Transcript of Record — Cramp v. Board of Public Instruction of Orange Cty.

LIBRARY

SUPREME COURT, U, S&

TRANSCRIPT OF RECORD

Supreme Court of the United States

OCTOBER TERM, 1961

No. 72

f

DAVID WALTON CRAMP, JR., APPELLANT,

vs.

BOARD OF PUBLIC INSTRUCTION OF

ORANGE COUNTY, FLORIDA

<a

APPEAL FROM THE SUPEBEME COURT OF THE STATE OF FLORIDA

FILED MARCH 27, 1961

JURISDICTION POSTPONED MAY 29, 1961

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1961

No. 72

DAVID WALTON CRAMP, JR., APPELLANT,

vs.

BOARD OF PUBLIC INSTRUCTION OF

ORANGE COUNTY, FLORIDA

~

APPEAL FROM THE SUPREME COURT OF THE STATE OF FLORIDA

INDEX

Record from the Circuit Court of the 9th Judicial

Circuit in and for Orange County, Florida

Original Print

SEE ER Re cnet SOIL ea Le Me Soe Ee Be 1 1

SBI MELLO II OE, © IES SERIO 6 5

I ie os sae eel 8 6

SI II age ee 9 7

Final decree - mae 11 8

Assignments of error _. 14 9

Proceedings in the Supreme Court of the State of

I execs ASR canes IRE Pet ear ote estan ee 15 11

Opinion, Thornal, rs (at dciniecnanelebagteboaeabaae 15 11

Judgment owes aa SR as a 25 20

Order dong ing + ations far re bearing : 27 20

Notice of appeal _to.the Supreme Court of the

United States__——> oe iad onene Aa ae a 28 21

Clerk's certificate (omitted in printing’ . pinatitleta 31 23

Order postponing jurisdiction |... 32 23

Recorp Press, PRINTERS, New York, N. Y., Jury 21, 1961

[fol. 1] :

IN THE CIRCUIT COURT OF THE 9th

JUDICIAL CIRCUIT IN AND FOR

ORANGE COUNTY, FLORIDA

In CHANCERY

No. 38699

Davi Watton Cramp, JR., Plaintiff,

vs.

Tue Boarp or Pvustic Instruction oF Orance County,

Foripa, a body corporate, Defendant.

CompLaint—Filed January 11, 1960

The plaintiff, by his undersigned attorneys, states:

1. The plaintiff is a resident of Orange County, Florida,

- and is over the age of twenty-one years.

2. The defendant is a body corporate created by the

Legislature of the State of Florida, and is charged with

the administration of the public schools located in Orange

County, Florida.

3. The plaintiff has been employed by the defendant

- for nine years last past in the capacity as teacher, and

is now employed in that capacity at William R. Boone

High School, located in the City of Orlando, County of

Orange and State of Florida.

4. The plaintiff has been requested by the principal of

the said high school (one of the instructional personnel

employed by the defendant) to subscribe to the following

oath prescribed by F.S. $876.05 as follows:

ge ge , a citizen of the State of Florida

and of the United States of America, and being em-

ployed by or an officer of 02.2... and a recipient

of public funds as such employee or officer, do hereby

solemnly swear or affirm that I will support the Con-

stitution of the United States and of the State of

Florida; that I am not a member of the Communist

Party; that I have not and will not lend my aid, sup-

(fol. 2] port, advice, counsel or influence to the Com-

munist Party; that I do not believe in the overthrow

of the Goternment of the United States or of the State

of Florida by force or violence; that I am not a

member of any organization or party which believes

in or teaches, directly or indirectly, the overthrow of

the Government of the United States of of (sic) Flor-

ida by force or violence.”

5. Plaintiff has been advised that the execution of said

oath is a statutory prerequisite to his continued employ-

' ment by the defendant, and that upon his failure to sub-

scribe to said oath, he can he immediately discharged and

his name can be removed frof the payroll of the defendant.

6. The plaintiff avers that he has, does and will support

the Constitution of the United States and of the State of

Florida; he is not a member of the Communist Party;

that he has not, does not and will not lend, aid, support,

advice, counsel or influence to the Communist Party;

he does not believe in the overthrow of the Government of

the United States or of the State of Florida by force or

violence; he is not a member of any organization or party

which believes in or teaches directly or indirectly the over-

throw of the Government of the United States or of Florida

-by force or violence.

7. The plaintiff is a loyal American and does not

decline to execute or subscribe to the aforesaid oath for

fear of the penalties provided by law for a false oath.

8. The plaintiff avers, however, that the requirement of

the statutes of Florida and of the defendant that he execute

the said oath as a condition precedent to his continuing

employment by the defendant is a violation of his rights

as a free, loyal American citizen as guaranteed by the First

and the Fourteenth Amendments to the Constitution of

the United States and Sections 12, 13 and 15 of the Decla-

3

ration of Rights and Article“16, Section 2 of the Constitu-

tution of the State of Florida. The said oath, insofar as

[fo]. 3] it requires plaintiff to swear or affirm that he

not lent aid, support, advice, counse! or influence to the

Communist Party is an ex post facto law, illegally retro-

active, and deprives him of liberty and property in viola-

tion of due process of law guaranteed by the Fourteenth

Amendment of the United States Constitution; that the

aforesaid oath, insofar as it requires plaintiff to swear or

affirm. that he has not and will not lend aid, support, advice,

counsel or influence to the Communist Party without the

qualification that he has not knowingly and will not know-

ingly lend aid, support, advice, counsel or influence to the

Communist Party, is arbitrary and capricious and deprives

plaintiff of due process of law guaranteed by the Four-

teenth Amendment; that the aforesaid oath, insofar as it

requires plaintiff to swear or affirm that he is not a member

of any organization or party which believes in or teaches,

directly or indirectly, overthrow of the Government of

the United States or of the State of Florida by force or

violence without the qualification that he is not a member

of any organization or party which to his knowledge so

helieves or teaches, is arbitrary and capricious and deprives

plaintiff of due process of law guaranteed by the Four-

teenth Amendment; that the aforesaid oath, insofar as it

seeks to deprive plaintiff of his employment for failure

to swear or affirm that he is not a member of the Com-

munist Party and has not lent his aid, support, advice,

counsel er influence to the Communist Party and is not

a member of any organization or party which believes in

or teaches, directly or indirectly, the overthrow of the

Government of the United States or of the State of Florida

by force or violei ce, is a bill of attainder and unconstitu-

tional under § Art. I, §9 of the United States Constitution;

and that the requirement of the oath in its entirety deprives

fol. 4] plaintiff of freedom of association and due process

of law guaranteed by the First and Fourteenth Amend-

ments of the United States Constitution.

9. For the reasons above set forth, the plaintiff declines.

to execute or subscribe to the oath as set forth in F.S. 876.05.

BE PR OA Mit TE pe

4

10. The plaintiff fears that the defendant will discharge

or attempt to discharge him from its employ as a conse-

quence of his declining to execute or subscribe to the said

oath. —

11. The action of the defendant in discharging or at-

tempting to discharge the plaintiff from its employ would

constitute irreparable damage, harm and injury to the

plaintiff in that he would be unable to work as a teach, (sic)

the work for which he has been trained_and in which he

has specialized for approximately ten years last past.

12. The plaintiff is in doubt as to his rights and obli-

gations with regard to the defendant as the same are

affected by a statute whose validity and constitutionality

is questioned by the plaintiff, and the plaintiff desires a

declaration of his rights and status thereunder.

Wherefore and by reason of the foregoing, the plaintiff

prays that this Honorable Court take jurisdiction of the

within cause and determine the validity of F.S. 876.05

et seq., insofar as the same is applicable to the plaintiff,

if at all, and to construe the plaintiff’s rights and obliga-

tions thereunder as an employee. of the defendant, and

pending such determination to temporarily enjoin the

defendant from discharging or attempting to discharge the

plaintiff from its employ, and upon a final determination

of the rights, obligations and status of the plaintiff under

the provisions of F.S. 876.05 et seq. to permanently enjoin

the defendant from requiiing that the plaintiff execute the

{fol.5] oath required by F.S. 876.05 and to permanently

enjoin the defendant from discharging the plaintiff for his

failure to execute the said oath.

Tobias Simon and Howard W. Dixon, Attorneys for

Plainti#f, 706 Ainsley Building, Miami, Florida.

By: Tobias Simon.

Duly sworn to by David Walton Cramp, Jr., jurat omitted

in printing.

Certificate of Service (omitted in printing).

\

~

[fol. 6]

Ix tHE Circuit Court OF ORANGE County

ANSWER OF Derexpant—F etl March 9, 1960

Comes now Defendant by its undersigned attorneys and

for answer to the complaint filed heftin says:

1. Defendant admits the allegations of Paragraph 1 of

the complaint.

2. Defendant admits the allegations of Paragraph 2 of

the complaint.

3. Defendant admits the allegations of Paragraph 3 of

the complaint.

4. Defendant admits the allegations of Paragraph 4 of

the complaint. Defendant further avers that. recently the

County Superintendent of Public Instruction of Orange

County, Florida, discovered that plaintiff had never ex-

ecuted the oath prescribed by Section 876.05, Florida Stat-

utes, and the County Superintendent thereupon transmitted

a form embodying such oath to the principal of said high

school with the request that such principal get the same

executed by plaintiff. The principal thereupon, either

personally or by an employee of defendant working in the

- principal’s office, submitted said oath to the plaintiff but

plaintiff refused to execute same. After the principal per-

sonally discussed the matter with the plaintiff, who per-

sisted in his refusal, the principal reported such refusal to

the County Superintendent. The said County Superinten-

dent then intended to discuss the matter with plaintiff in

the hope that plaintiff would reconsider his refusal to

execute the oath and proceed to execute the oath, but the

Christmas Holidays intervened and before the County

Superintendent had an opportunity to discuss the matter

with plaintiff, plaintiff instituted this suit.

5. Defendant is without knowledge of the truth of the

allegations of Paragraph 5 of the complaint.

{fol.7] 6. Defendant is without knowledge of the truth

of the allegations of Paragraph 6 of the complaint.

7. Defendant is without knowledge of the truth of the

allegations of Paragraph 7 of the complaint.

8. Defendant denies the allegations of Paragraph 8 of

the complaint.

9. Defendant admits that plaintiff has declined to ex-

ecute the oath set forth in Section 876.05, Florida Statutes,

and admits that by Paragraph 9 of his complaint plaintiff

declines to execute said oath for the asserted reason that

said Section 876.05 is unconstitutional.

10. Defendant is without knowledge of the truth of the

allegations of Paragraph 10 of the complaint.

11. Defendant denies the allegations of Paragraph 11

of the complaint.

12. Defendant is without knowledge of the truth of the

allegations of Paragraph 12 of the complaint.

J. R. Wells, Allen McCormick, Of Maguire, Voorhis

& Wells, 135 Wall Street (P.O. Box 633), Orlando,

Florida, Attorneys for Defendant.

[fol.8]

In tHe Cracurr Court or Orance County

Sripu.arion—March 11, 1960

The defendant having filed its Answer herein and the

plaintiff desiring to set the case down for héaring on bill

and answer and the defendant being willing that the case

be heard on bill and answer, it is stipulated as follows:

1. Plaintiff hereby sets this case down for hearing on

bill and answer.

2. This case may be forthwith determined by the Court

on bill and answer.

Dated: March 11, 1960.

J. R. Wells, Allen K. McCormick, Of Maguire, Voor-

his & Wells, 135 Wall Street (P.O. Box 633),

Orlando, Florida, Attorneys for Defendant.

Tobias Simon, , 706 Ainsley Building, 14

N.E. First Avenue, Miami 32, Florida, Attorneys for Plain-

tiff.

[fol. 9]

Ix tHe Circvir Covrt or Oraxce County

Memoraxpum Opixion—March 16, 1960

The pertinent question rajsed by the pleadings on_bill

and answer is whether the requirement of F.S. 876.05

et seq. as a condition precedent for the payment of public

funds to a state employee violates the State and Federal

Constitutions.

Although plaintiff by his sworn complaint, has in effect,

plainly shown that he may, if he so desires, execute the

required oath without fear of the penalties required by

the Jaw for a false oath, nevertheless he complains that

the Act requiring the execution of a loyalty oath as a

condition for public employment is a violation of due

process. The Florida Supreme Court, in State vs. Diez,

97 So.2d, 105 held:

“In fine, we think the lcvalty oath may be required

without interfering with the Federal Government’s

operations against sedition; we think the pertinent

- law does not offend against the Constitution; we think

the Act was intended to have a retrospective effect ;”

(emphasis supplied).

The State of Florida, acting through its duly elected

representatives has the inherent right, through statutory

law, to impose reasonable conditions precedent for public

employment. Under the provisions of the challenged Act

an emplovee of the State has his freedom of association

as well as freedom of speech and the privilege of advocat-

ing ideas secured to him by the First Amendment to the

Constitution of the United States so long as he can con-

scientiously execute the oath required by law. If he can-

not do so he has the freedom of seeking employment else-

where. The State has the right to preserve its integrity by

requiring its employees, as one of the prerequisite condi-

tions of employment, to subscribe to the loyalty oath. This

is an inherent right secured to the body politic and under

such cireuinstances the freedoms secured to the individual

employee by the Constitution become subservient.

[fol. 10] Plaintiff contends that the oath required by

F.S. 876.05 is unconstitutional by reason of the failure to

contain the elements of wilfulness and scienter. This con-

tention was an&wered by the’ Florida Supreme Court in

State vs. Diez, 97 So.2d, 105:

“This conclusion does not lead to a decision declaring

the Act unconstitutional because we think it is in-

. herent in the law that when one takes the oath that he

has not lent aid, advice, counsel and the-like to the

communist party, he is representing under oath that

he has not done so knowingly.

It therefore follows that F.S. 876.05 et seq. is constitutional

and is mandatory as a condition precedent for public

employment.

Since the defendant has denied the allegations in Para-

graph 11 of the Complaint such allegations may not be

considered as being proven on bill and answer. Therefore

the prayer for a permanent injunction in all respects should

be denied for the reason stated herein.

Dated at Orlando; Florida, March 16, 1960.

Roger A. Barker, Circuit Judge.

?

' [fol. 11] ~ 3S

In tHe Circuit Court oF ORANGE County

Fis a Decree—March 16, 1960

This cause having been set down by plaintiff for hearing

on bill and answer, and the parties having stipulated that

the parties might, on or before Monday, March 14, 1960,

submit to the Court for its consideration copies of any

briefs used before the Supreme Court of Florida by the

parties or by the amicus curiae on this litigation as well

as any other memorandum briefs or copies of decisions

that the parties might wish to submit, and that the Court

might thereupon dispose of the case without a formal oral

argument and without other or further notice, and the

Court having examined and studied the pleadings herein

together with copies of briefs used before the Supreme

9

Court of Florida and other memorandum briefs and deci-

sions as aforesaid submitted to the Court for its con-

sideration as aforesaid, and the Court after due considera-

tion being fully advised in the premises and being of the

opinion that plaintiff is entitled to a determination regard-

ing the constituionality (sic) and validity as to him of Sece-

tions 876.05 or 876.06, Florida Statutes, and the Court

having concluded from its study that said Sections 876.05

and 876.06, Florida Statutes, are constitutional and valid

as to plaintiff for the reasons stated in its memorandum

opinion filed herein,

It Is Ordered, Adjudged and Decreed that said Sections *

876.05 and 876.06, Florida Statutes, are hereby declared,

determined and adjudged to be constitutional and valid

_as to plaintiff and not subject in any respect to the attacks

made on same by plaintiff in his complaint.

It Is Further Ordered, Adjudged and Decreed that the

plaintiff’s prayer for a permanent injunction be and the

same is hereby denied in all respects.

[fol.12] Done and Ordered at Orlando, Florida, this

16th day of March, A. D. 1960.

Roger A. Barker, Circuit Judge.

[fol. 14]

In tHe Circuit Court or Orance County

ASSIGNMENTS OF Error—Filed March 25, 1960

The plaintiff assigns as the errors on which he intends

to rely in the Supreme Court of Florida for reversal of

the final decree of the Circuit Court of the Ninth Judicial

Circuit in and for Orange County, Florida, appealed from,

the following:

1. The Court erred in making and entering its final de-

cree of March 16, 1960, for the reason that the said final

decree is contrary to law.

10

2. The Court erred in making and entering its final

decree of March 16, 1960, for the reason that the said

final decree violates the rights guaranteed to the plaintiff

by the First and Fourteenth Amendments to the Consti-

tution of the United States, and Sections 12, 13 and 15 of

the Declaration of Rights of the Constitution of the State

of Florida, and Article 16, Section 2, of the Constitution

of the State of Florida, in that inter alia that insofar as

the plaintiff has been required to comply with the provi-

sions of F.S. 876.05, he has been required to obey an ex-

post-facto law, he has been subjected to a bill of attainder,

he has been compelled to take action to swear or affirm

as to his past actions without the inclusion that he has

not knowingly done the actions and matters forbidden by

the aforesaid Statute, he has been deprived of the due

process of law and of the equal protection of the law.

I Hereby Certify that a true copy of the above Assign-

ments of Error was mailed this 23rd day of March, 1960,

to Maguire, Voorhis & Wells, attorneys for defendant, 135

Wall Street, Orlando, Florida.

Howard W. Dixon and Tobias Simon, Attorneys for

Plaintiff, 706 Ainsley Building, Miami, Florida,

By Tobias Simon.

4

11

[fol. 15]

Ix tHe Supreme Court or FLormwa

July Term, A. D. 1960

Case No. 30,598

Davin Watton Cramp, Jr., Appellant,

vs.

Tue Boarp or Pvustic INstTRUCTION oF

Orance County, Fioripa, Appellee.

Orixion—Filed November 16, 1960

An Appeal from the Circuit Court for Orange County,

W. A. Pattishall, Judge. ‘

Tobias Simon and Howard Dixon, for Appellant.

J. R. Wells and Allen K. McCormick of Maguire, Voor-

his & Wells, for Appellee.

Richard W. Ervin, Attorney General, Ralph E. Odum

and William J. Roberts, Assistant Attorneys General, for

Appellee.

Thornal, J.

Appellant Cramp who was plaintiff below seeks reversal

of a final decree sustaining the validity of Sections 876.05-

876.06, Florida Statutes.

We must decide whether the cited statute, which pre-

scribes a so-called “loyalty oath” as a condition to public

employment, offends various provisions of the State and

Federal Constitutions.

Plaintiff Cramp had served approximately. nine years in

the public schoo] system of Orange County. It was then

discovered that through an oversight, he had never been

required to execute the oath required by Section 876.05,

Florida Statutes. The appellee Board immediately de-

manded that the oath be executed. The school teacher-

e-

12

{fol. 16] appellant refused. He based his refusal on the

contention that the statutory requirement of the execution

of the oath as a condition to continuing his employment

as a public school teacher violated certain constitutional

rights. Fearing dismissal he filed his complaint for a de-

claratory decree. He sought a temporary injunction

against dismissal pending the litigation, and an ultimate

decree adjudicating the invalidity of the statute. The

chancellor denied the temporary restraining order. Cramp

v. Board of Public Instruction, Fla., 118 So. 2d 541. On

final hearing the chancellor upheld the statute against

appellant’s assault. The prayer for a permanent injunction

was denied. By direct appeal, Article V, Section 4, (2),

Florida Constitution, we are requested to reverse the final

decree.

Appellant Cramp contends here, as he did in the trial

court, that the subject statute is fatally vulnerable on vari-

ous constitutional grounds. In sum, it is his position that

the Florida loyalty oath statute is defective because it fails

to specify knowledge or scienter as an element of the pro-

scribed conduct. Appellant also contends that the statute

destroys the traditional presumption of innocence and

shifts the burden of proof by legislative enactment with-

out due process; it is claimed that the statute is a bill of

attainder and an ex post facto law and that it is so vague

that it is unintelligible. Cramp claims that the Federal

government has pre-empted the field of sedition control.

Finally, he says that the Florida constitutional oath pre-

scribed by Article XVI, Section 2, is exclusive and, there-

fore, does not permit any additional legislative prescrip-

tion.

The appellee School Board by its brief undertakes to

defend the statute against each of the attacks leveled by

the appellant.

By Section 876.05, Florida Statutes, all persons employed

by the State or any county or city, or school board, are

required to subscribe to the following oath:

* a citizen of the State of Florida

and of the United States of America, and being em-

[fol.17] ployed by or an officer of —....0..... and

13

~a recipient of publie funds as such employee or officer,

do hereby solemnly swear or affirm that I will support

the Constitution of the United States and of the State

of Florida; that 1 am not a member of the Communist

Party; that | have not and will not lend my aid, sup-

port, advice, counsel or influence to the Communist

Party; that I do not believe in the overthrow of the

Government of the United States or of the State of

Florida by force or violence; that I am not a member

of any organization or party which believes in or

teaches, directly or indirectly, the overthrow of the

Government of the United States or of Florida by

force or violence.”

It is required that the oath be filed with the employing

governmental agency prior to the approval of any salary

voucher. Section 876.06, Florida Statutes, provides for the

discharge of any person who refuses to subscribe to the

quoted oath.

Sections 876.05-87b 9% supra, were Sections 1 and 2,

Chapter 25046, Laws of Florida, 1949. We have coneluded

that the chancellor ruled correctly in upholding the statute

against the appellant’s attack.

With as much brevity as the importance of the question

permits we shall proceed to dispose of each of appellant’s

contentions.

It is asserted that the prescribed oath does not include

an element that the maker thereof had knowledge of the

subversive nature of the affiliations at the time he engaged

in them. In other words, appellant contends that a man

should not be held liable for a false oath if he swears to

non-subversive associations when in effect, he is or has been

innocently and unknowingly aligned with a subversive or-

(fol. 18] ganization. We think this matter has been placed

at rest by us as well as by the Supreme Court of the United

States. In State v. Diez, Fla., 97 So. 2d 105, we held that

the element of scienter was implicit in each of the require-

ments of the statute. Conceding the essentiality of this

element, we there upheld the statute with our interpreta-

tion to the effect that implied in each requirement was the

presence of scienter or knowledge. Although appellant

14

avers that this constitutes “a judicial amendment of the

statute” we find ourselves supported in such an interpreta-

tion by respectable authority. Lerner v. Casey, 357 U. S.

468; Adler v. Board of Education, 342 U. S. 485, 27 A.L.R.

2d 472% Garner v. Board of Public Works, 341 U. S. 716;

Gerende v. Board of Supervisors, 341 U. S. 56.

We are not disturbed by appellant’s reliance on Wieman

v. Updegraff, 344 U. S. 183. While this decision involved

a Similar loyalty oath, the highest court of the State of

Oklahoma had held that the element of scienter was not

essential to validity and also that it was absent from the

requirements of the act. The Supreme Court of the United

States merely accepted the Oklahoma court’s interpreta-

tion of its State statute as to the implication of scienter.

The United States Court reversed when it held that scien-

ter was essential. On the other hand, the implication of

seienter was sustained in those decisions which we have

cited to support our view.

We think the time is now passed when statutes of this

type are subject to question because of alleged pre-emption

of the field of subversive control by the Federal Govern-

ment. Appellant presses his claim in this regard with con-

tinued reliance on Commonwealth of Pennsylvania v. Nel-

son, 350 U. S. 497. In sustaining this same statute against

the same attack in Diez v. State, supra, we indicated our

view that Nelson did not preclude paralleling state action

on the same problem. We specifically so held in Gibson v.

Florida Legislative Investigation Committee, Fla. 1959, 108

So. 2d 729, cer. den. 360 U. S. 919. The Supreme Court of

{fol. 19] the United States similarly announced its own

position on the same subject in Uphaus v. Wyman, 360 U.S

72. Moreover, we could actually lay aside this contention

on the further ground that the instant statute legitimately

prescribes an element of required qualifications precedent

to public employment. The statute under discussion is

merely a legislative enactment asserted within the orbit

of the state’s police power. It simply stipulates certain

conditions under which individuals can work for the State.

The subversive control aspect is involved only tangentially.

The primary objective of the statute is to exclude from

public employment persons lacking in the stipulated qualifi-

15

cations or in converse, persons burdened with stipulated

disqualifying qualities. Beilan v. Board of Public Edueca-

tion, 357 U.S. 399; Adier v. Board of Education, 342 U. S.

485, 27 A.L.R. 2d 472; Lerner v. Casev, 357 U. S. 468;

Thorp v. Board of Trustees, 6 N, J. 498, 79 A. 2d 462;

Nostrand v. Balmer, Wash., 335 P. 2d 10, but see Nostrand

v. Little, 362 U.S. 474; Laba v. Newark Board of Education,

23 N. J. 364, 129 A. 2d 273; Appeal of Albert, 372 Pa. 13,

92 A. 2d 663; Fitzgerald v. City of Philadelphia, 376 Pa.

379, 102 A. 2d S87; Kaplan v. School District of Philadelphia,

388 Pa. 213, 130 A. 2d 672: State ex rel. Schweitzer v.

Turner, 155 Fla. 270, 19 So. 2d 832.

Appellant contends further that the oath prescribed by

Section 876.05, supra, is unconstitutional for the reason that

it imposes requirements additional to those stated in the

constitutional oath prescribed by Article XVI, Section 2,

Florida Constitution. To this end we are requested to fol-

low the decision of the Supreme Court of New Jersey in

Imbrie v. Marsh, 3 N. J. 578, 71 A. 2d 352, 18 A.L.R. 2d

241. Were we inclined to concur in the decision of the New

Jersey Supreme Court on this point and we interpolate

that we are not, we @re here led by the facts of the instant

case to distin-uish the situation before us from that pre-

sented in the New Jersey matter. It was there held that a

loyalty oath in addition to the stipulated constitutional

oath similar to ours, could not be imposed upon candidates

for the office of governor or members of the Legislature.

[fol. 20] We do not have a state officer involved here. The

Florida Constitution requires that the oath be taken by

“each and every officer of this State, ...” The appellant

Cramp is a school teacher and therefore, an employee as

distinguished from an officer in the constitutional sense.

State ex rel. Holloway v. Sheats, 78 Fla. 583, 83 So. 508;

IX U. Fla. L.R. 47 (Spring 1956). The constitutional oath

prescribed by Article XVI, Section 2, supra, must be taken

by all state officers but is not a stipulated requirement of

an employee. New Jersey itself has made the distinction.

Thorp v. Board of Trustees, 6 N. J. 498, 79 A. 2d 462. Hence,

appellant is not in a class adversely affected by the statutory

requirement on this point, and is therefore uot in a position

to gain support from this argument.

16

In practically all the cases decided by the Supreme Court

of the United States on the subject of loyalty oaths as a

condition to public employment attacks have been directed

on the ground of alleged vagueness, on the contention that

freedom of speech and assembly are impinged and that the

presumption of innocence is destroyed. In each instance

dealing with similar statutes and similar situations the

United States Supreme Court has consistently upheld the

statutes against such assaults. Certainly the instant stat-

ute is perfectly clear in its requirements. There could be

no doubt in the minds of anyone who can read English ax

to the requirements of the statute and the effect of a fail-

ure to comply. Adler v. Roard of Education, supra.

It has long been recognized that the First Amendment

freedoms are not absolutes in and of themselves. When

they are asserted as_a barrier to government action we

are confronted by the necessity of balancing the asserted

private right against the alleged public interest. The pri-

vate right will certainly not be lightly regarded. gry

an indirect adverse effect on the asserted right of

individual will not preclude the exercise of need :

power when the power is shown to exist and its assertion .

is necessitated by the exigencies of the public wellbeing.

Barenbiatt v. United states, 360 U.S. 109.

[fol. 21] As we have pointed out in other parts of this

opinion, the failure to take the required oath does not work

an adjudication of guilt nor does it burden the employee

with the responsibility of proving innocence against an as-

sertion of guilt. Statutes of this type have been consistently

sustained on the theory that they constitute merely a stipu-

lation of qualifications or disqualifications for public em-

t. The statute contains no prohibition against the

right of a citizen to speak out or to assemble peaceably. It

merely provides that when one speaks out to advocate the

violent overthrow of the government of the United States,

or assembles for that purpose, he cannot simultaneously

work for and draw compensation from the government he

seeks to overthrow.

Finally we proceed to what is probably the most difficult

aspect of the instant statute. So far as we have been able

to ascertain, Florida is the only state which requires the

17

employee to swear“... that I have not lend [lent] my aid,

support, advice, counsel or influence to the Communist

Party; ...” Others might have similar provisions but we

have been referred to none. This particular provision was

upheld in Diez v. State, st#pra. In that opinion also, we con-

strued the word “lend” as meaning “lent” when applied to

the oath regarding past conduct. We are again fronted

by the contention that the Florida Statute constitutes a

bill of attainder prohibited to the states by Article 1, See-

tion 10, Constitution of the United States. This is so,

asserts the appellant, because when the employee is re-

quired by Jaw to take an oath that he has not at any

time in the past aided cr supported the Communist Party,

or else suffer the pain of dismissal, the Legislature is

adjudicating his guilt without benefit of trial and an op-

portunity to defend. Appellant refers to the recognized

definition of a bill of attainder as a legislative enactment

which adjudicates guilt without benefit of judicial trial.

He points further to the prohibition against ex post facto

laws which precludes giving retroactive effect to past

conduct in order to snpport present punishment. Article

{fol. 22} 1, Section 1U, supra. For reasons we hereafter

mention, the Supreme Court of the United States has up-

held similar statutes against similar assaults. We must

confess recognition of the necessity to subordinate our own

conclusions to those of the higher authority on the subject.

However, we find it in most instances a little difficult to

reconcile the recent decisions of the United States Court

with its earlier precedents in Cummings v. Missouri, 4 Wall.

277, 18 L. Ed. 356 and ex parte Garland, 4 Wall. 333, 18

L. Ed. 366. Moreover, the opinion of this Court in Me-

Nealy v. Gregory, 13 Fla. 417, clearly committed Florida

to the ruling of the Cummings decision.

In recent years, however, the Supreme Court of the

United States has, with almost invariable consistency, con-

strued Cummings and Garland as involving a situation in

which there was no reasonable relationship between the

past conduct proscribed and the then current business or

profession from which it was sought to exclude an indi-

vidual solely account of his past conduct. In other words,

the United States Court has merely held that there was no

s

18

reasonable relationship between the profession of the

Catholic Priest in Cummings, or that of the lawyer in

Garland and the proscribed past conduct of having had

affiliations with the then defeated Confederacy. This Court

has likewise so construed Cummings and Garland. Page

v. Watson, 140 Fla. 536, 192 So. 205; Diez v. State, supra.

“~. As stated above, this position is supported by numerous

+ @ recent decisions of the Supreme Court of the United States.

‘Hawker v. New York, 170 U. S. 189; Garner v. Board of

Public Works, 341 U. S. 716; Adler v. Board of Education,

™ 342 U.S. 485; Beilan v. Board of Public Education, 357

U. S. 399.

In view of these interpretations of Cummings and Gar-

land we find no difficulty in concluding that there is a

reasonable relationship between the vital profession of

teacher in the public school system and past associations

with subversive organizations. Beilan v. Board of Educa-

tion, supra; Adler v» Board of Public Instruction, supra.

{fol. 23] In this connection, however, we deem it appro-

priate to indicate a concern over the exercise of this power

to proscribe long past conduct. The imposition of sanctions

as retribution for past acts has potentials for impinging

upon many of our traditional concepts of due process, prop-

erty rights, and fair play in the multitudinous relation-

ships between the indjvidual and his government.. However,

for reasons hereafter stated, we find it unnecessary to

decide whether denial of public employment could be con-

strued as “puniskment” within the\prohibition against ex

post facto laws. Speiser v. Randall, 357 U. S. 513. Solution

to that problem will have to await the appropriate case.

McNealy v. Gregory, supra. \,

By the allegations of his complaint, the appellant under

oath affirmatively denied any present ok past associations

which would preclude him from executing,the subject oath.

He stated in his complaint “... that he has. not, does not,

and will not lend (sic) aid, support or advice (sic) counsel

or ipfluence to the Communist Party; .. .” Further, the

appellant disavows any belief in the violent overthrow of

either the State or Federal government. He denies member-

ship in any organization which believes in or teaches such

conduct. The complaint alleges that appellant “is a loyal

)

19

American” and he states that he does not decline to execute

the required oath because of fear of penalties for the making

of a false oath.

Appellant comes into court seeking a declaratory decree

to determine his rights under the subject statute. He

claims that the mere requirement of the oath impinges on

his copistitutional freedoms and therefore entitles him to

the deglaratory decree. However, in order to obtain an

adjudication of the invalidity of a statute the appellant

must carry the burden of demonstrating that the enforce-

ment of the law would adversely affect him. It being clear

from the allegations of his own complaint that he has never

been affiliated with any proscribed association, we are not

persuaded that the requirement that he so state under oath

could adversely affect him. In other words, there cou!d

[fol. 24] not possibly be a legislative adjudication of guilt

for the simple reason that the complaint on which appellant

stands affirmatively points out that/appellant has never

been connected with any organization that could result in

guilt. Furthermore, as to this appellant the statute could

not constitute an ex post facto law for the obvious reason

that appellant asserts that he has never in the past been

connected with any association which could lead to current

punishment. In short, because of the allegations of his

own complaint the appellant teacher has unequivocally

demonstrated that he has no standing to assault the subject

statute on the grounds that it is a bill of attainder, or an

ex post facto law. :

We have thoroughly considered every aspect of the appel-

lant’s contentions. We have studied all of the authorities

submitted by the parties and many others produced by our

own research. We fail to find any error in the decree under

attack and it is therefore affirmed.

It is so ordered.

Thomas, C.J., Terrell, Hobson, Drew and O’Connell, JJ.,

and Mason, Circuit Judge, concur

—_—,

20

[{fol. 25]

In tHE Supreme Court or Fora

July Term A. D. 1960

Daviy Watton Cramp, Jr., Appellant,

vs.

Tue Boarp or Pvsiic Instruction oF

OnaNce County, Fiorina, a body corporate, Appellee.

, JuDGMeNT—November 16, 1960

This cause having heretofore been submitted to the Court

upon the transcript of record of the decree herein, and

briefs and argument of counsel for the respective parties,

and the record having been seen and inspected, and the

Court being now advised of its judgment to be given in the

premises, it seems to the Court that there is no error in

the said decree; it is, therefore, considered, ordered and

decreed by the Court that the said decree of the Circuit

Court be and the same is hereby affirmed; it is further

ordered by the Court that the Appellee do have and recover

of and from the Appellant costs in this behalf expended,

except the $25.00 filing fee which has been paid by the ©

Appellant, and that all costs shall be taxed in the Court

in which the appeal was entered, all of which is ordered to

be certified to the Court below.

The Opinion of the Court in this cause prepared by Mr.

Justice Thornal was this day ordered to be filed.

(fol. 27]

In THE Supreme Court or Fioripa

Orper Denyine Petition ror Renrakinc—January 17, 1961

On consideration of the Petition for Rehearing filed by

Attorneys for Appellant,

It Is Ordered by the Court that the said petition be, and

the same is hereby, denied.

>

[fol. 28]

In THE SupREME CourRT OF THE STATE oF FLORIDA

Davin Wattox Cramp, Jr., Appellant,

vs.

Tue Boarp or Pvusuic Isstreection oF

Orance County, FLoriva, Appellee.

al

NoTIce oF APPEAL TO THE SuPREME CoURT OF THE

Unitep States

I.

Notice Is Hereby Given that David Walton Cramp, Jr.,

the Appellant above named, hereby appeals to the Supreme

Court of the United States from the Final Decree of the

Supreme Court of Florida sustaining the validity of Seec-

tions 876.05 and 876.06, Florida Statutes, entered herein

on November 16, 1960 (Petition for Re-Hearing thereon

having been denied by Order of the Supreme Court of

Florida on January 17, 1961).

This appeal is taken pursuant to 28 U.S.C., Section

1257(2).

II.

The Clerk of the Supreme Court of Florida will please

prepare a transcript of the record in this cause for trans-

mission to the Clerk of the Supreme Court of the United

States, and include in said transcript the following:

Date of Filing Kind of Instrument

January 11, 1960 Complaint

March 9, 1960 Answer of Defendant

March 16, 1960 Stipulation

March” 16, 1960 Memorandum Opinion of the

Circuit Court in and for

Orange County, Florida

t

Pe

<

22

[fol. 29],

Date of Filing Kind of Instrument

dD. March 16, 1960 Final Decree of Circuit Court

in and for Orange County,

Florida

6. March 25, 1960 Notice of Appeal to the Su-

preme Court of Florida

7. Mareh 25, 1960 Assignments of EF. rer to be re-

Age Wein Toe ae lied upon in appeal to the

\ Supreme Court of Fforida

8. November 16, 1960 Opinion of the Supreme Court

of Florida

9. November 24, 1960 —_ Petition for Re-Hearing

10. January 17, 1961 Order of the Supreme Court of

Florida Denying Petition for

Re-Hearing

III.

The following questions are presented by this appeal:

1. Whether F.S. 876.05 and 876.06, which require the

Appellant, as a teacher and an emplovee of the Board of

Public Instruction of Orange County, Florida, a body

corporate, and “all persons who now or hereafter are

employed by or who now or hereafter are on the payroll of

the State”, execute the following oath:

nF a citizen of the State of Florida and

_ of the United States of America, and being employed

by or an officer of ................. “..., and a recipient of

public funds as such employee or officer, do hereby

solemnly swear or affirm that I will support the Con-

stitution of the United States and of the State of

Florida; that I am not a member of the Communist

Party; that I heve not and will not lend my aid,

support, advice, counsel or influence to the Communist

Party; that I do not believe in the overthrow of the

Government of the United States or of the State of

re

23

Florida by force or vivlence; that I am not a member of

any organization or party which believes in or teaches,

directly or indirectly, the overthrow of the Government

of the United States or of Florida by force or violence.”

are in violation of the Fourteenth Amendment to the Con-

stitution of the United States, upon the grounds that they

[fol. 30] deny to the Appellant, the due process of law, and

the equal protection of the laws; and are further in viola-

tion of the Fourteenth Amendment to the Constitution of

the United States, upon the ground that they deny to the

Appellant freedom of speech, thought, and association; and

are further in violation of Article 1, Section 10, of the Con-

stitution of the United States, upun the ground that they

constitute a Bill of Attainder and an Ex Post Facto law.

Tobias Simon, Attorney for Appellant, 706 Ainsley

Building, Miami 32, Florida.

Certificate of Service (omitted in printing).

[fol.31] .Clerk’s Certificate to foregoing transcript

(omitted in printing).

>

{fol. 32] °

SupreME Court OF THE UNITED STATES

No. 849—October Term, 1960

Davin Watton Cramp, JR., Appellant,

vs.

Boarp oF Pvsiic INstrRUcTION OF

Orance County, FLoripa.

Orper Postponinc Jurispicrion—May 29, 1961

Appeal from the Supreme Court of the State of Florida.

The statement of jurisdiction in this case having been

submitted and considered by the Court, further considera-

tion of the question of jurisdiction is postponed to the

hearing of the case on the merits.

.

.