(dissenting).
The majority opinion, as I read it, permanently disqualifies the applicant from taking the bar examination. The language which I so interpret is quoted in the opinion on the Motion for Rehearing and is as follows :
“ ‘We believe one who has knowingly given his loyalties to such a program and belief for six to seven years during a period of responsible adulthood is a person of questionable character.’ ”
If now, after fifteen years of unobjectionable conduct, three years of which were spent as a soldier in the service of the United States of America overseas, the applicant is a man of questionable character, then for him there can be no hope. If a man who became a member of a junior affiliate of the Communist party at the age of eighteen and later moved into the Communist party until he was twenty-six years of age, when he permanently separated from that party, is now of questionable character, even though during all of the years just mentioned the Communist party was recognized as much within the law as was the Republican party or the Democratic party, then it must be true that the individual will never be able to establish a character among his fellows which could justify his association with respectable people or his admission to any of the learned professions.
It is difficult for me to understand how the.majority can seriously argue that the use of aliases,. without intent to do harm to any individual or group of individuals, c.ould so. besmirch a man’s character that he will be forever unfit for association with the respectable part of any community. It is, moreover, difficult for me to appreciate how the majority arrives at its conclusion that any number of arrests without a conviction of any offense whatever can forever condemn' a man as one of questionable character.
In the' discussion in the majority opinion of the arrest of the applicant at Detroit, Michigan, in 1940 for violation of the Neutrality Act, my name is used again, and it is suggested that I have entirely overlooked pertinent authorities or that I have failed to read certain letters written by the applicant in the year 1944 when he had taken the oath required of all soldiers and was enlisted in the service of our country. These letters do no more than expose to applicant’s wife, five years after he had severed all connection with the then lawful Communist party, some of his activities in that party. In the majority opinion 'two cases are cited as instances of authorities which I may have overlooked in expressing my dissent to the original opinion of the majority in this case.
The first of these cases is Gayon v. McCarthy, 1920, 252 U.S. 171, 40 S.Ct. 244, 245, 64 L.Ed. 513. In that case the appellant, Gay.on, was indicted in the Southern District of Texas for conspiring with one Naranjo of San Antonio, Texas, and of one Mendoza of Laredo, Texas, to hire and retain Foster Averitt, a citizen of the United States, to go to Mexico, there to enlist in the military forces organized in the inter-' est of Felix Diaz then in revolt against the government of Mexico, with ' which the United States was at peace, in violation of what is called the Neutrality Act.
Gayón was arrested in New York and was held by a commissioner, subject to order of the District Court for his removal to Texas. Next, by petition for writs of habeas corpus.and certiorari the case was removed ’ to the District Court for the Southern District of New York; and there the Court 'discharged the writ of habeas corpus and entered an order and warrant issued for the removal of the appellant to Texas. . The appeal was taken to the Supreme Court of the United States.
The Supreme Court said:
“If there was before the commissioner or District Court evidence showing probable cause for believing the defendant guilty of having conspired with Naranjo or Mendoza, when either was in the Southern district of Texas, to hire or retain Averitt to go to Mexico to enlist in the insurgent forces operating under General Diaz against the Mexican government, the order of the District Court must be affirmed.”
The Court examined the evidence. That before the commissioner was merely the indictment against the defendants and the admission by Gayón that he was the person named therein. The Court held that this established a prima facie case.
Thereupon, the testimony of the accused and of one Del Villar was offered by appellant and that of Averitt by the government. ' This evidence showed that Del Villar, a political exile from Mexico, had maintained offices in New York, from which he had conducted a systematic propaganda in the interest of Felix Diaz and against the Mexican government; that Gayón was a Mexican citizen and throughout several administrations prior to that of Carranza had served as consul for the Mexican government at several places within and without the United States, one of these being at Roma, Texas. For about two years Gayón had been in the service and pay of Del Villar and General Aurelio Blanquet, the latter being in Mexico with the forces of Diaz. Naranjo was editor and publisher of “Revista Mexicana”, a newspaper at San Antonio, Texas, the paper being opposed to the established Mexican government and favorable to Diaz and his interests.
There was much correspondence between Gayón from New York to Naranjo at San Antonio. The • correspondence ■ -disclosed that Gayón, although in New: York was -in close association with Naranjo and that the two were engaged actively in- - promoting opposition to the established • Mexican government. In January, 1919 Foster Averitt, an American citizen living in Texas, called at the office of Gayón.' ' Averitt had recently resigned from the United States Naval Academy and was without employment. His purpose in calling on Gayón was to secure, if possible, a position in Mexico or Central America as an engineer. Among other things, he expressed his desire to see Generals Diaz and Blanquet personally. He asked for letters of introduction to these men. Gayón refused until he could confer with Del Villar. Averitt called again and discussed with Gayón conditions in Mexico near the border and the means of his going to Mexico and later received from Gayón two letters, one addressed to each of the generals above named. Gayón asked General Blanquet to supply Averitt with necessary information to enable him to make his trip into Mexico. He also asked that Averitt be introduced to General Diaz. In the letter he also requested the general to write as often as possible to enable “us to continue our campaign of propaganda”. -Having received these letters, Averitt went immediately to San Antonio where he presented the letter to Naranjo who gave him a letter to General Mendoza at Laredo. This letter was presented to Mendoza and through him • arrangements were made for Averitt’s crossing into Mexico with two or three others, but they were arrested by customs guards and the proceedings followed.
In the interviews had in New York there was suggestion of payment of expenses and a commission for Averitt, but Gayón said that the furnishing of either would violate the neutrality laws of the United States, but that there would be no difficulty in his getting a commission from General Blanquet on his arrival in Mexico and also said “that he expected that he should be at least a colonel when he saw him again down there”. Gayón also said to Averitt that it might be possible to have his expenses made up to him when he arrived in Mexico, and, as a matter of fact, he received $15 from General Mendoza at Laredo.
As said above, the charge was conspiracy and the overt acts stated in the indictment were that Gayón delivered to Averitt in New York a letter addressed to Naranjo with instructions with respect to presenting it, and impliedly promised Averitt that upon his arrival in Mexico he would be given a commission in the army of General Blanquet and he also gave Averitt a letter to General Blanquet who was then in Mexico in command of revolutionary forces; that Averitt visited and held conferences with Naranjo who gave him a letter to Mendoza at Laredo in the southern district of Texas; and that Averitt called upon Mendoza and arrangements were made for him to enter Mexico with the intent to join the forces of Diaz under General Blánquet. The court says that it is evident that Gayón entered into the engagement by the promise that he would be given a commission in the forces of Diaz when he arrived there and that he would probably be reimbursed for his expenses.
This case was not concerned with the guilt of Gayón. The question was whether he should be removed to the southern district of Texas and the Court held that there was a case against him to be tried in the southern district of Texas. Instead of undertaking to quote a few words from the opinion out of the context for the purpose of explaining the meaning of the words “hire” or “retain”, I quote from the opinion following :
“The word ‘retain’ is used in the statute as an alternative to ‘hire,’ and means something different from the usual employment with payment in money. One may be retained, in the sense of engaged, to render a service as effectively by a verbal as by a written promise, by a prospect for advancement or payment in the future as by the immediate payment of cash.”
The second of the cases cited in the majority opinion is Blair v. United States, 9 Cir., 241 F. 217, certiorari denied 244 U.S. 655, 37 S.Ct. 742, 61 L.Ed. 1347.
In this case, plaintiffs in error to the Cir■cuit Court of Appeals, 9th Circuit, were charged by indictments in the District Court with conspiracy to violate the Neutrality Act.
The case was presented upon an agreed statement of facts and the trial court literally instructed the jury to return a verdict •of guilty against the defendants. The Cir■cuit Court reversed the judgment of the lower court and remanded the case for a mew trial. From the opinion I quote:
“It will be readily seen, not only from the stipulation itself, but from the foregoing declaration contained in the bill of exceptions, that there was no agreement between the parties in regard to any inference or deduction to be drawn from the actual facts agreed on. Obviously, all such inferences and deductions were left to be drawn, and only could be properly drawn, by the jury upon submission of the case to them, after .opportunity of argument by the counsel of the respective parties. It might have been, and doubtless would have been, argued to the jury, as it is argued here to this court, that the agreed statement of facts wholly fails to ’show that the present plaintiffs in error, or, indeed, any of the de.fendants to the indictment, ever within the territory of the United States, conspired to ‘hire or retain,’ or ever did ‘hire or retain,’ any of the persons named in the indictment, or any other person or persons, to go beyond the limits and jurisdiction of the United States with the intent or purpose specified in the indictment. The defendants thereto might well have contended before the jury, as the plaintiffs in error do here, that what they did, as shown by the agreed statement of facts, was in effect to aid and assist the persons referred to in the indictment and in the agreed statement of facts to go beyond the limits of the United States with the intent and for the purpose charged, and was in no respect the hiring and retaining them prohibited by the statute.”
There is certainly nothing in either of the cases which causes me to change my opinion as to the possibility of a conviction of the applicant in the case now before this Court if he had been tried following his arrest at Detroit. I think the prosecuting attorneys, including, as the record-in this case shows, the Attorney General of the United States, were aware of the situation and of the evidence which could be adduced. After about ten days following the arrest, applicant was released and, as shown by the record, the case was never thereafter called to trial and, as pointed out in the, majority opinion, was dismissed.
After diligent search, I have been unable to find anything which convinces me that the applicant, Mr. Schware, could have been convicted if there had been a trial following his arrest. -The record before us does npt show that anything was paid by the applicant to anybody else or that the applicant made any; promise of anything to any other person by way of compensation or reward to be paid in the future. Somebody advanced, some money to the four men.who wanted- to go overseas while they were in New York,- but that certainly was not Schware.- -When it was found that the fou,i men:could not stow away and reach Spain,- and -that only three could go, the one -who must return home was selected by tossing coins and the applicant was the oi}e who must return home. Somebody gave them, the money to pay for his transportation and he returned.
The record shows nothing in the indictment as to its contents. The record names no individual who was hired or retained or' engaged; or whom the applicant sought to hire or retain- or engage. It is not shown by the record before us that applicant ever succeeded in causing anybody to enlist or enter himself in the United States, in the service of a foreign country.
Evidently, the four who reached New York were acting in concert, one as anxious to get over to Spain as the other.
I have previously read the letters set out in the latest majority opinion and.find, nothing to change my mind as to this case. Both'letters, set out in.páft in the latest majority opinion, were written in 1944, at a time when the applicant was a soldier in the service of his country. Each of these letters speaks of that which occurred in or prior to the year-1940.
In the majority opinion it is again asserted that neither the author ,nor any of the justices concurring have at any-time examined the file of what is called "Confidential Information.” It is also again declared that the Board of Bar Examiners has stated that the recommendation to the court was not based on confidential information, but upon facts disclosed by petitioner himself. In the majority opinion this is found with reference to the confidential information: “Petitioner is now merely seeking to read some prejudice to himself into the proceedings where there is none in fact.” It must be assumed,’ I think, that the Board of Bar ■ Examiners, having notified the applicant that he could take the examination on a certain day, undertook for some reason upon his appearance on that date for the purpose of examination, to call him before the Board and interrogate him. Just what the interrogation was about at that time and to what.extent it went and just what answers Mr. Schware made does not appear. What was that reason? Could it have been on account of the .substance of that which is called “Confidential Information” ? The application of Mr. Schware had been in the hands of the Clerk of the Board for a considerable length of time. There must have been some reason for Mr. Schware’s interrogation at that time and his being denied the right to then take the examination. As I understand this situation, applicant is now denied the right to take the bar examination because of the hearing in Albuquerque.
That matter has been sufficiently discussed, I think. I am now strengthened in my belief that it is not only the right but the duty of the members of this court to know everything, including the “Confidential .Information” .placed before the Board of Bar Examiners.
I quote from the majority opinion overruling applicant’s motion for rehearing:
“No. answer can now be. made to petitioner’s request he be advised as to whether he will be permitted to take the bar examination at some future date. The answer to such a request will depend upon the showing then made and how it may be viewed by the Court.”
To me this statement is indeed strange. Bearing in mind that since 1940 the applicant has lived a life with which no fault has been found and as far as the record shows, no fault can be found; remembering also that during this fifteen year period applicant has served a period of three years in the U. S. Army, being there required if need be to lay down his life for those of us who are either too old or too infirm to go into the armed services in defense of our country and that he so served that he received an honorable discharge; and remembering that thereafter he proceeded from his high school accomplishments to' acquire such education as qualified him'to take the Bar Examination in our state except for a character showing, I inquire .if fifteen years of blameless life is not long enough to establish his good character, ■-how. long will it take? . ,
Remembering the applicant is now 'forty-one years of age and desires to enter, at that late time, upon the practice‘of1 law, if another fifteen years of life with no wrong doing shall pass, will applicant 'then be of such character as to enable him’ to ’take the bar examination? Assuming the applicant will in the future live a blameless life there can be no record before the Board-of 'Bar Examiners at any future date which- will differ in any material respect from that placed before the Board and this court.
It will always be a fact that in his youth and to 1940 applicant was affiliated with the then Communist party at a time when membership in that party cast no. stigma on any individual.
■ It will always be a fact that applicant, on several occasions, before his father’s death made use of an alias.
It will always appear that the applicant, in his youth, was arrested several times but never tried or convicted for any offense.
Under the majority holding, there can be no change of circumstances justifying permission to applicant to take the bar examination at any time in the future if he continues to live a life without misconduct.
The view taken of the present situation by the majority should lead to answering the applicant’s question as to whether he will ever be allowed to take the Bar Examination plainly and positively — No. No other logical result can ever follow the order of the majority than the refusal of an examination to the applicant any and every time he may apply. Should Mr. Schware apply to take the bar examination in any other state or states he would have to disclose this fact.
I deeply regret that the Communist party was ever organized in the United States of America, but I would not condemn and leave helpless those who forsook the error of their ways and have for many years lived the kind of life lived by other people who are considered worthy citizens.
For the reasons expressed, I dissent.