HIRSCHMAN v. LOS ANGELES COUNTY

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District Court of Appeal, Second District, Division 2, California.

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

Civ. 18282.

Decided: May 14, 1951

Margolis & McTernan, John T. McTernan and William B. Murrish, Los Angeles, for appellants. Harold W. Kennedy, County Counsel, and Gerald G. Kelly, Asst. County Counsel, and Robert L. Trapp, Deputy County Counsel, Los Angeles, for respondents.

Dissatisfied with the denial of their petitions for a writ of mandamus to compel the Los Angeles County Civil Service Commission to set aside its decision of November 24, 1948, upholding their discharge from county employment, petitioners appeal. Their discharges were based upon their ‘insubordination’ in refusing to comply with a prior order of the Board of Supervisors of Los Angeles County requiring all county employees to execute the oath and affidavits found on the margin hereof.1

Because they refused to subscribe to those forms, they were discharged. They now seek restoration despite the fact that they have not even offered to subscribe to the oath or either affidavit. Nothing in the designated requirement or in either affidavit in the slightest degree affects petitioners' political or religious beliefs. No constitutional right is imperilled; no hallowed principle is to be forsworn; no hazardous or difficult task is assigned. The endless lines of men and women entrusted with public duties are in place, with life tenure, to enjoy economic independence, secure against all forces except the earth's diastrophisms and potential foreign foes. Respondents have simply undertaken to perform a plain duty by applying a procedure whereby to ascertain from each person in the public service whether he is a loyal American, loyal to the interests of the state, faithful as against insidious foes and resolute in his purpose not to give his allegiance to any party or movement designed to subvert the state or the national government. Their efforts deserve approval, not disapprobation; praise, not execration; eager applause, not muffled drums. Their purpose in exacting the new oath and affidavits is to place about the pulsing and reliant heart of society renewed confidence in the majesty and power of the American state and to reduce perils arising from internal foes. If appellants desire to advocate the overthrow of either form of our dual government or a terrorization of a municipal or county organization, they are free from employment restraints after having resigned from their positions. Neither argument nor authority is necessary to support the thesis that the State is not obliged to wait until after an employee has committed some overt act before making inquiry as to his fitness to occupy the position he holds.

The procedure espoused by respondents was wisely conceived. Within recent years the proceedings of courts and committees have in many metropolitan centers of the nation disclosed fallen idols who once enjoyed public esteem while entrusted with large responsibilities, now known chiefly by virtue of their convictions of subversive aims and disloyal hearts. Should those men who have confessed their adherence to alien programs be returned to nestle on the plush-seated divans of the national capital or behind the brocaded draperies of the Los Angeles Temple of Justice? We think not. The common sense of the average citizen resents the suggestion. Disloyalty is not merely a new or novel idea seeking expression. It is not a philosophy that the people of any political subdivision in all recorded history have declared beneficial to their government, or that any philosopher or statesman has espoused. On the contrary, its sponsors have been the object of abhorrence in every enlightened land. Unrestrained, it gnaws, like the eternal termite, at the foundation of a government and if its devotees are employed to occupy the structure, soon will the rafter fall in ruins.

Is there any doubt that a private employer with reasonable fears of sabotage would not be justified in requiring his employees to submit to questioning and examination? He might thereby ascertain whether one had stolen or done malicious mischief or whether one intended to take or destroy his employer's property. How much higher standard must guide the servant of the state! It is not only the privilege but the duty of those who administer public affairs to make inquiry as to the individual fitness of the army of men and women employed to protect the property of the state, to maintain its government, to preserve law and order. It is only by public confidence in their intelligence, honesty and industry that social repose is protected and tranquility is assured. If the personal capabilities of workmen, gardeners, clerks, policemen, firemen and executives are indispensable to the public weal, how important is the personal loyalty of every public servant! How essential to keep all things of the State from the hands of those whose first aim is to destroy the support and shield of every American family!

The very questions presented have been before this court on two former occasions. In Steiner v. Darby, 88 Cal.App.2d 481, 199 P.2d 429, 434, we declined to enjoin the supervisors from proceeding with their fact-finding program through the use of such oath and affidavits. Although no discharge of any employee for refusal to subscribe was involved, that decision of necessity is controlling now on the question of the correctness of respondents' action herein. We there held in the language of Justice McComb that petitioners ‘as public servants, have the implied duty to support the form of government lawfully chosen * * * they impliedly agreed, when they accepted public employment, to act as representatives of the People and not to advocate destruction of the government by force of violence. By accepting public employment they forego any privilege they may have had as private citizens to advocate the overthrow of the government by force and violence. It is inconceivable that they should be permitted to represent the People * * * and at the same time have the privilege of advocating the overthrow of the very government by which they * * * obtain their livelihood.’ A hearing of that decision was refused by the Supreme Court and on certiorari the federal Supreme Court declined to annul it. Parker v. County of Los Angeles, 338 U.S. 327, 70 S.Ct. 161, 94 L.Ed. 144. Thereafter seventeen employees of the City of Los Angeles were discharged for refusal to subscribe to an oath and affidavit of substantially the same import as those here involved. They sought restoration by consolidated petitions for writ of mandate directing their reinstatement. Garner v. Board of Public Works, 98 Cal.App.2d 493, 220 P.2d 958, 960. Unable to convince the superior court, their appeal failed in this court (Division One). Justice Drapeau reviewed many decisions on the right of a state to prescribe qualifications of its employees. The conclusion derived was an affirmance with the observations that ‘It is treasonable to advocate the destruction by force of the government * * *. It is an ever-present threat to government itself to have treasonable persons charged with the conduct of public affairs. Having such people on the payroll results in impairment of governmental service. * * * It is, therefore, the duty of those charged with the management of the business of government to ascertain, require, and insure unconditional, unswerving loyalty of every servant of the people * * *. The man or woman who denies allegiance to his employment is, and should be, soon separated from it.’

The acts of the Board of Supervisors in requiring the subscription of county employees to such affidavits are in no respect akin to the bills of attainder, as argued by petitioners. The Act of Attainder was a cruel device employed in the 17th century by legislative assemblies as a means of enforcing compliance of designated persons with the wishes of the executive or of the majority of the legislators. Its application caused monstrous atrocities. It did not merely cause a slight unpleasantness or inconvenience but without a conviction by a jury or a court, without indictment or accusation, without any legal evidence the property of men and women was confiscated, they were driven from their homes, their furniture was burned and their food destroyed. Sometimes they were permitted to live, scorned by their fellows, driven to the forest or sent beyond the seas. It was a common occurrence that a man who had incurred the hatred of the king or his henchman would without trial be hanged or quartered and drawn.

No similarity exists between the harsh and imperious rule of the Act of Attainder and the rule of the supervisors prescribing a test for employees. The former imposed upon the innocent citizen violent retribution for merely having displeased the monarch or one of the latter's friends. The rule of the supervisors was designed solely to acquaint them with whether an employee of the county holds to a philosophy inimical to the maintenance of the state. The decisions cited by petitioners, Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366; Cummings v. Missouri, 4 Wall. 277, 18 L.Ed. 356, etc., were answers by the Supreme Court to a dragnet method of excluding confederate soldiers and sympathizers from participating again in the national government by punishing them for past conduct with respect to a settled issue. At the present time in every large city in America there is a number of citizens who prefer the government of a potential enemy to that of the United States. To ascertain who they are in Los Angeles county is not to attaint them, not to take from them a single right to which they are entitled, not to coerce them to yield even an opinion.

The principle involved is not whether a constitutional guaranty has been violated but rather is it the right of the state or an arm of its government to prescribe moral and ethical as well as educational standards of those engaged in public service. Not only must an employee devote the prescribed hours to his work and apply thereto the necessary intelligence, but he is obliged to refrain from such deception as contracting an interest inconsistent with his duties and to this end he is subject to regulation. 2 Williston on Contracts, sec. 1022, p. 1923; 39 C.J. 82, 56 C.J.S., Master and Servant, § 42; Miller v. Jones, 178 Iowa 168, 159 N.W. 671; Osburn v. De Force, 122 Or. 360, 257 P. 685, 689, 258 P. 823. It would be not only monstrously oppressive to require a county to retain an employee who has adopted an attitude hostile to the state, Puritas Laundry Co. v. Green, 15 Cal.App. 654, 660, 115 P. 660, but it would undermine authority and induce the employee of treasonable persuasion to bite the hand that feeds him. The county has the right and the duty to exercise a reasonable supervision over its employees, to apply appropriate discipline and to use such measures as are reasonably calculated to prevent the disruption or impairment of public service. Hayman v. City of Los Angeles, 17 Cal.App.2d 674, 678, 62 P.2d 1047; Washington v. Clark, D.C., 84 F.Supp. 964. The power to prescribe tests and conditions for ascertaining the extent or lack of loyalty on the part of county employees implies the right of the Board of Supervisors to discharge those who decline to comply with the tests applied. See Communist Party v. Peek, 20 Cal.2d 536, 551, 127 P.2d 889.

A county employee's character is subject to inspection at all times and if his conduct or his sentiments are found to be inimical to the interest of the people he should be discharged. Kenneth v. Barber, 159 Fla. 81, 31 So.2d 44. Moreover, a municipality is possessed of the authority to supervise and regulate the conduct of its employees. Where a policeman had been discharged for violating a rule against his soliciting aid for any political purpose whatever, Justice Holmes said: ‘Petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman. * * * The city may impose any reasonable condition upon holding offices within its control.’ McAuliffe v. Mayor, etc., of City of New Bedford, 155 Mass. 216, 29 N.E. 517. In Gerende v. Board of Supervisors of Elections, 71 S.Ct. 565, it was held that there was no error in a Maryland decision Md., 78 A.2d 660, which denied plaintiff a place on the ballot for a municipal election on the ground that she had refused to file an affidavit that she was not a person engaged ‘in one way or another in the attempt to overthrow the government by force and violence’ or that she was not knowingly a member of an organization engaged in such an attempt. 71 S.Ct. 565. If one may not seek election for declining to make such affidavit why should he not be excluded from a civil service position for the same offense?

In this connection, appellants contend that the orders of the Board of Supervisors with reference to advocacy of the forceful overthrow of the government violate section 41 of the county charter. That section provides: ‘No person in the classified service, or seeking admission thereto, shall be appointed, reduced or removed or in any way favored or discriminated against because of his political or religious opinions or affiliations.’ Nothing is to be found in section 41 intended to prevent an employer from discharging an employee who advocates the overthrow of our government. Such was the holding in Lockheed Aircraft Corporation v. Superior Court, 28 Cal.2d 481, 171 P.2d 21, 166 A.L.R. 701. While it is true that the corporation was engaged in the production of war materials and was for that reason considered especially deserving of protection against disloyal employees, still no good reason appears why section 41 should protect appellants by allowing them to return to the ranks of the county's 20,000 employees. The section contains no inhibition against the county's discharging an employee whose first loyalty is to his ideal of armed revolution against the state that he serves. The fact that his tenure is protected by civil service does not avail him if he is disloyal. The language of the section which prohibits discrimination against one in the classified service ‘because of this political or religious opinions or affiliations' refers to politics and religion in their narrow connotations and not to such a movement as champions the destruction of government by violence. Powell v. Unemployment Compensation Board of Review, 146 Pa.Super 147, 22 A.2d 43. The procedure for testing the fitness of county employees duly adopted by the Board of Supervisors and applied to appellants is reasonably fair and was correctly approved. It logically follows that where employees have been discharged for their refusal to submit to inquisitive processes instituted for the purpose of ascertaining their fitness, they are not entitled to be reinstated upon their mere demand.

The judgment is affirmed.

FOOTNOTES

1.  ‘A. Oath of Office or Employment‘I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution and laws of the State of California, against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office or employment on which I am about to enter or am now engaged. So Help Me God.‘B. Affidavit Re Subversive Activity‘I do further swear (or affirm) that I do not advocate, nor am I now a member, nor have I been since December 7, 1941, a member of any political party or organization that advocates the overthrow of the Government of the United States, or State of California, or County of Los Angeles, by force or violence, except those specified as follows: ________ and that during such time as I am an officer or employee of the County of Los Angeles, I will not advocate nor become a member of any political party or organization that advocates the overthrow of the Government of the United States, or State of California, or County of Los Angeles by force or violence.‘C. Affidavit Re Aliases‘I do further swear (or affirm) that I have never used or been known by any names other than those listed as follows: ________’Paragraph ‘D’ required the employee to indicate whether he has been a member of or supported any one of 142 named organizations.

MOORE, Presiding Justice.

McCOMB and WILSON, JJ., concur.

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