(dissenting) — The board of governors of the Washington state bar association has refused the application of Robert Boland Brooks to take the bar examination.
The majority has, with admirable brevity, set out the gist of this controversy in these words:
“The board of governors made the finding:
“ ‘That if the applicant, Robert Boland Brooks, be found to be a man of good moral character, he has otherwise complied with all of the requirements necessary to entitle him to take the bar examination as a general applicant.’
“The act of the board of governors in finding that the applicant is not a man of good moral character, is not arbitrary or capricious. We adopt its finding that ‘The acts of the applicant . . . were unjustifiably defiant of the laws of the United States.’ ”
*75The applicant asks that we review the evidence before the board of governors; and that we conclude therefrom that he is a man possessing good moral character, and entitled to take the bar examination.
The final determinations in questions of admission and disbarment are, of necessity, ours; but we attach great importance to the determinations of the board of governors relative both to admissions and to disciplinary proceedings. The board renders a tremendously valuable service in these areas; indeed, an indispensable one. We do not, however, as the majority seems to hold, have to find that the board acted arbitrarily or capriciously before we can arrive at a conclusion different from that of the board on the same record. State ex rel. Laughlin v. Washington State Bar Ass’n (1947), 26 Wn. (2d) 914, 176 P. (2d) 301; In re Levy (1945), 23 Wn. (2d) 607, 161 P. (2d) 651, 162 A. L. R. 805; In re Bruen (1918), 102 Wash. 472, 172 Pac. 1152; McVicar v. State Board of Law Examiners (D. C. Wash. 1925), 6 F. (2d) 33. See also In re Day (1899), 181 Ill. 73, 54 N. E. 646, 50 L. R. A. 519.
The issue is: Does the record before the board of governors, and now before this court, disclose that the applicant does not possess a good moral character? In one sense, it is a very narrow issue; yet, paradoxically, it is very broad. This is true because our concept of what constitutes moral turpitude, or what constitutes a good moral character may be widely divergent.
There are things the applicant has done that I would not do; there is much that he believes, with which I would disagree. I find it difficult to comprehend the appeal for the shelter of the constitution by one who is unwilling to defend it. I look askance at one who, asserting his right to freedom of religion, refuses to have any part in resisting an enemy who declared war upon us and whose first act in every land invaded was to abolish freedom of religion. Nothing that the applicant has done or believes, however, convinces me that he is not a man of good moral character acting in accordance with the dictates of his conscience.
The applicant asked, and was accorded, the status of a *76conscientious objector — opposed to combatant and noncombatant military .service. No one has seriously suggested that being a conscientious objector per se establishes an absence of good moral character, although the majority seems to imply as much in this sweeping statement near the end of the opinion:
“ . . . A loyal and discerning citizen is aware of his great heritage of liberty and acknowledges his duty to do his share in preserving it. Without a sense of duty, the applicant does not measure up to the standard of citizenship rightly expected of an attorney at law.”
This overlooks the fact that there may be a conflict between duty to God and duty to country. Duty to a moral power higher than the state has always been maintained. Long ago, Mr. Justice Story in his Commentaries on the Constitution of the United States, Yol. II (5th ed.), § 1876, p. 631, said:
“ . . . The rights of conscience are, indeed, beyond the just reach of any human power. . . . ”
Mr. Chief Justice Hughes in his famous dissent in United States v. Macintosh (1931), 283 U. S. 605, 627, 75 L. Ed. 1302, 51 S. Ct. 570, in which he was joined by Justices Holmes, Brandéis, and Stone, said (p. 633):
“ . . . But, in the forum of conscience, duty to a moral power higher than the State has always been maintained. The reservation of that supreme obligation, as a matter of principle, would unquestionably be made by many of our conscientious and law-abiding citizens. . . . ”
and, further (p. 634):
“ . . . And, putting aside dogmas with their particular conceptions of deity, freedom of conscience itself implies respect for an innate conviction of paramount duty.
However, as a conscientious objector opposed to both combatant and noncombatant service, the applicant was still subject to the requirement that he perform “work of national importance” under civilian direction. (See § 5(g) Selective Training and Service Act of 1940, 54 Stat. 889, 50 U. S. C. A. Appendix § 305(g).)
*77It was the applicant’s refusal to report to a so-called civilian public service camp to perform such “work of national importance,” which the board of governors found to be “unjustifiably defiant of the laws of the United States.”
The applicant was indicted, tried, and convicted for his refusal to report to such a camp.
It is here that we must find the real basis, if there is any, for the finding that the applicant is not a man of good moral character.
Certainly the conscientious objector sent to a civilian public service camp was treated as a “second-class citizen.” He was
“. . . compelled to labor in Civilian Public Service without remuneration. His dependents had to fend for themselves without government aid or benefits of any kind. He was left financially unprotected in case of injury or death during his service, except where he was assigned to work covered by state workmen’s compensation laws. These three severe financial penalties were deliberately inflicted on men who allowed their consciences to direct them into civilian rather than military service.
“This made a virtual farce of freedom of conscience. In practice, men had to pay for their conscience by the impoverishment not only of themselves but of their families. . . . In the opinion of the American Friends Service Committee, such a situation could not ‘long continue without jeopardy to the health of our democracy. Equal respect and consideration for the welfare of all its citizens should prevail if we are to maintain the foundation principles of our nation.’ ” Conscription of Conscience, Sibley and Jacob, pp. 216, 217.
On his trial in the United States district court for failure to report for transportation to a civilian public service camp for work of “national importance,” and on his appeal from a conviction for that offense to the circuit court of appeals for the second circuit, the applicant at all times took the position that he was conscientiously opposed (by reasons of religious training and belief) to any form of compulsory labor in civilian camps; and he also raised certain constitutional issues, including: whether the service *78required constituted involuntary servitude or the taking of “property” without just compensation.
In the briefs submitted by the board of governors much is made of the fact that the applicant raised these additional issues, in addition to his claim that he was a conscientious objector to such service. To me, they were issues he was entitled to raise, and took nothing away from his stand as a conscientious objector.
His conviction was affirmed. He served twenty-two months of a three-year sentence before he was paroled.
The applicant was defiant of the laws of the United States. He deliberately chose the alternative of imprisonment in a penal institution to service in a civilian public service camp. Does that brand him as having committed an act involving moral turpitude, and as a man “not of good moral character”? I think not. Through the centuries men and women have suffered death and imprisonment rather than forfeit their integrity of conscience.
I am not saying that his imprisonment was not justified; from the standpoint of the government, there was no reasonable alternative. The Selective Service Act demanded the most serious sacrifices from men of the same general class as the applicant. The morale of those in the armed forces required that conscientious objectors should not wholly escape all service. Relieving the conscientious objector entirely of any obligation to render services would obviously not accord with the principle of equality upon which the Selective Service Act is based. If conscientious objection to military service were rewarded by complete exemption, it would be more difficult to distinguish between men who are honestly urging conscientious objections and those urging such objections for personal, material benefits. As said in Weightman v. United States (1944 C. C. A. 1st) 142 F. (2d) 188, 192:
“ . . . If conscientious objectors should simply be excused from the burden of military duty cast upon other men of like'age, employment and family responsibilities, thereby leaving them free to enjoy civilian life, no doubt some, maybe many, men would falsely profess conscientious objections only to obtain the privileged status of *79exemption. To weed out the insincere and thus avoid an obvious abuse, the way of the honest conscientious objector has been made hard. ...”
I am saying, however, that having refused — because of adherence to a firmly-held principle — to go to a work camp;' and having paid the penalty of imprisonment for twenty-two months, does not indicate a lack of moral character.
A recent holding is that one can be “unjustifiably defiant of the laws of the United States,” and refuse to pay an income tax, and still not be guilty of an offense involving moral turpitude. In In re Molthan (1958), 52 Wn. (2d) 560, 562, 327 P. (2d) 427, Molthan filed returns but refused to pay taxes because
“ ‘. . . he maintained he was a second class citizen of the United States by virtue of the fact that he had been, without trial, denominated a security risk, and that such a finding denied to him his usual employment as an attorney.’ ”
Let us suppose that, in 1776, certain colonists believed so strongly that there should be no taxation without representation that they went to prison rather than pay certain taxes. Did a breach of duty to obey the law and imprisonment therefor establish a lack of moral character, or did it establish that they were men of deep and strong convictions?
It is well established that Henry David Thoreau, whose essay entitled On the Duty of Civil Disobedience is a classic, was jailed in Concord for his refusal to pay his poll tax — ■ a protest against a government that supported slavery. There is a legend that his friend Ralph Waldo Emerson visited Thoreau in jail, and asked “Henry, why are you here?” and that Thoreau rejoined “Waldo, why are you not here?”
I am challenged, in a day when the trend is to sacrifice principle to expediency, by one who preferred to go to jail rather than do what his conscience said he should not do. In any event, I can find no moral turpitude here, and no lack of moral character.
Finally, there is no rational connection between the *80claimed disqualifying acts and the applicant’s fitness to practice law. Schware v. Board of Bar Examiners of New Mexico (1957), 353 U. S. 232, 1 L. Ed. (2d) 796, 77 S. Ct. 752, 64 A. L. R. (2d) 288, quoted in In re Flynn (1958), 52 Wn. (2d) 589, 328 P. (2d) 150.
I would enter an order directing that Robert Boland Brooks’ application to take the Washington state bar examination be granted.
Foster, J., concurs with Hill, J.
Rosellini, J., concurs in the result of the dissent.