(dissenting).
On the first appeal in this case we held, I thought, that the original grant and the renewals of authority to write bail bonds for pay were functions of the District Court with which this court had no concern; except, of course, in the unlikely event of arbitrary abuse. This court held a due process hearing to be necessary to a mid-term revocation of authority, upon the premise that revocation is wholly different from an original grant or a renewal. And I did not understand that phase of the opinion to be entirely obiter; it was the premise upon which the decision was founded. The premise was assumed, to he sure, rather than asserted, but that is the way I understood it. However, whether we held it definitively then or not, that view of original grant and of renewal is correct, in my opinion.
Perhaps I had better first describe the difference between us, as I see it, and then state the reasons which appeal to me as controlling. One view is that the rejection of an application of the type here involved is the sort of action which must be based upon an evaluation of evidence openly presented, at a hearing, and subjected to the usual protective measures, such as cross examination, customarily associated with an ordinary due process proceeding. Such an action by the District Court would be reviewable upon the record made. The other view is that the disposition of this type of application is the *18exercise of discretionary power, that a burden is upon an applicant to establish his qualifications, and that if he fails to persuade the court in that respect he may be rejected whether any adverse evidence is presented or not; that by well-nigh universal custom courts have utilized confidential methods for determining the qualifications of such applicants, such methods including committees of members of the bar, undisclosed markings on examinations, confidential inquiries as to character, credit reports based upon undisclosed data, and the like. Such a proceeding in the District Court would be reviewable only for abuse of discretion or upon a rejection for prohibited reasons, such as religion or race, apart from qualifications; and the burdens of both allegation and proof would be upon the applicant in such a review proceeding. The former view is that taken by the court, as I understand it. The latter view is the one I take.
Perhaps I had better state also at the beginning what the record shows as to events in the District Court. Carter filed an application for authority to write bail bonds for pay. In the application, which was under oath, he said that he had never been “charged and/or convicted” of a crime. The authority was granted. Some time later information came to the judge that twenty years before that time Carter -had been charged three times with violating the laws against gambling and seven years later with receiving stolen property. An informal hearing was held in chambers. The judge said that he thought Carter should have made a frank disclosure, and he issued a rule to show cause why the authority should not be revoked. Answer was made and a formal hearing held in open court. It was shown that no trials had been had on any of the criminal charges, all having been dismissed. The court vacated its original grant of authority and ordered an investigation. At the same time it announced that it would receive evidence upon the charges and also upon the law-abiding life of the applicant —“if he has disassociated himself with any criminal activities, if there were any.” Twenty-six letters from prominent persons were thereafter filed on behalf of Carter. An investigation was made, at the request of the court, by the Federal Bureau of Investigation and the United States Attorney’s Office, but the results of that investigation were not revealed except to the court. The court denied the application. This court reversed that order. Upon the expiration of the original term, Carter applied to the District Court for a renewal of his authority, filing two affidavits as to his qualifications. The court denied the application for renewal “on the ground that in the opinion of the Court he lacks the qualifications for a bondsman.” That order is now here upon appeal.
The writing of bail bonds for pay is not an ordinary vocation the right to pursue which is a basic right and as to which the police power of the state is sharply limited.1 In the first place, the admission to bail is part of the operation of the trial courts. It is the placing of an accused in the custody of persons selected by him who become, so to speak, his friendly jailers.2 It is the substitution of one custodian for another. The surety upon the bail has power to arrest the accused.3 The granting of bail is governed by the Federal Rules of Criminal Procedure.4 It is performed by a commissioner, judge or justice.5 Thus *19going bail is not an ordinary and independent vocation but is an integral part of the operation of the judicial system. In the second place, the bail bond is a contract with the Government.6 According to the doctrine of Perkins v. Lukens Steel Co.,7 no person has a “right” to do business with the Government by contract. That doctrine is peculiarly applicable to bail contracts, because, from the very nature of the transaction, the qualification of a surety to appear upon even one bond is in large measure within judicial discretion. The Rule8 says that the amount of the bond shall be such “as in the judgment of” the court or commissioner will insure the presence of the accused. And it also says that every individual surety “shall justify by affidavit and may be required to describe in the affidavit the property by which he proposes to justify”, etc.9 Then the Rule says, “No bond shall be approved unless the surety thereon appears to be qualified.”10 That means that a surety must “appear” to the court to be qualified. Surely all those provisions call for discretionary action by the court.
Under the statute generally applicable to bonds furnished the Federal Government, the Secretary of the Treasury is given power to “grant authority” to a bonding company to do business writing bonds.11 Nevertheless, a court required to accept a bond must approve it,12 and a District Court can refuse to accept a bond executed by a company in which the court has lost confidence.13 The inquiry as to the solvency of a surety on a bail bond is a judicial act.14
All the foregoing characteristics of bail bonds combine to indicate that there is no basic “right” to enter into them, as surety, with the Government. Due process of law applies to a deprivation only. If a person is not engaged in a business and has no enforceable right to enter upon it, he is not deprived of a right if he is denied the privilege. Since there is no right to write bail bonds for pay, my view is that the customary elements of due process of law are not required for valid denial of the privilege.
This brings us to the statute involved.15 The business of writing bail bonds for pay gives rise to many practical problems in the administration of criminal justice. There is a great need for available bondsmen in a metropolitan area, where arrests are numerous and the location, qualification, etc., of separate private bondsmen in each case would be prohibitively cumbersome. There are many reputable men and firms in the business. But when this business is without regulation or supervision common report has it that the criminal elements move in and bail bondsmen become an essential of big-time criminal operation. At any rate, the committees of Congress thought some such possibilities required the enactment of the bail bond statute of 1933. They said in their reports:16
“Specifically, the intent of the proposed legislation is to give the courts of the District of Columbia power to weed out undesirable persons engaged in the business of executing criminal bonds; to punish unethical collusion between bondsmen, attorneys, and the police; and, in general, to promulgate such rules and regulations as shall be conducive to protecting the public and the courts against unscrupulous bondsmen.
*20“Under existing conditions, bondsmen conduct their business with virtually no restraint by the courts and are responsible for their conduct to no responsible public official. Abuses of the latitude enjoyed by bondsmen have led to public recognition of the need for legislation.”
A reading of the full statute demonstrates its purpose. There are twelve sections, and they deal with relationships between bondsmen and lawyers, police, etc., public listing of bondsmen, their conduct, etc. Every grand jury is required to investigate the manner in which that statute is being enforced.
Congress left to the trial courts the making of rules and regulations under the statute, but it required that the authority to write bonds be renewed from time to time at such periods as the courts might require. Why did Congress do that ? Why not grant the authority during good behavior, subject to revocation for cause? Neither the reports of the congressional committees nor the congressional debates contain comment on this feature, but the purpose, of the provision seems plain upon its face.
There is a classic difference between limited and unlimited terms; appointment for life and appointment for a term of years; a lease for a year and a life estate; a contract for perpetual service and a contract for a year’s service, renewable. There are advantages in each type, probably nowhere better explored than by Hamilton in his Federalist discussions of the various terms of federal offices. The great advantage of a limited term is the necessity for constant maintenance of the standard of qualification which justified the original appointment, or election, or contract. With a limited term only, the contractor must continue the efficiency and the quality which secured for him the initial contract. Moreover, from the standpoint of the grantor or selector, a limited term requires that he give constant attention to the performance and the results; he cannot make his grant and forthwith forget it. Those are obviously the reasons which impelled Congress to prescribe that the authority to write bail bonds in this jurisdiction be for a limited term only. Congress meant to require bondsmen to maintain the qualifications essential to secure the authority in the first place, and it meant to’ require the courts to keep the matter in periodic reexamination and so in constant attention.
In the present opinion this court says’ that in all respects even remotely or possibly pertinent authority to write bail bonds is like admission to the bar. I do not think so, for reasons to be related in a moment, but first let us examine applications for admission to the bar. The District Court has for many years had a rule that “No applicant shall be admitted [to practice law] until the said committee [Committee on Admissions and Grievances, composed of members of the bar] shall have caused an exhaustive examination to be made either by the committee or by an appropriate agency as to his character and a favorable report made thereon.”17 So that court refuses to admit without a favorable report from its committee of the bar. The considerations which control that committee are its own business, as its published rules conclusively demonstrate.
The rule in our court is :
“Citizens of the United States or of an Insular Possession thereof who are attorneys in good standing in the Supreme Court of the United States, or in the United States District Court for the District of Columbia, or who for three years past have been attorneys or counsellors in good standing in the highest court of a State, Territory, or Insular Possession of the United States, and whose private and professional characters appear to be good, may in the discretion of this court be admitted to practice.”18
Thus, so far as we ourselves in this court are ’concerned, even if an applicant is an attorney in good standing in the Supreme Court of the United States, and even if his private and professional character appears to be good, his admission is a matter of discretion with us. . Not only so, but *21we, by rule,19 require an applicant to pay’ a fee of $50.00 for the express purpose of financing “an investigation of the character and fitness of such applicant” by the National Conference of Bar Examiners. It is common knowledge that those investigations are wholly confidential..
In Laughlin v. Clephane20 plaintiff Laughlin brought an action against the members of the Committee on Admissions and Grievances of the District Court. In his second count Mr. Laughlin complained of alleged irregularities in examinations of applicants for admission to the bar and in the denial of admission to a large percentage of those who applied. He prayed that the examination papers be preserved, subject to order of the court. The District Court held that it had inherent as well as statutory power to control admission to its bar; that it had a right to call to its assistance members of the bar; that the examination properly involved the moral character of the applicant; that the examination papers were not part of the records of the court but belonged exclusively to the Committee; and that “The court did not rely upon the examination papers but upon the report of the Committee.”21 The court concluded that it had no jurisdiction in that count. It said to plaintiff Laughlin that the remedy was an informal complaint made to the judges as an appeal to their discretion. At the same time the court said, however, that if an applicant for admission feels that he has been wronged remedies are available, citing Carver v. Clephane.22
In Carver v. Clephane appellant brought a civil action to compel the Committee on Admissions and Grievances to certify him for admission to the bar. Mr. Laughlin was counsel for the plaintiff in that action. It developed that the Committee had found Carver (in the language used later by this court) “lacking in that good moral character which should be possessed by members of the bar.” The District Court dismissed the action because Carver “failed to establish such qualifications as to character as to warrant his admission * * Carver presented affidavits as to his good character, but it seems that he had failed to mention in his applications certain difficulties with the Patent Office. It seems to me that the holding in that case is pertinent to the problem here, and it is there stated better than I can rephrase it. This court said: “The matter concerns the integrity of the court’s bar. Within very wide limits, standards of fitness for membership in the bar of the District Court are for the District Court itself to establish and maintain. In our own opinion, appellant’s lack of candor in his repeated applications for admisison to the bar is reason enough for his exclusion. If his statements in those applications were not expressly false, they carried false implications.”
The court calls attention to the fact that in the Carver case there was a hearing in the District Court. The minute which appears in the record in that case says that the case was “Argued and submitted”. The conclusion of that court was that Carver “has failed to establish such qualifications as to character as to warrant his admission at this time”. This court sustained that action. The “hearing” was an opportunity for the applicant to say what he had to say. He failed to persuade the court, and so he failed of admission.
In Spears v. State Bar of California23 the applicant stated, on his application, that he had “never been charged before any court with crime * * He failed to mention a few episodes in which’ charges had been dismissed. The bar examiners declined to certify his character, and he moved for admission notwithstanding that refusal. The California Supreme Court, sitting en banc, in a unanimous opinion, recited that an applicant is charged with a duty of full disclosure, and continued: “We are aware that this requirement calls for a high degree of frankness and truthfulness on the part of the attorney making application for admission to prac*22tice law in this state, but no good reason presents itself why such a high standard of integrity should not be required. This duty to make a full disclosure is an absolute duty, and a justification for a failure to perform it is not to be found in the excuse that an applicant has been advised by some person, no matter how 'high in official position that person may stand, that such disclosure is not necessary, nor by the sophistic argument that the charges having been dismissed or the disbarment proceedings dropped, in effect no charges were preferred or proceedings instituted, and applicant is therefore justified in stating under oath that no charges were in fact preferred or proceedings for disbarment instituted.”
Applicant Spears said that he misinterpreted the phrase “charged with” to mean “charged with and convicted of”, a startling approximation to the situation in the case at bar. But the court held that the burden of establishing good moral character was upon the applicant and that if he “falls short of convincing the committee of bar examiners, it is their privilege and their duty to refuse to recommend such applicant for admission to the bar of this state.” And the court said that it would follow the committee “unless a convincing showing is made by the applicant to the court that such adverse recommendation is not based .upon sound premises and valid reasoning.”
This court says that denial of admission to the bar is a judicial act, and it cer-. tainly is in the sense that it is a function of the judiciary. But not every judicial act requires an oral hearing. The Rules of Civil Procedure24 specifically provide that motions may be determined by a court without oral hearing; and a court may hear a motion upon evidence in the form of affidavits;25 and see Federal Communications Comm. v. WJR, the Goodwill Station.26 And, in so far as the authority to write bonds for pay is concerned, I point out that under the statute generally applicable to the Federal Government27 the granting of such authority is clearly an executive function, vested in the Secretary of the Treasury.
The court says that to reject an applicant for admission to the bar there must be such a hearing and opportunity to answer as would constitute due process. Due process of law is, of course, a term of variable content. The due process for admission to the bar at the common law was, in essence, a call, and the call came from-the Benchers of the Inns of Court, each to the bar of their respective courts. The call was upon an estimate of demonstrated merit.28 By a statute of 1402, 4 Henry IV, c. 18,29 it was directed “That all attornies shall be examined by the justices and by their discretions their names put in the rolls * * *.” And by a statute of 1605, 3 James I, c. 7,30 the process of selection based upon dealings found to be skillful and of honest disposition is specifically provided. That procedure constituted due process at the common law in respect of admission to the bar and is the due process incorporated into our law. The concept of admission as of right upon evaluation of evidence presented in open hearing is the antithesis of the concept of call for demonstrated merit. Thus, I do not find in due process requirements as to admission to the bar any support for the view now taken by this court. Rather I find in them support for the view which I take and which I have described.
The court bases its decision largely upon In re Summers.31 I do not read that case as my brethren do. Summers had been denied admission to the bar on the sole ground that he was a conscientious objec*23tor to war. The point in the decision, as I read it, was that if denial of admission impinges upon a right (in that instance freedom of religion) protected by the Federal Constitution against state impingement 32 a case for the federal courts is presented. The Court referred to the Illinois court as being “charged particularly with the protection of justice in the courts of Illinois through supervision of admissions to the bar”.33 And the Court said that
“The responsibility for choice as to the personnel of its bar rests with Illinois.”34 “Supervision” and “choice as to the personnel" are certainly not apt to describe a judicial action restricted by evidence upon an open record and the full privileges of the customary due process of law proceeding. Rather they are descriptive of a discretionary process. I do not find in the opinion any intimation that a judgment upon an applicant’s qualifications for the bar is other than a discretionary “choice as to the personnel” and within the supervisory power of the court to which the application is made. .Summers’s qualifications were assumed for purposes of jurisdiction. The problem was posed in this fashion: Assuming that applicant is fully qualified, may he be rejected expressly and solely for a reason inherently religious? And- that is the sum of that case as I read it.
I should add in respect to In re Summers that I do not read the discussion of “ministerial” and “judicial” in that opinion as my brethren read it. My understanding is that the Court accepted the view of the Illinois courts that admission to that bar is a ministerial act, although performed by virtue of judicial power; that nevertheless, for purposes of the Federal Constitution, the federal courts must determine whether the proceeding is a case or controversy; and that when denial of admission is by judicial order it is a case which may be reviewed “when federal questions are raised”. In sum, the Court said that a ministerial order of a state court can be tested for substantive constitutional validity. But I find no intimation that the Court meant to take over supervision of the procedure by which state courts determine admissions to their bars. But that is the clear result of the present ruling that a denial of admission must be by a procedure which conforms to procedural due process in the ordinary sense. In this connection the opinions in the Lockwood35 and Se-combe36 cases, ancient milestones in this law, are interesting reading.
I suggest that some astonishing results may flow from the conclusion of the court in this case. Scores upon scores of applications for admission to the bar are denied every year upon confidential data and without hearing. The examinations by which the legal qualifications of applicants are determined are graded in confidence. The inquiries by which their moral qualifications are ascertained are confidential. Almost all rejections for admission to the bars of the courts of this jurisdiction are upon confidential data and without hearing. I think erstwhile rejected applicants will, learn with both surprise and pleasure that they have a constitutional right to a public revelation of the data upon which they were rejected and to a hearing such as would constitute ordinary due process of law, which would, I suppose, include the right of cross examination. And I am inclined to predict that the uninhibited comments customarily responsive to the inquiries concerning a candidate for the bar will summarily cease when the answers are liable to introduction in open hearing and subject to cross examination.
The court says that the idea that this decision means courts must grade examination papers is erroneous, since the District Court is under no obligation to form a judgment independently of expert opinion. The court means, as I understand it, that the extent of an applicant’s professional *24ability is shown by the expert opinion of the bar examiners, which is “properly before [the] court” and upon which that court may rely. But if the proceeding is an ordinary due process of law proceeding in which an expert opinion is presented in support of one adversary position, surely the opposing party must be permitted to cross-examine the expert as to the basis for the opinion and may introduce expert witnesses of his own upon the controverted issue; i. e., in this instance his professional ability.
I realize that some courts have held just exactly what I view with alarm in this case. In Salot v. State Bar of California37 the Supreme Court of California discussed at great length whether the applicant was properly marked less than 2,345 points on a combination of “essay questions” and “Yes-No questions” on the bar examination. But that opinion graphically depicts the difficulties which arise when such a proceeding is undertaken.
I said that I do not agree that admission to the bar and authority to write bail bonds for pay are alike in all pertinent respects. In Ex parte Garland 38 the Supreme Court said: “The profession of an attorney and counselor is not like an office created by an act of Congress, which depends for its continuance, its powers and its emoluments, upon the will of its creator, and the possession of which may be burdened with any conditions not prohibited by the Constitution.” Absent a statute there is no right in any individual to go surety on a bail bond, and at the same time, contrariwise, there is no impediment to any person’s going bail provided he meets the approval of the court in a particular case. An accused need not produce a so-called professional bondsman but may present a friend or relative or other person who has the requisite resources. And, at the same time, the court need not accept a proffered professional bondsman in any given case but must approve each bond and its surety. These characteristics distinguish this authority from admission to the bar and demonstrate that the authority to write bail for pay is, even more than admission to the bar, a part of the actual operation of the criminal court itself.
Since this court now reverses the District Court, it must mean that this appellant Carter was entitled to more consideration than he received. So it is vital to remember what was and what was not afforded him by way of process, and what, if anything, was presented as evidence and what was not. This court holds, as I understand, it, that the District Court cannot deny an application (for admission to the bar or for authority to write bail bonds for pay)' except upon a judicial evaluation of evidence openly presented. I think that rule to be erroneous and potentially extremely dangerous to the administration of law in this jurisdiction.
This court says: “The record before that court showed without dispute that the appellant has the qualifications for a bondsman.” In the first place, the District Court held that appellant did not have the qualifications for a bondsman. So the quoted sentence means that this court now undertakes to say whether certain facts do or do not demonstrate qualification. I think that none of our business. I think the matter .of qualification to be within the discretion of the District Court. In the second place, I do not see how it can be said that the matter is “without dispute” when this court is flatly and unequivocally reversing the specific conclusion of the District Court upon the point. In the third place, the record shows that appellant said upon his sworn original application that he had never been “charged and/or convicted” of an offense whereas he had been so charged three times. We held in the Carver case, supra, that lack of candor was a sufficient basis for denial of admission to the bar. I think it sufficient here.
In so far as the present case might rest upon an alleged abuse of discretion by the trial court, we are faced with the lack of candor displayed by Carter in his original application. The question as to discretion *25is whether that is sufficient to negative an allegation of abuse, no matter what additional detrimental data may have been in the alleged confidential report. Upon authority of Carver v. Clephane, we must hold that the revealed, and established, facts are ample to sustain the action of the District Court in so far as discretion is concerned. This court, as I have pointed out, does not consider the case from that standpoint.
In my view, the standards for professional bailbondsmen and the judgment upon an applicant’s qualifications are within the discretion of the trial courts; those courts may consider and act upon confidential data; to reverse a judgment of rejection an applicant must allege and prove that the court either acted upon some ground other than his qualifications or abused its discretion in evaluating his qualifications.
I would affirm the order of the District Court.'
. See 2 Cooley, Constitutional Limitations, c. XVI, p. 1313 et seq. (8th ed. 1927) ; Note, Necessity of Notice and Hearing in the Revocation of Occupational Licenses, 4 Wis.L.Rev. 180 (1927); Note, Administrative Law — Procedural Due Process in Occupational License Cases— Revocation of License, 20 Neb.L.Rev. 24, 33 (1941); Graves, Professional and Occupational Restrictions, 13 Temp.L. Q. 334 (1939).
. United States v. Lee, S.D.Ohio, 1909, 170 F. 613; State v. Sandy, 1908, 138 Iowa 580, 116 N.W. 599; Mitchell v. City of Dothan, 1946, 33 Ala.App. 19, 30 So.2d 735.
. 62 Stat. 821 (1948), 18 U.S.C.A. § 3142.
. Rules 5(b) and 46,18 U.S.C.A.
. Fed.R.Crim.P., 5(b) and 46; 62 Stat. 821 (1948), 18 U.S.C.A. § 3141.
. La Grotta v. United States, 8 Cir., 1935, 77 F.2d 673, 103 A.L.R. 527, and cases there cited, certiorari denied sab nom. Quigley v. United States, 1935, 296 U. S. 629, 56 S.Ct. 152, 80 L.Ed. 447.
. 1940, 310 U.S. 113, 60 S.Ct. 869, 84 L. Ed. 1108.
. Fed.R.Crim.P., 46(c).
. Id., 46(e).
. Ibid.
. 61 Stat. 646 (1947), 6 U.S.C.A. § 8.
. 61 Stat. 646 (1947), 6 U.S.C.A. § 6.
. Concord Casualty & Surety Co. v. United States, 2 Cir., 1934, 69 F.2d 78, 91 A.L.R. 885.
. Hodgkinson v. United States, 5 Cir., 1925, 5 F.2d 628, certiorari denied, 1925, 269 U.S. 554, 46 S.Ct. 18, 70 L.Ed. 408.
. 47 Stat. 1484 (1933), D.C.Code § 23-608 (1940).
. Both reports contained the same statement. Sen.Rep.No.832, 72d Cong., 1st Sess. (1932); H.R.Rep.No.2171, 72d Cong., 2d Sess. (1933).
. Rule 93(i) of the Local Civil Rules.
. Rule 7(a) of the General Rules of the United States Court of Appeals for the District of Columbia Circuit.
. Id., Rule 7(b).
. D.C., 1947, 77 F.Supp. 103.
. Id., 77 F.Supp. at page 106.
. 1943, 78 U.S.App.D.C. 91, 137 F.2d 685.
. 1930, 211 Cal. 183, 294 P. 697, 72 A. L.R. 923.
. Rule 78, 28 U.S.C.A.
. Rule 43(e).
. 1949, 337 U.S. 265, 69 S.Ct. 1097, 93 L.Ed. 1353.
. Supra note 11.
. 2 Holdsworth, History of English Law-484 et seq. (1936); Green, The Courts’ Power Over Admission and Disbarment, 4 Tex.L.Rev. 1 (1925), and the many references made therein.
. 1 Ruffhead, Statutes at Large 451.
. 3 Ruffhead, Statutes at Large 52.
. 1945, 325 U.S. 561, 65 S.Ct. 1307, 89 L.Ed. 1795.
. The Court held freedom of religion to be protected by the Fourteenth Amendment.
. Supra note 31, 325 U.S. at page 570, 65 S.Ct. at page 1312.
. Ibid.
. Ex parte Lockwood, 1894, 154 U.S. 116, 14 S.Ct. 1082, 38 L.Ed. 929.
. Ex parte Secombe, 1857, 19 How. 9, 60 U.S. 9, 15 L.Ed. 565.
. 1935, 3 Cal.2d 615, 45 P.2d 203.
. 1867, 4 Wall 333, 71 U.S. 333, 378, 18 L.Ed. 366, 370.