HIRSCHMAN v. LOS ANGELES COUNTY (1952)

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 s 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, s 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.

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 service, both officers and employees.’ It appears to me that the argument used here is inconsistent with the statement in Pockman v. Leonard. Why should the word ‘officers' be given a different interpretation in construing the Constitution from that given it in construing section 1360 et seq. of the Government Code? Article 4 of Title 1, Div. 4, ch. 2 of the Government Code is entitled ‘Oath of Office’ (not ‘Oath of Office’ for county officers) and Chapter 4, Title 2, Div. 5, pt. 1, is entitled ‘Oaths for State Employees'. But the latter provision relates back to Article 4 for the ‘Method and manner of taking, subscribing, and filing oath: Nonmember of civil service’ (see section 18152). Both section 1360 (which is said to apply to county officers only) and section 18150 provide that the affiant will faithfully discharge ‘the office of _ _’ to the best of his ability; yet one is said to relate to officers only and the other to employees and that one may not include the other.

As the majority of the Court said in Pockman v. Leonard, supra, ‘We are unable to find any place where a line can reasonably be drawn so as to place some positions within and others outside the constitutional prohibition, and, in our opinion, there is no justification for excluding any public servants from its protection. The prohibition should therefore be read as applying to every state and local officer and employee. This construction is in accord with the basic purpose of safeguarding the public and its servants by forbidding oaths and declarations regarding matters that bear no reasonable relationship to governmental service and particularly those that involve political and religious beliefs. Persons in the lower levels of government are just as much entitled to this protection as those in higher positions.’ The supplemental opinion states that Pockman v. Leonard, supra, holds 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“. The oath there was specifically held not to constitute either a religious or political test. I am of the opinion that the holding in the Pockman case goes farther than the Court now decides that it went. It is my understanding that the word ‘officers' there was held to include all employees, but that the oath involved in that case did not substantially differ from the Constitutional oath. I am of the opinion now, as I was then, see dissent, Pockman v. Leonard, 39 Cal.2d 676, 249 P.2d 267, that if there is no difference between the two, then the Levering Act is a nullity.

In the Tolman case it was held that the state Legislature had expressly provided that the Constitutional oath was required of every state employee and, ‘by a series of statutes, has enacted a general and comprehensive scheme relating to execution and filing of the oath by all such persons' and that ‘Where the Legislature has adopted statutes governing a particular subject matter, its intent with regard to occupying the field to the exclusion of all local regulation is not to be measured alone by the language used but by the whole purpose and scope of the legislative scheme’. What was said in the Tolman case with respect to legislative pre-emption of the field is as applicable to county employees as it was to state employees and it is my opinion that they may be required to take only the constitutional oath which is set forth in section 1360 et seq. of the Government Code together with the method and manner of taking the same. There is no merit to the argument that the constitutional oath provision is not self-executing; the Legislature has provided that the oath there set forth shall be taken and the manner in which it is to be done in that Article of the Government Code (4) entitled ‘Oath of Office’. Therefore, if the Legislature did not pre-empt the field by the last mentioned statutes, it certainly did not do so by the Levering Act. Furthermore, if the Legislature could not prescribe any other oath than that set forth in section 3 of Article XX of the Constitution, such restriction should apply to all other legislative bodies in the state, and thus render the oath here involved invalid.

I would therefore grant a rehearing in this and all companion cases.

PER CURIAM.