Torcaso v. Watkins

• Citation: 162 A.2d 438,223 Md. 49
• Decision Date: 30 June 1960
• Docket Number: No. 199,199
• Parties: Roy R. TORCASO v. Clayton K. WATKINS, Clerk of the Circuit Court of Montgomery County.
• Court: Court of Appeals of Maryland

Page 49

223 Md. 49 162 A.2d 438 Roy R. TORCASO
v.
Clayton K. WATKINS, Clerk of the Circuit Court of Montgomery County. No. 199. Court of Appeals of Maryland. June 30, 1960.

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[162 A.2d 439] Leo Pfeffer, New York City, and Joseph A. Sickles, Washington, D. C. (Carlton R. Sickles, Sickles & Sickles, Sanford H. Bolz, Washington, D. C., and Bruce N. Goldberg, Bethesda, on the brief), for appellant.

Lawrence Speiser, George Kaufmann, Laurence J. Cohen, Washington, D. C., and Rowland Watts, New York City, on the brief, amicus curiae filed by American Civil Liberties Union.

Stedman Prescott, Jr., Deputy Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HENDERSON, Judge.

This appeal is from an order of the Circuit Court for Montgomery County dismissing a petition for mandamus against the Clerk of that court, after a demurrer to the petition had been sustained. The petition alleged, and the demurrer admitted, that the appellant, a citizen of the United States and a resident of Montgomery County for more than two years past, had been duly appointed by the Governor a notary public in and for that County, but when he went to the Clerk's office to obtain his commission and qualify for the office, the Clerk requested him to take and subscribe to a certain oath and declaration. The appellant declined to do so. Thereupon, the

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appellee refused to deliver the commission to the appellant, and suit followed.

[162 A.2d 440] The oath and declaration tendered to him read as follows:

'State of Maryland, Montgomery County ss:

'In the presence of Almighty God, I, Roy R. Torcaso, do solemnly promise and declare that I will support the Constitution of the United States; and that I will be faithful and bear true allegiance to the State of Maryland, and support the Constitutional and Laws thereof; and that I will, to the best of my skill and judgment, diligently and faithfully without partiality or prejudice execute the office of

'Notary Public of

'The State of Maryland

'In and For

'Montgomery County according to the Constitution and Laws of this State.

'I, Roy R. Torcaso, do declare that I believe in the existence of God.

'________

'Sworn to and subscribed before me, Clerk of the Circuit Court for Montgomery County, at Rockville, Maryland, this ___ day of _____ AD, 19__.

'Test:

'________ Clerk'

The appellant stated that he was prepared to take the oath or affirmation prescribed by the Maryland Constitution, but refused to declare his belief in the existence of God.

The oath and declaration quoted above differs from that prescribed by Art. 1, sec. 6 of the Maryland Constitution, for all persons elected or appointed to 'any office of profit or trust, under this Constitution, or under the Laws, made pursuant thereto,' in two particulars. The prescribed oath, or affirmation, begins with the phrase 'I, ....., do swear, (or affirm, as the case may be,)', and it omits the separate declaration as to belief in the existence of God. It

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is conceded that the office of notary public is an office of profit or trust, referred to in Art. IV, sec. 45 of the Constitution, and dealt with in Code (1957), Art. 68, secs. 1-10. Sec. 1 provides that applicants shall 'take the oath of office before the clerk of the circuit court for each of the counties in the State * * *.' The reference here, as in Code (1957), Art. 70, sec. 7, is to the oath prescribed by the Constitution. Art. 37 of the Declaration of Rights provides:

'That no religious test ought ever to be required as a qualification for any office of profit or trust in this State, other than a declaration of belief in the existence of God; nor shall the Legislature prescribe any other oath of office than the oath prescribed by this Constitution.'

In Davidson v. Brice, 1900, 91 Md. 681, 48 A. 52, this Court held that the Legislature had no power to require a different or supplemental oath of office, in the case of a county treasurer. Chief Judge McSherry, for the Court, said (91 Md. at page 691, 48 A. at page 54): 'Art. 37 does two things: It prohibits any religious test as a qualification for any office of profit and trust, other than a declaration of belief in the existence of God; and it prohibits any oath of office other than the one set forth in section 6, art. 1, or the constitution, except as respects the comptroller and treasurer.' But the opinion throws no light on the questions now raised. We may note in passing that the form of oath presented to the applicant, which did not follow the language of the Constitution giving him an option to swear of affirm, was improper. But the appellant's main contentions are (1) that a declaration of belief in the existence of God, although permitted by Article 37 as an exception to the general rule against the requiring of a religious test as a qualification for office, has never been put into effect by the Legislature, and (2) that, if the exception is self-executing under Article 37 of the Declaration of Rights, it is invalid as in violation of the Fourteenth Amendment to the Federal Constitution.

[162 A.2d 441] On the first point, we must agree that there is no present Maryland statute implementing the exception stated in Article 37. Code (1957), Art. 70, sec. 9, provides: 'It shall only

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be necessary for an officer who is required to take and subscribe the oath prescribed by the sixth section of the first article of the Constitution to declare orally at the time his belief in the Christian religion, or, if he profess to be a Jew, of his belief in a future state of rewards and punishments; and it shall be presumed that an officer who has taken and subscribed the oath made at the same time such declaration of belief.' This section was enacted by Chapter 18, sec. 1, Acts of 1854, and has been included without change in succeeding confications, including those of 1860 and 1888, which, unlike other codifications, were not not merely evidence of existing laws but legislative enactments of the matter therein...