(dissenting) :
I respectfully dissent. The majority opinion deals with the problem presented as if the language of Section 93-2002 expresses the present day academic qualifications or prerequisites of a candidate for admission to the Bar of Montana. In that context, I would agree that no knowledgeable person would argue against the virtues of the “diploma privilege” proviso versus the two-year study of law plus Bar examination qualifications, nor consider such a classification among candidates from the two categories discriminatory per se. However, the Supreme Court of Montana in its wisdom and extreme interest in developing a higher level of legal academic prerequisites of the applicants for admission to the Bar of that state abrogated the two-year study of law prerequisite by adopting on December 25, 1961, its Rule XXV establishing a single standard of academic qualifications of such applicants, viz.: a “graduate of a law school approved by the American Bar Association.” (ABA.)
The “diploma privilege” proviso when introduced into the now passe two-year study of law prerequisite of learning in the law was an upgrading of law study standards, and yet in all frankness its force and effect then and particularly now in view of Rule XXV is, for one reason or the other not necessary to pursue, pure state provincialism in favor of the graduates of the Montana Law School. That policy is, of course, of the state’s choice just so long as an individual’s federal constitutional guarantees are not thereby infringed.
The majority elects to treat plaintiff’s contentions as an attack aimed solely at the “diploma privilege” proviso as being a denial of equal protection of law as guaranteed by the Fourteenth Amendment.
I believe the plaintiff’s contentions attack the force and effect of the statutory scheme which requires a bar examination to be successfully undertaken by graduates “of a law school approved by” ABA other than the Montana Law School. The “diploma privilege” proviso is the favoring feature that places the statutory scheme or requirement of a bar examination in jeopardy for being discriminatory among residents of Montana in like standing, and constitutes a burdening of one’s fundamental right to travel. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), and Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). I do not understand that the Supreme Court of Montana denied plaintiff’s application for admission to the Bar, without examination, on any other ground than that he did not have a diploma of graduation from the Montana Law School, an ABA approved law school; notwithstanding the fact plaintiff held the same academic qualifications as any other “graduate of a law school approved by the [ABA]” as proscribed by Rule XXV.
It is quite likely that not all students during enrollment time and at time of graduation from the Montana Law School are residents of that state; however, all applicants for admission to the Bar of that state must then be actual bona fide residents of that state. Accordingly, the statutory bar examination requirement and the “diploma privilege” proviso, coupled with Rule XXV, create two classes of resident graduate-candidates for admission to the Bar: (a) favored graduates of the Montana Law School, an' approved ABA law school, and (b) disfavored graduates of another approved ABA law school. Members of class (a) are admitted to the Bar without the burden of taking a bar examination and the members of class (b) sustain that burden. The plaintiff is among those in class (b) because he has recently exercised his fundamental right to travel from state to state.
The majority discounts the favoring feature because of the discretionary authority vested in the Chief Justice to order an examination by applicant graduates of the Montana Law School; yet, the Chief Justice has never exercised *1185such discretionary authority. Such non-action is a badge of discrimination in and of itself. The majority in effect suggests that the Chief Justice has not exercised the discretionary authority because of his knowledge and faith in the workings of the Montana Law School and its product. If that be so, then the non-exercise of the discretionary authority is based upon personal information rather than judicial and an exercise of judicial discretion is not involved.
The majority concludes that no “fundamental right” is affected by the classification and would justify the discriminatory force and effect of the statutory scheme under the “reasonable basis” test developed in 1910. More modern authority has extended the test to include the ingredient of rationality. Schware, cited by the majority for another point, 77 S.Ct. at page 756, points out, while “a state can require high standards of qualification, such as . proficiency in the law, before it admits an applicant to the bar . . . any qualification must have a rational connection to the practice of law.”
It is indeed a delicate and ticklish posture for one to compare the relative merits and qualities of academic accomplishments held by the graduate of one ABA approved law school over those of another. Academicians argue, as do the judges, over the merits of the required versus elective subjects course of study in our professional schools in producing good lawyers. Academicians usually debate with more force and theoretical conviction. The judges only view the end product. Still, there is no clear-cut consensus.
Assuming, arguendo, that the rational and reasonable basis test of justifying the discrimination and unequal treatment afforded plaintiff under the force and effect of the statutory scheme is proper to be utilized here, I cannot agree that the comparison of the curriculum of one ABA approved law school’s catalogue with another’s is a reasonable rationality upon which to waive the requirement of taking a bar examination in favor of the graduates of one such approved law school and in turn demand and require such an examination by graduates of all other such approved law schools.
The majority points out that the Supreme Court of Montana maintains close liaison with the faculty and the curriculum at the Montana Law School and knows the end product of that school; however, the Supreme Court holds no lawful authority or direction over the faculty, course of study or the end product of the Montana Law School whatsoever. The Supreme Court of Montana could well have given credence and force to its faith in the legal academic qualifications of the end product of the Montana Law School by fixing through rule the legal academic qualifications of an applicant for admission to the Bar as a graduate of the Montana School of Law. Rather, the Court adopted and abides by its Rule XXV which does not require anything more of the Montana Law School by way of course of study, character standards and its end product through graduation than does an ABA accreditation require of any approved law school. Indeed, the “diploma privilege” does have a reasonable relationship with an applicant’s fitness and capacity to practice law in Montana. Suffice to say, it is a statutory presumption of such fitness and capacity on the part of a Montana Law School graduate applicant. The real query is whether the statutory requirement of a bar examination to be undertaken by graduates of another ABA approved law school and the agreed discrimination resulting therefrom is justifiable. I cannot agree that any rational or reasonable basis exists for such discrimination. See Potts v. Supreme Court of Hawaii, 332 F.Supp. 1392, 1397.
The majority and I part company primarily over the issue of the force and effect of the statutory scheme coupled with Rule XXV upon the plaintiff's exercise of his fundamental right to travel. While the majority does deal with that *1186issue, they do so in rather short shrift, and I cannot subscribe to the write-off of the issue so handily.
The majority’s recital that the plaintiff knew that graduates of the Montana Law School would be favored in the process of admission to the Bar at the time he entered a disfavored ABA approved law school only points up the unhappy fact of provincialism — come to us or else. Plaintiff also knew that under Rule XXV a graduate of an approved ABA law school held all of the legal academic requirements and prerequisites necessary for admission to the Bar of Montana. He could also expect that his fundamental right to travel among the states and receive equal treatment with other residents under law would be honored.
In my view, the majority misreads the full thrust of the rationale of Shapiro and Dunn by taking from those cases a concept for weighing the severity of the denial of benefits, or burdening of legal entitlements involved; that is, the denial of the right to vote or the denial of welfare necessities of life as being harsher than the denial of license to drive a car or even to practice law. Fuentes v. Shevin, 407 U.S. 67, at pages 88, 89 and 90, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1971), clearly evaporates such a test of constitutionality. Shapiro and Dunn protect the fundamental right to travel from sustaining burdens not imposed on other residents in like standing, rather than some right to the necessities of life or to vote. The aggrieved parties were, as is the plaintiff here, actual residents of the given state who had exercised their right to travel and were penalized in sharing legal entitlements offered by the state with other residents in like standing equally under the law. The same rationale applies whether it be in the state’s exercise of police powers, taxation, provisions for state grants of welfare, school benefits or licenses to engage in lawful pursuits. So here the requirement of the Bar examination is a state imposed burden upon the plaintiff’s exercise of his right to freely travel to Montana and receive equal treatment with other residents in like standing under the laws of that state.
I cannot escape the fact that the plaintiff, who holds the same academic qualifications required by Rule XXV as do graduates of the Montana Law School, is penalized and burdened under the statutory scheme in the exercise of his constitutional right to freely travel and apply for a license to practice law on equal footing.
The full thrust of the rationale and holding of Dunn, 405 U.S. at 342, 92 S.Ct. 995, authorizes the flat statement that the statutory requirement of a Bar examination forces a resident graduate of an out of Montana ABA approved law school who wishes to travel to Montana to choose between the exercise of his basic right to travel and his basic right to receive equal treatment in lawful pursuits under the laws of Montana with other resident graduates of an in Montana ABA approved law school. “Absent a compelling state interest, a State may not burden the right to travel in this way.” Manifestly, Montana has failed to show herein a “compelling state interest” in justification of the burden placed upon the plaintiff.
I would annul the statutory requirement of a Bar examination on the part of out of state graduates of an ABA approved law school so that such out of state graduates may share in the “diploma privilege” proviso along with the graduates of the Montana Law School and order the defendants to reconsider the plaintiff’s application for admission to the Bar without the taking of a Bar examination in light of the views and conclusions expressed herein.
In the spirit of state-federal relations and comity, I would respectfully suggest that the Supreme Court of Montana has the same prerogative it exercised in adopting Rule XXV, if it chooses, to likewise provide by rule comprehensive academic or legal training qualifications and other prerequisites for admission to the Bar that will apply equally to all qualifying residents, and meet all federal constitutional challenges.