The opinion
CHAMBERS, Circuit Judge
(dissenting).
I agree with Judge Merrill insofar as he holds that Brown’s executive board was one within the meaning of 29 U.S.C. § 504 and that it was correct for the trial judge to tell the jury so. Therefore, I would disagree with Judge Ham-ley’s dissent that such was a jury question.
But as of now I would hold the statute constitutional. A far different case we would have if the statute proscribed a ■Communist party member’s right to be ■a member of a union or to get a job.
I cannot agree that Douds, 339 U.S. 382 , 70 S.Ct. 674 , 94 L.Ed. 925 ; Bates v. Little Rock, 361 U.S. 516 , 80 S.Ct. 412 , 4 L.Ed.2d 480 ; Scales v. United States, 367 U.S. 203 , 81 S.Ct. 1469 , 6 L.Ed.2d 782 ; and Noto v. United States, 367 U.S. 290 , 81 S.Ct. 1517 , 6 L.Ed.2d 836 , necessarily indicate we should declare § 504 unconstitutional.
I shall not repeat Judge Merrill’s excellent summary of the Congressional reasons for adopting § 504.
All through our United States Code we find restrictions on conflicts.of interest with criminal penalties therefor, only because experience has shown “a disposition to commit” on the part of executives. See 18 U.S.C. § 281 , § 283; 38 U.S.C. § 1764 (a); 38 U.S.C. § 1664 ; 18 U.S.C. § 1909 ; 12 U.S.C. § 377 ; 15 U.S.C. §19 ; 12 U.S.C. § 1812 ; 15 U.S.C. § 78 (d) ; 49 U.S.C. § 1321 ; and 49 U.S.C. § 11 . The fact that a high percentage would discharge their duties without favoritism is to no avail. “Disposition of the class of persons to commit” is enough for the proscription.
Schware v. Board of Bar Examiners, 353 U.S. 232 , 77 S.Ct. 752 , 1 L.Ed.2d 796 , holds one cannot be barred from becoming a lawyer merely because one is or has been a member of the Communist party. I would suppose though that an integrated state bar act might permissibly provide that one could not be an officer of that organization if he were a Communist.
One needs a basic right to a job. One doesn’t need a right to be a union officer or to be an executive with a possible conflict of interest with his government.