Fair, Robert M.

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North Dakota Law Review Volume 29 Number 2 Article 7 1953 Constitutional Law - Ex Post Facto Laws - Loyalty Oaths Robert M. Fair Follow this and additional works at: https://commons.und.edu/ndlr  Part of the Law Commons Recommended Citation Fair, Robert M. (1953) "Constitutional Law - Ex Post Facto Laws - Loyalty Oaths," North Dakota Law Review: Vol. 29 : No. 2 , Article 7. Available at: https://commons.und.edu/ndlr/vol29/iss2/7 This Case Comment is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. 180RECENT CASESCONSTITUTIONAL LAW - Ex POST FACTO LAWS - LOYALTY OATHS. - Thepetitioners, prospective candidates for governor, Congress, and the state legis-lature, sought a declaratory judgement that the Washington statute 1 requir-ing candidates for public office to swear that they are not subversives is un-'constitutional. Stating that they would be precluded from candidacy becausethey could not or would not execute the required loyalty oath, the petitionersattacked the statute aq being -x post facto in effect and a bill of attainderby nature. They claimed that the statute imposed disqualification for publicoffice'as punishment for acts not illegal at the time of their commission. TheWashington court held that the statute required an oath of allegiance in apresent and prospective sense and therefore was neither an ex post facto lawnor a bill of attainder. Huntamer v. Coe, 246 P.2d 489 (Wash. 1952).During the American Civil War, and ltter in the reconstruction period.several states enacted statutes and wrote provisions into their constitutions.requiring an oath of past loyalty as a qualification for voting, running foroffice, or pursuing specified occupations. These enactments were designedto exclude the adherents of the Confederacy from the designated activities.More recently, the legislatures and courts have been concerned with the acti-vities of subversive groups and individuals. -In a leading case,3 the Supreme Court of the United States invalidated aprovision in the Missouri constitution 4 that required a past loyalty oath 5 asa prerequisite to the following of a private avocation. 6 The court made itclear that qualifications having no relation to the fitness of the party to carryon the pursuit constituted punishment,7 and were in the nature of ex post1. Wash. Laws 1951 c. 254 §116: "A candidate for any public office . . . shallfile an affidavit that he or she is not a subversive person as defined in this act."Wash. Laws 1951, c. 254 §1 (e): "'Subversive person' means any person who com-suits, attempts to commit, or aids in the commission, or advocates, abets, advises orteaches . . . any act intended to overthrow, destroy or alter . . . the constitutionalform of the government of the. United States, or the State of Washington, or anypolitical subdivision of either of them, by revolution, force, or violence; or who is amember of a subversive organization or a foreign subversive organization."2. For historical discussion of loyalty oaths see Note 18 A.L.R. (2d) 268 (1951).3. Cummings v. Missouri, 4 Wall. 277 (U.S. 1867).4. Id. at 279. "See 3. "No person shall be deemed a qualified voter, who hasever been in armed hostility to the United States . . .. or . . . this state; or has evergiven . . . support to . . . such . . . hostility . . . nor shall any such person becapable of holding . . . any office of honor, trust, or profit . . . or acting as a profes-sor or teacher .. ." "See. 6. The Oath of Loyalty . . . shall be in the following terms:'I . . . do solemnly swear that I am well acquainted with the terms of the thirdsection . . . of the Constitution . . . and have carefully considered the same; thatI have never, directly or indirectly, done any of the acts specified. . . . Sec. 9 . . .'nor shall any person be competent . . . to teach or preach . . . unless such personshall have first taken . . . said oath'." Sec. 14. Provided fine and imprisonmentfor those who did not file the oath.5. Black's Law Dictionary 1643 (4th ed. 1951): "Test Oath. An oath requiredto be taken as a criterion of of the fitness of the person to fill a public or politicaloffice; but particularly an oath of fidelity and allegiance (past or present) to theestablished government."6. Cummings v. Missouri, 4 Wall. 277 (U.S. 1867). Reverend Cummings, aCatholic priest, was convicted of teaching and preaching without having first takenthe oath. The conviction was reversed.7. Id. at 320. "The deprivation of any rights, civil or political, previouslyenjoyed, may be punishment, the circumstances attending and the causes of the depri-vation determining this fact."BECENT CASESfacto8 laws and bills of attainder." All men have the inalienable right to fol-low the pursuit of their choice,10 and legislative decrees of exclusion that in-flict a penalty abridge this right." The constitutional prohibitions of ex postfacto laws 12 are aimed at criminal punishment,"a and neither the states norCongress can avoid this prohibition by giving the penalty a civil form."However, it is established that state legislatures have the power to regulateoccupations, 15 and may use past conduct as a standard if the statute repre-sents a genuine attempt to determine the fitness of a party to engage in thespecified calling.' 6 This extension of legislative authority has not met unani-mious judicial approval,"7 but a federal statute of the same nature has been,pheld.1'State decisions have held that a test oath that was ex post facto in rela-tion to private callings was not ex post facto in relation to public officers andvoters."' These state decisions seem to be based on a distinction betweennatural rights and granted privileges. While doing the work of one's choiceis a natural right,20 holding office or voting is a privilege granted by dulyconstituted authority, and such authority may set the standards for conferringor withdrawing the privilege.2 In determining the standard a state may usepast conduct as a measure of present fitness, so long as the circumstances in-dicate a reasonable relationship between the past action and present quali-fications.'2To date, the Supreme Court of the United States has not decided whether8. For definition see note 13 infra.9. Cummingq v. Missouri, 4 Wall. 277, 323, (U.S. 1867). 'A bill of attaineris a legislative act which inflicts punishment without a judicial trial."10. Id. at 321.11. Ex Parte Garland, 4 Wall. 333 (U.S. 1867).12. U.S. Const. Art. I, §9 (3), §l0 (1).13. Calder v. Bull, 3 DalI. 385, 390 (U.S. 1798). Defined ex post factolaws: "Ist. Every law that makes an action done before the passing of the law, andwhich was innocent when done, criminal; and punishes such action. 2d. Every lawthat aggravates a crime, or makes it greater than it was, when committed. 3d. Everylaw that changes the punishment, and inflicts a greater punishment, than the law,annexed to the crime, when comnitted. 4th. Every law that alters the legal rulesof evidence, and receives less, or different testimony, than the law required at thetime of the commision of the offense.... ." Cf. Harrisades v. Shaughnessy, 342U.S. 580, 593 (1952) (deportation not subject to ex post facto obeetion).14. See Cummings v. Missouri, 4 Wall. 277, 325 (U.S. 1867) (trial by jury notsubject to indirect legislative abrogation).15. Dent v. West Virginia, 129 U.S. 114 (1889) (practice of medicine).16. Hawker v. New York, 170 U.S. 189 (1898) (past felony may be conclu-sive evidence of present unfitness where moral character is essential to professioialcompetence).17. Id. at 203, 204 (dissent considered disqualification punishment inconsistentwith Cummings v. Missouri, see note 3 supra).18. Cases v. United States, 131 F.2d 916 (1st Cir. 1942), cert. denied, 319U.S. 770 (1943).19. Compare State v. Woodson, 41 Mo. 228 (1867) (public officer removedfor not filing oath), and Blair v. Ridgley, 41 Mo. 63 (1867) (denied vote), with Cum-mings v. Missouri, 4 Wall. 277 (U.S. 1867).20. Cummings v. Missouri, 4 Wall. 277, 321 (U.S. 1867) "All men have certaininalienable rights . . . among these . . . the pursuit of happiness . . . in the pursuitof happiness all avocations, all honors, all positions are alike open to everyone ...Any deprivations or suspension of any of these rights for past conduct is punish-ment .. ." See Blair v. Bidgely, 41 Mo. 63, 172 (1867) (natural rights: 1. personalseeurity, 2. personal liberty, 3. the right to acquire property, 4. in America freedomof religion).21. See Breedlove v. Suttles, .302 U.S. 277, 283 (1937) (voting is a state grantedprivilege, except as restrained by the U.S. Constitution, states may qualify voting).22. See Garner v. Los Angeles Board, 341 U.S. 716, 720 (1951).NORTH DAKOTA LAW REVIEWpast activity in a disloyal group bears a reasonable relationship to presentfitness for public office. If the court finds the relationship reasonable, pastloyalty oath statutes are valid as merely setting a standard. But if no reason-able relationship is found, depriving a man of public office for past activityin disloyal groups is punishment, and renders the statutes void as ex postfacto laws and bills of attainder.ROBERT M. FAIRINSURANCE - CONSTITUTIONAL AND STATUTORY PROVISIONS - DIRECTACTIONS AGAINST INSURANCE COIIPANIES. - A, a resident of Texas, was in-jured in an automobile accident in Louisiana through the negligence of B,also a resident of Texas. A brought suit directly against B's insurance com-pany, a Swiss corporation which had entered the insurance contract with Bin Texas. In similar situations Texas permits no direct action against an in-surance company, but a Louisiana statute allows a direct action if the acci-dent occurs in Louisiana, even though the policy may contain a provisionforbidding such action.1 The court held that the Louisiana statute could notbe applied to contracts consummated outside the state, without giving itextra-territorial effect and depriving the insurer of its property without dueprocess of law. Mayo v. Zurich General Accident & Liability Ins. Co., 106 F.Supp. 579 (W.D. La. 1952).Statutory attempts to deal with the problem of compensation for auto-mobile accident victims have taken three main forms: (1) the enactmentof "Financial Responsibility Acts;" 2 (2) compulsory insurance require-snents; 3 and (3) statutes permitting direct actions against insurers.4 The1. La. Acts 1950, No. 541. "No policy or contract of liability insurance shallbe issued "or delivered in this state, unless it contains provisions to the effect that theinsolvency or bankruptcy of the insured, shall not release the insurer from the paymentof damages for injuries sustained or loss occasioned during the existence of the policy,and any judgment . . . against the insured for which the insurer is liable . . . shall bedeemed prima facie evidence of the insolvency of the insured, and an action maythereafter he maintained . . . against the insurer. The injured person . . . shallhave a right of direct action against the insurer . . . in the parish where the accidentoi injury occurred or in the parish where the insured has his domicile, and saidaction may be brought against the insurer alone or against both the insured and theinsurer. . . . This right of direct action shall exist whether the policy of insurancesued upon was written or delivered in the State of Louisiana or not and whetheror not such policy contains a provision forbidding such direct action, provided theaccident or injury occurred within the State of Louisiana .. "2. Such laws usually contain provisions: (1) Requiring proof of financial respon-sibility following a conviction of violation of certain motor vehicle laws. (2) Requiringproof of financial responsibility following non-payment of a motor vehicle accidentjudgment. (3) Suspending the right to operate a motor vehicle until satisfaction ofsuch judgment. Braun, The Financial Responsibility Law, 3 Law & Contemp. Prob.505 (1936).3. Massachusetts, first in this field provided in 1925, that no motor vehicle ortrailer could be registered unless an insurance company authorized to do business inthe state certified that a liability insurance policy had been issued covering the vehiclein question. Braun, supra note 2, at 537. While compulsory insurance for all vehiclesis a rarity, many states require it for common carriers. N.D. Rev. Code 149-183.(1943). The Statute expressly forbids joinder of the insurer in the action so as to exposethe fact of insurance to the jury. However, James v. Young, 77 N.D. 451, 43 N.W.2d692, allowed such joinder under other statutes; cf. N.D. Rev. Code 328-0206 and§28-0703 (1943).4.. What Louisiana did by legislation other states have done by judicial inter-pertation. Kansas treats an automobile liability policy as a third party beneficiarycontract creating a direct right against the insurer where the insured is a motor carrier;

Constitutional Law - Ex Post Facto Laws - Loyalty Oaths

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Constitutional Law - Ex Post Facto Laws - Loyalty Oaths

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