(dissenting).
It is dear that, when Nybo filed his petition, he was entitled to citizenship. His five-year record seems to have been unimpeachable. I agree that the probationary period should be, to some extent, treated as continuing until the hearing; but the five-year good record should be taken into account in appraising a single illegal act during that extended period. Upon this record there are only two possible reasons for denying his petition. One is that his later act shows him to be a man not of good moral character. 1 agree that there is no basis for that conclusion. The other is that his conduct makes it doubtful whether he is “well disposed to the good order and happiness of the” United States. A single violation of the law, even though it be by arbitrary classification called a felony, does not necessarily indicate that habitual antipathy to the good order and happiness of the community which stands over against “well disposed.” A great number of police regulations are often habitually violated, carelessly or intentionally, by numbers of citizens who would nevertheless, in a fair sense, be “well disposed.” Nybo’s violation of the law was intentional and (briefly) deliberate; but there is no reason to doubt his statement that he had supposed his wife would be entitled to go back across the border with him, and, in a relatively impulsive way, he adopted the only method which seemed open to him to save her from what appeared to him to be an intolerable situation. This feeling, in one of his surroundings, experience, and social atmosphere, eannot be broadly condemned. The way in which his conduct was appraised by those familiar with it shows that it seemed to them fairly excusable. No criminal or deportation proceedings were brought.
The authorities cited in the opinion depend without exception upon habitual violations of the Prohibition Law. Such habitual violators declare defiance of the Constitution, and, hence, they are clearly ineligible under the clause of the statute which requires attachment to the principles of the Constitution.
This case is, in its substantial features, apparently without precedent; the circumstances which tend to minimize Nybo’s breach of the law, as indicating any general criminal attitude on his part, are so unique that his admission to citizenship would not form a dangerous precedent. I think he should have been received.