(concurring and dissenting).
I agree with the court to the extent that it holds violative of due process the portion of the statute that would automatically disqualify for public employment the individual simply because of his membership past or present in a subversive party or organization. But in my estimation this taint does not extend to or render inoperable the remainder of the statute which the Legislature ex*851pressly stated should survive, even if some part of the whole was judicially declared invalid.
The court declares that the individual advocacy portion of the official loyalty oath fails the test of due process, because “ * * * the public employee (not being afforded a hearing) has no opportunity to rebut the treacherous implication of disloyalty against which the test oath is directed.” This reasoning, I submit, is based upon a misconception. The basis for the disqualification is not an inference that the individual is disloyal, but rather his refusal to answer. The State may not be held responsible for all consequences of the individual’s refusal to give information regarding matters of legitimate employer concern. Any “implication of disloyalty” stems not from state commission or omission; rather it is purely the product of the individual’s refusal to submit to a reasonable inquiry propounded by the State. As such, it is not subject to constitutional redress; the Constitution concerns itself solely with state, not individual action.
Mr. Justice Frankfurter, concurring in Beilan v. Board of Public Education, 357 U.S. 399, 410-411, 78 S.Ct. 1317, 1324-1325, 2 L.Ed.2d 1414 (1958) discussed and persuasively laid to rest the same argument presently made by this court. After stating that,
“The services of two public employees have been terminated because of their refusals to answer questions relevant, or not obviously irrelevant, to an inquiry by their supervisors into their dependability,”
he carefully noted that,
“When these two employees were discharged, they were not labeled ‘disloyal.’ They were discharged because governmental authorities, like other employers, sought to satisfy themselves of the dependability of employees in relation to their duties. Accordingly, they made inquiries that, it is not contradicted, could in and of themselves be made. These inquiries were balked. The services of the employees were therefore terminated.
“Because the specific questions put to these employees were part of a general inquiry relating to what is compendiously called subversion and to conduct that on due proof may amount to disloyalty, every part of the process of inquiry is given the attribute of an inquiry into disloyalty and every resulting severance from service is deemed a finding of disloyalty. The argument runs, in essence, that because such an inquiry may in certain instances lead to a determination of disloyalty, the refusal to answer any questions in this process and dismissal therefor themselves establish disloyalty. To make such an attribution to a State, to draw such an inference from a carefully limited exercise of state power, to disallow state action because there are those who may draw inferences that the State itself has not drawn and has avoided drawing, is a curbing of the States through the Fourteenth Amendment that makes of that Amendment an instrument of general censorship by this Court of state action. In refusing to put the Fourteenth Amendment to such a use, I am of course wholly unconcerned with what I may think of the wisdom or folly of the state authorities. I am not charged with administering the transportation system of New York or the school system of Pennsylvania. The Fourteenth Amendment does not- check foolishness or unwisdom in such administration. The good sense and right standards of public administration in those States must be relied upon for that, and ultimately the electorate.”
See also, Nelson v. Los Angeles County, 362 U.S. 1, 80 S.Ct. 527, 4 L.Ed.2d 494 (1960) and Cafeteria and Restaurant Workers Union, etc. v. McElroy, 367 U.S. *852886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961).1
In short, the court should hold in this case that the State of Idaho cannot constitutionally be required to provide hearing procedures to afford an individual the opportunity to “rebut” an implication for which it bears no responsibility.
. It is interesting to note that the “badge of disloyalty” argument was made in Beilan even though the teachers were granted a hearing to explain their views. Under the rationale employed by the court in this ease, the statute could still be found constitutionally infirm even if the state provided a hearing.