In agreeing to the opinion and judgment in the case at bar as prepared by Mr. Justice TERRELL, I do so on the state of the record as presented to this Court. The challenged rules, obviously, were promulgated in behalf of the hospital and for the protection of patients undergoing major operations against possible unethical or unskilled licensed practitioners. It seems to me that such reasonable rules promote the interest of the public and general welfare and likewise encourages a high professional standard of requirements for major surgery. It is clear that these rules close the door against possible dope fiends, liquor heads, and practitioners not qualified to perform major surgical operations. The general interest of such patients must be protected simultaneously with advancement in the practice of surgery.

In agreeing to the opinion, I do not hold that the group of surgeons now practicing major surgery at the Mound Park Hospital have, possess or now exercise a monopoly on major surgery to the exclusion of other qualified surgeons patronizing the hospital. The petitioner, and others, are not foreclosed of the right to have litigated the question of whether or not these rules as adopted and in force create or establish a monopoly on major surgery in behalf of those now engaged in this line of professional activity at the Mound Park Hospital.

I do not think this petitioner, or others of a similar class, should be precluded from litigating the question of whether or not these rules are arbitrarily enforced for the use and benefit of those practicing major surgery as distinguished from the public interest or general welfare; neither should the petitioner, or others, be precluded from establishing in subsequent litigation that the operation of the hospital under the challenged rules deprives the petitioner, or others similarly situated, of legal rights recognized by law. Presented here is the simple question of whether or not these rules, as applied to the petitioner, are reasonable. *Page 347