Hirschman v. County of Los Angeles

• Decision Date: 14 November 1952
• Citation: 250 P.2d 145,39 Cal.2d 698
• Parties: HIRSCHMAN et al. v. LOS ANGELES COUNTY et al. L. A. 22035.
• Court: California Supreme Court

Page 145

250 P.2d 145

39 Cal.2d 698

HIRSCHMAN et al. v. LOS ANGELES COUNTY et al.

L. A. 22035.

Supreme Court of California, in Bank.

Nov. 14, 1952.

Margolis & McTernan, John T. McTernan, William B. Murrish, Wirin, Rissman & Okrand, A. L. Wirin, Fred Okrand, Los Angeles, and Nanette Dembitz, New York City, for appellants.

Harold .w. Kennedy, County Counsel, Gerald G. Kelly, Asst. County Counsel, Los Angeles, and Robert L. Trapp, Deputy County Counsel, Santa Maria, for respondents.

PER CURIAM.

In their petition for rehearing plaintiffs, who are civil service employees of Los Angeles County, claim that the county oath should be invalidated on the ground that the field of loyalty oath requirements for all public employees had been fully occupied by section 1360 et seq. of the Government Code which provide that every officer shall take the constitutional oath before entering upon the duties of his office. The term 'officer' as used therein clearly includes both state and county officers (see § 1363(b)), but the provisions requiring execution of the oath do not mention employees and cannot reasonably be read as applying to all persons in public employment. That the Legislature had no such intent was made clear by the enactment of Government Code section 18150 et seq. which specifically extend the oath requirement to all state employees. These latter sections would obviously have been unnecessary and meaningless if section 1360 et seq. were construed as petitioners urge.

There is nothing in Tolman v. Underhill, 39 Cal.2d 708, 249 P.2d 280, which is inconsistent with our interpretation of sections 1360-1363 of the Government Code, since the case does not hold that those provisions, standing alone, require all public employees to take the prescribed oath. The opinion proceeds on the theory that sections 1360-1363 and 18150 et seq. must be read together in order to cover all persons in state service, both officers and employees.

Nor is any different interpretation of sections 1360-1363 required by reason of our holding in Pockman v. Leonard, 39 Cal.2d 676, 249 P.2d 267, that all persons in public employment are protected by the constitutional prohibition against the imposition of religious or political tests as a qualification for 'any office or public trust.' Our construction of the language of the prohibition as running in favor of all public employees does not constitute a holding that all such persons must execute the constitutional oath and obviously does not compel us to interpret the term 'officer' in section 1360 as applying to all persons in public employment.

Government Code section 18150 et seq. clearly have no application to persons employed by a county, and under Government Code sections 1360-1363 the only persons in county service who are required to take the constitutional oath are officers. The field of loyalty oath requirements for all persons in county service was not preempted by statute until the adoption of the Levering Act, Government Code, § 3100 et seq. which expressly requires all county employees to take the oath prescribed therein. See Bowen v. County of Los Angeles, 39 Cal.2d 714, 249 P.2d 285.

The petition for rehearing is denied.

CARTER, Justice (dissenting).

I agree with petitioners that the holdings in the so-called Loyalty Oath cases are inconsistent and irreconcilable, and it seems to me that the supplemental opinion this day filed does not clarify but adds to the confusion which is the inevitable result of an attempt to reach a certain conclusion without pursuing a course of logical reasoning.

Government Code, section 1360, sets forth an oath identical with that prescribed in section 3, Article XX of the Constitution. Section 1363 provides that the oath applies to 'officers elected or appointed for any county'. In Pockman v. Leonard, 39 Cal.2d 676, 249 P.2d 267, it was held that the word 'officers' in section 3 of the Constitution applied to 'every state and local officer and employee' and that such persons could not be required to take any oath but that set forth in the Constitution or one substantially identical thereto. Petitioners argue that the word 'officer' in section 1363(b) should be given a similar interpretation and that they, as county employees, were required to take the oath set forth in section 1360 and that, as in Tolman v. Underhill, 39 Cal.2d 708, 249 P.2d 280, the Legislature had pre-empted the field so as to invalidate the county oath. In the Tolman case, 39 Cal.2d 708, 712, 249 P.2d 280, the Court said that 'Although the adoption of local rules supplementary to state law is proper under some circumstances, it is well settled that local regulation is invalid if it attempts to impose additional requirements in a filed which is fully occupied by statute (citations)' and 'As we have already seen, the Legislature has enacted a general and detailed scheme requiring all state employees to execute a prescribed oath relating to loyalty and faithful performance of duty, and it could not have intended that they must at the same time remain subject to any such additional loyalty oaths or declarations as the particular agency employing them might see fit to impose. Multiplicity and duplication of oaths and declarations would not only reflect seriously upon the dignity of state employment but would make a travesty of the effort to secure loyal and suitable persons for government service.'

This Court now, after holding in Pockman v. Leonard, supra, that the word 'officers' in the Constitution applies to every state and local officer and employee, seeks to distinguish this case on the ground that section 1363(b) cannot 'reasonably be read as applying to all persons in public employment. That the Legislature had no such intent was made clear by the enactment of Government Code section 18150 et seq., which specifically extend the oath requirement to all state employees'. It is also said that Tolman v. Underhill, supra, is not inconsistent with the interpretation given sections 1360-1363 of the Government Code, 'since the case does not hold that those provisions, standing alone, require all public employees to take the prescribed oath. The opinion proceeded on the theory that sections 1360-1363 and 18150 et seq. must be read together in order to cover all persons in state...