Carmichael

The petition for rehearing is denied.

(dissenting).

I vote for granting of the petition for rehearing because upon a more careful review of the facts I think it presents the same problems as are presented in the case of Kong Din Quong v. Haff, 9 Cir., 112 F.2d 96 .

(concurring).

It is but fair to Director Carmichael to state that it is quite possible my refusal to give weight to the testimony of the experts is based upon my belief that their conclusions rest on averages of the observed cases. Such averages include extremes which well might cover the physical conditions of the appellee. At ten years of age, because of my size, I was excluded from footraces for boys under fourteen. It was not a soft overgrowth, for in the next year with a party of mountaineers I climbed with them to the thumb on Shasta. No doubt my bones would have shown their development to the experts. At fourteen I was tough fiberd enough to take the gaff of days of duck shooting with the market hunters in the San Joaquin delta, the pelagic sealers who wintered there.

This is written with a full appreciation of the auditors’ amused tolerance of the mature, relating their early animal vigor, as recalled through the distant perspective of their childhood. However, I have no doubt that if I, at ten years of age and with a yellow skin and Mongoloid features, had then arrived from China and sought to establish under the present law my right to enter my country, as is this lad,…