Pockman v. Leonard

Decision Date17 October 1952
Citation39 Cal.2d 676,249 P.2d 267
PartiesPOCKMAN v. LEONARD et al. S. F. 18349.
CourtCalifornia Supreme Court

Wayne M. Collins, San Francisco, for petitioner.

Edmund G. Brown, Atty. Gen., H. H. Linney, Chief Asst. Atty. Gen., and Herbert E. Wenig, Deputy Atty. Gen., for respondents.

GIBSON, Chief Justice.

This is an original proceeding in mandamus brought by an associate professor at San Francisco State College to compel respondents to certify his name on the public payroll and to pay him salary which was withheld because of his failure to execute the oath required by sections 3100-3109 of the Government Code, known commonly as the Levering Act. Stats.1951, 3rd Ex.Sess.1950, ch. 7, p. 15.

The statute declares that all public employees are 'civil defense workers subject to such civilian defense activities as may be assigned to them by their superiors or by law', and it defines public employees as all persons employed by the state or any county, city, city and county, state agency or public district, excluding aliens legally employed. Gov.Code, §§ 3100-3101. 'Subject to the provisions of Section 3 of Article XX of the Constitution,' all civil defense workers are required to take the oath prescribed by section 3103 of the Government Code within the first 30 days of employment. Gov.Code, § 3102. It is further provided that no compensation shall be paid to any civil defense worker by any public agency unless he has subscribed to the oath, and that it shall be the duty of the person certifying to public payrolls to ascertain and certify that the oath has been taken by such workers. Gov.Code, § 3107. Section 3108 declares that it is perjury to make false statements in the oath, and section 3109 makes it a felony for a person, after taking the oath and while in public employment, to advocate or become a member of an organization which advocates overthrow of the government by force or other unlawful means. The remaining sections Gov.Code, §§ 3104-3106, specify the manner of taking and filing the oath and provide that compliance with the act shall be deemed compliance with Government Code sections 18150-18158 1 relating to the taking of oaths by state employees.

The act went into effect October 3, 1950. Petitioner failed to take the required oath within 30 days thereafter, and respondents refused to certify his name to the public payroll or to pay his salary for services rendered during the months of October and November.

The first question is whether the provisions which declare public employees to be civil defense workers, 'subject to such civilian defense activities as may be assigned to them by their superiors or by law', render the entire act invalid. Gov. Code, §§ 3100-3101. Petitioner asserts that the statute imposes on public employees a rule of martial law and 'herds them into a headless, tailless and nondescript military body.' There is nothing in the act, however, which purports to conscript public workers into military service or which declares them to be subject to martial law. Petitioner also claims that the act improperly subjects him to assignment to activities outside and beyond his regular duties. It is clear, however, that a teacher may properly be assigned certain duties relating to civil defense, such as the instruction of pupils regarding their behavior during atomic explosions, air raids or other attacks. Tasks of this type, like the holding of fire drills, are within the scope of the duties of a teacher and may be properly required of him regardless of the fact that they may also constitute civil defense activities. There is no complaint that any specific civil defense duties have been imposed on petitioner under the act, and we should not assume that any improper assignments will be made. The provision that workers are subject to such activities 'as may be assigned to them by their superiors or by law' does not, as asserted, invalidly delegate legislative power to define and impose civil defense duties. Instead, the reasonable construction is that the superiors, in making assignments, are limited to such authority as they already have or may subsequently be granted by law.

We turn now to other arguments made by petitioner. The oath which he has refused to take reads as follows:

'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 California 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 California; 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 I do not advocate, nor am I a member of any party or organization, political or otherwise, that now advocates the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means; that within the five years immediately preceding the taking of this oath (or affirmation) I have not been a member of any party or organization, political or otherwise, that advocated the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means except as follows:

'(If no affiliations, write in the words 'No Exceptions') and that during such time as I am a member or employee of the _ _ (name of public agency) I will not advocate nor 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 California by force or violence or other unlawful means.' Gov.Code, § 3103.

Section 3 of article XX of the state Constitution provides:

'Members of the Legislature, and all officers, executive and judicial, except such inferior officers as may be by law exempted, shall, before they enter upon the duties of their respective offices, take and subscribe the following oath or affirmation:

"I do solemnly swear (or affirm, as the case may be,) that I will support the Constitution of the United States and the Constitution of the State of California, and that I will faithfully discharge the duties of the office of _ _ according to the best of my ability.'

'And no other oath, declaration, or test, shall be required as a qualification for any office or public trust.'

When petitioner was appointed to the state college faculty in 1946 he took an oath identical to that prescribed in section 3 of article XX, and he argues that he is exempted by the last sentence of that section from taking any 'other oath, declaration, or test' and, hence, cannot be required to take the oath prescribed by section 3103 of the Government Code.

When resort is had to the historical background of the constitutional provision, it appears that the words 'oath, declaration, or test' have an important connotation in connection with qualifications for public service. The English 'test' act of 1673, which was so odious to the people, required all civil and military officers to take 'oaths' of allegiance and supremacy and to make 'declarations' regarding matters of opinion, particularly religious beliefs. Stat. 25 Car. II, c. 2; see 4 Blackstone Commentaries 59. This act was undoubtedly in the minds of framers of state Constitutions when they used these words in drafting constitutional provisions similar to ours. People v. Hoffman, 1886, 116 Ill. 587, 5 N.E. 596, 605, 8 N.E. 788; Attorney General v. Board of Councilmen of City of Detroit, 1885, 58 Mich. 213, 24 N.W. 887, 889-890; Rogers v. City of Buffalo, Sup.1888, 3 N.Y.S. 671, 673-674, affirmed 123 N.Y. 173, 25 N.E. 274, 278-279, 9 L.R.A. 579.

The prohibition contained in section 3 2 was considered in the early case of Cohen v. Wright, 22 Cal. 293, where it was said at page 310, 'In our judgment it was not intended to limit the action of the Legislature to the particular set form of words used in the Constitution, and it is clearly within their power to prescribe any form, so that they do not go beyond the intent, object and meaning of the Constitution.' And in Bradley v. Clark, 133 Cal. 196, 201, 65 P. 395, 396, it was stated that the language in section 3 'leaves, as the only matter for determination, the single question whether (the statute there involved) does impose an oath or test substantially different from that prescribed by the constitution.' In this connection, it would seem clear that any oath or declaration which imposes a religious or political test is prohibited. See Gradley v. Clark, 133 Cal. 196, 201, 65 P. 395; Rogers v. City of Buffalo, supra, 3 N.Y.S. at pages 673-674; Attorney General v. Board of Councilmen of City of Detroit, supra, 24 N.W. at page 890, concurring opinion; cf. United Public Workers v. Mitchell, 330 U.S. 75, 100, 67 S.Ct. 556, 91 L.Ed. 754. It has been recognized, however, that such a constitutional prohibition does not prevent the examination of public employees for skill, education, or other qualities reasonably related to qualifications for public service. As said in Rogers v. City of Buffalo, 123 N.Y. 173, 25 N.E. 274, 278, 9 L.R.A. 579, in answer to a contention that 'Nothing but the bare oath' mentioned in the Constitution could be required, 'We do not think that the provision above cited was ever intended to have any such broad construction. Looking at it as a matter of common sense, we are quite sure that the framers of our organic law never intended to oppose a constitutional barrier to the right of the people through their legislature to enact laws which should have for their sole object the possession of fit and proper qualifications for the performance of the duties of a public office on the part of him who desired to be appointed to such office.' See also ...

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34 cases
  • Whitney v. Municipal Court of City and County of San Francisco
    • United States
    • California Court of Appeals Court of Appeals
    • June 1, 1962
    ...material is obscene. The statute may reasonably be interpreted as making knowledge an element of the offense (see Pockman v. Leonard, 39 Cal.2d 676, 685, 249 P.2d 267; Hirschman v. County of Los Angeles, 39 Cal.2d 698, 702, 249 P.2d 287, 250 P.2d 145); so interpreted it would not be invalid......
  • First Unitarian Church of Los Angeles v. Los Angeles County
    • United States
    • California Supreme Court
    • April 24, 1957
    ...ch. 7, p. 15, Government Code, § 3100 et seq. In upholding the validity of the Levering Act this court in Pockman v. Leonard, 39 Cal.2d 676, 249 P.2d 267, 273, stated that the oath required there and similar in effect to the present one, was 'obviously not a test of religious It is further ......
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    • United States
    • California Supreme Court
    • December 21, 1967
    ...division, bureau, board, commission, agency, or instrumentality of any of the foregoing.' In 1952, this court in Pockman v. Leonard, 39 Cal.2d 676, 249 P.2d 267, upheld the validity of the substantially similar oath found in sections 3100--3109 of the Government Code, known commonly as the ......
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    ...State College system for failing to take a loyalty oath. The statute requiring the oath was held constitutional in Pockman v. Leonard (1952) 39 Cal.2d 676, 249 P.2d 267. In view of that case, Professor Monroe did not seek judicial review of the state's action within the statutory period. We......
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