concurred in the result. Marbury, C. J., filed the following concurring opinion. Collins, J., agreed with the views expressed therein.
I concur in the result in each of these cases, but the reason why I do not simply join with the majority of the Court in approving the opinions should, in all fairness, be stated.
This Court, in many previous cases, has passed upon all sorts of questions in taxpayers’ suits. We have been quite liberal in this respect. (See opinion of Chief Judge Bond in Baltimore Retail, etc., Ass’n. v. Board of Liquor License Commissioners, 171 Md. 426, 189 A. 209, 109 A. L. R. 1253.) I shall not take the space to enumerate *480or discuss these cases, early and late, and the different questions decided, sometimes by holding them within the rights of taxpayers to raise, and sometimes by merely passing or ignoring the point. Many of them are listed in Travers v. Fogarty, 187 Md. 348, 50 A. 2d 238, and in Weinberg v. Kracke, 189 Md. 275, 55 A. 2d 797. A group of the earlier ones are collected in Hillman v. Stockett, 183 Md. 641, 645, 39 A. 2d 803. See in particular, Levering v. Park Commissioners, 134 Md. 48, 59, 106 A. 176, 4 A. L. R. 374. Some are mandamus cases, others bills in equity, but the form is immaterial.
It is true that the Supreme Court, in the cases cited in the majority opinion, has discussed the inadvisability of passing upon certain classes of cases, but we are not bound by these decisions as we are by the decisions of the Supreme Court on matters involving the Constitution of the United States. We determine our own procedures, and what we consider a sufficient right in a complainant to bring a suit.
I agree with the majority of the Court in their conclusion as to the validity of the Emergency Act, Chapter 310, and also with their conclusion that Chapter 86 could have been enacted as an emergency law, and became an emergency law after its amendment by Chapter 310. I do not think, however, that we should stop after deciding these points. These cases were very fully argued on all points, and many briefs were filed by interested parties as friends of the Court. Some of the other questions raised, it seems to me, should have been passed upon, and I think sufficient interest in these other questions is shown by the complainants in these cases.
I agree that we should not go to the extent of construing the several penal sections of the statute, and deciding possible objections made to them. These should await prosecutions where the individuals or organizations accused can be heard. We should not, in an advance opinion, foreclose any of the rights of such accused persons. Even those charged with crime cannot, in general, ask an equity court to enjoin criminal prosecutions. All *481questions involving the penal provisions of Chapter 86 can be raised in the criminal courts in actual cases on trial there, and they should be left to such courts when and if they are before them in appropriate proceedings.
The Chancellor held that the affidavit required by Section 15 of Chapter 86 is an additional oath of office, and is contrary to Article 87 of the Maryland Declaration of Eights. Section 15 provides that no person can become a candidate for election to public office unless he or she shall file with the certificate of nomination, required by Article 33 of the Annotated Code, an affidavit that he or she is not a subversive person. There is a further provision that no certificate of nomination shall be received by the election officials unless accompanied by such affidavit, and that there shall not be entered upon any ballot or voting machine in any election the name of any person who fails to make such an affidavit.
The people of the State in November, 1948, approved a constitutional amendment, now Article 15, Section 11 which reads “No 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 shall be eligible to hold any office, be it elective or appointive, or any other position of profit or trust in the Government of or in the administration of the business of this State or of any county, municipality or other political subdivision of this State.”
The requirement of Section 15 is a provident enactment to implement the constitutional provision, and to prevent deception of the voters by keeping from them the names of those who could not serve if elected. It has the same general purpose as the sworn statements required by Article 33, Section 53. That purpose is to assure the voters that those whose names appear on the ballots or in the voting machines are, at least, prima facie qualified for the offices they seek. It is a method by which the Legislature is executing what has been held to be its inherent power to safeguard elections. Kenneweg v. Allegany County Commissioners, 102 Md. 119, 62 A. 249; *482Munsell v. Hennegan, 182 Md. 15, 31 A. 2d 640, 146 A. L. R. 660; Hennegan v. Geartner, 186 Md. 551, 47 A. 2d 393.
To say that such a requirement is an additional oath of office in violation of Article 37 of the Maryland Declaration of Rights is to ignore both its purpose and its actual wording. It is not an oath to be taken by those who are elected to office. It is an affidavit required to be made by those who wish their names to go before the voters. If they cannot make the affidavit, they cannot take the prescribed Constitutional oath, (Article 1, Section 6), and what the Legislature has done is to provide means of finding out in advance, from persons who are not yet elected to office, whether they can take that oath and hold office under Article 15, Section 11. The fact that some of those whose names go upon the ballots will be elected, does not make an affidavit, required of them before they have even taken the first step towards holding office, an additional “oath of office”.
Since Article 15, Section 11 of the Constitution applies not only to elective but also to appointive offices, the Legislature also considered it advisable to require a written statement, subject to the penalties of perjury, from each appointed employee. Sec. 13. This statement was to be. to the effect that he or she was not a subversive person as defined in the statute. Among the complainants in the Lancaster case is Irene Diggs, who is a state employee, as a teacher in Morgan College. Although she does not say she will not or cannot make the statement required, the mere fact of her joining in the bill of complaint indicates that she does not think she ought to be required to make it, or possibly that she will lose her position by not making it. Under these circumstances, and in spite of the Supreme Court decision in the Hatch Act case, referred to in the majority opinion, it would seem that she has enough interest to justify us in answering her question. We think she, and other people similarly situated, can be lawfully required to make such a statement. It is an arrogant assumption that a govern*483ment cannot protect itself against the infiltration of those who desire to destroy it by force.
It is also provided by the statute, (Sec. 11) that the appointing or employing officials of the State are permitted to decline to appoint or employ prospective employees if it is found under procedures to be established that there are reasonable grounds to believe such prospective employees are subversive persons. ' No one has a right to be a public employee. McAuliffe v. Mayor, 155 Mass. 516, 29 N. E. 517, (Justice Holmes). No fundamental rights are destroyed by not employing or by not keeping in public employment those who cannot or will not satisfy the appointing authority that they are not subversive persons. The citizens and taxpayers of the State, through their representatives, are entitled to decide who shall work for them and who shall teach in those schools and colleges which are State institutions supported by State funds.
It would seem, also, that in the Frankfeld case, the complainants are entitled to know whether that act is a bill of attainder against them. Cummings v. Missouri, 4 Wall. 277, 18 L. Ed. 356; Anderson v. Baker, 23 Md. 531. If it is they have a right to have part of it, at least, stricken down. I do not think it is, and I think we should say so.
There is no attempt in Chapter 86 to name any person or organization as coming within its criminal provisions. There is no list of subversive organizations. On the contrary, every protection is afforded every person or organization accused under its provisions. The statement in the preamble that the “Communist Movement” presents a clear and present danger to the government is made only to show a reason for the enactment. It in no way prevents a fair and judicial trial for any one, nor does it condemn unheard the Communist Party or any of those belonging to that party. And the provision in Section 9 that the Grand Jury shall be charged to inquire into the purposes, activities and any other matters “affecting Communism or any related or other subversive *484organizations”, and the. similar provision in Section -6; are merely directions for investigations, and could not be construed to justify the conviction of a Communist organization, without proof that it is, in fact subversive;
There are two schools of thought for the proper way to handle subversive doctrines and activities. One is that people should be allowed freely to express their opinions, even if they'go so far as to advocate the overthrow of the government, by force. The other school of thought is that freedom of speech guaranteed by the Constitution is not a guarantee to those who seek to destroy that Constitution by force, that such doctrines should not be allowed to be advocated, that those who seek to destroy a government should not participate in it, and, particularly, that those who believe in democracy owe to their children, in their formative years, protection from doctrines which might produce a bloody revolution. This Court does not have to decide between the political philosophies of those two schools of thought. It is not a judicial question, (Missouri Pac. Ry. v. City of Omaha, 235 U. S. 121, 35 S. Ct. 82, 59 L. Ed. 157, Queenside Hills Co. v. Saxl, 328 U. S. 80, 66 S. Ct. 850, 90 L. Ed. 1096, and it has been decided by the people of this State through the passage óf a constitutional amendment, and through the passage by their representatives in the Legislature of the Subversive Activities Act.
Freedom of speech is not absolute. Justice Holmes made that clear in Schenck v. United States, 249 U. S. 47, 39 S. Ct. 247, 249, 63 L. Ed. 470, which was an indictment under the Espionage Act. He said “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre, and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.” Other cases so holding are Frohwerk v. United States, 249 U. S. 204, 39 S. Ct. 249, 63 L. Ed. 561, Gitlow v. People of State of New York, 268 U. S. 652, 45 S. Ct. 625, 69 L. Ed. 1138, Whitney v. People of State of California, 274 U. S. 357, 47 S. Ct. 641, 71 L. Ed. 1095, Chap*485linsky v. State of New Hampshire, 316 U. S. 568, 62 S. Ct. 766, 88 L. Ed. 1031 and Kovacs v. Cooper, 336 U. S. 77, 69 S. Ct. 448, 93 L. Ed. 513.
It follows as a necessary corollary that a state has the right to pass restrictive statutes, and this has also been decided in a number of cases. Gitlow v. New York supra; Whitney v. California supra; De Jonge v. State of Oregon, 299 U. S. 353, 57 S. Ct. 255, 81 L. Ed. 278; Bridges v. State of California 314 U. S. 252, 62 S. Ct. 190, 88 L. Ed. 192, 159 A. L. R. 1346.
In the Gitlow case, supra, the court said that “Every presumption is to be indulged in favor of the statute”. [268 U. S. 652, 45 S. Ct. 631.] In the concurring opinion of Justice Brandéis in the Whitney case supra (joined in by Justice Holmes) it is stated that the legislative declaration that the act was necessary for the immediate preservation of the public peace and safety [274 U. S. 357, 47 S. Ct. 649] “like the fact that the statute was passed” created a rebuttable presumption that these conditions had been satisfied. Some confusion has been created since these cases by a footnote of Chief Justice Stone in United States v. Carolene Products, 304 U. S. 144, 151, 58 S. Ct. 778, 82 L. Ed. 1234, 1241 and by the later case of Thomas v. Collins, 323 U. S. 516, 65 S. Ct. 315, 89 L. Ed. 430. Justice Frankfurter in his concurring opinion in the late case of Kovacs v. Cooper supra, has endeavored to dispel this confusion. He said that the phrase [336 U. S. 77, 69 S. Ct. 455] “the preferred position of freedom of speech” was mischievous “if it carries the thought, which it may subtly imply, that any law touching communication is infected with presumptive invalidity”. He then gives what he calls “a chronological account of the evolution of talk about ‘preferred position’ ”. He concludes this account by the statement that “the claim that any legislation is presumptively unconstitutional which touches the field of the First Amendment * * * has never commended itself to a majority of this court”. (Emphasis supplied.)
*486It seems a fair conclusion that there is still a presumption in favor of the validity of such a legislative enactment as Chapter 86, and I think we should say so, always reserving the rights of anyone affected by it to attack it or any of its provisions.
The many decisions mentioned in the briefs and the argument on the “clear and present danger” rule have no bearing on the issues before us. Some of these are Bridges v. California, supra; Pennekamp v. State of Florida, 328 U. S. 331, 66 S. Ct. 1029, 90 L. Ed. 1295, 1306; Craig v. Harney, 331 U. S. 367, 67 S. Ct. 1249, 91 L. Ed. 1546, all contempt cases followed by us in Baltimore Radio Show, Inc. v. State, 193 Md. 300, 67 A. 2d 497, certiorari denied; Cantwell v. State of Connecticut, 310 U. S. 296, 60 S. Ct. 900, 84 L. Ed. 1213, 128 A. L. R. 1352; Chaplinsky v. New Hampshire, supra; Terminiello v. Chicago, 337 U. S. 1, 69 S. Ct. 894, 93 L. Ed. 1131; Bridges v. Wixon, 326 U. S. 135, 65 S. Ct. 1443, 89 L. Ed. 2103; Thomas v. Collins, supra. These cases involve actual prosecutions, and the rule is applied as a measure of proof. What the effect of these cases may be in prosecutions under such an act as Chapter 86 is one thing, but it is quite another to say that they affect its validity on its face. Justice Frankfurter has shown otherwise in his “chronological account” above referred to.
This State has stated in the preamble to Chapter 86 that there now exists a clear and present danger to the governments of the nation and of the State, and that the General Assembly, therefore, has caused a study to be made and a program to be formulated by a Commission, and as a result the statute has been proposed. It is not a carelessly thought out enactment. It had been prepared by an intelligent and able Commission, headed by Frank B. Ober, the present President of the Maryland State Bar Association from whom it derives its popular name “The Ober Law”. It shows, intrinsically, the result of study of the Supreme Court decisions, and of other similar statutes. It is a serious effort to carry out a policy already established in the State Constitution, and *487a policy which the public thought advisable and necessary to combat actual danger to our form of government. We should not create any doubt that the people can adopt such a policy, even if we do not now pass upon all the provisions of the act adopted by their representatives in the Legislature.
It should be added that it is not suggested that the opinions expressed by me are either held by those constituting the majority of the Court or that they are disagreed with by them. They have simply declined to pass upon or discuss these matters, and they may or may not differ with each other and with me as to any or all of them.
Judge Collins authorizes me to say that he agrees with the views I have expressed.