purpose.

This is not one of those “special circumstances” where the federal courts need refrain from ruling on federal constitutional claims. Wisconsin v. Constantineau, 400 U.S. 433, 437-439, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971); Zwiclder v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L. Ed.2d 444 (1967); Hathaway v. Worcester City Hospital, 475 F.2d 701, 705 (CA1 1973). The issue in this ease relates to the facial constitutionality of the St. Louis city ordinance when viewed against the backdrop now available in the Roe and Doe decisions. That determination can be made on the record before us. We choose to make that determination. See, Wisconsin v. Constantineau, supra at 439 of 400 U.S., 91 S.Ct. 507; Baggett v. Bullitt, 377 U.S. 360, 375-379, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964).

The Merits

i [2, 3] A careful reading of the United States Supreme Court decisions in Roe v. Wade and Doe v. Bolton establishes the following broad bases for our decision in this case (and in Nyberg v. City of Virginia, 495 F.2d 1342, also decided today):

(1) The “fundamental” right of privacy includes the abortion decision. Roe v. Wade, supra 153-156 [of 410 U.S.], 93 S.Ct. 705.
(2) Even so, no woman has a right to an abortion “at whatever time, in whatever way, and for whatever reason she alone chooses;” there is no right to abortion on demand. Roe v. Wade, supra at 153, 93 S.Ct. at 727; Doe v. Bolton, supra at 189 of 410 U.S., 93 S.Ct. 739.
(3) The state interest in protecting the health of the pregnant woman and the separate interest of protecting potential human life become compelling at certain points in the pregnancy term (at the end of the first and second trimesters respectively) then and there affording the state the opportunity to reasonably regulate the abortion procedure. Roe v. Wade, supra 162-164 of 410 U.S., 93 S.Ct. 705; Doe v. Bolton, supra 194-195 of 410 U.S., 93 S.Ct. 739.
(4) The state regulation must be reasonably and legitimately related to the recognized state interests set out above. Roe v. Wade, supra 162-166 of 410 U.S., 93 S.Ct. 705; Doe v. Bolton, supra 194-195 of 410 U.S., 93 S.Ct. 739.
(5) Prior to the compelling points (during the first trimester of the pregnancy term) the abortion decision and its effectuation is “inherently, and primarily a medical decision, and basic responsibility for it must rest with the physician.” Roe v. Wade, supra at 166 of 410 U.S., 93 S.Ct. at 733. See also Doe v. Bolton, supra 192-200 of 410 U.S., 93 S.Ct. 739.

The city ordinance in question here reflects no recognition of the fundamental rights involved and the commensurate restrictions on state action. Neither are we cited to any persuasive data convincing us that the stringent regulatory measures in the act are necessary to protect either the state’s interest in maternal health or future life. No other medical procedures or surgical operations are cited to us where the city or state regulates at the peril of criminal sanctio’ns.

We hold that St. Louis city ordinance No. 56579 is, by reason of its failure to exclude the first trimester of pregnancy, an invalid and overbroad enactment infringing unreasonably upon fundamental rights. Doe and Roe, both supra; Nyberg v. City of Virginia, 495 F.2d 1342 (CA8 1974) also decided today. It is additionally invalid because its stringent requirements are not legitimately related to recognized objectives of the state to protect maternal health and potential human life.

Appellee argues that this result is not warranted since the ordinance here does not prohibit abortion but merely regulates the “persons, conditions and procedures under which abortions are to be performed.” While we agree with ap-pellee that the ordinance does not proscribe abortions, we do not agree that that fact, of itself, removes the ordinance from the constitutional realm of Roe and Doe. The Doe decision clearly struck down portions of the Georgia statute governing abortion procedures. Doe v. Bolton, supra 192-200 of 410 U. S., 93 S.Ct. 739. We learn from Doe that sweeping regulation of the abortion procedure without regard for the conflicting interests involved will not withstand constitutional scrutiny. Accord, Nyberg, supra and citations (at 1345 of 495 F.2d) also decided today.

Viewed another way, there is reason to strike down this ordinance. The ordinance seeks to protect interests that are already adequately protected by (1) the physician’s medical judgment and professional, ethical standards and (2) the city and state health regulations which are in effect and which have application to clinical procedures in general. The extra layer of regulation which this ordinance imposes becomes unreasonably burdensome of the patients’ and physicians’ rights.

The ordinance requires that any clinic seeking to perform abortions for a reason other than to preserve the mother’s life must obtain a permit. To obtain the permit the applicant must disclose, among other things, what he has done for the last five years; the names of all physicians who will use the facilities to perform abortions; names of all nurses; training and past experience of the applicant ; description of the facilities; fees to be charged; plat showing dimensions of the premises, and; working agreement with the hospital. We think that this myriad of requirements is unduly restrictive of a physician’s right to administer his judgment as to an operation that is now established to be, within the first trimester of pregnancy, safer than childbirth. We are referred to no other single surgical procedure where doctors are required to “prove up” their overall fitness as they are here. As the court states in Doe v. Bolton, supra at 199 of 410 U.S., at 751 of 93 S.Ct.: “If a physician is licensed by the State, he is recognized by the State as capable of exercising acceptable clinical judgment.” To single out physicians and their patients who seek abortions and subject them to this ordinance’s overview substantially limits the physician’s right to practice and the patient’s right to her doctor’s independent judgment. Doe v. Bolton, supra at 197, 93 S.Ct. 739.

The abortion clinic permit is subject to restrictions, among others, that the facilities should be kept clean; that the Health Commissioner shall inspect and certify that sanitation standards are up to par with those applicable to clinics in general, and; that the clinic shall comply with all laws and local ordinances relating to health, sanitation and safety. These restrictions accomplish nothing not already accomplished by the health regulations in force and to which the ordinance itself refers.

In short, viewing the ordinance as a whole, its requirements are not based upon differences that are reasonably related to the purposes of the act in which they are found. Morey v. Doud, 354 U.S. 457, 465, 77 S.Ct. 1344, 1 L.Ed.2d 1485 (1957); Doe v. Bolton, supra at 194 of 410 U.S., 93 S.Ct. 739. The restrictions of the instant regulation do not stand up as legitimate and reasonable for the protection of recognized state interests in maternal health and potential human life. The Supreme Court stated in Roe v. Wade: “The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient.” 410 U.S. 113, 149-150, 93 S.Ct. 705, 725 (emphasis supplied). The ordinance at issue here tenders a cumbersome procedural overview on abortion only. State interests are not served and private rights are usurped. Compare Cleveland Bd. of Education v. LaFleur, 414 U.S. 632, 94 S.Ct, 791, 39 L.Ed.2d 52 (1974).

Just as the procedural requirements of the Georgia statute in Doe v. Bolton the overview imposed by this ordinance cannot withstand constitutional examination. Because we cannot say that this extra layer of restriction placed upon abortion is legitimately related to the recognized objectives of state regulation and further, because the ordinance employs limitations that unduly penalize those patients who seek and those doctors who choose to perform abortions, we find it necessary to strike down ordinance No. 56579 in its entirety.

We find it unnecessary to grant in-junctive relief, for we assume city officials will give full credence to this decision that the ordinance in question is invalid.

Accordingly, we reverse and remand for entry of an order declaring the city ordinance unconstitutional.

Reversed and remanded.

APPENDIX A

Ordinance 56579

(Sub. B.B. No. 58 As Amended)

An ordinance requiring that all abortion clinics, as defined therein, obtain a permit from the Board of Public Service and providing that the applicant for such a permit must submit various information to the Board of Public Service and imposing on all permitted abortion clinics various restrictions, regulations and requirements as a condition of the permit and further providing for a procedure for revocation of permit and the renewal thereof, containing a severability clause and an emergency clause.

Be it ordained by the City of St. Louis, as follows:

Section One. Definition — As used in this Ordinance the term “abortion clinic” is hereby defined to mean any place open to members of the public where abortions are performed, regardless of whether abortions are performed for profit or not, but excepting duly licensed general hospitals.

As used in this Ordinance the term “abortion” shall mean the termination of human pregnancy with an intention other than to produce a live birth or to remove a dead fetus, except those found on advice of a licensed physician to be necessary to preserve the life of the mother.

Section Two. Permit Required — No person, either as owner, agent or manager shall operate, conduct, or maintain an abortion clinic without having first obtained a permit therefor from the Board of Public Service.

Section Three. Application Requirements — The application for said permit, which shall be filed with the Board of Public Service shall contain the following:

A. The full and correct name of the applicant, his business address, his current residence, and past residences for a period of five years and the length of time the applicant has been a resident of the State of Missouri. If the applicant is a firm, partnership or association, the full business address of such organization shall be given. If the applicant is a corporation, the full and correct name of such corporation and the name of the state under the laws of which it is incorporated shall be stated in the application. If the applicant is a corporation, the names and address of the current board of directors and the names and resident addresses of all current officers.

B. The names and business and residence addresses of any physician who shall render medical service or treatment at the premises of the applicant along with a written statement from each member of the medical staff, the resident physician or surgeon, superintendent, and matron, certifying that he or she will serve on the staff of the said institution as stated by the applicant for such permit. If during the permit period any other physicians shall desire to render medical services at the premises of the applicant, the information required in the original application shall be properly submitted to the Director of Health and .Hospitals in the form of an addendum to the application and shall be submitted prior to any medical services being rendered by said physician.

C. The names of all nurses or other personnel, employed by the applicant, who shall be providing direct medical care, immediately prior, during or after, to persons upon whom an abortion has been performed. The applicant shall during the permit period submit similar information regarding any such new employees, prior to their employment.

D. The application shall state the training and past experience of the applicant, pertinent to the application. If the applicant is a corporation, a like description of the training and past experience of its officers shall be stated. Also, the same information should be supplied regarding those physicians who will be performing abortions in the clinic in respect to their training and relevant past experience.

E. The applicant, if an individual, or if a corporation, then its officers shall state their previous occupations or employment for a period of five years prior to making the application.

F. A description of medical facilities and major equipment which shall be available and used at the premises of the clinic.

G. The applicant shall submit a schedule of all fees to be charged for all services which are rendered in respect to performing an abortion and shall post, upon receiving a permit, a copy of such fee schedule on the premises.

H. The applicant shall provide a sketch, plat or drawing of the premises showing the dimensions thereon with rooms and areas appropriately labeled.

I. The applicant shall submit a copy of a working agreement with a duly licensed general hospital to provide for transfer of patients for emergency treatment whenever necessary. Plans for the transportation of such patients to such hospital at a travel time of not less than five (5) minutes shall be arranged so that treatment can begin in ten (10) minutes.

J. The applicant shall make an oath before a notary public, affirming the truth of statements made in the application or if the applicant is a corporation, the oath of affirmation shall be made by the president and the secretary of the corporation.

Section Four. As a part of the medical record abortion clinic shall require, before an abortion may be performed, a statement by a licensed physician stating the name, age and address of the person, the dates on which he examined her and his best medical judgment as to the date of conception of the fetus.

Section Five. No abortion clinic shall perform an abortion upon any female person under the age of twenty-one years of age, unless the written consent to said abortion shall be obtained from either the husband, one of the natural parents or legal guardian of said female person.

Section Six. The issuance of the permit to an abortion clinic described herein, and its continuance shall be subject to the following restrictions, conditions and requirements to-wit:

A. No abortion clinic shall be permitted on any parcel of real property which is located in any of the following residential zoning districts to-wit: “A” single family; “B” Two Family; “C” Multiple Family.

B. No abortion clinic shall be granted a permit unless a certificate of occupancy shall first be obtained from the Building Commissioner.

C. Every abortion clinic shall keep records on its premises consisting of all the certifications described in and required by Section Four of this Ordinance. All written consents to abortions described in and required by Section Five of this Ordinance.

D. The Director of Health and Hospitals or his designated representatives shall be allowed by any abortion clinic to enter at reasonable hours to examine any records required to be kept by this Ordinance and for the further purpose of determining whether all of the provisions of this Ordinance are being complied with.

E. No permit shall be issued until and unless the applicant shall first obtain a policy of insurance, from a company authorized to do business in the State of Missouri, which provides insurance coverage against claims against the abortion clinic for bodily injury or wrongful death, with limits of said coverage to be in the amount of f100,000.00 or more. The insurance policy required hereunder shall contain a provision for a continuing liability thereunder to the full amount thereof, notwithstanding any recovery thereon, that the liability of the insurer shall not be affected by the insolvency or the bankruptcy of the insured. Every insurance policy required hereunder shall extend for the period to be covered by the permit applied for and the insurer shall be obliged to give written notice to the Director of Health and Hospitals and to the insured before any cancellation or termination thereof earlier than its expiration date and the cancellation or other termination of any such policy shall automatically revoke and terminate the permit hereunder until another policy of insurance complying with the terms hereof shall have been obtained.

F. The permit issued in accordance with this Ordinance shall be conspicuously displayed in the place of business of the permittee and also a copy of this Ordinance shall be posted conspicuously on the said premises.

G. No abortions may be performed under any permit issued hereunder unless it shall be performed at the permanent address listed on the application. Any additional premises or address at which abortions are to be performed requires a separate and distinct permit.

H. Prior to the issuance of a permit, the Board of Public Service shall request that the Health Commissioner inspect the facilities of the abortion clinic and submit a report to said board whether such clinic meets the standards of cleanliness and sanitation required of health clinics in the City of St. Louis and those requirements applicable to clinics under Ordinance No. , and lawful regulations of the director of Health and Hospitals provided in paragraph (L) below.

I. Closing hours. — Hours of operation shall be based upon the working agreement between affiliated licensed hospital and abortion clinic.

J. All abortion clinics shall be kept in a clean, healthful and sanitary condition. Tightly covered metal containers shall be provided in quantities adequate to permit disposal of all waste and litter. All waste organic tissue shall be disposed of by incineration.

K. The clinic shall comply with all laws and local ordinances relating to health, sanitation and safety.

L. The Director of Health and Hospitals is hereby authorized and directed to promulgate rules and regulations, after public notice, governing standards to be complied with by abortion clinics, for the health and safety of the persons upon whom abortions are to be performed. In determining such rules and regulations, the Director shall take into account recommendations which may have been adopted by the American Medical Association or any other recognized Medical Association relating to the operation, facilities and equipment of abortion clinics. Before any permit hereunder, shall be issued the Director of Health and Hospitals shall certify that the applicant has complied with his rules and regulations so promulgated.

M. Abortion clinics shall keep in attendance during all regular business hours a physician licensed to practice medicine and surgery in the State of Missouri and who is actively engaged in the practice of medicine and surgery.

Section Seven. The Board of Public Service within a reasonable time after receipt of an application which complies with the provisions of Section Three of this Ordinance, shall cause such an investigation by the Director of Health and Hospitals or his appointee as is necessary to determine if the conditions and requirements of this Ordinance have been complied with. If the requirements have been complied with, the Board of Public Service shall issue a permit válid for a period of one year from date of issuance.

Section Eight. Renewal — The renewal of any permit hereunder shall require conformance with all of the requirements of this ordinance as upon original application.

Section Nine. Severability Clause — It is hereby declared to be the intention of the Board of Aldermen that the sections, paragraphs, sentences, clauses and phrases of this Ordinance are severable, and if any phrase, clause, sentence, paragraph or section of this Ordinance shall be declared invalid or unconstitutional by the valid judgment or decree of any court of competent jurisdiction, such invalidity or unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this Ordinance, since the same would have been enacted by the Board of Aldermen without the incorporation in the Ordinance of any such invalid or unconstitutional phrase, clause, sentence, paragraph or section.

Section Ten. Transfer prohibited'— No permit granted hereunder shall be transferable.

Section Eleven. False statement prohibited — No person shall make, in respect to any written statement or certification required by this Ordinance, a knowingly false statement.

Section Twelve. No person shall assist in, procure or perform an abortion operation on the premises of an abortion clinic, as defined herein, which is not in possession of a duly issued permit.

Section Thirteen. Any abortion clinic which is in operation at the time this Ordinance becomes effective shall be required to comply with the provisions of this Ordinance no later than sixty (60) days following the effective date thereof.

Section Fourteen. Revocation — The Board of Public Service shall revoke any permit issued under this Ordinance for any willful violation by a permittee of any of the provisions, conditions, restrictions and requirements contained herein, provided such permit shall be revoked only after the permittee shall have been notified in writing at his place of business of the violations complained of and shall be afforded an opportunity to be heard in answer to any alleged violation. The notice shall fix a time and place at which the Board of Public Service shall hear and determine the alleged violations. The service of such notice shall not be less than three days prior to the time fixed therein for a hearing.

Section Fifteen. Penalty — Any person, firm or corporation which shall violate any provisions of this Ordinance shall be deemed guilty of a misdemeanor and upon conviction thereof shall be .fined not less than Two Hundred and Fifty Dollars ($250.00) nor more than Five Hundred Dollars ($500.00) or by imprisonment for not more than ninety (90) days or by both such fine and imprisonment.

Section Sixteen. Emergency Clause —This Ordinance is hereby declared to be necessary for the immediate preservation of the public peace, health and safety of the citizens of this City and as such is an emergency ordinance which shall take immediate effect upon its approval by the Mayor.

Approved: July 26, 1973.

      . The court instructs that the two opinions should be read together. Roe v. Wade, supra at 165 of 410 U.S., 93 S.Ct. 705.

      . We note that, assuming a physician were to determine that the abortion were necessary to preserve the mother’s life, he could apparently perforin "the operation in his office without the “abortion clinic” permit.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jesus Escalante ROMERO and Librado Chacon, Defendants-Appellants.
    No. 73-2346
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 14, 1974.

      Victor Arditti, El Paso, Tex. (Court-appointed), for defendants-appellants.
    William S. Sessions, U. S. Atty., Wayne F. Speck, Asst. U. S. Atty., San Antonio, Tex., Edward S. Marquez, Asst, U. S. Atty., El Paso, Tex., for plaintiff-appellee,
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

      Rule 18, 5 Cir.; Isbell Enterprisse, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Jesus Escalante Romero and Librado Chacon here appeal from their convic.tion on a three-count felony indictment for the unlawful and knowing possession of a cheek stolen from the mail, forgery of the endorsement of a payee for the purpose of obtaining money from the United States, and utterance and publication of a forged check with intent to defraud the United States. In separate briefs filed by their attorney and by Chacon pro se, the appellants contend that admissions made by them were received in evidence in violation of Miranda v. Arizona, 1966, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694, that the evidence is insufficient to sustain the convictions, and that the infirmities in the indictment in which they were charged compel reversal. None of these contentions is meritorious. We affirm.

On May 1, 1972, Romero and the Government’s chief witness, Reynaldo Sanchez, were riding together in Sanchez’s automobile in El Paso, Texas, when they saw Chacon standing on a street corner and stopped to talk with him. Chacon had two checks with him which he asked Sanchez to help him cash. Upon examining the checks, Romero suggested Leo’s Grocery Store as a possible place to cash them. They drove to the store. Chacon waited in the car while Sanchez and Romero went into the store, bought some groceries, and attempted to cash a check drawn on the United States and showing one Dulces Mendoza as the payee. Since Sanchez had no identification, Romero-told Leon Turk, the owner of the store, that Sanchez was his cousin from California. Turk agreed to cash the check if Romero would co-sign it, which he did, and the proceeds were divided among Romero, Chacon, and Sanchez.

The three men were arrested and advised of their Miranda rights. Romero signed a “waiver of rights form” and admitted that he knew that the check was stolen. Sanchez pleaded guilty to a single count and testified against Romero and Chacon at their trial. Chacon also signed a waiver form, but denied ever having seen the stolen check. He was unable to explain, however, the presence of his fingerprint on the check. Romero and Chacon were tried by jury upon their pleas of not guilty, and were convicted on all three counts of the indictment. Romero was sentenced to five years imprisonment on Count I, and consecutive five year terms of probation on Counts II and III. Chacon received consecutive five year prison terms on Counts I and II, and a five year probationary term on Count III, to run consecutive to the sentences imposed on the first two counts.

The appellants allege that the evidence was insufficient to justify the jury finding of guilty, and that Romero was not sufficiently advised of his right to remain silent to permit waiver of this right under Miranda. We find, however, ample evidence in the record to support the jury’s conclusion that both defendants were guilty. Moreover, there is no merit to the contention that an agent’s warning that any statement made by Romero could be used “for or against” him invalidated Romero’s waiver of his rights. The waiver of rights form signed by the defendants fully informed them of their right to silence and of their other Miranda rights. Finally, there was no ■ testimony that the agent’s admonition that Romero’s statements could be used “for or against” him prompted Romero to waive his rights or to make any incriminating statement.

The objections to the indictment, which is reproduced in the margin, are somewhat more complex. The defendants contend that Count I is defective because it fails to charge that the offense was committed “with intent”. They argue that Count II is defective because of the absence of terms describing elements of the offense such as “knowledge”, “criminal intent”, and “intent to defraud the United States”. Central to the resolution of these contentions is our decision in Walker v. United States, 5 Cir. 1965, 342 F.2d 22, cert. denied, 382 U.S. 859, 86 S.Ct. 117, 15 L.Ed.2d 97, in which we reversed convictions under the statutes involved in this controversy.

Contrary to the appellants’ assertions, in Walker we did not hold that the word “intent” had to appear in a count which, like Count I here, charges a violation of Title 18, United States Code, Section 1708. Rather, Walker teaches that the trial judge must instruct the jury on the essential element of intent, as the judge properly did here. Nor should Walker be construed to require that the precise phrase “[with] intent to defraud the United States” appear in counts alleging a violation of Title 18, United States Code, Section 495, the statute cited in Counts II and III here. We do not retreat from our Walker holding that “the essential elements of a crime cannot be implied in an indictment”. We still “do not think that a defendant should be called upon to speculate or conjecture concerning an essential element of each offense charged . . . .” 342 F.2d at 26-27. But no process of implication, conjecture, or speculation is necessary here to understand the allegation and all of the elements of the offense alleged. Count II charged that the defendants “falsely forged the endorsement of the payee on the back of [a] U. S. Treasurer check in the amount of $123.37, for the purpose of obtaining from the United States said sum of money . . .” (emphasis added). This language embraces an intent to defraud the United States. In Walker, the indictment was unclear, if not misleading, as to the object of the fraudulent activity. Count II of the indictment here was clear and complete, and permits of no misapprehension as to the elements of the offense charged. It is this, not the use of some talismanic phrase, that Walker requires.

“To constitute the crime charged in the indictment there must be joint operation of two essential elements, the act committed and intent. Before the Defendant may be found guilty the prosecution must establish beyond a reasonable doubt under the statutes that he intentionally committed the act, the crime charged in this case. The crimes that are charged in this case are serious crimes which require proof of specific intent before the Defendant can be convicted. Specific intent, as that term means the Government must prove the Defendant knowingly did an act which the law forbids, purposely, intending to violate the law. Now such an intent may be determined from all the facts and circumstances surrounding the case.

Next the appellants argue that to charge both of them and Sanchez with “possessing”, “forging”, and “uttering” a single check was improper, since all three could not possibly have committed the alleged acts simultaneously. The appellants urge, therefore, that they should have been charged only as “aiders and abettors” or co-conspirators. We cannot agree. Possession may be individual or joint, actual or constructive, and it is not necessary that a defendant individually be in physical possession of an item for him to be charged with possession of it. See United States v. Abigando, 5 Cir. 1971, 439 F.2d 827, 834; Barnes v. United States, 5 Cir. 1965, 341 F.2d 189, 192 n. 5. Moreover, an aider and abettor may be charged and sentenced as a principal. See United States v. Trollinger, 5 Cir. 1969, 415 F.2d 527, 528, n. 3.

Finally, the appellants insist that the failure of Count III to describe the forged check made that count so vague and indefinite that it failed to charge an offense against the United States. Since a photocopy of the check allegedly forged, possessed, and uttered by the appellants was incorporated in the indictment immediately above Count III, the identity of the check referred to in Count IÍI was not in doubt. Any error in failing to describe it in detail was harmless.

For the reasons stated above, the verdicts and convictions appealed from are

Affirmed.

“An act or failure to act is knowingly done if done voluntarily and intentionally and not because of mistake or accident or other innocent reason.”

      . THE GRAND JURY CHARGES:
      FIRST COUNT (18 U.S.C. § 1708)
      On or about the 1st day of May, 1972, in the Western District of Texas, JESUS ES-CALANTE ROMERO, REYNALDO SANCHEZ, and LIBRADO CHACON unlawfully had in their possession a check, number 50,262,294, dated May 1, 1972, drawn on the Treasurer of the United States, payable to the order of Dulces N. Mendoza, 8521 Ala-meda, El Paso, Texas, in the amount of $123.37, which had been stolen from the mail, well knowing said check had been stolen.
      SECOND COUNT (18 U.S.C. § 495)
      That on or about May tl, 1972, in the Western District of Texas, JESUS ESCA-LANTE ROMERO, REYNALDO SANCHEZ, and LIBRADO CHACON, falsely forged the endorsement of the payee on the back of U.S. Treasurer Check in the amount of $123.37, for the purpose of obtaining from the United States said sum of money, copy of which said check with the forged endorsement thereon is attached hereto and made a part hereof.
      THIRD COUNT (18 U.S.C. § 495)
      That on or about May 1, 1972, in the Western District of Texas, JESUS ESCA-LANTE ROMERO, REYNALDO SANCHEZ, and LIBRADO CHACON, with intent to defraud the United States of America, uttered and published as true the U.S. Treasurer Check described in the preceding count of this indictment to which reference is here made for all purposes, then well knowing the endorsement on said check to have been falsely made and forged.
      A True Bill.

      . The Judge instructed :


author: ALMOND, Senior Judge.

text:
    Application of SHAREHOLDERS DATA CORPORATION.
    Patent Appeal No. 9242.
    United States Court of Customs and Patent Appeals.
    May 16, 1974.
    Daniel P. Chernoff, Portland, Or., atty. of record, for appellant.
    Joseph F. Nakamura, Washington, D. C., for the Commissioner of Patents. Jack E. Armore, Washington, D. C., of counsel.
    Before RICH, BALDWIN, LANE, MILLER, Judges, and ALMOND, Senior Judge.
   ALMOND, Senior Judge.

This is an appeal from the decision of the Trademark Trial and Appeal Board affirming the examiner’s refusal to grant appellant’s application to register the mark “PERSONALYST” as a trademark for “periodic, computer-prepared reports on the valuations of subscribers’ securities portfolios” on the ground that -the reports are not goods in trade but “are the way in which the service is rendered and would be of interest only to the particular subscriber whose portfolio of securities is reported on.” The parties have submitted the case on the record and briefs.

Appellant is already the owner of a registration of “PERSONALYST” as a service mark for “financial reporting services, namely, providing subscribers with periodic computer-prepared reports on the valuation of their individual securities portfolios.”

The record reveals that the reporting services here involved are made available to the customer as a computer print-out report evaluating his portfolio. The report contains information reflecting the high and low prices of his securities as well as dividend rates, current yields and price earning ratios and lists the performance of leading market indicators for various periods of time. The report is not directed to investors in general, but to the particular subscriber whose portfolio is being analyzed. It is not sold separately and has no independent value apart from the services, which differentiates this case from In re First-america Corp., 127 USPQ 94 (TTAB 1960); In re American Savings and Accounting Supply, Inc., 172 USPQ 406 (TTAB 1972), and Ex Parte Greyvan Lines, Inc., 99 USPQ 343 (Com. of Pat. 1953).

The issue presented for resolution, as aptly stated by the solicitor, is “whether appellant’s reports to its subscribers are ‘goods’ within the contemplation of the Trademark Act or whether the reports are in fact the services or the sine qua non manifestations of the financial reporting services offered by appellant.” We think the record amply supports the finding of the board that:

* * * applicant is engaged not in the sale of reports but solely in the furnishing of financial reporting services to its subscribers, as it likewise is that the reports submitted to its subscribers are merely incidental to and the ultimate result of its services. Such being the case, we are in full agreement with the Examiner that applicant’s reports do not constitute goods in trade.

In our view, appellant’s reports are a far cry from constituting goods in trade but are simply the conduit through which it renders services limited to individual subscribers-. The reports are the essence or gist of appellant’s services as they are unique for each subscriber. They are not goods or commodities in trade. In re Compute-Her-Look, Inc., 176 USPQ 445 (TTAB 1972). See also Ex Parte Bank of America National Trust and Savings Association, 118 USPQ 165 (Com. of Pat. 1958).

We observe that neither the examiner nor the board specified the statutory basis for refusing registration in the instant ease except to conclude that the reports are not “goods” within the meaning of the Act. It is obvious, however, that since the present application was refused on the ground that appellant’s reports are not “goods in trade” but in fact constitute a service, the decision below was manifestly predicated on sections 2 and 45 of the Trademark Act of 1946 (15 U.S.C. §§ 1052 and 1127). Although the Act does not define “goods,” the definition of a “trademark” in section 45 declares that it is used “to identify goods” and section 2 refers to “goods in commerce.” Both of these sections carry the necessary implication that a prerequisite to obtaining a trademark is that the subject matter to which it is applied must be goods. Presumptively at least, Congress, when it enacted the Trademark Act of 1946, was aware of Supreme Court decisions indicating that a trademark is applicable to a “vendible commodity.” See Hearings on H.R. 9041 before House Subcomm. on Trade-Marks of House Comm. on Patents, 75th Cong., 3d Sess., p. 126 (1938); Elgin National Watch Co. v. Illinois Watch Case Co., 179 U.S. 665, 673, 21 S.Ct. 270, 45 L.Ed. 365 (1901), and American Steel Foundries v. Robertson, Commissioner, 269 U.S. 372, 380, 46 S.Ct. 160, 70 L.Ed. 317 (1926).

Upon thorough assessment of appellant’s briefs and the instant record, we are not persuaded of reversible error in the decision below. Accordingly, the decision is affirmed.

Affirmed.

LANE, J., dissents.

      . Abstracted at 178 USPQ 629 (1973).

      . Serial No. 412,200 filed January 10, 1972.

      . Reg. No. 950,109.