125 So.2d 554 (Fla. 1960), 30598, Cramp v. Board of Public Instruction of Orange County

Docket Nº30598.
Citation125 So.2d 554
Opinion JudgeAuthor: Thornal
Party NameDavid Walton CRAMP, Jr., Appellant, v. BOARD OF PUBLIC INSTRUCTION OF ORANGE COUNTY, Florida, Appellee.
AttorneyTobias Simon and Howard Dixon, Miami, for appellant.
Case DateNovember 16, 1960
CourtSupreme Court of Florida

Page 554

125 So.2d 554 (Fla. 1960)

David Walton CRAMP, Jr., Appellant,

v.

BOARD OF PUBLIC INSTRUCTION OF ORANGE COUNTY, Florida, Appellee.

No. 30598.

Supreme Court of Florida.

November 16, 1960

Rehearing Denied Jan. 17, 1961.

Page 555

Tobias Simon and Howard Dixon, Miami, for appellant.

J. R. Wells and Allen K. McCormick of Maguire, Voorhis & Wells, Orlando, Richard

Page 556

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.

Page 557

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...

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