Garner v. Board of Public Works of City of Los Angeles

• Decision Date: 19 July 1950
• Citation: 220 P.2d 958,98 Cal.App.2d 493
• Court: California Court of Appeals Court of Appeals
• Parties: GARNER et al. v. BOARD OF PUBLIC WORKS OF CITY OF LOS ANGELES et al. Civ. 17411.

Page 958

220 P.2d 958

98 Cal.App.2d 493

GARNER et al. v. BOARD OF PUBLIC WORKS OF CITY OF LOS ANGELES et al.

Civ. 17411.

District Court of Appeal, Second District, Division 1, California.

July 19, 1950.

Rehearing Denied Aug. 8, 1950.

Hearing Denied Sept. 13, 1950.

Charles J. Katz, Los Angeles, for appellants.

Ray L. Chesebro, City Atty., Bourke Jones, Asst. City Atty., George William Adams, A. L. Lawson, and Alan G. Campbell, Dep. City Attys., all of Los Angeles, for respondents.

DRAPEAU, Justice.

The City of Los Angeles adopted an ordinance, in part as follows:

'An Ordinance to effectuate the provisions of Charter Section 432 and otherwise to insure the loyalty of the officers and employees of this City.

'The People of the City of Los Angeles Do Ordain as Follows:

'Section 1. Every person who is hereafter elected or appointed to an office or position in the service of the City of Los Angeles must, before entering upon the duties of his office or position, take and subscribe to the following oath:

'I, ........, do solemnly swear (or affirm) that I will bear true faith and allegiance to the United States of America and the State of California, and will support and defend the Constitution and laws of the United States of America and of the State of California and the laws of the City of Los Angeles against all enemies, foreign and domestic. I further swear (or affirm) that I do not advise, advocate or teach, and have not within the period beginning five (5) years prior to the effective date of the ordinance requiring the making of this oath or affirmation, advised, advocated or taught, the overthrow by force, violence or other unlawful means, of the Government of the United States of America or of the State of California and that I am not now and have not, within said period, been or become a member of or affiliated with any group, society, association, organization or party which advises, advocates or teaches, or has, within said period, advised, advocated or taught, the overthrow by force, violence or other unlawful means of the Government of the United States of America, or of the State of California. I further swear (or affirm) that I will not, while I am in the service of the City of Los Angeles, advise, advocate or teach, or be or become a member of or affiliated with any group, association, society, organization or party which advises, advocates or teaches, or has within said period, advised, advocated or taught, the overthrow by force, violence or other unlawful means, of the Government of the United States of America or of the State of California, that I will well and faithfully discharge the duties of my office or employment in the service of the City of Los Angeles and that I take this whole obligation freely without any mental reservation or purpose of evasion, So Help Me God.

'Sec. 2. Every person who now holds or occupies an office or position in the service of the City of Los Angeles must, within thirty (30) days after the effective date of this ordinance, or if he be on leave or under suspension for cause from the service of the city at such effective date, within thirty (30) days after his return to such service, take and subscribe to the oath set forth in Section 1 hereof.

'Sec. 3. Every person who is hereafter elected or appointed to an office or position in the service of the City of Los Angeles must, before entering upon the duties of his office or position, execute an affidavit stating whether or not he is or ever was a member of the Communist Party of the United States of America or of the Communist Political Association, and if he is or was such a member, stating the dates when he became, and the periods during which he was, such a member; provided, however, that no additional affidavit shall be required on account of the transfer, demotion or promotion of any person who has once executed an affidavit under this section or under Section 4 hereof.

'Sec. 4. Every person who now holds or occupies an office or position in the service of the City of Los Angeles must, within thirty (30) days after the effective date of this ordinance, or if he be on leave or under suspension for cause from the service of the city at such effective date, within thirty (30) days after his return to such service, execute an affidavit stating the facts required to be stated in the affidavit required by Section 3 of this ordinance.'

Seventeen employees of the city refused to comply with the ordinance, and were discharged. They filed in the Superior Court their consolidated petitions for writ of mandate directing reinstatement and payment of salaries from the date of their discharge. The court denied the petition, and petitioners appeal to this Court.

The issues involved in this case have been set forth and disposed of in Steiner v. Darby, 1948, 88 Cal.App.2d 481, 199 P.2d 429. Hearing denied by the Supreme Court, Jan. 10, 1949.

No good purpose would be served in repeating the reasoning so clearly and logically stated by Mr. Justice McComb in the Steiner case. In that case the law as developed to its date of decision is stated and applied.

Since then, so far as brought to our attention, the principles here involved have been before the courts in the following cases:

Lawson v. United States, D.C.Cir., 176 F.2d 49.

In that case the United States Court of Appeals for the District of Columbia Circuit held that questions by a Congressional Committee to script writers for motion pictures whether they were or were not communists were pertinent and proper; therefore contumacious witnesses were not protected by the Bill of Rights from answering.

L'Hommedieu et al. v. Board of Regents of the University of the State of New York, 276 App.Div. 494, 95 N.Y.S.2d 443.

In that case the Supreme Court, Appellate Division, Third Department, of the State of New York held that a statute which provides for dismissal from the public school system of members of subversive organizations does not violate due process of law, nor does it infringe upon the freedoms of speech, press, or assembly.

In that case it is said:

'There is no constitutional right to be a teacher any more than there is to be a public official or a member of any of the professions. No one has a constitutional right to advocate the overthrow of the government by force and violence. The courts have held time and time again that the freedoms quaranteed by the Constitution are not absolute but must yield to the public welfare. [95 N.Y.S.2d at page 451.

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'The most important qualification of a teacher is loyalty to our government. It necessarily follows that disqualification is advocacy of the overthrow of that government. The statute under review is a law dealing with public employment of teachers in our public schools. To avail one-self of the privilege of teaching certain qualifications must be possessed, certain rights renounced. This is not an unconstitutional classification. (Citing cases.)

'When it comes to loyalty to our government, the affirmation of loyalty, the denial of disloyalty, renunciation of membership in organizations advocating overthrow of our government or subscribing to subversive tenets, all have been upheld as qualifications of public employment or of holding office in organizations availing themselves of statutory privileges. (Citing cases.) [95 N.Y.S.2d at pages 452-453.

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"The Constitution,' said the United States Supreme Court in U. S. ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407, 414, 41 S.Ct. 352, 355, 65 L.Ed. 704, 'was adopted to preserve our government, not to serve as a protecting screen for those who, while claiming its privileges, seek to destroy it.' A contemporary statement of the same principle is found in Barsky v. United States, 83 U.S.App.D.C. 127, 167 F.2d 241, certiorari denied 334 U.S. 843, 68 S.Ct. 1511, 92 L.Ed. 1767.'

American Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674.

In that case, decided May 8, 1950, the United States Supreme Court upheld the constitutionality of subsection 9(h) of the Labor Management Relations Act of June 23, 1947, 29 U.S.C.A. § 159(h). This section...