Wirin v. Ostly

McMURRAY, J. pro tem.

*

The plaintiff sought a declaratory judgment that he was entitled to hold the office of notary public without subscribing to certain portions of the oath set forth in article XX, section 3, of the Constitution of the State of California, and that defendant Harold J. Ostly, as County Clerk of the County of Los Angeles, was without legal authority to refuse to administer the oath in the modified form in which plaintiff was willing to take the oath or to refuse to transmit the certificate required by section 8213 of the Government Code. From a judgment for the defendant, this appeal is taken.

Appellant was willing to take that part of the oath which reads as follows:

“I,-, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter.”

The appellant refused to take that portion of the oath which reads as follows:

“And I do further swear (or affirm) that I do not advocate, nor am I a member of any party or organization, political or otherwise, that now advocates the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means; that within the five years immediately preceding the taking of this oath (or affirmation), I have not been a member of any party or organization, political or otherwise, that advocated the overthrow of the Government of the United States or of the

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State of California by force or violence or other unlawful means except as follows:_ (if no affiliations, _ and that during such write in the words “No Exceptions”) time as I hold the office of Notary Public I will not advocate nor become a member of any party or organization, political or otherwise, that advocates the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means.”