Torcaso v. Watkins

Citation162 A.2d 438,223 Md. 49
Decision Date30 June 1960
Docket NumberNo. 199,199
PartiesRoy R. TORCASO v. Clayton K. WATKINS, Clerk of the Circuit Court of Montgomery County.
CourtCourt of Appeals of Maryland

Leo Pfeffer, New York City, and Joseph A. Sickles, Washington, D. C. (Carlton R. Sickles, Sickles & Sickles, Sanford H. Bolz, Washington, D. C., and Bruce N. Goldberg, Bethesda, on the brief), for appellant.

Lawrence Speiser, George Kaufmann, Laurence J. Cohen, Washington, D. C., and Rowland Watts, New York City, on the brief, amicus curiae filed by American Civil Liberties Union.

Stedman Prescott, Jr., Deputy Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HENDERSON, Judge.

This appeal is from an order of the Circuit Court for Montgomery County dismissing a petition for mandamus against the Clerk of that court, after a demurrer to the petition had been sustained. The petition alleged, and the demurrer admitted, that the appellant, a citizen of the United States and a resident of Montgomery County for more than two years past, had been duly appointed by the Governor a notary public in and for that County, but when he went to the Clerk's office to obtain his commission and qualify for the office, the Clerk requested him to take and subscribe to a certain oath and declaration. The appellant declined to do so. Thereupon, the appellee refused to deliver the commission to the appellant, and suit followed.

The oath and declaration tendered to him read as follows:

'State of Maryland, Montgomery County ss:

'In the presence of Almighty God, I, Roy R. Torcaso, do solemnly promise and declare that I will support the Constitution of the United States; and that I will be faithful and bear true allegiance to the State of Maryland, and support the Constitutional and Laws thereof; and that I will, to the best of my skill and judgment, diligently and faithfully without partiality or prejudice execute the office of

'Notary Public of

'The State of Maryland

'In and For

'Montgomery County according to the Constitution and Laws of this State.

'I, Roy R. Torcaso, do declare that I believe in the existence of God.

'________

'Sworn to and subscribed before me, Clerk of the Circuit Court for Montgomery County, at Rockville, Maryland, this ___ day of _____ AD, 19__.

'Test:

'________ Clerk'

The appellant stated that he was prepared to take the oath or affirmation prescribed by the Maryland Constitution, but refused to declare his belief in the existence of God.

The oath and declaration quoted above differs from that prescribed by Art. 1, sec. 6 of the Maryland Constitution, for all persons elected or appointed to 'any office of profit or trust, under this Constitution, or under the Laws, made pursuant thereto,' in two particulars. The prescribed oath, or affirmation, begins with the phrase 'I, ....., do swear, (or affirm, as the case may be,)', and it omits the separate declaration as to belief in the existence of God. It is conceded that the office of notary public is an office of profit or trust, referred to in Art. IV, sec. 45 of the Constitution, and dealt with in Code (1957), Art. 68, secs. 1-10. Sec. 1 provides that applicants shall 'take the oath of office before the clerk of the circuit court for each of the counties in the State * * *.' The reference here, as in Code (1957), Art. 70, sec. 7, is to the oath prescribed by the Constitution. Art. 37 of the Declaration of Rights provides:

'That no religious test ought ever to be required as a qualification for any office of profit or trust in this State, other than a declaration of belief in the existence of God; nor shall the Legislature prescribe any other oath of office than the oath prescribed by this Constitution.'

In Davidson v. Brice, 1900, 91 Md. 681, 48 A. 52, this Court held that the Legislature had no power to require a different or supplemental oath of office, in the case of a county treasurer. Chief Judge McSherry, for the Court, said (91 Md. at page 691, 48 A. at page 54): 'Art. 37 does two things: It prohibits any religious test as a qualification for any office of profit and trust, other than a declaration of belief in the existence of God; and it prohibits any oath of office other than the one set forth in section 6, art. 1, or the constitution, except as respects the comptroller and treasurer.' But the opinion throws no light on the questions now raised. We may note in passing that the form of oath presented to the applicant, which did not follow the language of the Constitution giving him an option to swear of affirm, was improper. But the appellant's main contentions are (1) that a declaration of belief in the existence of God, although permitted by Article 37 as an exception to the general rule against the requiring of a religious test as a qualification for office, has never been put into effect by the Legislature, and (2) that, if the exception is self-executing under Article 37 of the Declaration of Rights, it is invalid as in violation of the Fourteenth Amendment to the Federal Constitution.

On the first point, we must agree that there is no present Maryland statute implementing the exception stated in Article 37. Code (1957), Art. 70, sec. 9, provides: 'It shall only be necessary for an officer who is required to take and subscribe the oath prescribed by the sixth section of the first article of the Constitution to declare orally at the time his belief in the Christian religion, or, if he profess to be a Jew, of his belief in a future state of rewards and punishments; and it shall be presumed that an officer who has taken and subscribed the oath made at the same time such declaration of belief.' This section was enacted by Chapter 18, sec. 1, Acts of 1854, and has been included without change in succeeding confications, including those of 1860 and 1888, which, unlike other codifications, were not not merely evidence of existing laws but legislative enactments of the matter therein contained. However, the section in question obviously referred to the religious tests set forth in the Constitution of 1851, which were deleted in the Constitution of 1867. The section makes no reference to belief in the existence of God, which is the only religious test now permitted. To the extent that sec. 9 refers to tests now forbidden, it can have no application in the instant case.

We think, however, that sec. 9 is significant for another reason. Its obvious purpose was to permit an oral declaration, and to raise a presumption of compliance with the constitutional requirements of belief in effect at the time of its enactment. In short, it assumed those requirements to be mandatory and self-executing, and merely undertook to prescribe the mode of compliance or the quantum of proof. Moreover, the language of all the constitutional provisions in effect prior to 1867 seemed to differentiate between the oath and the declaration. In the Declaration of Rights adopted in 1776, Art. 35 read: 'That no other test or qualification ought to be required, on admission to any office of trust or profit, than such oath of support and fidelity to this State, and such oath of office, as shall be directed by this Convention, or the Legislature of this State, and a declaration of a belief in the Christian religion.' Clearly, the Legislature was empowered to prescribe additional oaths of office, but there is no suggestion that the Legislature could dispense with the oath of support and fidelity, or the declaration of belief. Art. 34 of the Declaration of Rights of 1851 added a clause after the words 'CHRISTIAN RELIGION' STATING: 'AND if The party shall profess to be a jew, the declaration shall be of his belief in a future state of rewards and punishments.' Art. 37 of the Declaration of Rights of 1864 substituted a clause after the words 'Christian religion,' stating: 'or in the existence of God, and in a future state of rewards and punishments', omitting the specific reference to Jews.

In the proceedings of the convention of 1867, Article 37 of the Declaration of Rights was reported from the committee in the exact language of Art. 37 of the Declaration of Rights of 1864. Mr. Brown advocated striking out of the constitution 'any religious qualification whatever.' Mr. Bernard Carter then submitted a substitute that was adopted: 'That no religious test ought ever to be required as a qualification for any office of profit or trust in this State, * * * nor shall the Legislature prescribe any other oath of office than the oath prescribed by this constitution.' This was amended, on motion of Mr. Mackubin by adding after the word 'State': 'other than a [declaration of] belief in the existence of God.' See Perlman, Debates, pp. 81, 173. In the context, and in the light of the historical development, we think the Convention was itself declaring that belief in the existence of God should be a qualification for office, but that no other religious test should be required.

We do not agree with the appellant that the word 'ought' was used in a permissive sense. The word occurs repeatedly in the Declaration of Rights, in many instances to establish fundamental rights. It is a general rule that constitutional provisions are not given a directory construction. See Archer v. State, 74 Md. 443, 448, 22 A. 8. In State v. Cumberland & P. R. R. Co., 40 Md. 22, 50, Judge Alvey, with reference to the language of Art. 15, that every person 'ought to contribute his proportion of public taxes * * * according to his actual worth * * *', said: '* * * this declaration of the right of the citizen is not simply directory to the Legislature, * * * it is a positive limitation or restriction on the power * * *.' It could hardly be contended, in the instant case, that Article 37 would permit the Legislature to impose religious tests other than belief in God. The real question is whether the one permitted test required further legislative...

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17 cases
  • Smith v. Brough
    • United States
    • U.S. District Court — District of Maryland
    • December 14, 1965
    ...by this petition promptly decided, this Court will not require petitioner to exhaust his State remedies. I In Torcaso v. Watkins, 223 Md. 49, 162 A.2d 438 (1960), the Court of Appeals of Maryland held that a person appointed by the Governor to be a notary public, who declined to take an oat......
  • Perkins v. Eskridge
    • United States
    • Maryland Court of Appeals
    • September 24, 1976
    ...for State office was challenged as violating the First and Fourteenth Amendments to the Federal Constitution. See Torcaso v. Watkins, 223 Md. 49, 162 A.2d 438 (1960), rev'd, 367 U.S. 488, 81 S.Ct. 1680, 6 LEd.2d 982 (1961). Finding no deprivation of Torcaso's federal constitutional rights, ......
  • U.S. v. Joseph
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • December 29, 1989
    ...common law presumed that those who did not profess a belief in God were unqualified to serve as jurors or witnesses. Torasco v. Watkins, 223 Md. 49, 162 A.2d 438 (1960) ("[N]or shall any person, otherwise competent, be deemed incompetent as a witness, or juror, on account of his religious b......
  • Murray v. Burns
    • United States
    • Hawaii Supreme Court
    • August 18, 1965
    ...is another basis requiring rejection of the contention that the indictments returned against petitioners are invalid. In Torcaso v. Watkins, 223 Md. 49, 162 A.2d 438, a notary public appointed by the Governor of Maryland was denied a license by a county clerk because he refused to declare h......
  • Request a trial to view additional results
1 books & journal articles
  • Nonbelievers and Government Speech
    • United States
    • Iowa Law Review No. 97-2, January 2012
    • January 1, 2012
    ...the Union by 1950—“neither rendered atheists incompetent nor allowed questioning to affect their credibility”). 84. Torcaso v. Watkins, 162 A.2d 438, 443 (Md. 1960), rev’d , 367 U.S. 488 (1961). 85. Id. 86. Kaufman, supra note 68, at 412. 87. Jones v. State, 132 S.E.2d 648, 649 (Ga. 1963). ......

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