Board of Regents of Okl. Agr. Colleges v. Updegraff, 35160

Citation205 Okla. 301,237 P.2d 131
Decision Date18 October 1951
Docket NumberNo. 35160,35160
PartiesBOARD OF REGENTS OF OKLAHOMA AGRICULTURAL COLLEGES et al. v. UPDEGRAFF.
CourtSupreme Court of Oklahoma

Syllabus by the Court

1. The authority of the Legislature extends to all rightful subjects of legislation. It is not only the duty of the Legislature but it has the power to protect the general welfare of the people of the State by the exercise of the police power against subversive influences. 51 O.S.1941 (Supp.) 37.1 to 37.8 constitutes an exercise of the police power by the Legislature. Such acts are valid so long as they are not unreasonable, arbitrary, and capricious and do not violate any of the fundamental constitutional guaranties of the State and Federal Constitutions.

2. Loyalty of public officials and employees of the state is essential to the preservation of the peace and welfare of the people and may be prescribed as a qualification to hold public office or public employment by the state.

3. A loyalty oath required by an act of the Legislature fixing loyalty as a qualification for public officials and employees of the state may be required as a necessary precedent to the right to continue in the service of the state and draw compensation therefor so long as the terms thereof are reasonably referable and cognate to the purposes of the act and do not violate constitutional guaranties.

4. The foregoing act is not a bill of attainder or ex post facto law; nor does the oath required therein violate Article I, Section 10, Constitution of the United States or Article II, Section 15, Constitution of Oklahoma (inhibition against impairment of contract); the Fourteenth Amendment to the Constitution of the United States or Article II, Section 7 of the Constitution of Oklahoma (due process clause); the First Amendment to the Constitution of the United States or Article I, Section 2 of the Constitution of Oklahoma (free exercise of religion).

Mac Q. Williamson, Atty. Gen., Fred Hansen, First Asst. Atty. Gen., for plaintiffs in error.

Don Emery, Robert J. Emery and Emery & Emery, of Oklahoma City, for intervenors plaintiffs in error.

Paul W. Updegraff, of Norman, for defendant in error.

John G. Hervey, Ralph J. May, Hervey & May, of Oklahoma City, amicus curiae.

ARNOLD, Chief Justice.

This action was begun in the District Court on May 9, 1951, by a taxpaying citizen to enjoin the Board of Regents of the Agricultural Colleges, the State Treasurer, and the State Auditor from paying public funds to teachers in the Agricultural and Mechanical College at Stillwater who had not subscribed to and filed the loyalty oath prescribed by Enrolled House Bill No. 8, 23rd Legislature, Laws 1951, 51 O.S.1941 (Supp.) §§ 37.1-37.8. A temporary restraining order was issued.

Before the date fixed for the hearing on the application for temporary injunction, certain teachers in the College who had contracts with the Board of Regents to teach at least to the end of the school term, June 30, 1951, with leave of court filed their consolidated petition in intervention and cross petitions praying for injunctive relief requiring the payment of their accrued monthly salaries.

When the cause came on for trial evidence by stipulation was introduced and entertained. The trial court made conclusions of law and entered the following judgment: 'It is therefore ordered, adjudged and decreed by the Court that the injunction should be made permanent in all things as set forth in the conclusions of law, and that intervenors' petition for mandatory injunction is in all things denied, and costs are assessed against the defendants and the intervenors. Exceptions allowed to all parties.'

The cross petitioners, none of whom had filed the oath required by the Act at the time of trial and entry of judgment in the latter part of May, 1951, and the Board of Regents make many contentions. It is not necessary nor expedient to set forth the various and varying contentions made by appellants. Only those propositions asserted which are essential to determine whether or not the trial court erred in refusing injunctive relief to intervenors will be discussed.

Pertinent to the issues raised here the act provides:

'Every officer and every employee of the State, county, school district, municipality, public agency, public authority, or public district shall within the first thirty (30) days after taking office, or within the first thirty (30) days of such employment, take and subscribe to the oath or affirmation required by this Act. * * * Any officer or employee of the State, county, school district, municipality, public agency, public authority, or public district who fails to take and subscribe the oath or affirmation required by this Act within the time specified in this Section, shall forfeit his or her office or employment.

'The oath or affirmation required by this Act shall be the following:

'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 Oklahoma 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 Oklahoma; 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 during such time as I am __________ (Here put name of office, or, if an employee) insert 'An employee of' followed by the complete designation of the employing officer, office, agency, authority, commission, department or institution.

'I will not advocate and that I will not 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 Oklahoma by force or violence or other unlawful means.'

The Act further provides: 'No compensation nor reimbursement for expenses incurred shall be paid to any public officer or employee by any public agency unless such officer or employee has taken and subscribed to the oath or affirmation required by this Act.'

The act provided for severability as to the various provisions thereof and severability as to parts of the oath.

Before going further into a specific discussion of alleged invalidity for certain stated reasons the apparent confusion as to the interpretation to be given the parts of the oath required should be dispelled. The phrase of the oath which refers to affiliation 'with any foreign political agency, party, organization or Government, or with any agency, party, organization, association, or group whatever which has been officially determined by the United States Attorney General or other authorized agency of the United States to be a communist front or subversive organization' refers to a list or lists of such organizations in existence at the time of the passage of the act which had been prepared by the Attorney General under Governmental directive. Such list or lists are in effect made a part of the oath by reference. It must be assumed they are readily obtainable. Nothing appears to the contrary. There was no attempt on the part of the Legislature to confer authority, judicial or otherwise, upon the Attorney General in the preparation of said list or lists. It also must be assumed that the Legislature determined for itself that all those groups so listed by the Attorney General, whether foreign or domestic, were subversive organizations or Communist fronts. To illustrate: one taking the oath swears that he is not affiliated 'with any foreign political agency' listed by the Attorney General as being a Communist front or subversive organization. This part of the oath does not contemplate non-membership in any organization, foreign or domestic, which does not appear on the list or lists of the Attorney General in existence at the time of the passage of the act. There is no requirement in the act that an oath be taken of non-membership in organizations not on the list of the Attorney General of the United States at the time of the passage of this act.

That part of the oath 'that I will take up arms in the defense of the United States in time of War, or National Emergency, if necessary' means that the affiant will take up arms in time of War or National Emergency if by law required.

That part of the oath that says 'that within the five (5) years immediately preceding the taking of this oath (or affirmation) I have not been a member of the Communist party, * * *' refers to the same organizations listed by the Attorney General and in existence at the time of the passage of the Act. It has no reference to organizations that may have been added by the Attorney General after the passage of the act and up to the time of the taking of the oath. The oath under this phrase is to the effect that affiant has not been a member of any of the organizations so listed by the Attorney General within the five-year period previous to the taking of the oath.

The statement in the oath: 'that I will support and defend the Constitution of the United States and the Constitution of the State of Oklahoma against all enemies, foreign and domestic' means that the affiant, be he citizen or resident alien, will support and defend the laws of this land and the form of government which is thereby established against all enemies, that is, subversive elements, whether foreign or domestic.

That part of the oath 'that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of Oklahoma' is objected to only by a friendly alien. He asserts sincere fear that the oath in the respects hereinafter mentioned would in effect require him to forswear allegiance to his native country.

'Allegiance is of three kinds: (1) natural or implied, when it...

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