Fitzgerald v. City of Philadelphia

• Decision Date: 10 February 1954
• Parties: FITZGERALD v. CITY OF PHILADELPHIA et al.
• Court: Pennsylvania Supreme Court

Page 887

102 A.2d 887

376 Pa. 379

FITZGERALD v. CITY OF PHILADELPHIA et al.

Supreme Court of Pennsylvania.

Feb. 10, 1954.

Rehearing Denied March 4, 1954.

Harry E. Sprogell, Joseph P. Flanagan, Jr., Philadelphia, for appellant.

Richard D. Solo, Asst. City Sol., Jerome J. Shestack, First Deputy City Sol., Abraham L. Freedman, City Sol., Philadelphia, for appellees.

Before HORACE STERN, C. J., and ALLEN M. STEARNE, JONES, BELL, CHIDSEY and ARNOLD, JJ.

HORACE STERN, Chief Justice.

The question is the constitutionality of the Pennsylvania Loyalty Act of December 22, 1951, P.L. 1726, 65 P.S. § 211 et seq., with special reference to the oath prescribed in Section 5 thereof.

Plaintiff was employed as a Staff Nurse in the operating room of the Philadelphia General Hospital from October 1, 1949, to April 18, 1952, on which latter date she was dismissed because she declined to take the oath required by the statute. At the very outset it is only fair to plaintiff to state that, admittedly, she is utterly opposed to Communism and is in all respects loyal to the principles of our government, and, further, that the performance of the duties of her position was at all times entirely satisfactory. She was, however, of the conscientious belief that her rights under the Constitutions of the United States and the Commonwealth of Pennsylvania would be infringed if she were compelled to take the prescribed oath of loyalty. After her dismissal and after appealing in vain to the Civil Service Commission, she filed a complaint in mandamus in the Court of Common Pleas seeking reinstatement, but judgment was there rendered against her. From that judgment she now appeals.

The Act of 1951 provides that no 'subversive person, as defined in this act, ¹ nor any person as to whom on all the evidence there is reasonable doubt concerning his loyalty to the government of the United States or the Commonwealth of Pennsylvania, shall be eligible for employment in or appointment to any office or any position of trust or profit in the government of or in the administration of the business of this Commonwealth, or of any school district, county, municipality or other political subdivision of this Commonwealth.' Section 5--which is the portion of the act here under attack--provides that the appointing authority of each person in the employ of the Commonwealth or of any of its political subdivisions, other than those holding elective offices, shall require such person to 'make a written statement, under oath or affirmation, which statement shall contain notice that it is subject to the penalties of perjury, and shall be in the following form: 'I, _____, do solemnly swear (or affirm) that I will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth, and that I will discharge the duties of _____ with fidelity. And I do swear (or affirm) that I do not advocate, nor am I knowingly a member of any organization that advocates, the overthrow of the government of the United States or of this Commonwealth by force or violence or other unconstitutional means, or seeking by force or violence to deny other persons their rights under the Constitution of the United States or of this Commonwealth. And I do further swear (or affirm) that I will not so advocate nor will I knowingly become a member of such organization during the period that I am an employe of the Commonwealth of Pennsylvania (or political subdivision thereof).'' It was directed that any person failing or refusing to execute such statement should be discharged immediately be the proper appointing authority.

Appellant contends that the compulsion to take such oath under penalty of dismissal from employment in case of non-compliance constitutes a violation of the right of free speech and peaceable assembly guaranteed by Articles I and XIV of the Amendments to Constitution of the United States, the right of free communication of thoughts and opinions secured by Article I, Section 7, of the Constitution of Pennsylvania, P.S., the freedom of control or interference by any human authority with the right of conscience as provided in Article I, Section 3, and the reservation in Article I, Section 26, of all such rights out of the general powers of government. She also complains of an alleged vagueness in the terms of the oath which, she asserts, renders it impossible for one, even with the best of intentions, to know whether he is making an untrue statement and thereby committing perjury.

We do not understand that appellant argues--or indeed could argue--that the Commonwealth or any of its political subdivisions cannot refuse employment, or discontinue it, in the case of anyone who is knowingly a member of a subversive organization. It would be intolerable for any government to retain in its employ one who advocates its overthrow by force or violence or knowingly consorts with others in an organization having such an objective. What we held in Appeal of Albert, 372 Pa. 13, 92 A.2d 663, and what the Supreme Court of the United States held in Adler v. Board of Education of the City of New York, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517, in regard to teachers applies equally to all public employes, namely, that the legislature, as a condition of their employment, may prescribe qualifications with respect not only to their general attainments but also to their moral character and their loyalty to the state and federal governments, and, to that end, may deny them public employment if they are knowingly members of a disloyal and seditious organization. Cf. Hutchinson v. Magee, 278 Pa. 119, 122 A. 234; Pawell v. Unemployment Compensation Board of Review, 146 PaSuper. 147, 22 A.2d 43. That being so, the oath prescribed by the 1951 Act is obviously justified for the purpose of informing the appointing authority as to whether the employe is in fact a member of an organization which he knows is subversive in character and therefore is not a fit person to be entrusted with the duty of supporting and advancing the interests of the very government whose destruction he is seeking to accomplish.

Coming, then, to the specific objections voiced by appellant, we find no justification for her contention that the prescribed oath is unduly vague in its terminology and sets up a dubious standard for guidance. She asks how a person can know whether an organization of which he is a member is one that actually has a subversive purpose, or--if it aims to alter the government by means other than by force or violence--whether such means are unconstitutional, or what are the constitutional rights of a person which such organization may not forcibly deny? She points out that in Joint Anti-Fascist Refugee Committee v. McGrath, Attorney General, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817, it was held that the action of the Attorney General was arbitrary in designating certain organizations as Communist in a list furnished to the Loyalty Review Board for use in connection with determination of disloyalty of government employes; she would thus emphasize the difficulty of ascertaining whether any given organization is in fact subversive. But this argument loses weight in view of the fact that the oath here in question proscribes membership in an organization which the employe knows is one that advocates the overthrow of the government by force or other unconstitutional means; criminal prosecution for the making of a false oath would not be maintainable unless the false swearing was wilful and corrupt, and therefore the employe cannot suffer the danger of incurring a criminal penalty if innocent of any criminal intent: Cf. Screws v. United States, 325 U.S. 91, 102, 103, 65 S.Ct. 1031, 89 L.Ed. 1495; Garner v. Board of Public Works of City of Los Angeles, 341 U.S. 716, 723, 71 S.Ct. 909.

In Wieman v. Updegraff, 344 U.S. 183, 190, 191, 73 S.Ct. 215, 97 L.Ed. 216, a statute of Oklahoma which required state employes as a condition of employment to take a loyalty oath somewhat similar to that prescribed by the present Pennsylvania Act was held by the United States Supreme Court to be violative of...