delivered the following dissenting opinion, as to Louis Shub, in which Henderson, J., concurred.
Section 6 of Article 1 of the Constitution of Maryland provides: “Every person elected or appointed to any office of profit or trust, under this Constitution, or under the laws, made pursuant thereto, shall, before he enters upon the duties of such office, take and subscribe the following oath or affirmation: [setting out the words of the oath].” Section 1 of Article 6 requires the Comptroller and the Treasurer to “take such oath * * * as [is] now, or may hereafter be prescribed by law”. Article 37 of the Declaration of Rights provides: “That no religious test ought ever to be required as a qualifica*199tion for any office of profit or trust in this State, other than a declaration of belief in the existence of God; nor shall the Legislature prescribe any other oath of office than the oath prescribed by this Constitution.” Section 15 of the Ober Act provides that no person shall become a candidate for election to any public office whatsoever in this State unless he shall file with his certificate of nomination an affidavit that he is not a “subversive person”, as defined in the act. Our duty is to set the statute beside the constitution and determine whether or not the affidavit required by section 15 is forbidden by Article 37. Zeal or lack of zeal on our part for hunting and catching Communists would not justify us in distorting the plain meaning of Article 37 in order to uphold or strike down the statute.
This court has held that Article 37 means what it says and is not narrowed by the history and purpose behind it. In Davidson v. Brice, 91 Md. 681, 48 A. 52, a requirement in an act of 1894 that the county treasurer of Anne Arundel County take an oath “in form similar to that heretofore taken by collectors of taxes” was held contrary to Article 37 and invalid. The oath taken by collectors had been prescribed (with successive changes) by Acts of 1841, 1847, 1874 and 1888. Code of 1860, art. 81, sec. 36; Code of 1888, art. 81, sec. 36. This provision was again reenacted in 1900 and remained in the Code until repealed by the tax revision act of 1929. Code of 1924, art. 81, sec. 44. The court, in its opinion by Chief Judge McSherry, asks and answers the question, “has the legislature the authority to prescribe, as a qualification for the office of county treasurer, any other oath than the one which section 6, art. 1, of the constitution imposes?”, and after quoting art. 1, sec. 6, and art. 37, says, “Here, then, is an explicit limitation on the power of the legislature. In the face of this positive and plain inhibition, how can it be insisted that the legislature may impose as a qualification for a public office some other and additional oath ‘than the oath prescribed by the constitution’ ? If it may require the county *200treasurer to take the oath prescribed' by the Code for fax collectors, it may with equal propriety superadd some other and widely-different oath, and completely nullify the restrictive clause of article 37 of the declaration of rights. It was the obvious purpose of the people who adopted the constitution of 1867 to deprive the legislature of any power to formulate or impose an oath of office, except as respects the state comptroller and the state treasurer, each of whom, under section 1, art. 6, of the constitution, is required to ‘take such oath and enter into such bonds * * * as are now, or may hereafter be, prescribed by law.’
“The significance of the restrictive clause in article 37 of the declaration of rights is conspicuous if antecedent constitutions of the state are consulted, and if the history of the disturbed period covering the Civil War and just preceding the adoption of the constitution of 1867 be recalled. * * * There can be no doubt that the legislature had, under the declarations of rights of 1776, 1851, and 1864, the authority to prescribe oaths of office and in many instances this authority was exercised. When the convention of 1867 assembled, it was a common belief that many of the official oaths which the legislature had previously prescribed in the exercise of an undoubted power were needlessly stringent, and this sentiment found expression in that provision of the declaration of rights which, by prohibiting any other official oath than the one set forth in the constitution itself, took away from the general assembly the power to adopt or require an additional one. The omission from the declaration of rights of 1867 of the authority contained in every antecedent declaration of rights, giving the legislature the power to impose an official oath, was deliberate; and, to give emphasis to the design of the framers of the constitution, a positive prohibition, introduced for the first time, was substituted for the rejected clause. * * * No office, however created, can be assumed until an official oath is taken; and no official oath other than that set forth in the constitution can be *201required, because that is the only one prescribed by the constitution, and all others are prohibited by the declaration of rights. Article 37 does two things: It prohibits any religious test as a qualification for any office of profit and trust, other than a declaration of belief in the existence of God; and it prohibits any oath of office other than the one set forth in section 6, art. 1, of the constitution, except as respects the comptroller and treasurer. By no known rule of interpretation can these prohibitions be confined to offices specifically created by the constitution, nor can they be restricted to a narrower scope than their plain words indicate. * * *” 91 Md. 681, 687-691, 48 A. 54. [All italics in the original.] See also Keyser v. Upshur, 92 Md. 726, 728, 48 A. 399.
Davidson v. Brice has never been modified or qualified. In Hummelshime v. Hirsch, 114 Md. 39, 57, 79 A. 38 and in Rasin v. Leaverton, 181 Md. 91, 95, 28 A. 2d 612, no question was presented or decided, and nothing was said, regarding the validity of any requirement of an oath by a candidate for office. In each of those cases the question was the construction, not the validity, of statutory or constitutional qualifications for office, in the one case as to assessment for and payment of taxes, in the other as to residence. It was held that the qualifications must be possessed not merely at the time of taking office, but at the time of the election — not, however, at the time of filing a certificate of candidacy before the primary election. In Keyser v. Upshur, 92 Md. 726, 728, 48 A. 399, it was held that a statutory requirement of an oath, as such invalid under Article 37, might be regarded as imposing a duty to do the things specified in the oath. The Cumberland charter provision, referred to in the Hummelshime case as requiring candidates to swear that they were qualified to hold office, actually did not require a candidate to swear to anything. It required a sworn statement to be filed by the candidate “or * * * for him” 114 Md. at page 41, 79 A. at page 39, as is also shown in the form of oath set out. That oath as to qualifications *202for office could be made regarding a stranger, on the strength of objective evidence from tax records and registers of voters.
An oath which must be taken in order to obtain an office is an oath of office. The fact that such an oath may be more than an oath of office, e.g., a requirement from all candidates, successful or unsuccessful, does not make it any less an oath of office. As was aptly said by Judge Sherbow in the lower court in Lancaster v. Hammond, “The Subversive Activities Act of 1949 seeks to do by indirection that which cannot be done directly. It is obvious that of all the candidates who file for office, one will be successful. The law forbids an additional oath of the elected official. To allow the oath of all the candidates, knowing one will be the successfully elected official, is to nullify the restriction of Article 37 of the Declaration of Rights. This is in the face of the plain and positive inhibition of the law. It means we no longer look to the substance but adopt the form which destroys the substance.” The Supreme Court of New Jersey, in its summary statement, quoted in the opinion of this court in the instant case, supra, 76 A. 2d 339, of the question presented and its answer, treated any distinction between requirement of an oath from persons who take office and from candidates for office, as not calling for mention. Without mentioning any such distinction in question, answer or reasoning the court applied alike its reasoning and conclusion to four separate statutes, two relating to certain persons who take office, two to candidates for office. Imbrie v. Marsh, 3 N. J. 578, 584-592, 71 A. 2d 352.
In the opinion of this court in the instant case, and the minority opinion in Hammond v. Lancaster, 194 Md. 479, 481-482, 71 A. 2d 484-485, section 15 of the Ober Act is said not to violate Article 37, (1) because it prescribes, not an oath of office, but an oath for all candidates for office, and (2) because its purpose is- to “implement” the 1948 constitutional amendment, art. 15, sec. 11, proposed by Acts of 1947, ch. 721, by requiring *203of candidates an oath to the effect that they possess the qualification for office prescribed by that amendment. Whether these are two reasons or one is not altogether clear. Neither reason nor both combined is a valid reason.
Davidson v. Brice discloses four instances, Keyser v. Upshur another, in which the legislature, evidently by inadvertence, not in defiance of Article 37, enacted or reenacted a forbidden statutory requirement of an oath of office. It would not be surprising if other instances could be found among the statutes of the last eighty-two years. None has come to our attention. The nearest approach to one is the provision in the Cumberland charter mentioned in the Hummelshime case. Nevertheless, in the opinion of the court in the instant case, it is said, “It has been the practice and custom and statutory requirement for many years to demand from candidates at the time of filing for office certificates under oath with respect to their various qualifications. Such provisions are set out in Article 33 of the Code, and these sworn certificates have never been considered as additional oaths of office. The filing of such certificates is made a prerequisite to the placing of a candidate’s name upon the ballots or in the voting machines. (Art. 33, Sec. 53 (a) as enacted by Chapter 425 of the Acts of 1949.) Their requirement is a method by which the Legislature is executing what has been held to be its inherent power to safeguard elections. [Citing three cases.]” These statements are not accurate. The cases cited discuss a great variety of election law requirements, but do not mention an affidavit by candidates as to their qualifications. Nor does section 53 (a) of Article 33, or any other cited provision in Article 33. The difference between an acknowledgment of the authenticity of an instrument and an affidavit to the truth of its contents needs no explanation; it has been familiar, in the recording laws, to lawyers and scriveners for almost two hundred years. So far as appears, it has never been a statutory requirement to demand from candidates cer*204tificates as to their qualifications, sworn to by them. For th¿ reason already stated, there is no real difference between a forbidden oath of office and a required oath by candidates for office.
More novel, but not more substantial, is the distinction between a forbidden oath of office and an oath by candidates for the purpose of “implementing” the 1948 constitutional amendment by their oath that they possess the qualification for office prescribed in the amendment. Violation of the constitution cannot be justified by the purpose of violating it. One constitutional provision may not be violated in order to “implement” another. An oath as to qualifications for office is itself an added qualification. As was said in Davidson v. Brice [91 Md. 681, 48 A. 53], prescribing “as a qualification for the office * * *, any other oath” is precisely what is forbidden by Article 37. A distinction between an oath of office and an oath to supplement other qualifications for office is, like a distinction between “begin” and “commence”, a distinction without a difference. If the legislature, when it proposed the 1948 amendment, or when it adopted the resolution directing appointment of the commission, had considered it advisable so to supplement the amendment, this could easily have been done by adding to the proposed amendment, or proposing as a separate amendment, a requirement that every candidate for office take an oath that he “is not a member of an organization that advocates the overthrow of the Government of the United States or of the State of Maryland by force or violence.” In such event the “implemented” amendment or the original amendment and the “implementation” could have been submitted to the voters at the 1948 election.
Furthermore, the premise for this alleged distinction, viz., that section 15 of the Ober Act covers only the same subject matter as the 1948 amendment, is without basis in law or in fact. It is not necessary to pursue the details of the argument to support this premise. The elaborate definition of “subversive person” embodies the still more elaborate definitions of “subversive organization” and *205“foreign subversive organization” (which does not mention “force or violence” at all), but (it is said) means only “a person who is a member of an organization that advocates the overthrow of the Government of the United States or of the State of Maryland through force or violence.” If a statute is ambiguous, the courts, among possible constructions, select one that will avoid constitutional difficulties. But this doctrine furnishes no warrant for discarding the carefully chosen words of the Ober Act as verbiage. It is unbelievable that the legislature which directed the commission to study the laws of the United States and other states and formulate legislation, the commission which spent months in so doing, the manifestly skilled and careful draftsman of the act and the legislature which enacted it all spent their time and labor and spilled hundreds of words on circumlocutions of the 1948 amendment, only to darken counsel by words without meaning. I do not intimate any opinion on the question how far, under the separability provision (sec. 18) in the Ober Act, section 15 or the definition of “subversive person” might be held valid in part or in some applications of it and invalid in part or in other applications. See, e.g., American Communications Ass’n, v. Douds, 389 U. S. 382, 422, 70 S. Ct. 674, 94 L. Ed. 925, opinion of Mr. Justice Frankfurter.
It is said that an act passed by the legislature comes to us “encased in the armor wrought by prior legislative determination.” This recent “flourish of rhetoric” purports to be an expression of judicial humility in considering the validity of legislative action, not an invitation to usurp legislative power by ignoring the words of the legislature and rewriting a statute.
The decision (as to Shub) in the instant case is unsupported by authority. The decision of the Supreme Court of New Jersey is flatly to the contrary. The New Jersey constitution contains a provision for an oath, substantially identical with art. 1, sec. 6 of the Maryland constitution, but no express prohibition, like art. 37, of any other oath. The court, however, held that *206the provision for an oath prohibited by implication any other oath, and it held invalid all four statutes which required oaths from persons who take office or become candidates for elective office.
I concur in the result as to Thelma Gerende. The State of Maryland has no more authority to prescribe qualifications for a member of Congress than for the Prime Minister of Canada or Eussia. But for the proviso in section 15 relating to candidates for President or Vice President of the United States, that section might- be construed as applicable only to elections for state offices. The proviso, however, manifests an intent that section 15 apply to all other federal offices. If section 15 were really only a legitimate “safeguard of elections” against fraud, it would be equally valid as to elections for state or federal offices.
If section 15 is not (as I believe it is) invalid under Article 37, then the federal questions raised must be decided. The Supreme Court already has denied an immediate hearing on appeal in the instant case; presumably it may dismiss the case as moot after the election. Jones v. Montague, 194 U. S. 147, 24 S. Ct. 611, 48 L. Ed. 913. On the other hand, if section 15 is now authoritatively construed (as I think it should not be) as meaning only what the 1948 amendment says, then the federal questions have been materially narrowed. Most of the federal questions have been raised under the First. Amendment, as included in the due process clause of the Fourteenth, or otherwise under the due process clause. Only the Supreme Court can authoritatively decide these federal questions. Some of them may be decided or illumined in cases now pending in that court. I express no opinion on any federal questions under the due process clause.
I agree that section 15 is not a bill of attainder or an ex post facto law.
I think the judgment should have been reversed as to both Shub and Gerende.
Henderson, J., authorizes me to say that he joins in this opinion.