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FITZGERALD v. PHILADELPHIA (02/10/54)

February 10, 1954

FITZGERALD, APPELLANT,
v.
PHILADELPHIA



Appeal, No. 283, Jan. T., 1953, from judgment of Court of Common Pleas No. 6 of Philadelphia County, Sept T., 1952, No. 6212, in case of Marie S. Fitzgerald v. City of Philadelphia et al. Judgment affirmed; reargument refused March 4, 1954.

COUNSEL

Harry E. Sprogell, with him Joseph P. Flanagan, Jr., for appellant.

Jerome J. Shestack, First Deputy City Solicitor, with him Richard D. Solo, Assistant City Solicitor and Abraham L. Freedman, City Solicitor, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Arnold, JJ.

Author: Stern

[ 376 Pa. Page 381]

OPINION BY MR. CHIEF JUSTICE HORACE STERN

The question is the constitutionality of the Pennsylvania Loyalty Act of December 22, 1951, P.L. 1726, with special reference to the oath prescribed in Section 5 thereof.

Plaintiff was employed as a Staff Nurse in the operating room of the Philadelphia General Hospital from October 1, 1949, to April 18, 1952, on which latter date she was dismissed because she declined to take the oath required by the statute. At the very outset it is only fair to plaintiff to state that, admittedly, she is utterly opposed to Communism and is in all respects loyal to the principles of our government, and, further, that the performance of the duties of her position was at all times entirely satisfactory. She was, however, of the conscientious belief that her rights under the Constitutions of the United States and the Commonwealth of Pennsylvania would be infringed if she were compelled to take the prescribed oath of loyalty. After her dismissal and after appealing in vain to the Civil Service Commission, she filed a complaint in mandamus in the Court of Common Pleas seeking reinstatement, but judgment was there rendered against her. From that judgment she now appeals.

[ 376 Pa. Page 382]

The Act of 1951 provides that no "subversive person, as defined in this act,*fn1 nor any person as to whom on all the evidence there is reasonable doubt concerning his loyalty to the government of the United States or the Commonwealth of Pennsylvania, shall be eligible for employment in or appointment to any office or any position of trust or profit in the government of or in the administration of the business of this Commonwealth or of any school district, county, municipality or other political subdivision of this Commonwealth." Section 5 -- which is the portion of the act here under attack -- provides that the appointing authority of each person in the employ of the Commonwealth or of any of its political subdivisions, other than those holding elective offices, shall require such person to "make a written statement, under oath or affirmation, which statement shall contain notice that it is subject to the penalties of perjury, and shall be in the following form: "I, ... , do solemnly swear (or affirm) that I will support, obey and defend the Constitution of the

[ 376 Pa. Page 383]

United States and the Constitution of this Commonwealth, and that I will discharge the duties of ... with fidelity. And I do further swear (or affirm) that I do not advocate, nor am I knowingly a member of any organization that advocates, the overthrow of the government of the United States or of this Commonwealth by force or violence or other unconstitutional means, or seeking by force or violence to deny other persons their rights under the Constitution of the United States or of this Commonwealth. And I do further swear (or affirm) that I will not so advocate nor will I knowingly become a member of such organization during the period that I am an employe of the Commonwealth of Pennsylvania (or political subdivision thereof)." It was directed that any person failing or refusing to execute such statement should be discharged immediately by the proper appointing authority.

Appellant contends that the compulsion to take such oath under penalty of dismissal from employment in case of noncompliance constitutes a violation of the right of free speech and peaceable assembly guaranteed by Amendments I and XIV of the Constitution of the United States, the right of free communication of thoughts and opinions secured by Article I. Section 7, of the Constitution of Pennsylvania, the freedom of control or interference by any human authority with the right of conscience as provided in Article I, Section 3, and the reservation in Article I, Section 26, of all such rights out of the general powers of government. She also complains of an alleged vagueness in the terms ...


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