Cramp v. Board of Public Instruction of Orange County, 30598

Citation125 So.2d 554
Decision Date16 November 1960
Docket NumberNo. 30598,30598
PartiesDavid Walton CRAMP, Jr., Appellant, v. BOARD OF PUBLIC INSTRUCTION OF ORANGE COUNTY, Florida, Appellee
CourtUnited States State Supreme Court of Florida

Tobias Simon and Howard Dixon, Miami, for appellant.

J. R. Wells and Allen K. McCormick of Maguire, Voorhis & Wells, Orlando, Richard W. Ervin, Atty. Gen., Ralph E. Odum and William J. Roberts, Asst. Attys. Gen., for appellee.

THORNAL, Justice.

Appellant Cramp who was plaintiff below seeks reversal of a final decree sustaining the validity of Section 876.05-876.06, Florida Statutes, F.S.A.

We must decide whether the cited statute, which prescribes a so-called 'loyalty oath' as a condition to public employment, offends various provisions of the State and Federal Constitutions.

Plaintiff Cramp had served approximately nine years in the public school system of Orange County. It was then discovered that through an oversight, he had never been required to execute the oath required by Section 876.05, Florida Statutes, F.S.A. The appellee Board immediately demanded that the oath be executed. The school teacher-appellant refused. He based his refusal on the contention that the statutory requirement of the execution of the oath as a condition to continuing his employment as a public school teacher violated certain constitutional rights. Fearing dismissal he filed his complaint for a declaratory decree. He sought a temporary injunction against dismissal pending the litigation, and an ultimate decree adjudicating the invalidity of the statute. The chancellor denied the temporary restraining order. Cramp v. Board of Public Instruction, Fla., 118 So.2d 541. On final hearing the chancellor upheld the statute against appellant's assault. The prayer for a permanent injunction was denied. By direct appeal, Article V, Section 4(2), Florida Constitution, F.S.A., we are requested to reverse the final decree.

Appellant Cramp contends here, as he did in the trial court, that the subject statute is fatally vulnerable on various constitutional grounds. In sum, it is his position that the Florida loyalty oath statute is defective because it fails to specify knowledge or scienter as an element of the proscribed conduct. Appellant also contends that the statute destroys the traditional presumption of innocence and shifts the burden of proof by legislative enactment without due process; it is claimed that the statute is a bill of attainder and an ex post facto law and that it is so vague that it is unintelligible. Cramp claims that the Federal government has pre-empted the field of sedition control. Finally, he says that the Florida constitutional oath prescribed by Article XVI, Section 2, is exclusive and, therefore, does not permit any additional legislative prescription.

The appellee School Board by its brief undertakes to defend the statute against each of the attacks leveled by the appellant.

By Section 876.05, Florida Statutes, F.S.A., all persons employed by the State or any county or city, or school board, are required to subscribe to the following oath:

'I, ........ a citizen of the State of Florida and of the United States of America, and being employed by or an officer of ........ and a recipient of public funds as such employee or officer, do hereby solemnly swear or affirm that I will support the Constitution of the United States and of the State of Florida; that I am not a member of the Communist Party; that I have not and will not lend my aid, support, advice, counsel or influence to the Communist Party; that I do not believe in the overthrow of the Government of the United States or of the State of Florida by force or violence; that I am not a member of any organization or party which believes in or teaches, directly or indirectly, the overthrow of the Government of the United States or of Florida by force or violence.'

It is required that the oath be filed with the employing governmental agency prior to the approval of any salary voucher. Section 876.06, Florida Statutes, F.S.A., provides for the discharge of any person who refuses to subscribe to the quoted oath.

Section 876.05-876.06, supra, were Sections 1 and 2, Chapter 25046, Laws of Florida 1949. We have concluded that the chancellor ruled correctly in upholding the statute against the appellant's attack.

With as much brevity as the importance of the question permits we shall proceed to dispose of each of appellant's contentions.

It is asserted that the prescribed oath does not include an element that the maker thereof had knowledge of the subversive nature of the affiliations at the time he engaged in them. In other words, appellant contends that a man should not be held liable for a false oath if he swears to nonsubversive associations when in effect, he is or has been innocently and unknowingly aligned with a subversive organization. We think this matter has been placed at rest by us as well as by the Supreme Court of the United States. In State v. Diez, Fla., 97 So.2d 105, we held that the element of scienter was implicit in each of the requirements of the statute. Conceding the essentiality of this element, we there upheld the statute with our interpretation to the effect that implied in each requirement was the presence of scienter or knowledge. Although though appellant avers that this constitutes 'a judicial amendment of the statute' we find ourselves supported in such an interpretation by respectable authority. Lerner v. Casey, 357 U.S. 468, 78 S.Ct. 1311, 2 L.Ed.2d 1423; Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517, 27 A.L.R.2d 472; Garner v. Board of Public Works, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317; Gerende v. Board of Supervisors, 341 U.S. 56, 71 S.Ct. 565, 95 L.Ed. 745.

We are not disturbed by appellant's reliance on Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216. While this decision involved a similar loyalty oath, the highest court of the State of Oklahoma had held that the element of scienter was not essential to validity and also that it was absent from the requirements of the act. The Supreme Court of the United States merely accepted the Oklahoma court's interpretation of its State statute as to the implication of scienter. The United States Court reversed when it held that scienter was essential. On the other hand, the implication of scienter was sustained in those decisions which we have cited to support our view.

We think the time is now passed when statutes of this type are subject to question because of alleged pre-emption of the field of subversive control by the Federal Government. Appellant presses his claim in this regard with continued reliance on Commonwealth of Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640. In sustaining this same statute against the same attack in State v. Diez, supra, we indicated our view that Nelson did not preclude paralleling state action on the same problem. We specifically so held in Gibson v. Florida Legislative Investigation Committee, Fla.1959, 108 So.2d 729, certiorari denied 360 U.S. 919, 79 S.Ct. 1433, 3 L.Ed.2d 1535. The Supreme Court of the United States similarly announced its own position on the same subject in Uphaus v. Wyman, 360 U.S. 72, 79 S.Ct. 1040, 3 L.Ed.2d 1090. Moreover, we could actually lay aside this contention on the further ground that the instant statute legitimately prescribes an element of required qualifications precedent to public employment. The statute under discussion is merely a legislative enactment asserted within the orbit of the state's police power. It simply stipulates certain conditions under which individuals can work for the State. The subversive control aspect is involved only tangentially. The primary objective of the statute is to exclude from public employment persons lacking in the stipulated qualifications or in converse, persons burdened with stipulated disqualifying qualities. Beilan v. Board of Public Education, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414; Adler v. Board of Education 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517, 27 A.L.R.2d 472; Lerner v. Casey, 357 U.S. 468, 78 S.Ct. 1311, 2 L.Ed.2d 1423; Thorp v. Board of Trustees, 6 N.J. 498, 79 A.2d 462; Nostrand v. Balmer 53, Wash.2d 460, 335 P.2d 10, but see Nostrand v. Little, 362 U.S. 474, 80 S.Ct. 840, 4 L.Ed.2d 890; Laba v. Newark Board of Education 23 N.J. 364, 129 A.2d 273; Appeal of Albert, 372 Pa. 13, 92 A.2d 663; Fitzgerald v. City of Philadelphia, 376 Pa. 379, 102 A.2d 887; Kaplan v. School District of Philadelphia, 388 Pa. 213, 130 A.2d 672; State ex rel. Schweitzer v. Turner, 155 Fla. 270, 19 So.2d 832.

Appellant contends further that the oath prescribed by Section 876.05, supra, is unconstitutional for the reason that it imposes requirements additional to those stated in the constitutional oath prescribed by Article XVI, Section 2, Florida Constitution. To this end we are requested to follow the decision of the Supreme Court of New Jersey in Imbrie v. Marsh, 3 N.J. 578, 71 A.2d 352, 18 A.L.R.2d 241. Were we inclined to concur in the decision of the New Jersey Supreme Court on this point and we interpolate that we are not, we are here led by the facts of the instant case to distinguish the situation before us from that presented in the New Jersey matter. It was there held that a loyalty oath in addition to the stipulated constitutional oath similar to ours, could not be imposed upon candidates for the office of governor or members of the Legislature. We do not have a state officer involved here. The Florida Constitution requires that the oath be taken by 'each and every officer of this State, * * *' The appellant Cramp is a school teacher and therefore, an employee as distinguished from an officer in the constitutional sense. State ex rel. Holloway v. Sheats, 78 Fla. 583, 83 So. 508; IX U.Fla.L.R. 47, (Spring 1956). The constitutional oath prescribed by Article XVI, Section 2, supra, must be...

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  • State v. T.M., No. SC02-2452 (FL 11/18/2004), SC02-2452.
    • United States
    • United States State Supreme Court of Florida
    • November 18, 2004
    ...fundamental rights, when actions concerning the child have a relation to the public welfare); cf. Cramp v. Bd. of Pub. Instruction of Orange County, 125 So. 2d 554, 558 (Fla.) (stating that First Amendment rights are not absolute and that courts must balance the private right against the al......
  • State v. JP
    • United States
    • United States State Supreme Court of Florida
    • November 18, 2004
    ...parents' fundamental rights, when actions concerning the child have a relation to the public welfare); cf. Cramp v. Bd. of Pub. Instruction of Orange County, 125 So.2d 554, 558 (Fla.) (stating that First Amendment rights are not absolute and that courts must balance the private right agains......
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    • United States
    • United States Supreme Court
    • December 11, 1961
    ...to do so. The circuit court held the statute valid and denied the prayer for an injunction. The Supreme Court of Florida affirmed, 125 So.2d 554, and this is an appeal from the judgment of affirmance. Having doubt as to the jurisdiction of this Court, we postponed decision of that prelimina......
  • Cohen v. State
    • United States
    • United States State Supreme Court of Florida
    • November 30, 1960
    ...supra, Brent v. State, supra, and State v. Diez, supra. We have done so more recently in the case of Cramp v. Board of Public Instruction of Orange County, Fla., 125 So.2d 554. As set forth in the last cited case we can so construe the subject statute without being guilty of 'a judicial ame......
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