G. C. SIMKINS, Jr., A. W. Blount, Jr., et al., Plaintiffs, and United States of America, Intervenor, Appellants, v. The MOSES H. CONE MEMORIAL HOSPITAL, a Corporation, Harold Bettis, Director of The Moses H. Cone Memorial Hospital, and Wesley Long Community Hospital, a Corporation, and A. O. Smith, Administrator of the Wesley Long Community Hospital, Appellees, 323 F.2d 959

SOBELOFF, Chief Judge. The threshold question in this appeal is whether the activities of the two defendants, Moses H. Cone Memorial Hospital and Wesley Long Community Hospital, of Greensboro, North Carolina, which participated in the Hill-Burton program, are sufficiently imbued with “state action” to bring them within the Fifth and Fourteenth Amendment prohibitions against racial discrimination.

Beyond this initial inquiry lies the question of the constitutionality of a portion of the Hill-Burton Act (Hospital Survey and Construction ^mt), 60 Stat. 1041 (1946), as amended, 42 U.S.C.A. § 2916(f), and a regulation pursuant thereto, 42 C.F.R. § 53.112, 21 Fed.Reg. 9841 (December 12, 1956). Because of the importance of these questions the court, on its own motion, has heard the appeal en banc. The plaintiffs are Negro physicians, dentists and patients suing on behalf of themselves and other Negro citizens similarly situated.

Their complaint seeks declaratory and injunctive relief against the defendant hospitals and their respective administrators and directors. The basis of their complaint is that the defendants have discriminated, and continue to discriminate, against them because of their race in violation of the Fifth and Fourteenth Amendments to the United States Constitution.

The plaintiffs seek an injunction restraining the defendants from continuing to deny Negro physicians and dentists the use of staff facilities on the ground of race; an injunction restraining the defendants from continuing to deny and abridge admission of patients on the basis of race, and refusing on that basis to permit patients to be treated by their own physicians and dentists at the defendant hospitals; and a judgment declaring unconstitutional 42 U.S.C.A. § 291e(

f) and 42 C.F.R. § 53.112, which authorize the construction of hospital facilities and the promotion of hospital services with funds of the United States on a “separate-but-equal” basis. Since this proceeding is one in which “the constitutionality of * * * [an.] Act of Congress affecting the public interest * * * [has been] drawn in question, “the United States, pursuant to 28 U.S.C.A. § 2403 and Rule 24(a), Fed. R.Civ.P., moved to intervene.

Its motion for intervention was granted and throughout the proceedings the Government, unusually enough, has joined the plaintiffs in this attack on the congressional Act and the regulation made pursuant thereto. The present appeal is from a final order of the District Court, entered December 17, 1962, granting the defendants’ Motion to Dismiss for lack of jurisdiction on the ground that no “state action” was proved and denying the motions by the plaintiffs and the United States for

summary judgment. The plaintiffs and the United States appealed. As the District Court concluded, there is no material issue of fact. Moreover, extensive and well-supported findings of fact were made by that court. We will not undertake to repeat these findings which are to be deemed incorporated in our opinion by reference. We set forth only such facts as are necessary for the development of the discussion. FACTUAL BACKGROUND Six of the plaintiffs are physicians and three are dentists, and all of them are duly licensed and practice their professions in Greensboro.

Before filing the complaint they sought staff privileges at the defendant hospitals, which were denied them because of racial exclusionary policies. Two of the plaintiffs are persons in need of medical treatment who ■desire to enter either of the defendant hospitals which, they contend, possess the most complete medical equipment and the best facilities available in the Greensboro area. They also desire to be treated by their personal physicians who are Negroes. The Long Hospital, however, completely excludes Negro patients and professionals.

The Cone Hospital, on the other hand, excludes all but a select few Negro patients, who are admitted on special conditions not applied to whites; and, when the complaint was filed, this hospital did not admit Negro doctors and dentists to staff privileges.

The claims of racial discrimination were, as the District Court found, “clearly established.” In fact the hospitals’ applications for federal grants for construction projects openly stated, as was permitted by statute, 42 U.S.C.A. § 291e(f), and regulation, 42 C.F.R. § 53.112, that “certain persons in the area will be denied admission to the proposed facilities as patients because of race, creed or color.” These applications were approved by the North Carolina Medical Care Commission, a state agency, and the Surgeon General of the United States under his statutory authorization.

Both Cone and Long are nonprofit hospitals owned and governed by boards of trustees, and under state law they are duly constituted charitable corporations. The Long Hospital is governed by a self-perpetuating board of twelve trustees. The Cone Hospital, however, is governed by fifteen trustees, five of whom are selected by various state agencies, and one is appointed by a “public agency” as the District Court assumed for the purpose of its decision. Neither hospital’s charter contains any explicit or implicit authorization or requirement for the exclusion of Negro professionals or patients.

By far the most significant governmental contact of these two hospitals is their participation in the federally assisted Hill-Burton hospital system. As a result of their involvement in the Hill-Burton hospital construction program both hospitals have received large amounts of public funds, paid by the United States to the State of North Carolina and in turn by North Carolina, through its Treasurer, to the hospitals.

They received these funds as part of a "state plan” for hospital construction, which allocates available resources for hospitals within the state and contemplates and authorizes the defendants to exclude Negroes. When this action was commenced, the United States had appropriated $1,269,-950.00 to the Cone Hospital and $1,948,-800.00 to the Long Hospital. Cone had already received these funds which amounted to about 15 % of the total construction expenses involved in its two projects.

Long had received most of the funds appropriated to it (over $1,500,-000.00 already paid) which constitute about 50% of the total cost of its three projects. These appropriations for the most part were after the Supreme Court’s landmark decisions in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) and 349 U.S, 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955). The Hill-Burton program requires that states wishing to participate must inventory existing facilities to determine hospital construction needs and to develop construction priorities under federal standards.

State agencies are designated to perform this function and to adopt state-wide plans to be submitted for the approval of the Surgeon General of the United States. The designated North Carolina agency is the North Carolina Medical Care Commission. The Act provides for grants of federal funds for construction of new or additional facilities for govemmentally owned hospitals and voluntary nonprofit hospitals. The allocation of federal funds among the states is determined by a mathematical formula based on population and per capita income. 42 U.S.C.A. § 291g.

The “federal share” of costs of particular projects within a state is governed by federally approved state plans. 42 U.S. C.A. § 291e(f). North Carolina’s current plan programs general hospital facilities based on a “federal share” of 55%. Through January 31, 1968, a total of 350 Hill-Burton projects was approved by the State of North Carolina. This involved 10,210 inpatient beds and 106 health units. The total cost of these projects was approximately $180,866,-000.00 and the “federal share” amounted to approximately $77,854,000.00. Of these projects 325 were already in operation.

They included 8496 inpatient beds and 100 health units. The total cost of these facilities was $139,650,000.00 and the “federal share” was $58,621,000.00. Participation in the Hill-Burton program subjects hospitals to an elaborate and intricate pattern of governmental regulations, both state and federal, of which the following categories are most significant for present purposes:

(1) The Act provides that if within 20 years after completion of a project a hospital is sold to anyone who is not qualified to file an application thereunder or is not approved by the state agency, or if the hospital ceases to be “nonprofit,” the United States can recover a proportionate share of its grant to the hospital. 42 U.S.C.A. § 291h(e). The state agency is required to give notice of any such changes of status. 42 C.F.R. § 53.130.

(2) On its face the Act indicates that participating institutions, correlative to their right to receive monetary assistance, are obligated to render hospital services pursuant to specified “minimum standards (to be fixed in the discretion of the State) for the maintenance and operation of hospitals which receive Federal aid * * 42 U.S.C.A. § 291f (a) (7). And no federal grants are to be allocated to any state which does not enact legislation requiring compliance with the minimum standards. 42 U.S. C.A. § 291f(d).

Within a year after the passage of the Hill-Burton Act, North Carolina, to meet its requirements, enacted a “Hospital Licensing Act” in 1947, N.C.Gen.Stat. § 131-126.1 et seq. (1958), authorizing the adoption of detailed regulations governing hospital maintenance and operation. The federal authorities prescribed and North Carolina adopted “Rules and Regulations for Hospital Li-censure.” These provide in detail for the management of hospitals under general headings such as administration, clinical services, auxiliary services, nursing service, and food service.

(3) The Act provides for federal decision as to the number of general hospital beds and other facilities required to provide “adequate service” in a state, for general methods of distribution in areas of a state, and for the general manner in which a state agency shall determine priorities of projects based on relative need. 42 U.S.C.A. § 291e(a), (b), (c), (d). State allowances in terms of number of beds per thousand population have been fixed by regulation, 42 C.F.R. § 53.11, as have the methods to be used by state agencies in distributing hospitals in a state. 42 C.F.R. §§ 53.12, 53.13.

In addition the “separate-but-equal” provisions stipulate that facilities for separate population groups shall not be programmed for construction “beyond the level of adequacy for such group.” 42 C.F.R. § 53.112. And federal standards governing the state agencies’ determination of the priority of projects are set out in 42 C.F.R. §§ 53.71 to 53.80. See also 42 C.F.R. § 53.127(

b) and 42 C.F.R. § 53.127(d) (6).

(4) A state, to participate in the Hill-Burton program, is required to submit for approval by the Surgeon General a state plan setting forth a “hospital construction program” which, among other things, “meets the requirements as to lack of discrimination on account of race, creed, or color, and for furnishing needed hospital services to persons unable to pay therefor, required by regulations prescribed under

section 291e(f). * * *” 42 U.S.C.A. § 291f (a) (4). Both state plans, 42 U.S.C.A. § 291f (a) (4) (D); 42 C.F.R. § 53.111, and project applications, 42 U.S.C.A. § 291h(a); 42 C.F.R. § 53.127(d) (4), are subject to this general nondiscrimination requirement. However, the Act, 42 U.S.C.A. § 291e(f), authorizes the Surgeon General to make a regulation to provide an exception to the general racial nondiscrimination rule by making “equitable provision” for separate hospitals for separate population groups.

Thus, by statute and regulation the states may meet the nondiscrimination requirement “in any area where separate hospital, diagnostic or treatment center, rehabilitation or nursing home facilities and services of like quality for each such population group in the area, and * * * such finding is subsequently approved by the Surgeon General.” 42 C.F.R. § 53.112.

Where a “separate-but-equal” plan is in operation, the individual applicant for aid need not give any assurance that it will not discriminate and, in fact, may expressly indicate on its application form, as did each of the defendant hospitals, that “certain persons in this area will be denied admission to the proposed facilities as patients because of race, creed, or color.” The arrangement to extend aid is formally concluded by a memorandum of agreement signed by representatives of the applicant, the state agency and the Surgeon General.

Where a state seeks to meet the nondiscrimination requirement by programming separate facilities for different population groups, it is required to submit to the Surgeon General a “Non-Discrimination Report” (Form PHS-8). The preparation of this report requires the state agency specifically to enumerate the number of hospital beds available for each racial group. According to the record, the North Carolina Medical Care Commission submitted such a “Non-Discrimination Report” on January 3, 1962. It lists the L.

Richardson Memorial Hospital as having 91 acceptable beds for “non-white” patients and none for “white”; Wesley Long Community Hospital as having none for “non-white” patients and 220 for “white”; and Moses H. Cone Hospital as having none for “non-white” and 482 for “white” patients. Significant duties are imposed on the Surgeon General with respect to the “Non-Discrimination Report.” 42 C.F.R. § 53.112 provides that a state agency’s findings must be approved by the Surgeon General.

Consequently, the Surgeon General has the duty of determining whether the state agency has properly applied the “separate-but-equal” formula, i. e., whether the state’s plan actually makes “equitable provision” for all population groups. The “Non-Discrimination Report” submitted by the North Carolina Medical Care Commission on January 3, 1962, was approved by the Surgeon General on January 22, 1962.

The point of present interest is not the equality or lack of equality in “separate-but-equal,” but the degree of participation by the national and state governments in the geographical proration of hospital facilities throughout the state.

THE LEGAL ISSUE Upon this factual foundation the District Court formulated the question for determination as follows: “[Wjhether the defendants have been shown to be so impressed with a public interest as to render them instrumentalities of government, and thus within the reach of the Fifth and Fourteenth Amendments to the Constitution of the United States.” After first examining separately each of the above and other points of governmental contact, the court concluded that none was sufficient to impress the hospitals with the necessary “public interest.” Then, considering the various factors together, the court agreed with the defendants that “zero [the quantum of each separate factor] multiplied by any number would still equal zero.” Having found no “state action” the court declined to pass upon the constitutionality of 42 U.S.C.A. § 291e(

f) and 42 C.F.R. § 53.112 since such a declaratory ruling was no longer necessary to the decision of the case and would therefore constitute a forbidden “advisory opinion.” Although the District Judge earnestly faced and sought to make a reasoned analysis of the problems presented, it is our conclusion that the case was wrongly decided.

In the first place we would formulate the initial question differently to avoid the erroneous view that for an otherwise private body to be subject to the antidiscrimination requirements of the Fifth and the Fourteenth Amendments it must actually be “render [ed an] instrumentality] of government * * In our view the initial question is, rather, whether the state or the federal government, or both, have become so involved in the conduct of these otherwise private bodies that their activities are also the activities of these governments and performed under their aegis without the private body necessarily becoming either their instrumentality or their agent in a strict sense.

As the Supreme Court recently said in Burton v. Wilmington Parking Authority, 365 U.S. 715, 721-722, 81 S.Ct. 856, 859-860, 6 L.Ed.2d 45 (1961), a case involving racial discrimination by a privately owned restaurant operating on government property: “The Civil Rights Cases, 109 U.S. 3 [3 S.Ct. 18, 27 L.Ed. 835] (1883), ‘embedded in our constitutional law’ the principle ‘that the action inhibited by the first

section [Equal Protection Clause] of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful.’ Chief Justice Vinson in Shelley v. Kraemer, 334 U.S. 1, 13 [68 S.Ct. 836, 842, 92 L.Ed. 1161] (1948).

It was language in the opinion in the Civil Rights Cases, supra, that phrased the broad test of state responsibility under the Fourteenth Amendment, predicating its consequence upon ‘State action of every kind * * * which denies * * * the equal protection of the laws.’ At p. 11 [of 109 U.S. at p. 21 of 3 S.Ct. 27 L.Ed. 835]. And only two Terms ago, some 75 years later, the same concept of state responsibility was interpreted as necessarily following upon ‘state participation through any arrangement, management, funds or property.’ Cooper v. Aaron, 358 U.S. 1, 4 [78 S.Ct. 1401, 1402-1403, 3 L.Ed.2d 5] (1958).

It is clear, as it always has been since the Civil Rights Cases, supra, that ‘Individual invasion of individual rights is not the subject-matter of the amendment,’ [109 U.S.] at p. 11 [3 S.Ct. at p. 21, 27 L.Ed. 835], and that private conduct abridging individual rights does no violence to the Equal Protection Clause unless to some significant extent the State in any of its manifestations has been found to have become involved in it.

Because the virtue of the right to equal protection of the laws could lie only in the breadth of its application, its constitutional assurance was reserved in terms whose imprecision was necessary if the right were to be enjoyed in the variety of individual-state relationships which the Amendment was designed to embrace.

For the same reason, to fashion and apply a precise formula for recognition of state responsibility under the Equal Protection Clause is an ‘impossible task’ which ‘This Court has never attempted.’ [Citation omitted.] Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.” (Emphasis added.) Weighing the circumstances we are of the opinion that this case is controlled by Burton, where the Court held that the “activities, obligations and responsibilities of the [Parking] Authority, the benefits mutually conferred, together with the obvious fact that the restaurant is operated as an integral part of a public building devoted to a public parking service, indicates that degree of state participation and involvement in discriminatory action which it was the design of the Fourteenth Amendment to condemn.” 365 U.S. at 724, 81 S.Ct. at 864, 6 L.Ed.2d 45.

Here the most significant contacts compel the conclusion that the necessary “degree of state [in the broad sense, including federal] participation and involvement” is present as a result of the participation by the defendants in the Hill-Burton program. The massive use of public funds and extensive state-federal sharing in the common plan are all relevant factors. We deal here with the appropriation of millions of dollars of public monies pursuant to comprehensive governmental plans. But we emphasize that this is not merely a controversy over a sum of money.

Viewed from the plaintiffs’ standpoint it is an effort by a group of citizens to escape the consequences of discrimination in a concern touching health and life itself. As the case affects the defendants it raises the question of whether they may escape constitutional responsibilities for the equal treatment of citizens, arising from participation in a joint federal and state program allocating aid to hospital facilities throughout the state.

Not every subvention by the federal or state government automatically involves the beneficiary in “state action,” and it is not necessary or appropriate in this case to undertake a precise delineation of the legal rule as it may operate in circumstances not now before the court. Prudence and established judicial practice counsel against such an attempt at needlessly broad adjudication. Our concern is with the Hill-Burton program, and examination of its functioning leads to the conclusion that we have state action here.

Just as the Court in the Parking Authority case attached major significance to “the obvious fact that the restaurant is operated as an integral part of a public building devoted to a public parking service,” 365 U.S. at 724, 81 S. Ct. at 864, 6 L.Ed.2d 45, we find it significant here that the defendant hospitals operate as integral parts of comprehensive joint or intermeshing state and federal plans or programs designed to effect a proper allocation of available medi-, cal and hospital resources for the best possible promotion and maintenance of public health.

Such involvement in discriminatory action “it was the design of the Fourteenth Amendment to condemn.” 365 U.S. at 724, 81 S.Ct. at 864, 6 L.Ed. 2d 45. Two additional theories presented by the plaintiffs and the Government are worthy of note. As the Government argued in its brief, the Hill-Burton Act itself and its legislative history reveal “emphasis on the creation of a State-wide system of hospitals for the provision of hospital service to all the people of the State [which] indicates that the Hill-Burton program was not limited to the granting of financial aid to individual hospitals.

It shows, rather, a congressional design to induce the States, upon joining the program, to undertake the supervision of the construction and maintenance of adequate hospital facilities throughout their territory. Upon joining the program a participating State in effect assumes, as a State function, the obligation of planning for adequate hospital care.

And it is, of course, clear that when a State function or responsibility is being exercised, it matters not for Fourteenth Amendment purposes that the * * * [institution actually chosen] would otherwise be private: the equal protection guarantee applies.” Moreover, the Government’s argument stresses the fact that the challenged discrimination has been affirmatively sanctioned by both the state and the federal government pursuant to federal law and regulation. 42 U.S.C.A. § 291e(f); 42 C.F.R. § 53.112.

It is settled that governmental sanction need not reach the level of compulsion to clothe what is otherwise private discrimination with “state action.” It remains to discuss the case of Eaton V. Board of Managers of James Walker Mem. Hospital, 261 F.2d 521 (4th Cir.), cert. denied, 359 U.S. 984, 79 S.Ct. 941, 3 L.Ed.2d 934 (1958). Not only the defendants but also the District Court relied on this as a precedent in apparent conflict with the present decision.

This court held, upon consideration of certain sums paid by the City of Wilmington and the County of New Hanover, North Carolina, that the defendant hospital was not so impressed with “state action” as to require injunction under the Fourteenth Amendment against its racially discriminatory practices. Initially we note that Eaton was decided before the Supreme Court’s decision in Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). In light of Burton doubt is cast upon Eaton’s continued value as a precedent.

And we hold that the District Court erred in its attempt to distinguish the Burton decision. The Supreme Court’s language and holding is not to be limited to cases involving lessees of public property. Also significant is the fact that the Eaton case did not involve any consideration of the Hill-Burton program, with its massive financial aid and comprehensive plans. Moreover, no argument was presented in Eaton as to possible fulfillment by a private body of a “state” function pursuant to an extensive state plan.

And finally, the Eaton case did not consider what effect overt state and federal approval would have on otherwise purely private discrimination. Having found the requisite “state action,” necessarily we must remand to the District Court with directions to grant the requested injunctive relief. We agree with the plaintiffs and the Government that adjudication of the statute’s constitutionality is not advisory merely and that the plaintiffs have standing to challenge the constitutionality of 42 U.S. C.A. § 291e(f)' and 42 C.F.R. § 53.112 which promote federally assisted and approved hospital facilities.

To make any relief effective it becomes necessary to pass upon the validity of the statute and the regulation, because they contain an affirmative sanction of the unconstitutional practice. These federal provisions undertaking^ to authorize segregation by state-connected institutions are unconstitutional. The rest of

section 291e(f), providing for hospital facilities without discrimination, however, remains in effect. The basic and overriding purpose of the Hill-Burton Act was to permit the states to develop programs of hospital construction that would provide adequate services “to all their people.” 42 U.S.C.A. § 291(a). It serves the dominant congressional purpose best to prune from the statutory provision only that language which adopted what is now known to be an unconstitutional means of accomplishing a constitutional end.

The general prohibition against discrimination stands; only the exception tolerating “separate-but-equal” fails. Accordingly, we declare invalid only that portion of 42 U.S.C.A. § 291e(

f) which reads: “ * * * but an exception shall be made in eases where separate hospital facilities are provided for separate population groups, if the plan makes equitable provision on the basis of need for facilities and services of like quality for each such group; * * Unconstitutional as well under the Due Process Clause of the Fifth Amendment and the Equal Protection Clause of the Fourteenth are the relevant regulations implementing this passage in the statute.

This court does not overlook the hospitals’ contention that they accepted government grants without warning that they would thereby subject themselves to restrictions on their racial policies. Indeed they are being required to do what the Government as'sured them they would not have to do. But in this regard the defendants, owners of publicly assisted facilities, can stand no better than the collective body of Southern voters who approved school bond issues before the Brown decision or the private enterpre-neur who outfitted his restaurant business in the Wilmington Parking Garage before the Burton decision.

The voters might not have approved some of the bond issues if they had known that the schools would be compelled to abandon their historic practice of separation of the races, and the 'restaurateur might have been unwilling to venture his capital in a business on the premises of the Wilmington Parking Authority if he had anticipated the imposition of a requirement for desegregated service.

What was said by the Supreme Court in Burton in regard to the leases there in question is pertinent here: “[W]hen a State leases public property in the manner and for the purpose shown to have been the case here, the proscriptions of the Fourteenth Amendment must be complied with by the lessee as certainly as though they were binding covenants written into the agreement itself.” (Emphasis added.) 365 U.S. at p. 726, 81 S.Ct. at p. 862, 6 L.Ed.2d 45. We accord full weight to the argument of the defendants, but it cannot prevail.

Not only does the Constitution stand in the way of the claimed immunity but there are powerful countervailing equities in favor of the plaintiffs. Racial discrimination by hospitals visits severe consequences upon Negro physicians and their patients. Giving recognition to its responsibilities for public health, the state elected not to build publicly owned hospitals, which concededly could not have avoided a legal requirement against discrimination.

Instead it adopted and the defendants participated in a plan for meeting those responsibilities by permitting its share of Hill-Burton funds to go to existing private institutions. The appropriation of such funds to the Cone and Long Hospitals effectively limits Hill-Burton funds available in the future to create non-segregated facilities in the Greensboro area. In these circumstances, the plaintiffs can have no effective remedy unless the constitutional discrimination complained of is forbidden.

The order of the District Court is reversed and the case is remanded for the entry of an order in conformity with the opinion of this court. Reversed and remanded. . 42 U.S.C.A. § 291e(

f) provides: “291e. General regulations Within six months after August 13, 1946 [the enactment of this title], the Surgeon General, with the approval of the Federal Hospital Council and the Secretary [of Health, Education, and Welfare], shall by general regulation prescribe— ***** “(

f) That the State plan shall provide for adequate hospital facilities for the people residing in a State, without discrimination on account of race, creed, or color, and shall provide for adequate hospital facilities for persons unable to pay therefor.

Such regulation may require that before approval of any application for a hospital or addition to a hospital is recommended by a State agency, assurance shall be received by the State from the applicant that (1) such hospital or addition to a hospital will be made available to all persons residing in the territorial area of the applicant,__ without discrimination on account of race, creed, or color, but an exception shall be i made in cases where separate hospital < facilities are provided for separate pop- j ulation groups, if the plan makes equitable provision on the basis of need for j facilities and services of like quality for.

I each such group; and (2) there will be made available in each such hospital or addition to a hospital a reasonable volume of hospital services to persons unable to pay therefor, but an exception shall be made if such a requirement is not feasible from a financial standpoint.” . 42 C.F.R. § 53.112 provides: “53.112 Nondiscrimination.

Before a construction application is recommended by a State agency for approval, the State agency shall obtain assurance from the applicant that the facilities to be built with aid under the Act will be made available without discrimination on account of race, creed, or color, to all persons residing in the area to be served by that facility. However, in any area where separate hospital, diagnostic or treatment center, rehabilitation or nursing home facilities, are provided for separate population groups, the State agency may waive the requirement of assurance from the construction applicant if (

a) it finds that the plan otherwise makes equitable provision on the basis of need for facilities and services of like quality for each such population group in the area, and (

b) such finding is subsequently approved by the Surgeon General. Facilities provided under the Federal Act will be considered as making equitable provision for separate population groups when the facilities to be built for the group less well provided for heretofore are equal to the proportion of such group in the total population of the area, except that the State plan shall not program facilities for a separate population group for construction beyond the level of adequacy for such group.” . Simkins v. Moses H. Cone Memorial Hospital, 211 F.Supp. 628 (M.D.N.C. 1962). . Id. 211 F.Supp. at 630-634. .

On the day following the order dismissing the case, Cone Hospital advised the plaintiffs, and publicly announced, that it would consider staff applications from Negroes. The policy with respect to Negro patients, however, was not changed. . CONE HOSPITAL Project No. and Year Approved Purpose Federal Funds Appropriated 5/8/62 Total Cost of Project Federal % of Cost NC-S6 (1954) General Hospital construction $ 462,000.00 $5,277,023.32 NC-330

(1960) Diagnostic and treatment center; general hospital construction 807,950.00 2,090,000.00 Total $1,269,950.00 $7,367,023.32 17.2%* LONG HOSPITAL NC-311

(1959) New hospital construction $1,617,150.00 $3,314,749.40 NC-353

(1961) Laundry 66,000.00 120,000.00 -- NC-358

(1961) Hospital Nurses Training School 265,000.00 492,636.00 Total $1,948,800.00 $3,927,385.40 49.6% The court found “approximately” 15% for Cone and “approximately” 50% for Long. . In the first fifteen years of the program (1947-1961) approximately $1.55 billion of federal funds were approved for such projects. Slightly more than half of the total went to voluntary nonprofit hospital projects. In the same period state and local funds (governmental and nongovernmental) totaled about $3.38 billion; thus, the federal share of Hill-Burton projects was slightly more than 30% of their total cost.

See “Hill-Burton Program— Progress Report, July 1, 1947 — June 30, 1961,” United States Department of Health, Education, and Welfare, Public Health Service Publication No. 880 (1961). . See “Hill-Burton Project Register: Hospital and Medical Facility Projects Approved During January, 1963,” United States Department of Health, Education, and Welfare, Public Health Service-Division of Hospital and Medical Facilities (1963). .

As an aside, it is to. be noted that in “Equal Protection of the Laws in North Carolina,” a Report of the North Carolina Advisory Committee to the United States Commission on Civil Rights (1962) (pamphlet), a special study group found that facilities available to nonwhites were both inferior to those available to whites and more limited. . Accord, Smith v. Holiday Inns of America, 220 F.Supp. 1 (M.D.Tenn.1963); see also Garner v. Louisiana, 368 U.S. 157, 183, 82 S.Ct. 248, 7 L.Ed.2d 207 (1961) (Mr. Justice Douglas concurring) ; Public Utilities Comm. v.

Poliak, 343 U.S. 451, 462, 72 S.Ct, 813, 96 LEd. 1068 (1952). . In Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 LEd.2d 5 (1958), the Court explained its decision in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 LEd. 873 (1954), as follows: “That holding was that the Fourteenth Amendment forbids States to use their governmental powers to bar children on racial grounds from attending schools where there is state participation through any arrangement, management, funds or property.” 358 U.S. at 4, 78 S.Ct. at 1402-1403, 3 L.Ed.2d 5. (Emphasis added.) . Contrast the case at hand with Eaton y.

Board of Managers of James Walker Mem. Hospital, 261 F.2d 521 (4th Cir.), cert. denied, 359 U.S. 984, 79 S.Ct. 941, 3 L.Ed.2d 934 (1958), where the local authorities by contract for care of indigents paid the hospital less than 4y2% of its budget. . See 42 U.S.C.A. § 291(a), (b), (c) (“Declaration of purpose with respect to construction of hospitals”). . Accord, Peterson v. City of Greenville, 373 U.S. 244, 247, 83 S.Ct. 1119, 10 L.Ed.2d 323 (1963). . Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953); Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946); Smith v.

Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944); Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984 (1932); Guillory v. Administrators of Tulane Univ. of Louisiana, 212 F.Supp. 674 (E.D.La. 1962). . See McCabe v. Atchison, T. & S. F. R. Co., 235 U.S. 151, 161, 35 S.Ct. 69, 59 L.Ed. 169 (1914); cf. Lombard v. Louisiana, 373 U.S. 267, 83 S.Ct. 1122, 10 L.Ed.2d 338 (1963) ; Peterson v. City of Greenville, 373 U.S. 244, 83 S.Ct. 1119, 10 L.Ed.2d 323 (1963); Williams v. Hot Shoppes, Inc., 293 F.2d 835, 846 (D.C. Oil-. 1961) (Bazelon and Edgerton, JJ. dissenting). See also Gantt v.

Glemson Agricultural College, 320 F.2d 611 (4th Cir. 1963), a school segregation case, where the court said : “The distinction drawn between prohibition and discouragement is a novel one in legal literature, and we must hold it unacceptable. Under the Constitution of the United States a state may no more pursue a policy of discouraging and impeding admission to its educational institutions on the ground of race than it may maintain a policy of strictly prohibiting admissions on account of race.” . See Hampton v. City of Jacksonville, 304 F.2d 320, 323 (5th Cir. 1962) (Eaton questioned in the light of Burton).

See also n. 12, supra. True, the opinion of the Fifth Circuit stresses the reverter feature in Eaton as the equivalent of the lease in the Burton case; but there is also in the present ease, as we have seen, a reverter provision in the event of a sale of the hospital to an unqualified owner within 20 years after completion of a project. 42 U.S.C.A. § 291h(e); 42 C.F.R. § 53.130. .

It is now advanced as an argument against our conclusion that the Walker Hospital, like the hospitals here, received construction subsidies of federal origin at some stage of its history after the erection of the building at the expense of the initial private donor. The opinion of this court does not deal with this and indeed shows no awareness of it; nor was this argued to the court. Certainly the decision can scarcely be relied on as authority for a proposition not considered. . See, e. g., Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953); Marsh v.

Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 275 (1946); Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944). . The District Court’s opinion states that the defendants conceded that if the hospitals were found to embody the necessary “state action,” “the plaintiffs were entitled to the injunctive relief sought.” . See, e. g., Bolling v. Sharpe, 347 U.S. 497, 500, 74 S.Ct. 693, 98 L.Ed. 884 (1954); cf. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 473 (1954) ; Steele v. Louisville & N. R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944). .

Senator Hill, co-author of the Hill-Burton Act, stated that it was intended to assist the states in preparing “a Statewide program for new construction so that all the people of the State may have adequate health and hospital facilities.” Hearings before Senate Committee on Education and Labor on S. 191, 79th Cong., 1st Sess., p. 8. . Cf. Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 114 (1950). Racial discrimination in medical facilities is at least partly responsible for the fact that in North.

Carolina the rate of Negro infant mortality is twice the rate for whites and maternal deaths are five times greater. See “Equal Protection of the Laws Concerning Medical Care in North Carolina,” Appendix K (Subcommittee on Medical Care of the North Carolina Advisory Committee to the United States Commission on Civil Rights (mimeographed)). Exclusion of Negro physicians from practice in hospitals on account of their race denies them opportunities for professional improvement and has discouraged Negro physicians from practicing in the cities of the South. Reitzes, Negroes and Medicine, 272, 295, 316 (1958). .

Raised in a preliminary motion in the District Court not pressed on appeal, was the question whether, since the complaint challenged the constitutionality of

an act of Congress, a three-judge district court was required. See 28 U.S.C.A. § 2282. If there is state action, as we hold, the validity of the statute is no longer debatable, the recent decisions of the Supreme Court having clearly and uniformly decided against such distinctions as the statute permits. When the substantive issue has become so academic, the convening of a three-judge court is not required. See Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962).