(dissenting) :
I dissent.
There is no difference between us as to the governing legal principles. What divides us is our appraisal of the rationality of the classification, my view being that the majority fails to accord weight to considerations which were permissibly and appropriately taken into account.
If one approaches the problem solely in terms of the impact of the classification upon medical practitioners in the multi-county area or begins with the premise that the exclusive interest of the contributors of the capital funds with which the hospitals were constructed and equipped was the provision of those physical facilities in Ohio County, one would come to the conclusion my brothers reach, but I submit that the approach is far too narrow and the premise insupportable. The people of Ohio County were entitled to consider many other things than the economic and other interests of medical practitioners, and to aspire to more than the construction within Ohio County of buildings suitable for the care of the sick. The provision of adequate medical services encompasses much more than brick and mortar, and those who stand the economic burden of construction of the physical facilities as a step in the achievement of their ultimate purpose are entitled to claim the ancillary benefits their contributions were intended to provide.
The majority recognizes, as the record clearly shows, that, except for federal contributions through the Hill-Burton program, these hospitals were constructed and built with capital funds contributed by the citizens of Ohio County, West Virginia. Contributors from other counties in West Virginia and in Ohio were few and insubstantial. The situation is not substantially different than it would have been if the hospitals’ construction and operation had been financed out of public funds of Ohio County raised out of general or special taxes imposed upon the citizens of Ohio County or on real estate or other property located in that county.
Why do citizens of a county voluntarily agree to approve bond issues and to tax themselves or otherwise to contribute funds for the construction of hospitals? It seems to me obvious that they have much more in mind than the erection of buildings, for their ultimate interest obviously is the provision for themselves of medical services which they believe desirable. This includes, of course, the presence of medical practi*831tioners with a much greater variety of specialists with greater skills than could be found in a rural community or an urban community with less adequate physical facilities. The construction of sophisticated physical facilities tends to attract the kind of doctors whose presence in the community is necessary to provide the kind of medical services the people seek. In a community of the size of Wheeling, West Virginia, that purpose is still further served if the physical facilities contain beds enough to serve patients from surrounding counties. The larger the hospital the more economic are special laboratory and other facilities, and the greater the number of patients and the variety of their illnesses, the greater is the attraction for medical specialists. The fact, therefore, that the people of Ohio County built physical facilities beyond their own immediate needs for hospital beds is no indication that they intended to confer gratuitous benefits upon the non-contributing people of other counties in Ohio and West Virginia or to dilute the ancillary benefits the people of Ohio County, by their contributions, undertook to provide for themselves. That the hospitals as constructed had a wider “service area” than Ohio County is simply a collateral result of the steps taken by Ohio County citizens to secure for themselves the kind, and quality of medical services they wanted.
If the purposes of the contributors of the funds with which the hospitals were built and equipped are to be realized, it is essential that the specialists and other medical practitioners they sought, by their financial contributions, to attract be readily available for the care and treatment of the residents of Ohio County. Specialists in another county in another state presumptively would be primarily concerned with the care and treatment of persons in that county, not the residents of Ohio County. Broad extension of staff or hospital privileges to non-resident doctors inevitably would dilute the advantage the people of Ohio County, West Virginia, sought and undertook to provide for themselves. Because the hospitals must limit by some method the number of doctors to whom staff privileges may be extended, the residents of Ohio County may lose their ability to guarantee staff privileges to doctors whom they are attempting to persuade to practice in their county. Furthermore, there may be a real risk that the facilities of these two hospitals may become overtaxed if the rule is abrogated, for out-of-county doctors will not only continue to send their patients who need specialized treatment to these hospitals but may also choose to send all of their patients there once they have obtained staff or hospital privileges.
For such reasons I think the regulations had a thoroughly rational basis. They had a particular appropriateness springing from recognition that the people of Ohio County are entitled to the enjoyment of the benefits flowing naturally from the contributions they made and the burdens they shouldered.
The situation is not altered by the fact that the plaintiffs, as a result of their unique system of charges, had some patients who were residents of Ohio County, West Virginia. Nor is it significant that Dr. Sams maintains his residence in Wheeling, for the significant thing is that he and the other plaintiffs maintain and conduct their clinic and their practices in Bellaire, Ohio. If their intention was to serve primarily patients residing in Wheeling and Ohio County, West Virginia, it would be supposed they would have located their clinic and their offices there. Indeed, Dr. Sams and the other plaintiffs can readily bring themselves within the regulation by relocating their offices and their practices in Wheeling. Meanwhile, as long as they persist in centering their practices in Bellaire, Ohio, I think they completely fail to show that the regulations lack a rational basis either as applied to them or to other medical doctors practicing in Ohio and serving, exclusively or primarily, Ohio patients.
*832Since the regulations appear to me to have a firm basis in rationality, I think we have no power to strike them down. If we, as judges, were of the opinion that some other conceivable alternative would be preferable, an opinion in which I am not prepared to join, it is not enough to invoke the strictures of the equal protection clause of the Fourteenth Amendment.