Tolman v. Underhill
Tolman v. Underhill
Opinion of the Court
This is an original proceeding in mandamus to compel the Regents of the University of California, through their secretary, Underhill, to issue to each petitioner a letter of appointment to his regular post on the faculty of the university.
On April 21, 1950, the regents passed a resolution which provided that, effective with the academic year beginning July 1st, “conditions precedent to employment or renewal of employment of American citizens in the University shall be (1) execution of the constitutional oath of office required of public officials of the State of California and (2) acceptance of appointment by a letter which shall include the following provision:
“ ‘ Having taken the constitutional oath of office required of public officials of the State of California, I hereby formally acknowledge my acceptance of the position and salary named, and also state that I am not a member of the Communist Party or any other organization which advocates the overthrow of the Government by force or violence, and that I have no com*710 mitments in. conflict with my responsibilities with respect to impartial scholarship and free pursuit of truth. I understand that the foregoing statement is a condition of my employment and a consideration of payment of my salary.’ ”
Petitioners have taken an oath identical to that prescribed in section 3 of article XX of the state Constitution, as required of all state employees by sections 18150 et seq. of the Government Code.
We need not discuss the numerous questions raised by petitioners with regard to alleged violation of their civil rights and impairment of contract because we are satisfied that their application for relief must be granted on the ground that state legislation has fully occupied the field and that university personnel cannot properly be required to execute any other oath or declaration relating to loyalty than that prescribed for all state employees.
The historical background of the established practice of limiting the number and types of oaths and tests which may be required as a qualification for public employment has been discussed in our opinion in Pockman v. Leonard, ante, p. -- [249 P.2d 267]. In California our Constitution has always provided that members of the Legislature and all executive and judicial officers, except such inferior officers as may be exempted by law, shall take the oath now set out in section 3 of article XX, and that “no other oath, declaration or test, shall be required as a qualification for any office or public trust.” The state Legislature has never exempted any public officer or employee from taking the constitutional oath but, to the contrary, has expressly provided that it shall be 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.
Respondents contend that state legislation like sections 1360 et seq. and 18150 et seq. of the Government Code is inapplicable to university personnel because of that portion of
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 field which is fully occupied by statute. (Pipoly v. Benson, 20 Cal.2d 366, 370-371 [125 P.2d 482, 147 A.L.R. 515] ; Eastlick v. City of Los Angeles, 29 Cal. 2d 661, 666 [177 P.2d 558, 170 A.L.R. 225].) Determination of the question whether the Legislature has undertaken to occupy exclusively a given field of legislation depends upon an analysis of the statute and a consideration of the facts and circumstances upon which it was intended to operate. (Eastlick v. City of Los Angeles, supra, 29 Cal.2d at p. 666; Pipoly v. Benson, supra, 20 Cal.2d at pp. 372-375; In re Iverson, 199 Cal. 582, 586-587 [250 P. 681] ; Ex parte Daniels, 183 Cal. 636, 642, 643 [192 P. 442, 21 A.L.R. 1172].) 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. (Eastlick v. City of Los Angeles, supra, 29 Cal.2d at p. 666; Pipoly v. Benson, supra, 20 Cal.2d at 371-373; Ex parte Daniels, supra, 183 Cal. at p. 642-643.)
We are satisfied that the Legislature intended to occupy this particular field of legislation by enacting Government Code sections 1360 et seq. and 18150 et seq. and that there is no room left for supplementary local regulation. (Cf. Pipoly v. Benson, 20 Cal.2d 366, 371, 373 [125 P.2d 482, 147 A.L.R. 515]; Eastlick v. City of Los Angeles, 29 Cal. 2d 661, 666-667 [177 P.2d 558, 170 A.L.R. 225].) The declaration as to loyalty required by the regents is, accordingly, invalid.
No question is raised as to petitioners’ loyalty or as to their qualifications to teach, and they are entitled to a writ directing respondents to issue to each of petitioners a letter of appointment to his post on the faculty of the university upon his taking the oath now required of all public employees by the Levering Act. (See Fraser v. Regents of University of California, post, p. 717 [249 P.2d 283].)
Let a writ of mandate issue for the limited purpose above indicated.
Shenk, J., Edmonds, J., Traynor, J., Schauer, J., and Spence, J., concurred.
The oath prescribed by section 3 of article XX is as follows: “I do solemnly swear (or affirm, as the ease 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. ’ ’
Gov. Code, $ 18150 et seq. provides that an identical oath shall be taken by all state employees.
The provisions of §§ 18150-18158 were superseded in 1950 by Government Code §5 3103-3109, commonly known as the Levering Act, which requires all city, county and state employees to take a loyalty oath which is substantially the same as the constitutional oath. (See Pockman v. Leonard, ante, p. 676 [249 P.2d 267].) The act did not go into effect until several months after the filing of the. present proceeding, and the question of its operation is not directly involved in this ease. (Cf. Fraser v. Regents of University of California, post, p. 717 [249 P.2d 283].)
Dissenting Opinion
I dissent.
For the reasons stated in my dissenting opinion in Pock-man v. Leonard, this day filed, ante, p. 688 [249 P.2d 267], I would issue a writ of mandate as prayed for in the petition.
Reference
- Full Case Name
- EDWARD C. TOLMAN Et Al., Petitioners, v. ROBERT M. UNDERHILL, as Secretary and Treasurer of the Regents of the University of California Et Al., Respondents
- Cited By
- 78 cases
- Status
- Published