Opinion No. 68-199 (1968) Ag ( 1968 )

Loyalty Oath — New — State Officers and Employees The Secretary of State should not furnish the oath form given in 51 O.S. 36.2 [51-36.2] (1961) but should furnish the oath form set out in 51 O.S. 36.2 [51-36.2](a) (1968). He may dispose of any blank, unsigned forms of the loyalty oath set out in 51 O.S. 36.2 [51-36.2] (1961) and should dispose of any signed forms of such oath in accordance with 67 O.S. 201 [67-201] — 67 O.S. 216 [67-216] (1961). The Attorney General has had under consideration your letter of May 15, 1968, wherein you ask in effect the following questions: 1. Since 51 O.S. 36.2 [51-36.2] (1961), which sets out a loyalty oath for state officers and employees was not expressly repealed with the enactment of a new oath in House Bill No. 981, Thirty-First Legislature, Second Session, should the Secretary of State furnish forms for both oaths? 2. If the Secretary of State need only furnish forms of the oath found in House Bill No. 981, may he dispose of the forms in his office containing the oath set out in 51 O.S. 36.2 [51-36.2] (1961)? 51 O.S. 36.2 [51-36.2] (1961), which sets out the language of a loyalty oath enacted in 1953 was held unconstitutional on March 28, 1968, in Attorney General Opinion No. 68-137. The Oklahoma Supreme Court held in Town of Medford v. Early,194 Okl. 566, 153 P.2d 633: "The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and in legal contemplation is as inoperative as if it had never been passed. It imposes no duties, confers no rights, bestows no power or authority on anyone, affords no protection and justifies no acts performed under it." Attorney General Opinion No. 68-137 which held the oath set forth in 51 O.S. 36.2 [51-36.2] (1961), unconstitutional is binding on all State officers until the same is overruled by a court. The Supreme Court of Oklahoma in State of Oklahoma v. District Court of Mayes County, Billington v. Weaver, No. 40844 and No. 40865, 38 O.B.J. 2255, as corrected by the Court on May 15, 1968, held: ". . . it is the duty of public officers with notice thereof to follow the opinion of the Attorney General until relieved of such duty, by a court of competent jurisdiction or until this court should hold otherwise." House Bill No. 981 passed by the Thirty-First Legislature, Second Session, which became effective with the signature of the Governor on April 29, 1968, set forth a new loyalty oath. House Bill No. 981 provided that the new oath be inserted in the Oklahoma Statutes as Section 36.2A of Title 51. 51 O.S. 36.3 [51-36.3] (1961), provides: "The above oath or affirmation of state officers and employees shall be filed thereby with the Secretary of State of Oklahoma, and of all other officers and employees shall be filed thereby, if an officer — in the office the county clerk of the county of his official residence, and if an employee, in the office of the county clerk of the county in which the officer or agency employing him is located. No fee shall be charged for such filings or for the administration of such oaths or affirmation. Blank oath forms will be furnished, without charge, by the Secretary of State to such officers and employees upon request." Accordingly, the Secretary of State should not furnish or file forms of the oath set out in 51 O.S. 36.2 [51-36.2] (1961), and may dispose of any blank, unsigned, forms of such. With regard to the disposal of any forms signed by State officers or employees containing the oath specified in Section 36.2 which are on file with the Secretary of State, we note the Records Management Act, 67 O.S. 201 [67-201] — 67 O.S. 216 [67-216] (1961), which governs the disposal of state records. Therefore, it is the opinion of the Attorney General that your questions be answered as follows: 1. Since the oath form in 51 O.S. 36.2 [51-36.2] (1961), is unconstitutional, the Secretary of State should not furnish this form to State officers and employees although the Secretary of State should furnish forms of the oath set forth in House Bill No. 981 and file same in his office. 2. The Secretary of State may dispose of any blank, unsigned, forms of the loyalty oath set out in 51 O.S. 36.2 [51-36.2] (1961), now in his office and should dispose of any signed forms of such oath in accordance with 67 O.S. 201 [67-201] — 67 O.S. 216 [67-216] (1967). (Penn Lerblance)