Imbrie v. Marsh

• Decision Date: 09 January 1950
• Docket Number: No. A--68,A--68
• Citation: 3 N.J. 578,71 A.2d 352
• Parties: , 18 A.L.R.2d 241 IMBRIE et al. v. MARSH et al.
• Court: New Jersey Supreme Court

Page 578

3 N.J. 578

71 A.2d 352, 18 A.L.R.2d 241

IMBRIE et al. v. MARSH et al.

No. A--68.

Supreme Court of New Jersey.

Argued Jan. 3, 1950.

Decided Jan. 9, 1950.

Benjamin C. Van Tine, Trenton, argued the cause for the appellants (Theodore D. Parsons, Attorney General, attorney).

Leo Blumberg, Newark, argued the cause for the respondents (Morton Stavis, Newark, attorney).

The opinion of the court was delivered by

VANDERBILT, C.J.

The present action was commenced by the nominees of the Progressive Party for Governor and members of the State Legislature in the general election of 1949, and the Progressive Party, for an injunction restraining the defendants, the Secretary of State and the several county clerks, from printing the legend 'refused oath of allegiance' under the names of the individual plaintiffs on the ballots to be used in the general election and also to prohibit generally the defendants from enforcing in any manner Chapters 21, 22, 24 and 25 of the Laws of 1949, and for a declaratory judgment that these statutes are in violation of the Constitutions of New Jersey and of the United States and therefor void. On motion of the defendants the Chancery Division of the Superior Court dismissed the complaint, sustaining the four acts in question, but on appeal the Appellate Division reversed the judgment below, holding that so much of the challenged legislation as was applicable to the Governor and the members of the Legislature and candidates for those offices was unconstitutional and void. From that determination the defendants have appealed to this court.

The issues to be decided here are of fundamental importance, first, because they involve the construction of two sections of our new Constitution, and secondly, because they concern oaths as to which it has been well said 'No country can subsist a twelve-month where an oath is not thought binding; for the want of it must necessarily dissolve society,' Omychund v. Barker, 1 Atk. 21, 34 (Ch. 1744). The oath has played a significant part in government from the earliest times; thus we find Lycurgus saying to the Athenians: 'An oath is the bond that keeps the state together,' Oratio in Leocratem 80, and Montesquieu attributing the strength of the Romans to their respect for an oath: 'Such was the influence of an oath among these people that nothing bound them stronger to the laws. They often did more for the observance of an oath than they would have done for the thirst of glory or the love of their country,' The Spirit of the Laws, Book VIII, chap. 13. Wigmore has traced the long history of the oath from its 'summoning of Divine vengeance upon false swearing,' to 'a method of reminding the witness of the Divine punishment somewhere in store for false swearing,' 6 Wigmore on Evidence 285. The importance of the oath in judicial proceedings cannot be overestimated; the judge on the bench, the jury in the box, the attorneys at the counsel table, the witness on the stand, the court stenographer taking a record of the proceedings, and even the bailiffs when they retire to guard the jury in its deliberations, are all sworn to do their respective duties before they are permitted to act. The responsibilities of members of the Legislature and other state officers are certainly of no less importance to the public welfare.

An oath of allegiance was first prescribed in this State on September 19, 1776, within three months after the adoption of our first Constitution, P.L.1776, c. 2, Wilson, pp. 1, 2 in the following terms: 'I A B do sincerely profess and swear, (or, if one of the People called Quakers, affirm) That I do and will bear true Faith and Allegiance to the Government established in this State under the Authority of the People. So help me God.'

This precise language with the omission of the clause in parentheses, which is provided for elsewhere, has been carried forward through successive revisions and compilations into the Revised Statutes of 1937, 41:1--1, N.J.S.A.

This statute was amended by P.L. 1949, c. 21, the first of the acts under attack, to read as follows:

'41:1--1. Every person who is or shall be required by law to give assurance of fidelity and attachment to the Government of this State shall take the following oath of allegiance:

"I, ........, do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of New Jersey, and that I will bear true faith and allegiance to the same and to the Governments established in the United States and in this State, under the authority of the people; and will defend them against all enemies, foreign and domestic; that I do not believe in, advocate or advise the use of force, or violence, or other unlawful or unconstitutional means, to overthrow or make any change in the Government established in the United States or in this State; and that I am not a member of or affiliated with any organization, association, party, group or combination of persons, which approves, advocates, advises or practices the use of force, or violence, or other unlawful or unconstitutional means, to overthrow or make any change in either of the Governments so established; and that I am not bound by any allegiance to any foreign prince, potentate, state or sovereignty whatever. So help me God."

An official oath of office was first provided in 1799, Paterson, p. 377, in the following terms:

'VII. And be it enacted, that where the form of an official oath is not or shall not be specially prescribed, then one shall be taken in the following words, to wit; I, ....., do solemnly promise and swear, that I will faithfully, impartially, and justly perform all the duties of the office of ..... according to the best of my abilities and understanding. So help me God.'

This oath was likewise reenacted in successive revisions and compilations. By P.L.1920, c. 215, 2 Cum.Suppl.1924, p. 2564, this simple oath was enlarged by prefixing to it an oath to support the Constitution of the United States and the Constitution of New Jersey. The new oath, moreover, was 'in addition to any official oath that may be specially prescribed' and to the oath of allegiance first mentioned herein and applied to 'every person hereafter elected or appointed to any public office in this State or in any county or municipality therein.'

This statute which was carried into the Revised Statutes of 1937, 41:1--3, was amended by P.L.1949, c. 22, N.J.S.A., the second of the four acts under review, to read as follows:

'41:1--3. In addition to any official oath that may be specially prescribed, the Governor for the time being and every person who shall be elected, appointed or employed to, or in, any public office, position or employment, legislative, executive or judicial, or to any office of the militia, of, or in, this State or of, or in, any department, board, commission, agency or instrumentality of this State, or of, or in, any county, municipality or special district other than a municipality therein, or of, or in, any department, board, commission, agency or instrumentality thereof, and every counsellor and attorney-at-law, shall, before he enters upon the execution of his said office, position, employment or duty take and subscribe the oath of allegiance and office as follows:

"I, ........, do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of New Jersey, and that I will faithfully discharge the duties of ........, according to the best of my ability.

"I do further solemnly swear (or affirm) that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of this State and to the Governments established in the United States and in this State, under the authority of the people; and will defend them against all enemies, foreign and domestic; that I do not believe in, advocate or advise the use of force, or violence, or other unlawful or unconstitutional means, to overthrow or make any change in the Government established in the United States or in this State; and that I am not a member of or affiliated with any organization, association, party, group or combination of persons, which approves, advocates, advises or practices the use of force, or violence, or other unlawful or unconstitutional means, to overthrow or make any change in either of the Governments so established; and that I am not bound by any allegiance to any foreign prince, potentate, state or sovereignty whatever. So help me God."

This 'oath of allegiance and office' includes not only an oath of office but everything in the 'oath of allegiance' P.L.1949, c. 21, In haec verba. It was stated at the oral argument that it has not been the practice to administer both the oaths prescribed in P.L.1949, c. 21 and c. 22, but to consolidate them, thus avoiding the redundancy of language therein. That, however, has not been the practice in this court in administering oaths to judges, counsellors at law, and attorneys at law. Unless and until these acts are declared unconstitutional, every one taking an oath is obligated to take it in the form and language prescribed by the Legislature.

P.L.1949, c. 24, R.S. 19:3--7, 19:13--8, 15, 20, 21, 19:14--2, 7, 12, 13, 15, 16, N.J.S.A., the third of the acts under consideration, requires all candidates for nomination or for election to any public office or party position to subscribe and file the oath of allegiance prescribed in R.S. 41:1--1, as amended by P.L.1949, c. 21, N.J.S.A., and provides further that should any candidate fail to file the oath 'the nomination or election of such candidate * * * shall be null and void.'

P.L.1949, c. 25, R.S. 19:23--16.1 to 16.3, N.J.S.A., the fourth of the acts under scrutiny, provides that every candidate for public office to be voted on at the general election in 1949 shall subscribe and file the oath of allegiance set forth in R.S. 41:1--1...