Van Lear v. Eisele

• Decision Date: 29 December 1903
• Citation: 126 F. 823
• Parties: VAN LEAR v. EISELE.
• Court: U.S. District Court — Eastern District of Arkansas

126 F. 823

VAN LEAR v. EISELE.

United States Circuit Court, E.D. Arkansas, Western Division.

December 29, 1903

R. G Davies, for complainant.

W. G Whipple, U.S. Atty., and Reid Gantt, for defendant.

TRIEBER District Judge.

This is an application for a temporary injunction, submitted to the court upon the bill, answer, demurrer, and affidavits. The material facts, as they appear from the pleadings and the affidavits, are as follows:

The complainant is a physician, duly licensed under the laws of the state of Arkansas to practice his profession, residing in the city of Hot Springs; and the defendant is the superintendent of the Hot Springs Reservation, under appointment of the Secretary of the Interior. The complainant has been residing there and practicing his profession, under license from the state of Arkansas, for a number of years and still is authorized, under that license, to practice his profession. That, as such physician, he has been successful and established quite a profitable business. That most of the business of the complainant, and in fact of all physicians practicing in the city of Hot Springs, comes from patients living abroad, but coming to Hot Springs for the purpose of getting the benefit of the hot waters, which are said to possess great medicinal and curative powers. That principal object of patients coming there is for the purpose of using these waters, under prescription from their physicians. That the hot water, which belongs to the government, is piped from the springs and reservoirs erected by the government to the various bathing establishments, and visitors can only take these baths at these various establishments. The owners of these bathhouses obtain the water by contract from the government. On the 5th day of October, 1903, the defendant, who is the superintendent of the reservation, directed the owners of all the bathhouses that they must not permit any person to take baths in their respective establishments who is under treatment of a physician, unless such physician is first registered at the office of the superintendent of the reservation as one qualified to prescribe the waters from the hot springs.

That, in order to obtain such registration, a physician must bring a certificate from a board of physicians at Hot Springs, which board is designated by the Secretary of the Interior, that he possesses proper professional qualifications and character; and that is in addition to the license and certificate granted him under the laws of the state of Arkansas, authorizing him to practice his profession.

The complainant, having been refused such a certificate from the board of physicians, finds himself practically stopped in the practice of his profession, as all patients under his treatment are denied the use of any of the baths in the city of Hot Springs. The action of the superintendent is based upon certain rules and regulations promulgated by the Secretary of the Interior on the 6th day of June, 1903, which regulations are as follows:

'Rule 9. No bathhouse supplied with hot water from the Hot Springs Reservation shall permit any person to bathe therein who is under medical treatment, unless the applicant for baths presents satisfactory evidence that he or she is the patient of a physician duly registered at the office of the superintendent of the Hot Springs Reservation as one qualified to prescribe the waters from the hot springs.

'Rule 10. Physicians desiring to prescribe the waters of the hot springs, either internally or through the medium of the baths, must first be registered at the office of the superintendent of the reservation. Registration will only be accorded such physicians as are found, by a board of physicians designated by the Secretary of the Interior, to have proper professional qualifications and character.'

The damages alleged by the complainant to have been sustained by him by reason of these acts of the superintendent exceed $2,000.

The question to be determined on this preliminary hearing is whether the action of the superintendent of the reservation is a violation of the rights of the defendant, as guaranteed him by the Constitution and laws of the United States.

The contention of counsel for complainant is that the Secretary of the Interior does not possess the power to make such rules, for several reasons: First, that the effect of this rule is to deprive complainant and other physicians, situated as he is (i.e., duly licensed to practice his profession under the laws of the state of Arkansas), of a valuable right, without due process of law; second, that, if Congress possesses such power, it cannot delegate it to the Secretary of the Interior, but must exercise it directly; third, that Congress did not grant to the Secretary the power claimed and exercised by the promulgation of the rules hereinbefore set out.

1. In the Hot Springs Cases, 92 U.S. 698, 23 L.Ed. 690, it was finally determined that the lands and springs thereon are the absolute property of the government. This being the case, there can be no question but that the government, acting through Congress, has the right to control them, or refuse the use of them to the public, or, if it permits such use, to prescribe the terms and conditions under which this privilege may be enjoyed. In Camfield v. United States, 167 U.S. 518, 524, 17 Sup.Ct. 864, 866, 42 L.Ed. 260, Mr. Justice Brown, in delivering the unanimous opinion of the court, says:

'While the lands in question are all within the state of Colorado, the government has, with respect to its own lands, the rights of an ordinary proprietor to maintain its possession and to prosecute trespassers. It may deal with such lands precisely as a private individual may deal with his farming property. It may sell or withhold them from sale. It may grant them in aid of railways or other public enterprises. * * * The general government doubtless has a power over its own property analogous to the police power of the several states, and the extent to which it may go in the exercise of such power is measured by the exigencies of the particular case. If it be found to be necessary, for the protection of the public or of intending settlers, to forbid all inclosures of public lands, the government may do so, though the alternate sections of private lands are thereby rendered less available for pasturage. The inconvenience, or even damage, to the individual proprietor, does not authorize an act which is in its nature a purpresture of government lands. While we do not undertake to say that Congress has the unlimited power to legislate against nuisances within a state which it would have within a territory, we do not think the admission of a territory as a state deprives it of the power of legislating for the protection of the public lands, though it may thereby involve the exercise of what is ordinarily known as the 'police power,' so long as such power is directed solely to its own protection. A different rule would place the public domain of the United States completely at the mercy of state legislation.'

The privilege granted to complainant by his license from the state of Arkansas merely authorizes him to practice his profession with its jurisdiction, but to hold that it is a license to him to make use of the waters on the reservation owned by the government would deprive the government of its rights as an ordinary proprietor, which, in the language of the Supreme Court above quoted, 'it may deal with precisely as a private individual may deal with his farming property.'

Will any one contend, in the face of that decision, that, if these lands and hot-water springs were owned by a private individual, the owner could not control them as he could his other private property; and, if so, would not the demand of complainant be an attempt on his part to deprive the owner of his property without compensation or due process of law?

Nor can courts interfere with the exercise of the powers granted to Congress by the national Constitution upon the ground that its acts are unreasonable and oppressive. In Veazie Bank v. Fenno, 8 Wall. 533, 548, 19 L.Ed. 482, this proposition was ably urged upon the court by such eminent counsel as Reverdy Johnson and Caleb Cushing; but the court, in reply thereto, said:

'The first answer to this is that the judicial cannot prescribe to the legislative departments of the government limitations upon the exercise of its acknowledged powers. The power to tax may be exercised oppressively upon persons, but the responsibility of the Legislature is not to the courts, but to the people by whom its members are elected. So, if a particular tax bears heavily upon a corporation or a class of corporations, it cannot, for that reason only, be pronounced contrary to the Constitution.'

See, also, Spencer v. Merchant, 125 U.S. 355, 8 Sup.Ct. 921, 31 L.Ed. 763, where numerous cases on that point are collected.

2. That Congress can delegate the power to make rules and regulations concerning the public domain, or other matters, is now no longer an open question. The earliest decision on that point is United States v. Bailey, 9 Pet. 238, 9 L.Ed. 113 where it was held that the regulation of the Secretary of the Treasury, under authority of an act of Congress, permitting proofs of claims against the government to be verified before any justice of the peace of any of the states, was a valid delegation of authority, and a person guilty of swearing falsely to such a claim before a justice of the peace of the state of Kentucky was held to be properly convicted of perjury in a court of the United States. This decision has been approved and followed by that court in United States v. Eaton, 144 U.S. 677, 12 Sup.Ct. 764, 36 L.Ed. 591;...