Pockman v. Leonard

249 P.2d 267, 39 Cal. 2d 676, 1952 Cal. LEXIS 294

Opinions

GIBSON, C. J.

This is an original proceeding in mandamus brought by an associate professor at San Francisco State College to compel respondents to certify his name on the public payroll and to pay him salary which was withheld because of his failure to execute the oath required by sections 3100-3109 of the Government Code, known commonly as the Levering Act. (Stats. 1951 [3d Ex. Sess. 1950, ch. 7], p. 15.)

The statute declares that all public employees are ‘‘ civil defense workers, subject to such civilian defense activities as may be assigned to them by their superiors or by law,” and it defines public employees as all persons employed by the state or any county, city, city and county, state agency or public district, excluding aliens legally employed. (Gov. Code, §§ 3100-3101.) “Subject to the provisions of Section 3 of Article XX of the Constitution,” all civil defense workers are required to take the oath prescribed by section 3103 of the Government Code within the first 30 days of employment. (Gov. Code, § 3102.) It is further provided that no compensation shall be paid to any civil defense worker by any public agency unless he has subscribed to the oath, and that it shall be the duty of the person certifying to public payrolls to ascertain and certify that the oath has been taken by such workers. (Gov. Code, § 3107.) Section 3108 declares that it is perjury to make false statements in the oath, and section 3109 makes it a felony for a person, after taking the oath and while in public employment, to advocate or become a member of an organization which advocates overthrow of the government by force or other unlawful means. The remaining sections (Gov. Code, §§ 3104-3106) specify the manner of taking and filing the oath and provide that compliance with the act shall be deemed compliance with Government Code sections 18150-18158

Footnotes

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* relating to the taking of oaths by state employees.

The act went into effect October 3, 1950. Petitioner failed to take the required oath within 30 days thereafter, and respondents refused to certify his name to the public payroll or to pay his salary for services rendered during the months of October and November.

The first question is whether the provisions which declare public employees to be civil defense workers, “subject to such civilian defense activities as may be assigned to them by their superiors or by law,” render the entire act invalid. (Gov. Code, §§ 3100-3101.) Petitioner asserts that the statute imposes on public employees a rule of martial law and “herds them into a headless, tailless and nondescript military body.” There is nothing in the act, however, which purports to conscript public workers into military service or which declares them to be subject to martial law. Petitioner also claims that the act improperly subjects him to assignment to activities outside and beyond his regular duties. It is clear, however, that a teacher may properly be assigned certain duties relating to civil defense, such as the instruction of pupils regarding their behavior during atomic explosions, air raids or other attacks. Tasks of this type, like the holding of fire drills, are within the scope of the duties of a teacher and may be properly required of him regardless of the fact that they may also constitute civil defense activities. There is no complaint that any specific civil defense duties have been imposed on petitioner under the act, and we should not assume that any improper assignments will be made. The provision that workers are subject to such activities “as may be assigned to them by their superiors or by law” does not, as asserted, invalidly delegate legislative power to define and impose civil defense duties. Instead, the reasonable construction is that the superiors, in making assignments, are limited to such authority as they already have or may subsequently be granted by law.

We turn now to other arguments made by petitioner. The oath which he has refused to take reads as follows:

“I,__do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter.

“And I do further swear (or affirm) that I do not advocate, nor am I a member of any party or organization, political or otherwise, that now advocates the overthrow of the Government of the United States or of the State of California by-force or violence or other unlawful means; that within the five years immediately preceding the taking of this oath (or affirmation) I have not been a member of any party or organization, political or otherwise, that advocated the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means except as follows:

(If no affiliations, write in the words ‘No Exceptions’)

and that during such time as I am a member or employee of the __ I will not

(name of public agency)

advocate nor become a member of any party or organization, political or otherwise, that advocates the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means.” (Gov. Code, § 3103.)

Section 3 of article XX of the state Constitution provides:

“Members of the Legislature, and all officers, executive and judicial, except such inferior officers as may be by law exempted, shall, before they enter upon the duties of their respective offices, take and subscribe the following oath or affirmation.

“I do solemnly swear (or affirm, as the case may be,) that I will support the Constitution of the United States and the Constitution of the State of California, and that I will faithfully discharge the duties of the office of___, according to the best of my ability.

“And no other oath, declaration, or test shall be required as a qualification for any office or public trust.”

When petitioner was appointed to the state college faculty in 1946 he took an oath identical to that prescribed in section 3 of article XX, and he argues that he is exempted by the last sentence of that section from taking any “other oath, declaration or test” and, hence, cannot be required to take the oath prescribed by section 3103 of the Government Code.

When resort is had to the historical background of the constitutional provision, it appears that the words “oath, declaration or test” have an important connotation in connection with qualifications for public service. The English “test” act of 1673, which was so odious to the people, required all civil and military officers to take “oaths” of allegiance and supremacy and to make “declarations” regarding matters of opinion, particularly religious beliefs. (Stat. 25 Car. II, c. 2; see 4 Blackstone Commentaries 59.) This act was undoubtedly in the minds of the framers of state Constitutions when they used these words in drafting constitutional provisions similar to ours. (People v. Hoffman (1886), 116 Ill. 587 [5 N.E. 596, 605, 8 N.E. 788, 56 Am.St.Rep. 793]; Attorney General v. City of Detroit (1885), 58 Mich. 213 [24 N.W. 887, 889-890, 55 Am.Rep. 675] ; Rogers v. City of Buffalo (1888), 3 N.Y.S. 671, 673-674, affirmed, 123 N.Y. 173 [25 N.E. 274, 278-279, 9 L.R.A. 579]].)

The prohibition contained in section 3* was considered in the early case of Cohen v. Wright, 22 Cal. 293, where it was said at page 310, “In our judgment it was not intended to limit the action of the Legislature to the particular set form of words used in the Constitution, and it is clearly within their power to prescribe any form, so that they do not go beyond the intent, object and meaning of the Constitution.” And in Bradley v. Clark, 133 Cal. 196, 201 [65 P. 395], it was stated that the language in section 3 “leaves as the only matter for determination the single question, whether [the statute there involved] does impose an oath or test substantially different from that prescribed by the Constitution.” In this connection, it would seem clear that any oath or declaration which imposes a religious or political test is prohibited. (See Bradley v. Clark, 133 Cal. 196, 201 [65 P. 395] ; Rogers v. City of Buffalo, supra, 3 N.Y.S. at pp. 673-674; Attorney General v. City of Detroit, supra, 24 N.W. at p. 890 [concurring opinion] ; cf. United Public Workers v. Mitchell, 330 U.S. 75, 100 [67 S.Ct. 556, 91 L.Ed. 754].) It has been recognized, however, that such a constitutional prohibition does not prevent the examination of public employees, for skill, education, or other qualities reasonably related to qualifications for public service. As said in Rogers v. City of Buffalo, 123 N.Y. 173 [25 N.E. 274, 278, 9 L.R.A. 579], in answer to a contention that “nothing but the bare oath” mentioned in the Constitution could be required, “We do not think that the provision above cited was ever intended to have any such broad construction. Looking at it as a matter of common sense, we are quite sure that the framers of our organic law never intended to oppose a constitutional barrier to the right of the people through their legislature to enact laws which should have for their sole object the possession of fit and proper qualifications for the performance of the duties of a public office on the part of him who desired to be appointed to such office.” (See, also, Attorney General v. City of Detroit, 58 Mich. 213 [24 N.W. 887, 889-890, 55 Am. Rep. 675].)

Before proceeding to determine whether the oath set forth in section 3103 of the Government Code is substantially the same as the constitutional oath, we shall consider respondents ’ contention that petitioner is not entitled to the benefit of the constitutional prohibition because, it is asserted, he is not the holder of an “office or public trust” within the meaning of that provision. The terms “office” and “public trust” have been said to be nearly synonymous (Ex parte Yale, 24 Cal. 241, 243 [85 Am.Dec. 62]), but the particular positions to which they apply have not been clearly defined. Different results have been reached in classifying public positions involving similar duties and responsibilities, and the meaning and extent of the term “office” tends to vary with the purpose of the statute in which it appears. (See, for example, Patton v. Board of Health, 127 Cal. 388, 393-397 [59 P. 702, 78 Am.St.Rep. 66]; People v. Wheeler, 136 Cal. 652, 654-655 [69 P. 435] ; Wall v. Board of Directors, 145 Cal. 468, 471-472, 473 [78 P. 951] ; Coulter v. Pool, 187 Cal. 181, 185-187 [201 P. 120]; Spreckels v. Graham, 194 Cal. 516, 525-532 [228 P. 1040] ; Brooks v. City of Gilroy, 219 Cal. 766, 770-772 [29 P.2d 212]; People v. Rapsey, 16 Cal.2d 636, 639-640 [107 P.2d 388] ; Sims, “What is a Public Office in California,” 8 So.Cal.L.Rev., 11 [1934].) Accordingly, the cases which have dealt with the term in construing statutes unrelated to the subject involved here are not particularly helpful, and we must look to the purposes of section 3 in order to ascertain the intention of its framers.

There is no merit in respondents’ suggestion that the only persons entitled to the benefit of the prohibition are members of the Legislature, judges and the seven executive officers mentioned in article V of the Constitution.* The provision of section 3 requiring the oath to be taken by all officers, except “inferior officers” exempted by the Legislature, shows that the requirement is not limited to the persons named in article V and that it at least includes all inferior officers who are not exempted. It would do violence to the plain meaning of the words used if the section were read as providing that the Legislature might exempt “inferior officers” from taking the prescribed oath' and at the same time compel them to take some other kind of “oath, declaration or test.” We are unable to find any place where a line can reasonably be drawn so as to place some positions within and others outside the constitutional prohibition, and, in our opinion, there is no justification for excluding any public servants from its protection. The prohibition should therefore be read as applying to every state and local officer and employee. This construction is in accord with the basic purpose of safeguarding the public and its servants by forbidding oaths and declarations regarding matters that bear no reasonable relationship to governmental service and particularly those that involve political and religious beliefs. Persons in the lower levels of government are just as much entitled to this protection as those in higher positions. Any other interpretation of the prohibition would lead to the absurd result that the relatively few persons who occupy the most important positions could be required to take only the constitutional oath, while those who work under them and execute their orders could be compelled to submit to various other oaths, declarations and tests.

We come now to the question whether there is any substantial difference between the oaths prescribed by the state Constitution and by section 3103 of the Government Code. The constitutional oath consists of a declaration or pledge of loyalty to the state and federal Constitutions, and a promise or pledge of faithful performance of duty. The first paragraph of the oath required by section 3103 contains substantially the same pledge of loyalty and faithful performance of duty as that found in the constitutional oath, with only immaterial differences in language. In the second paragraph the affiant swears to three matters, namely, (1) that he does not advocate or belong to any organization that advocates overthrow of the government by force or violence or other unlawful means; (2) that within the five years immediately preceding the taking of the oath he has not been a member of any such organizations except those which he lists in the space provided on the face of the oath; and (3) that while employed by the designated agency he will not advocate or become a member of any organization that advocates such doctrines.

It should be noted at the outset that the oath provisions relating to membership can reasonably be construed as referring only to affiliation with organizations known by the employee to belong to the proscribed class, and each clause of the oath must be interpreted as requiring knowledge of the character of any group as to which a declaration is required. (See Garner v. Los Angeles Board, 341 U.S. 716, 723-724 [71 S.Ct. 909, 95 L.Ed. 1317].)

The first and third parts of the second paragraph are essentially a declaration of present and future loyalty to the government of this state and of the United States. A person obviously cannot be loyal to a government and at the same time advocate its violent and unlawful overthrow. By the same token, voluntary unexplained membership in an organization known by a public employee to advocate such doctrines indicates that he has interests which are inconsistent with his pledge of loyalty and faithful performance of duty, and the Legislature, by requiring this oath, has in effect found that such membership is incompatible with loyalty.* In the recent case of Adler v. Board of Education of City of New York, 342 U.S. 485 [72 S.Ct. 380, 386, 96 L.Ed. 517], the United States Supreme Court sustained as reasonable an implied legislative finding that “the member by his membership supports the thing the organization stands for, namely the overthrow of the government by unlawful means. ’ ’

The middle part of the second paragraph of the oath calls for disclosure of information relating to past loyalty. In it the affiant is required to list any organizations, to which he has belonged in the five years preceding taking of the oath, that advocated overthrow of the government by force or violence or other unlawful means. Information as to past affiliations may be relevant in determining whether an employee can be placed in a position of present or future public responsibility. (See Garner v. Los Angeles Board, 341 U.S. 716, 720 [71 S.Ct. 909, 95 L.Ed. 1317]; Adler v. Board of Education of City of New York, 342 U.S. 485 [72 S.Ct. 380, 385, 96 L.Ed. 517].) Nothing in section 3 of article XX is intended to prevent the state from requiring disclosure of facts relating to an employee’s fitness and suitability for public service, and inasmuch as this portion of the oath, in effect, calls for a statement of past loyalty which is relevant to present and future loyalty, it is in no way inconsistent with the spirit or intent of the constitutional oath.

The oath required by section 3103 is obviously not a test of religious opinion. Neither does it compel disavowal of any political belief or membership in any named political party. While it requires the affiant to swear that he does not advocate, or belong to any party or organization which advocates overthrow of the government by force or violence or other unlawful means, these may not properly be called matters of political opinion. The word “political” imports orderly conduct of government, not revolution, and the term is not applicable to advocacy of a belief in overthrow of the government by force or violence. (See Lockheed Aircraft Corp. v. Superior Court, 28 Cal.2d 481, 485 [171 P.2d 21, 166 A.L.R. 701].)

We are satisfied that there is nothing in the Levering oath which goes beyond the object or meaning of section 3 of article XX and that it is not the type of “other oath, declaration or test” which was intended to be prohibited by that section.

Nearly all of the contentions made by petitioner concerning asserted violations of federal constitutional guarantees are answered adversely to him by recent decisions of the United States Supreme Court. It has been held that a governmental body has the right to direct that its employees shall not belong to organizations which they know advocate overthrow of the government by force or other unlawful means, and that they may be required to make sworn statements similar to the oath prescribed by section 3103 as a condition to obtaining or continuing in public employment. (Adler v. Board of Education of the City of New York, 342 U.S. 485 [72 S.Ct. 380, 96 L.Ed. 517] ; Garner v. Los Angeles Board, 341 U.S. 716 [71 S.Ct. 909, 95 L.Ed. 1317] ; Gerende v. Board of Supervisors of Elections, 341 U.S. 56 [71 S.Ct. 565, 95 L.Ed. 745] ; cf. Dennis v. United States, 341 U.S. 494 [71 S.Ct. 857, 95 L.Ed. 1137] ; American Communications Assn. v. Douds, 339 U.S. 382 [70 S.Ct. 674, 94 L.Ed 925].) A person’s associates, as well as his conduct, are relevant factors in deter mining fitness and loyalty, and the state, under its police power, may properly limit a person’s freedom of choice between membership in such organizations and employment in the school system. (Adler v. Board of Education of the City of New York, 242 U.S. 485 [72 S.Ct. 380, 385, 96 L.Ed. 517].)

Past conduct and loyalty have a reasonable relationship to present fitness and trustworthiness, and public servants may properly be required to furnish information regarding past membership in organizations that to their knowledge advocated the overthrow of government by force or other unlawful means. (See Garner v. Board of Public Works, 341 U.S. 716, 719-720 [71 S.Ct. 909, 95 L.Ed. 1317].) The fact that divulging past or present membership may, under some circumstances, amount to self-incrimination does not render the act invalid since the disclosure of the required information is a reasonable condition or qualification of employment. (See Christal v. Police Commission, 33 Cal. App.2d 564 [92 P.2d 416] ; 64 Harv.L.Rev., 987-996; 28 Cal. L. Rev., 94-95; cf. United Public Workers v. Mitchell, 330 U.S. 75 [67 S.Ct. 556, 91 L.Ed. 754].)

Petitioner is a permanent employee of the college with teacher’s tenure, and he claims that the act has been applied so as to impair contractual obligations. Even if we assume that petitioner has a contract right to his position, there can' be no question that an implied condition of the agreement is that he will be loyal to the government and that he will not advocate its overthrow by force. Under its police power the state may, as a means of implementing the implied condition, require its employees to make a declaration of loyalty and furnish relevant information. “The policy of protecting contracts against impairment presupposes the maintenance of a government by virtue of which contractual relations are worth while, —a government which retains adequate authority to secure the peace and good order of society.” (Home Bldg. & Loan Assn. v. Blaisdell, 290 U.S. 398, 435 [54 S.Ct. 231, 78 L.Ed. 413, 88 A.L.R. 1481] ; cf. East New York Sav. Bank v. Hahn, 326 U.S. 230, 232 [66 S.Ct. 69, 90 L.Ed. 34, 160 A.L.R. 1279] ; Lincoln Union v. Northwestern Co., 335 U.S. 525, 531-532 [69 S.Ct. 251, 93 L.Ed. 212, 6 A.L.R.2d 473] ; Veix v. Sixth Ward Bldg. & L. Assn., 310 U.S. 32, 38 [60 S.Ct. 792, 84 L.Ed. 1061].) It appears, however, that respondents applied the act improperly in withholding payment for services rendered by petitioner prior to the date on which he was required by law to take the oath. (Stats. 1951 [3d ex. sess. 1950, ch. 7, § 2] pp. 15, 17.) Employees were given a 30-day period of grace after the effective date of the act within which to decide whether or not they would take the oath, and it would be unreasonable to hold that the Legislature intended to require a forfeiture of the salary earned during this period in the event that an employee chose to leave his position rather than comply with the condition.

It follows that petitioner is entitled to compensation for services rendered up to and including 30 days following October 3, 1950, the effective date of the statute, but, having failed to take the oath, he is not entitled to compensation for any subsequent period.

Insofar as petitioner seeks payment of salary or other relief for any period subsequent to 30 days after October 3, 1950, the application is denied. Let a writ of mandate issue for the limited purpose of directing payment of petitioner’s salary up to and including 30 days after October 3, 1950.

Shenk, J., Edmonds, J., Traynor, J., Schauer, J., and Spence, J., concurred.

Gov. Code, §§ 18150-18158, provide that every person appointed to a state position, whether civil service or noncivil service, shall within 30 days of appointment take a prescribed oath which is the same as that set forth in Const., art. XX, § 3.

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At the time of the Cohen ease the provision appeared in § 3, art XI, Const, of 1849.

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Those officers are: governor, lieutenant governor, secretary of state, controller, treasurer, attorney general and surveyor general. Pursuant to Const., art. V, § 19, the office of surveyor general was abolished by Pol. Code §'690, in 1929.

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Since 1947 Gov. Code, $ 102& has provided: “It shall be sufficient cause for the dismissal of any public employees including teachers in the public schools or any state supported educational institution when such public employee or teacher advocates or is a member of an organization which advocates overthrow of the Government of the United States or of the State, by force, violence, or other unlawful means.”