¶1I dissent.
¶2The only word of commendation which I can speak for the opinions of the court in these cases is that they bring into sharp focus the loyalty oath hysteria which has pervaded this country and particularly this state during the past five or six years. The concept that a person exposed to subversive activity may be immunized against such exposure by the taking of a so-called loyalty oath opens the door for vast exploration in the field of metaphysical research. While this process is taking place the loyalty of every public employee is impugned even though he has taken the oath prescribed by the Constitution many times and has obeyed it religiously. It must be conceded, however, that those who have been loyal may become disloyal and that “eternal vigilance is the price of liberty,” but it should not follow that vigilance against disloyalty of public employees requires that they take an oath proscribed by the Constitution. The holding of the majority in these cases requires the taking of such an oath.
¶3Prom the records before us in the various cases decided by the opinions this day filed, it would appear that many days, *689weeks and possibly months were consumed by the state Legislature, the Board of Regents of the University of California and the various boards of supervisors and city councils of the counties and cities of California in the preparation, discussion and adoption of various loyalty oath proposals. In addition to the time consumed in the legislative field, these cases have been before the various courts of this state during the past two or three years where thousands of pages of transcripts and briefs have been prepared and filed and the time and effort of numerous judges and lawyers has been consumed in their disposition. In my opinion all of this time and effort, as well as the money necessarily expended in connection with the legislation and judicial proceedings, which must have amounted to thousands, if not millions of dollars, was, and is entirely wasted, and has been and will be of no benefit whatsoever either to the general public or the individuals affected thereby. There can be no escape from this conclusion when we consider that the Constitution of this state expressly and specifically declares the form of oath required of all persons holding any public position under the law of this state, and expressly provides that: “No other oath, declaration or test shall be required as a qualification for any office or public trust.” (Cal. Const., Art. XX, §3.) The oath prescribed by the Constitution is a simple, concise declaration, solemnly made by the person taking it, that he will support the Constitution of the United States and the Constitution of the State of California and faithfully discharge the duties of the office or employment which he is undertaking to the best of his ability. The constitutional provision, by implication at least confers upon the Legislature the power to require that this oath be taken by all who occupy any office or public trust under the law of this state and the Legislature saw fit to require that all state employees take such oath. (See Gov. Code, § 18150 et seq.) It is a conceded fact in each of these cases that every employee of the state here involved took the constitutional oath long before the enactment of the acts which constitute the basis of this litigation. Notwithstanding this undisputed fact, the majority of this court holds in each of these cases that these petitioners are required to take another oath prescribed by the so-called Levering Act (Stats., 1951 [3d ex. sess. 1950, ch. 7, p. 15]) which, it is said, is no different than the oath prescribed by the Constitution. The majority nevertheless holds that because each of the petitioners has failed to take the oath prescribed by the Levering *690Act, they have forfeited their position with the state in accordance with the provisions of that act. This is indeed strange and paradoxical reasoning. In effect the majority says: No employee of the state is required to take any other oath than that prescribed by the Constitution, but even though all employees of the state have taken the constitutional oath, they must also take the Levering Act oath which is the same as that prescribed by the Constitution, and if they do not take the Levering Act oath, they are ineligible for employment by the state. If there is any logic or common sense in such reasoning, it is not apparent to me and I have grave doubt that it will appeal to any thinking person.
¶4I have no doubt as to the good intentions of the various legislative bodies which adopted these loyalty oath proposals, and I do not consider it the function of the judicial branch of the government to pass upon the wisdom of such proposals. The sole and only question before the courts is whether the enactments contravene some provision of the fundamental law—the Constitution. This is true even though a very grave question of public policy may be involved. It is for the Legislature and not the courts to declare the public policy of the state, providing such declaration is not in conflict with the Constitution.
¶5We are therefore met at the outset of this discussion with the problem of what was intended by the framers of the Constitution when they wrote into article XX, section 3, the words: “And no other oath, declaration, or test shall be required as a qualification for any office or public trust.”
¶6The section as it now appears in the Constitution of 1879 is precisely the same, word for word, as it was in the Constitution of 1849. There it was article XI, section 3. (Browne, The Debates in the Convention of California on the Formation of the State Constitution, Wash. 1850, App. X.) Though there was debate on changing the language in the 1878 Convention, no change was made.
¶7It seems clear that what the delegates to the original convention in Monterey in 1849 had in mind is the mandate of article VI, clause 3, of the federal Constitution and the experience leading up to the adoption of that clause. The debate in the 1849 Convention was singularly short. The committee which brought in the clause proposed the following (Browne, Debates, p. 255) : “Members of the Legislature, and all officers, before they enter upon the duties of their offices, shall take the following oath or affirmation: I (A B) do solemnly swear *691(or affirm), that I will faithfully and impartially discharge and perform all the duties incumbent on me as-, according to the best of my abilities and understanding, agreeably to the Constitution and Laws of the United States, and of this State; and I do further solemnly swear (or affirm) that since the adoption of the present Constitution, I, being a citizen of this State, have not fought a duel with deadly weapons within this State, nor out of it, with a citizen of this State, nor have I sent or accepted a challenge to fight a duel with deadly weapons, with a citizen of this State, nor have I acted as second in carrying a challenge, or aided, or advised, or assisted any person thus offending. So help me God. ’ ’
¶8Thus it will be seen that the committee proposed that all members of the Legislature and “all officers” take an oath in two parts, one as to the Constitution of the State and of the United States and the other as to not having participated in a duel. (The convention had just adopted article XI, section 2, providing that anyone who after the adoption of the Constitution participated in a duel shall be deprived of, inter alia, holding any office of profit under the Constitution. Browne, Debates, p. 255.)
¶9Mr. Halleek thereupon proposed a substitute in the language of the present article XX, section 3, because “this substitute was the most simple he would find on the subject in any of the Constitutions.” (Emphasis added.) (Browne, Debates, p. 256.) Mr. McDougal opposed the substitute on the ground that the section as proposed by the committee was necessary to carry out the object of the preceding section. A vote was taken on the substitute: it was adopted, and became a part of the proposed Constitution.
¶10A comparison of the language of article XI, section 3, now article XX, section 3, shows a striking similarity to the language of article VI, clause 3, of the federal Constitution. A look at the federal constitutional debates should therefore prove helpful.
¶11The idea that the legislative, executive and judicial officers, within the several states, ought to be bound by oath to support the Articles of the Union was proposed by Mr. Randolph (5 Elliott, Debates on the Federal Constitution 128), Messrs. Sherman, Gerry and Luther Martin felt the requirement intruded improperly on the states, but Mr. Randolph’s idea prevailed (5 Elliott 183, 351, 352). During the debate Mr. Wilson said “he was never fond of oaths, considering them as left handed security only. A good government did not need *692them, and a bad one could not or ought not to be supported.” (5 Elliott 352.)
¶12The idea that “no religious test or qualification shall ever be annexed to any oath of office under the authority of the United States” was first proposed to the convention by Mr. Pinckney (5 Elliott, 446, 498), Mr. Sherman thought it unnecessary, “the prevailing liberality, being a sufficient security against such tests.” (5 Elliott, 498.) But the convention was cautious and adopted Mr. Pinckney’s views (5 Elliott, 598), just as the whole country was cautious in insisting on the first ten amendments, now known as “The Bill of Bights.”
¶13The two ideas were combined and emerged as Article VI, clause 3 (5 Elliott, 564). Thus, it appears, if anything, that the California delegates, though taking a leaf from the federal Constitution, went further and proscribed not only religious test oaths, as had the federal delegates, but my test oath.
¶14Nor did the debates in the 1878 convention change the picture. Pour amendments to the 1849 language were suggested. All of them were defeated. (Ill Debates and Proceedings of the Constitutional Convention of the State of California [1878], pp. 1390-1391.) The first dealt with a requirement of bonds for sheriffs and marshals. The second deleted the word “executive,” replaced it with “ministerial” and added oath requirements as to dueling, bribery, and employment of Asiatics. The third was an amendment to the second and deleted the words “members of the legislature,” “judicial” and “ministerial,” and added the words “state, county, township, district and municipal, executive, legislation, judicial and ministerial.” The fourth struck out the word “test.”
¶15Each of these suggestions was defeated, one by one. If anything can be gleaned from this legislative history, it is that the delegates of 1878 determined to leave the provision as it had always been—in simple language meaning what it said: That only one oath could be required for those in the public employ and one only. The abhorrence for test oaths for the servants of the public which prevailed in Monterey in 1848 and in Philadelphia in 1787 prevailed in Sacramento in 1878. It would prevail today were it not for the hysteria and name calling which has tended to obscure the traditional concept of the framers of both Constitutions.
¶16It should be noted that the Levering Act oath is strikingly similar in its language and tone to the third and fourth amendments suggested at the Constitutional Convention of 1878. Indeed the first paragraph of the Levering Act is almost *693identical, word for word, with the first paragraph of the defeated 1878 amendments. And the second paragraph resounds as though in echo to the sentiments which moved the gentlemen in 1878 to propose an oath that one had not employed Asiatics.
¶17But historical coincidence aside, the Levering Act oath and the constitutional oath are as different as day from night both in content and intent. In the first place, the constitutional oath is not a perjury oath. It relates to a state of mind, a promise in good faith to perform one’s duties to the best of one’s abilities. That an oath of office as relates to the future performance of duties does not relate to perjury was recognized by the Legislature even before the 1879 Constitution was enacted. (See Pen. Code, § 120.) Furthermore, it is clear that the constitutional oath is a promissory declaration intended to solemnize an occasion and to impress upon the mind of the employee the trust upon which he is about to enter. It is not intended to inhibit one’s thinking nor one’s associations.
¶18The majority holds that “We are satisfied that there is nothing in the Levering oath which goes beyond the object or meaning of section 3 of Article XX and that it is not the type of ‘other oath, declaration or test’ which was intended to be prohibited by that section.” With this statement, I most emphatically disagree. The constitutional oath relates to the future: “I do solemnly swear (or affirm, as the case 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 . . . .” There can be no other meaning than that from the time of taking employment and the oath the affiant will support the constitutions. The Levering oath, on the other hand, calls for an oath regarding past activities: “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 . . .” So far as the balance of the Levering Act is concerned, it might possibly be inferred from the constitutional oath that in swearing to support the two constitutions, the affiant impliedly swears to defend them “against all enemies, foreign and domestic” and that he would not become a member of any organization advocating the overthrow of the two governments by force and violence since the two matters just set forth would be, in reality, one and the same *694thing. But the fact remains that the words so stating are not in the constitutional oath except by implication. No such implication may be read into the constitutional oath with respect to that portion of the Levering Act relating to past affiliations. The above quoted statement from the majority opinion is deceptive in its simplicity in that it seeks to uphold the Levering Act, since that is the popular thing to do,'but must in some manner avoid the clear, positive and unequivocal mandate of the Constitution that “no other oath, declaration or test shall be required as a qualification for any office or public trust. ’ ’ The only way to avoid that provision is to say that there is no substantial difference between the two oaths. And to say that there is no substantial difference between the two is the heighth of absurdity. As was said in Sheehy v. Shinn, 103 Cal. 325 [37 P. 393], the Constitution will not be so construed as to permit an evasion of it; and to give effect to that instrument it has been declared to be as much the duty of the court to see that it is not evaded as that it is not directly violated. Inasmuch as constitutional provisions are, and have always been, unless expressly provided to the contrary, to be construed as prospective in operation, what can the result reached here be considered but an evasion of the provision declaring that no other oath, declaration or test shall be required ?
¶19If, as stated by the majority, there is no substantial difference between the two oaths, it would appear that the Levering Act adds nothing to the constitutional oath and is, therefore, a nullity. All these petitioners have taken the constitutional oath and, if the two are the same, there appears to be no sound reason why they should lose their positions and means of earning a livelihood because they have refused to do a useless act. The law does not require useless acts (or so we have always been told), but if we follow the reasoning of the majority to its illogical conclusion, the law does require, on pain of dismissal from employment, the doing of such an act.
¶20An act of government undertaken without constitutional authority and in excess of constitutional limitations is a nullity in law and may properly be disobeyed or resisted. “The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the Legislature shall please to alter it.
¶21*695“If the former part of the alternative be true, then a legislative act contrary to the constitution is not law; if the latter part be true, then written constitutions are absurd attempts; on the part of the people, to limit a power in its own nature illimitable.
¶22‘‘ Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.” (Marbury v. Madison, 1 Crunch 137, 177.)
¶23It is admitted by the majority that the two early eases of Cohen v. Wright, 22 Cal. 293 and Bradley v. Clark, 133 Cal. 196 [65 P. 395], held that the question involved in litigation of this sort was whether the Legislature had, in prescribing an oath, gone “beyond the intent, object and meaning of the Constitution” and whether the Legislature had prescribed an oath or test substantially different from that prescribed by the Constitution. As I have heretofore pointed out, the Levering Act provision relating to past affiliations at least goes far beyond the intent, object and meaning of the Constitution. It cannot then be said, with a clear conscience, that the two oaths are substantially similar inasmuch as the Constition in this respect speaks only of the present and the future. It cannot be denied that the two Constitutions are the supreme law of the state and of the United States and, as said by John Marshall, the greatest Chief Justice this country has ever known: “Those, then, who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.
¶24“This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. . . . [Such doctrine cannot be tolerated under the Constitution.] It is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature.
¶25“Why otherwise does it [the Constitution] direct the judges to take an oath to support it? This oath certainly applies in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used *696as the instruments, and the knowing instruments, for violating what they swear to support!” (Marbury v. Madison, 1 Cranch 137, 178-180.)
¶26The above quoted language of Chief Justice Marshall applies with equal force to the evasion practiced by this court in subverting the clear mandate of this provision of the Constitution to the additional requirements imposed by the Levering Act.
¶27The principle here involved is of tremendous importance to those who believe in preserving the constitutional guarantees of fundamental civil liberties. These constitutional guarantees were written in the light of bitter experiences arising out of the exercise of arbitrary power or usurpation of power by the legislative or executive branch of the government. Constitutions were written to protect the individual against the exercise of such arbitrary power. The lessons of history reveal that at various times under the stress of inflamed public opinion both the Legislature and the Executive have attempted to circumvent constitutional restrictions by adopting measures which seemed expedient in view of the exigencies of the situation at hand. In my opinion the Levering Act is such a measure. I think it is apparent from the language of the act that its proponents believed that the Legislature had the power to prescribe a different oath for all employees of the state except the constitutional officers, and that it was under this mistaken belief that the act was adopted. Now that this court has held that the constitutional prohibition against any other oath, declaration or test applies to every state and local officer and employee, the Levering Act which was designed to apply to all employees of the state except constitutional officers, should fall.
¶28To my mind it is too plain to permit of argument that it was the intention of the framers of the Constitution that “no other oath, declaration or test” should ever be required of any public officer or employee of the state or any of its political subdivisions than that specifically provided for in article XX, section 3 of the Constitution. The action taken at the constitutional conventions clearly demonstrates the correctness of this position. The defeat of proposed amendments which sought to enlarge the scope of the oath, the failure to confer upon the Legislature power to do anything other than exempt such inferior officers as it saw fit from taking the prescribed oath and the specific prohibition against re*697quiring any “other oath, declaration or test ... as a qualification for any office or public trust,” makes it crystal clear that the framers of the Constitution intended to prevent just what the Levering Act is designed to accomplish. In other words they sought to limit and define the power of the Legislature in what history had revealed to be a most controversial field. Such being the obvious and unmistakable intention of the framers of the Constitution, the language of Chief Justice Marshall in Marbury v. Madison, supra,is particularly pertinent; “. . . [T]he powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time be passed by those intended to be restrained? It is a proposition too plain to be contested, that the Constitution controls any legislative act repugnant to it; or, that the legislature may alter the Constitution by an ordinary act. Between these two alternatives there is no middle ground. The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative act, and, like other acts, is alterable when the legislature shall please to alter it. . . . If an- act of the legislature, repugnant to the Constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? It is emphatically the privilege and duty of the judicial department to say what the law is. . . . So, if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law; the court must determine which of these conflicting rules shall govern the case. This is of the very essence of judicial duty.”
¶29But the majority of this court by its decisions in these eases is forsaking its sworn duty to support the Constitution of the State of California, and has abdicated its power, for the sake of expediency, to uphold an act which invades the constitutional guarantees of civil liberties of those affected by its mandates.
¶30There is no question of loyalty involved in any of these cases. So far as appears from the records before us every employee here involved was fully investigated and there is no suggestion of any conduct even bordering on subversive *698activity on the part of any of them. They have merely sought to stand on their constitutional right to take the one and only oath which the Constitution prescribed. On this stand I unqualifiedly join them.
¶31I would, therefore, grant the writ prayed for and restore petitioner to his position.
¶32Petitioner’s application for a rehearing was denied November 14, 1952. Carter, J., was of the opinion that the petition should be granted.