Nesbitt v. Apple

Annotate this Case

Nesbitt v. Apple
1995 OK 20
891 P.2d 1235
66 OBJ 785
Case Number: 84972
Decided: 03/08/1995
Modified: 03/08/1995
Supreme Court of Oklahoma

CHARLES NESBITT, PETITIONER,
v.
ED APPLE, RESPONDENT.

[891 P.2d 1236]
Action to Assume Original Jurisdiction and Petition for Relief in Nature of Quo warranto.

¶0 Petitioner, Charles Nesbitt has filed this original action seeking a writ in the nature of quo warranto against respondent, Ed Apple to determine which of the two parties is the lawful incumbent in the office of Oklahoma Corporation Commissioner. We assume original jurisdiction in this matter and settle the title to the office in favor of respondent.

ORIGINAL JURISDICTION ASSUMED; TITLE TO OFFICE SETTLED IN RESPONDENT, ED APPLE.

Robert L. Bailey, Bailey Law Offices, Terry buy Shipley, Robert N. Naifeh, Norman, for petitioner.

Stephen Jones, Sp. Counsel to Governor Frank Keating, Jeremy B. Lowrey, Julia A. Sims, Deputy Sp. Counsel to Governor Frank Keating, Jones & Wyatt, Enid, Sarah E. Rucker. Oklahoma City, for respondent.

LAVENDER, Justice.

I. INTRODUCTION.

¶1 Petitioner, Charles Nesbitt (petitioner) has filed this original action seeking a writ in the nature of quo warranto against respondent, Ed Apple (respondent), to determine which of the two parties is the lawful incumbent in the office of Oklahoma Corporation Commissioner. We assume original jurisdiction and settle the title to the office in favor of respondent.

¶2 Essentially, three issues are raised by petitioner in support of his application. These are: 1) the dispute is publici juris in nature and one where original jurisdiction should be assumed; 2) the Corporation Commission office in dispute was vacant the latest on January 3, 1995, the date of commencement of the Congressional term for which J.C. Watts, Jr. was elected in November 1994; and 3) on January 4, 1995, the date Governor David Walters' appointment of petitioner was to take effect, the office of Corporation [891 P.2d 1237] Commissioner claimed to be held by Mr. Watts was in law vacant because he had never filed the two constitutional oaths of office and a statutory loyalty oath for the office of Corporation Commissioner - Mr. Watts was, thus, never a de jure Corporation Commissioner, but only a de facto Corporation Commissioner and as such was subject to replacement at any time by gubernatorial appointment prior to the end of Governor Walters' term which expired on January 9, 1995. After stating the facts stipulated to by the parties and other facts we deem pertinent, we will take up the issue of whether original jurisdiction should be assumed, then the oath filing issue and, lastly, the issue surrounding Mr. Watts' election to Congress.

II. FACTS.

¶3 The parties have stipulated to the following facts:

1. J.C. Watts was elected to the Oklahoma Corporation Commission in 1990. On January 14, 1991, J.C. Watts commenced a six-year term as Corporation Commissioner, ending on January 13, 1997. Likewise, on this date, David Walters commenced a four-year term as Governor of the State of Oklahoma, ending on January 9, 1995.

2. On January 14, 1991, J.C. Watts was administered the Constitutional oath of office as Corporation Commissioner on the steps of the State Capitol by Justice Marian Opala of the Oklahoma Supreme Court and subscribed to the oath.

3. On January 14, 1991, J.C. Watts was administered the Constitutional oath of a Corporation Commissioner at the Jim Thorpe building by Judge Charles Owens of the District Court for Oklahoma County and subscribed to the oath. At the same time, J.C. Watts took and subscribed to the loyalty oath set forth in 51 O.S.

4. J.C. Watts served as Corporation Commissioner for the State of Oklahoma from January 14, 1991.

5. On July 11, 1994, Commissioner J.C. Watts, declared his candidacy for the office of United States Representative for the Fourth District of Oklahoma and filed a declaration of candidacy as required by 26 O.S.

6. In 1994, during J.C. Watts' election campaign for the Republican nomination as candidate for the United States House of Representatives, J.C. Watts stated his intention to retain his position as Corporation Commissioner through January 9, 1995 and not accept a position in the United States House of Representatives until that date in order that the newly elected governor could appoint Commissioner Watts' replacement as Corporation Commissioner.

7. On November 8, 1994, Commissioner J.C. Watts was elected to the office of United States Representative - District No. 4, and the election returns were certified to the United States House of Representatives on November 15, 1994.

8. On December 23, 1994, Governor Walters filed with the Secretary of State an Order of Appointment, whereby Governor Walters stated that he was appointing Charles Nesbitt as a Corporation Commissioner to serve the unexpired term of J.C. Watts, effective at 12:00 noon on January 4, 1995.

9. On January 3, 1995, at 12:00 noon, the term of the 104th Congress of the United States began in accordance with Amendment XX of the United States Constitution. The 104th Congress assembled at 12:00 noon on January 4, 1995.

10. On January 4, 1995, Charles Nesbitt was administered, subscribed, and filed with the Oklahoma Secretary of State the three oaths of office prescribed by the Constitution and laws for Corporation Commissioner.

11. On January 5, 1995, Charles Nesbitt forwarded two letters to the Corporation Commission, one addressed to Cody Graves and Bob Anthony, the other to General Jay Edwards, the Commission's General Administrator. The letter to Commissioners Graves and Anthony demanded that Nesbitt be recognized as Commissioner and the letter to General Edwards requested initiation of procedures to activate employment with the Commission for Mr. Nesbitt.

12. The parties stipulate to the authenticity of the January 6, 1995 Corporation Commission minutes and order attached in respondent's Appendix at pages 27 through 31.

13. On January 9, 1995, Frank Keating was inaugurated as Governor of the State of [891 P.2d 1238] Oklahoma and was administered the oaths of office.

14. On January 9, 1995, J.C. Watts caused a written resignation letter, stating that he was resigning his position as Corporation Commissioner, to be physically delivered to Governor Keating, effective upon hand-delivery to Governor Keating. This resignation letter was delivered to Governor Keating after Governor Keating's inauguration, and after Governor Keating had taken the oaths of office and had taken possession of the Governor's office.

15. On January 9, 1995, following his acceptance of J.C. Watts' resignation, Governor Keating filed an Order of Appointment with the Oklahoma Secretary of State, stating that the Governor was appointing Ed Apple to fill J.C. Watts, Jr.'s Corporation Commission seat.

16. On January 9, 1995, following his appointment to the Oklahoma Corporation Commission, Ed Apple was administered, subscribed, and thereafter duly filed with the Secretary of State the three oaths of office prescribed by the Constitution and laws of Oklahoma for Corporation Commissioners.

17. On January 9, 1995

18. J.C. Watts did not receive a congressional salary for any period prior to taking the oath of office as Representative in Congress.

19. J.C. Watts was paid a salary as Corporation Commissioner through January 9, 1995.

20. The parties stipulate to the authenticity of the pages from Corporation Commission orders dated January 4th and 6th, 1995, that are attached in respondent's Appendix pages 5 through 9.

¶4 In addition to these stipulations the record is undisputed that Governor Walters, prior to leaving office on January 9, 1995, gave no notice, either verbal or written, prior to Mr. Watts' resignation of the same date, to the effect the Corporation Commission seat claimed to be held by Mr. Watts had been declared vacant by virtue of failure to file with the Secretary of State one or more of the oaths mentioned above. Further, the record is undisputed Mr. Watts was given no opportunity for any hearing, formal or informal, by Governor Walters on the issue of whether he was properly serving as a member of the Corporation Commission by failure on his part to file with the Secretary of State any of the three required oaths. Also, petitioner does not contend before this Court that Governor Walters, prior to leaving office on January 9, 1995, made any express finding that Mr. Watts vacated the office of Corporation Commissioner because of failure to timely file any of the three oaths.

III. ORIGINAL JURISDICTION WHICH WE HAVE BY CONSTITUTIONAL
PROVISION AND STATUTE SHOULD BE EXERCISED BECAUSE THE
MATTER IS PUBLICI JURIS IN NATURE.

¶5 The OKLA. CONST. art. 7,

IV. THE ISSUE CONCERNING ALLEGED FAILURE OF MR. WATTS TO
FILE THE CONSTITUTIONAL AND STATUTORY OATHS WITH THE
SECRETARY OF STATE IS NOT PROPERLY BEFORE US.

¶6 Petitioner asserts the office of Corporation Commissioner held by Mr. Watts became vacant six months after Mr. Watts' term of office as a Corporation Commissioner began on January 14, 1991, by virtue of Mr. Watts' alleged failure to file with the Oklahoma Secretary of State the two constitutional oaths and one statutory oath required to be taken and subscribed to by a State public officer before entering upon the duties of the office. The statutes and constitutional provisions necessary for an understanding of this issue are as follows. OKLA. CONST. art. 15,

¶7 In addition to the general State constitutional oath found at OKLA. CONST. art. 15,

¶8 Further, 51 O.S. 1991

¶9 Petitioner's argument on the filing issue is as follows. A search of the records of the Secretary of State's office, evidenced by certificates of the search from the Secretary of State on December 29, 1994 and January 6, 1995, did not turn up any of Mr. Watts' three oaths. Petitioner argues this shows no filing of the oaths as required by the above constitutional and statutory provisions and, accordingly, Mr. Watts failed to qualify for the office of Corporation Commissioner within six months after his term began for that office in January of 1991. Petitioner further argues the result of this alleged nonfiling caused the office to become automatically vacant after the six month period pursuant to

¶10 In our view, petitioner's argument, as the record now stands, suffers from an infirmity. Petitioner never alleges, nor does he present any evidence, that the appointing authority (i.e. Governor Walters) ever made an express determination Mr. Watts' office as Corporation Commissioner became vacant by reason of his failure to either take, subscribe to or properly file any of the three aforementioned oaths. Petitioner further does not allege that Governor Walters ever afforded Mr. Watts an opportunity to dispute, while Mr. Watts was still in the position of Corporation Commissioner and Governor Walters still held the appointing authority, any assertion the office became vacant by reason of failure to file the oaths with the Secretary of State. We believe the failure on petitioner's part to allege or show that Mr. Watts was given the opportunity to contest such a claim and the failure to allege or show Governor Walters made an express determination a vacancy occurred by reason of failure to file one or more of the oaths is a fatal flaw to petitioner's present claim to the office on the basis of this filing issue - such flaw ousting us of jurisdiction to consider the substantive merits of the failure to file question, either as a factual matter or as to the legal consequences of failure to file the oaths, assuming the oaths, were not, in fact, filed with the Secretary of State.

¶11 As the record now stands there is a factual dispute as to whether Mr. Watts failed to file with the Secretary of State the three oaths that the parties stipulate he did take and subscribe on January 14, 1991. In such regard, respondent presents evidence in the form of affidavits and other evidentiary materials to the effect that Mr. Watts disputes the fact that he either failed to file or cause to be filed the oaths. The evidence submitted by respondent appears to show that in the normal course of business the oaths were submitted to the Secretary of State for filing by personnel of the Oklahoma Corporation Commission. Submissions of respondent further indicate that the Secretary of State's office appears to be casual in its handling of these oaths and, indeed, after a loyalty oath has been in the Secretary of State's office for four months it is transferred to the Records Center, Archives Division of the Department of Libraries, where it is destroyed after five years. Petitioner never directly asserts a search was conducted of this State depository, but only that the records of the Secretary of State were searched.

¶12 This present factual dispute is important because as we read 51 O.S. 1991

¶13 In the case of Worley v. State ex rel. Asbill, 558 P.2d 430, 433-434 (Okla. Ct. App. 1976), Division 1 of the Court of Appeals, seemed to recognize that in order for a declaration of vacancy in office to be declared in conjunction with

¶14 Although Freeman did not involve a construction of

¶15 For a Governor to be entitled to act to fill a vacancy there must actually be a vacancy in an office. Carpenter v. Carter, 167 Okla. 238, 29 P.2d 83, 85 (1934). In order to implement the appointive authority given to the Governor (and others that have such authority by virtue of constitutional or statutory provision), the Legislature has set up an orderly procedure for filling a vacancy. Part of the procedure is a requirement that the Governor or other appointing authority make a substantive and real factual determination concerning the reason by which a vacancy has occurred. 51 O.S. 1991

¶16 In our view, for us to make the factual determination in the first instance, would thwart the legislative will embodied in

V. MR. WATTS' OFFICE AS CORPORATION COMMISSIONER WAS NOT
VACANT AT THE COMMENCEMENT OF THE TERM OF CONGRESS.

¶17 Petitioner's other argument in support of his entitlement to the office of Corporation Commissioner is that Oklahoma constitutional and statutory law provides that when an individual holding a State public office is elected to a second public office, he [891 P.2d 1242] or she ipso facto vacates the first office when the term of the second office commences. Petitioner alleges here that the vacating date applicable was January 3, 1995 because the United States Constitution provides that the term for which Mr. Watts was elected in November 1994 began at noon on such date. Inherent in this argument is the position that neither the date of Mr. Watts' resignation nor the date he actually became a member of the United States House of Representatives was the vacating date for the office of Corporation Commissioner, but rather as noted, the vacating date was the commencement of the term of Congress, a date on which Governor Walters still possessed appointive authority. We disagree. In our view the first office is vacated when the office holder either resigns the first office or accepts the second office and that in this case both the resignation and acceptance occurred on January 9, 1995 and no vacancy subject to gubernatorial appointment occurred until such time.

¶18 The first is OKLA. CONST. art. 2,

No member of Congress from this State . . . shall hold any office of trust or profit under the laws of this State.

¶19 The next is U.S. CONST. amend. XX,

Section 1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3rd day of January, of the years in which such terms would have ended if this article had not been ratified: and the terms of their successors shall then begin.

Section 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the third day of January, unless they shall by law appoint a different day.

¶20 Further, U.S. CONST. art. VI, cl. 3 provides in pertinent part:

The Senators and Representatives before mentioned . . . shall be bound by Oath or Affirmation, to support this Constitution . . . .

¶21 Also U.S. CONST. art. I,

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members. . . . Further, U.S. CONST. art. I,

¶22 Further, 26 O.S. 1991

[891 P.2d 1243] ¶23 Our case law provides that when an office holder accepts an incompatible office the acceptance of the second office ipso facto operates to vacate the first office. Gibson v. Crowder, 196 Okla. 406, 165 P.2d 628, 629-630 (1946); Wimberly v. Deacon, 195 Okla. 561, 144 P.2d 447, 451-454 (1943). Petitioner relies on Gibson, Wimberly, two other cases and 26 O.S. 1991

¶24 Wimberly does not support the view that a State office holder vacates an office at the commencement of the term for a second office to which he has been elected. The facts in Wimberly were that a member of the Board of Regents of the University of Oklahoma, one C.O. Hunt, was called into active duty as a commissioned officer in the United States Army. 144 P.2d at 449. Hunt entered upon military duty as a commissioned officer without resigning his seat on the Board of Regents. Id. After Hunt's entry upon military duty the then Governor of Oklahoma, assuming a vacancy on the board, appointed someone to fill it. Id. Over a year later Hunt submitted his written resignation to the then Governor (successor to the one who had made the first appointment) who thereupon appointed another individual to the office. We held that the first appointment was valid because Hunt ipso facto vacated the office of board member under OKLA. CONST. art. 2,

¶25 Gibson, like Wimberly, involves a decision applying the general rule, that where a person holding an office under the laws of this State, accepts and enters upon the duties of a second public office, the acceptance of the second office operates to ipso facto vacate the first office notwithstanding the person's intention to retain the first office. The facts in Gibson were that at a meeting of the Board of Education for the City of Muskogee a member resigned and the remaining members appointed Gibson to the vacancy. 165 P.2d at 628. Gibson accepted the appointment or election, he at once qualified and entered upon the duties of the office. Id. At a later meeting the board, with Gibson present, refused to recognize him as a member because he had not resigned the office of City Treasurer of the City of Muskogee and had then or previously announced his intention to continue to hold the office of City Treasurer, an office he held prior to his appointment or election to the board of education. The board of education purported to appoint a new board member at this later meeting. In an action brought to determine whether Gibson or the person appointed subsequent was the lawful member of the board of education we held in favor of Gibson, holding that Gibson's acceptance of the office as member on the board of education operated to ipso facto vacate the office he previously held as City Treasurer. Id. 165 P.2d at 629-630. Thus, the board of education could [891 P.2d 1244] not appoint a replacement for Gibson because no vacancy existed, as he was validly holding the office as a member of the board of education. Gibson, thus, did not hold that it was entitlement to hold an office by election or appointment that was the key date, but like Wimberly, it was the acceptance or entering upon the duties of the office that was the determining factor as to when the first office was vacated.

¶26 The third case relied on by petitioner is State ex rel. Oklahoma Tax Commission v. Mourer, supra. Mourer was a case that had nothing to do with dual office holding or a determination that the acceptance of a second office by a state office holder ipso facto vacates the first office. In fact, Mourer did not concern the question of when a vacancy occurs in a public office by reason of a State public office holder's election or appointment to a second public office. It further did not hold that entitlement to an office at the beginning of a term automatically vacated a public office already held by the involved individual. As noted, Mourer did not deal with these issues. Accordingly, we do not find Mourer helpful in disposing of the question presented, to wit: when did the office of Corporation Commissioner held by Mr. Watts become vacant?

¶27 The final case relied on by petitioner is Riley v. Cordell, supra. Riley, as with Mourer, is distinguishable from the present case because it neither involved a dual office holding situation or a ruling by this Court that mere entitlement to an office at the beginning of a term translates into a vacancy in a current office held by an elected or appointed official. Riley was a pre-election case that involved the question of whether a person could run for the nomination to two public offices at the same time, one a justice of the Supreme Court and the other a United States Senator. Although no specific statute prohibited a person from becoming a candidate for more than one office this Court held the candidate could run for only one office at a time and that the filing of a notification and declaration of candidacy for the second office (United States Senator) operated to withdraw the prior notification and declaration of candidacy for the office of justice of the Supreme Court. In so ruling we analogized the situation to the prohibition against dual office holding which declares that when a public officer occupying one office enters upon the duties of another office, the acceptance of the second office operates ipso facto to vacate the first office. We cited Wimberly and Gibson as a statement of the rule.

¶28 We also relied on the then existent statute, 26 O.S. 1941

¶29 In the first instance, current

¶30 Petitioner apparently attempts to tie the requirement in

¶31 In United States v. Dietrich, 126 F. 676 (C.C.Neb. 1904), then Judge Van Devanter, speaking for the United States Circuit Court, held that a person appointed or elected to Congress does not become a member of that body until he has been accepted as a member and has assumed the duties of the office. Dietrich was a case concerned with deciding when a person became a member of Congress in the context of determining whether a federal criminal statute was applicable, said statute in pertinent part only prohibiting the acts of members of Congress. Dietrich distinguished a member-elect from a member in various ways one of which was: "[w]hen we speak of a member of Congress we refer to one who is a component part of the Senate or House of Representatives; one who is in office, not out of office: one who is sharing the responsibilities and privileges of membership." Id. at 681. The Dietrich court further put it this way:

The defendant was not admitted to a seat in the Senate and did not enter upon the discharge of the duties of that office until December 2, 1901. Not until that day did the Senate consider or act upon his election, credentials, and qualifications. Until then it was not known, and could not have been, in the absence of an earlier session of the Senate, whether his election, credentials, and qualifications would be deemed by the Senate, the sole and exclusive judge, to be such as to entitle him to membership in that body. Immediately following the favorable action of the Senate upon his election, credentials, and qualifications, the defendant took the oath of office as a senator, which was an assumption of the duties of that office, but until then he had not accepted the office and was not obligated to its acceptance. Id. at 682.

¶32 Other courts have reached similar results in analogous situations to the one presented here. In Kelly v. Woodlee, 175 Tenn. 181, 133 S.W.2d 473 (1939), the Supreme Court of Tennessee ruled that a district attorney general in that state did not vacate said office after his election to the office of United States Senator until he was accepted by that body as a member and until he was sworn into office as a Senator. The allegations in that case, as here, were that the district attorney general purposely held on to the office of district attorney general until a new Governor came into office in January of 1939, [891 P.2d 1246] so that this new Governor could appoint his successor for the state office, rather than the outgoing Governor. Kelly upheld the lawfulness of the new Governor's appointment rather than the former Governor's because no vacancy existed in the office of district attorney general until the seat in Congress was actually accepted.

¶33 In State ex rel. O'Hara v. Appling, 215 Or. 303, 334 P.2d 482 (1959), the Oregon Supreme Court determined that a Secretary of State did not vacate his office until he took the oath of office as the state's new Governor, a post to which he had previously been elected. The court in a quo warranto proceeding determined that the new Governor, not his predecessor, had the lawful authority to appoint a new Secretary of State. State of Arizona ex rel. Pickrell v. Myers, 89 Ariz. 167, 359 P.2d 757 (1961), also supports the view that a second office is not accepted merely because a legislative term or session begins, but that acceptance of a legislative office to which a person is elected does not occur until the oath of office is taken and the body accepts the person as a member. In Myers the Supreme Court of Arizona held that a person elected to the state legislature did not become a member of that body where he was absent when it convened and was not seated, so that his appointment thereafter to a judgeship was valid and not in violation of a dual office-holding provision of the Arizona Constitution.

¶34 There is also a U.S. Attorney General opinion from the 1800s that supports the position of respondent as to when someone elected to Congress becomes a member. In 14 U.S.Op.Atty.Gen. 406 (June 6, 1874), it was opined that a representative-elect did not become a member of the House until he was sworn in by taking the oath of office. The facts in the matter were that a person elected to the Forty-third Congress, the term beginning March 4, 1873, did not take the oath until December 1, 1873. Up to such time he held the position of counsel of the United States before the joint commission between the United States and Great Britain. 15 U.S.Op.Atty.Gen. 280 (May 19, 1877), following the previous Attorney General opinion, comes to the same conclusion, that a representative-elect did not become a member of the House until sworn into that office.

¶35 The above authority, we believe, is persuasive that it is the taking of the oath of office as a Congressman that is the event transforming a member-elect into a member of Congress and signifies acceptance of that office by the person elected to such a position. Taking the oath of office is a solemn declaration by an individual that the duties of the office will be faithfully carried out. The importance of the oath was recognized in these words found in Joseph Story's, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES

That all those, who are entrusted with the execution of the powers of the national government, should be bound by some solemn obligation to the due execution of the trusts reposed in them, and to support the constitution, would seem to be a proposition too clear to render any reasoning necessary in support of it. It results from the plain right of society to require some guaranty from every officer, that he will be conscientious in the discharge of his duty. Oaths have a solemn obligation upon the minds of all reflecting men, and especially upon those, who feel a deep sense of accountability to a Supreme being. If, in the ordinary administration of justice in cases of private rights, or personal claims, oaths are required of those, who try, as well as of those, who give testimony, to guard against malice, falsehood, and evasion, surely like guards ought to be interposed in the administration of high public trusts, and especially in such, as may concern the welfare and safety of the whole community But there are known denominations of men who are conscientiously scrupulous of taking oaths . . . and, therefore, to prevent any unjustifiable exclusion from office, the constitution has permitted a solemn affirmation to be made instead of an oath, and as its equivalent.

¶36 Thus, taking the oath of office for Congress is a necessary ingredient to [891 P.2d 1247] membership in that body and, we believe, not until a member-elect actually takes the oath required of a member of the House of Representatives does vacation of a State office automatically occur under the dual office prohibition in our State Constitution.

¶37 In view of the above law, to the extent that former Governor Walters had the authority to determine the facts by reason of which a vacancy occurred in the office of Corporation Commissioner under 51 O.S. 1991

VI. CONCLUSION.

¶38 In that this matter has statewide impact and involves title to a statewide public office it is publici juris in nature and we assume original jurisdiction to determine the controversy between petitioner and respondent. We hold that because Governor Walters made no lawful or legitimate determination that the office of Corporation Commissioner held by J.C. Watts, Jr. was vacated by reason of an alleged failure to file any required constitutional or statutory oath, while Governor Walters still held the office of Governor and Mr. Watts still held the office of Corporation Commissioner, we have no authority to make such a determination in the first instance. Further, as to the filing issue, in that no lawful or legitimate determination was made, petitioner may not rely on any [891 P.2d 1248] alleged failure to file these oaths with the Secretary of State to support his assertion he is the current lawful holder of the office of Corporation Commissioner involved in this action. Finally, Mr. Watts did not vacate his office as Corporation Commissioner based on the record presented until after Governor Walters left office on January 9, 1995 and, therefore, the appointment of petitioner to that office before January 9th was without validity because no vacancy existed in the office of Corporation Commissioner prior to that date and prior to Governor Keating's succession to the office of Governor.

¶39 Accordingly, for the reasons set forth above, ORIGINAL JURISDICTION IS ASSUMED AND TITLE TO THE OFFICE OF CORPORATION COMMISSIONER IS SETTLED IN RESPONDENT, ED APPLE.

¶40 KAUGER, V.C.J., LAVENDER, SIMMS, HARGRAVE and SUMMERS, JJ. concur.

¶41 HODGES, J., concurs as to I, II, III, V and VI; concurs in result as to IV.

¶42 WILSON, C.J., concurs in part; dissents in part.

¶43 OPALA, J., dissents.

¶44 WATT, J., disqualified.

Footnotes:

1 In stipulation number 17 submitted by the parties the date is shown as January 9, 1994. We assume this was a typographical error and they meant 1995.

2 The Order of Appointment by Governor Walters of petitioner, in fact, gives as the only reason for the appointment Mr. Watts' election to the United States House of Representatives. No other reason for appointment of petitioner or determination as to the basis the office of Corporation Commissioner was deemed vacant by Governor Walters is contained in the Order of Appointment.

3 Although the evidence is not conclusive, respondent has presented evidentiary material that Mr. Watts' three oaths were submitted to the Secretary of State's office for filing by personnel of the Oklahoma Corporation Commission in the normal course of business in January 1991. Petitioner, on the other hand, has presented evidentiary material that a search of the office of the Secretary of State has failed to uncover any of the three oaths as having been filed with that office.

4 Cf. Callender v. District Court for the Twentieth Judicial District, 625 P.2d 627, 629 (Okla. 1981) (when there has been a final unappealed conviction for a crime that may result in forfeiture or vacation of office the failure of the appointing authority to find the facts surrounding vacancy is not fatal to district court's jurisdiction to determine whether the office was forfeited or to otherwise try the title to the office in an action brought by the Attorney General).

5 We note that the stipulations of the parties reveal that Mr. Watts' written resignation which was caused to be hand-delivered to Governor Keating after Governor Keating was sworn in as Governor on January 9, 1995 preceded Mr. Watts taking the oath of office for the United States House of Representatives. As such, delivery of the resignation appears to have been in reality the vacating event.

6 The dissent would hold that the dual office holding prohibition of OKLA. CONST. art. 2, ' 12 , is violated, not when Mr. Watts actually became a member of Congress, but when Mr. Watts was entitled to become a member, using the date of commencement of the Congressional term as the operative date for vacation of the State office of Corporation Commissioner. In the first instance, the dissent has cited no case from any jurisdiction having a similar constitutional provision to art. 2, ' 12 of our Constitution that has so held. As we have stated, and as the dissent appears to admit, the rule - as stated in our previous cases as exemplified by Gibson and Wimberly - is that when one accepts a second office the first is automatically vacated. In effect, what the dissent of Justice Opala wants to do, because of his vision of good public policy, is to create a legal fiction to enlarge the prohibitory reach of art. 2, ' 12 in contravention of the plain language of that constitutional provision which says, "[n]o member of Congress . . ." to read "no member-elect of Congress after commencement of the congressional term". The dissent also seems to be of the view that, by judicial fiat, we should rule Mr. Watts accepted the position of Congressman before he actually accepted said position to foster this view of what good public policy should entail. Neither this Court or any court is at liberty to rewrite a clear and unambiguous constitutional provision merely because it does not reflect its vision of good public policy. The simple fact is that under our previous case law and that of other jurisdictions, entitlement to hold the second office is not the key date as to vacation of the first office, but it is acceptance of the second office one is entitled to hold that is the decisive date and the generally recognized manner for accepting an office is taking the required oath, which the dissent does not dispute. Whether good public policy would be fostered by a different provision than OKLA. CONST. art. 2, ' 12 , is not our concern because we are bound to apply the law as stated in that provision, not the law that we wish might have been stated. As noted in Wimberly, supra, "[t]he question, therefore, is not one of policy for us to promulgate, but rather, what did the framers of out constitution and those who adopted it in 1907 intend?" Wimberly, supra, 144 P.2d at 452. We finally note that the dissent's further reliance on OKLA. CONST. art. 9, ' 16 , to support its position is misplaced. Like, art. 2, ' 12 , the pertinent provision in art. 9 ' prohibits dual office holding, not the potential for dual office holding. Thus, no cogent argument can be made on the record before us under our current law that Mr. Watts vacated his position as Corporation Commissioner at any earlier time than when he resigned that position.

[891 P.2d 1248] OPALA, Justice, dissenting.

¶1 The court holds today that because J.C. Watts [Watts] was not a sworn member of the Congress on January 3, 1995, he did not vacate his Corporation Commission office until his January 9 resignation. The court concludes that - based on federal and foreign case law - Watts was hence not in violation of the state constitutional prohibition of dual office holding. I recede from the court's characterization of the legal issue before us as one of federal law and from today's resolution. The paramount question is whether the state interdiction of dual office holding was violated by Watts' failure to assume the duties of his congressional office. This issue implicates state policy and state law. I would hold that the state constitutional prohibition against dual office holding cannot be defeated by mere inaction of the dual title-holder who purposefully abstains from entering into the duties of the second office. I would rest my decision on state constitutional policy.

I

ANATOMY OF LITIGATION

¶2 On January 14, 1991 Watts commenced a six-year term as an Oklahoma Corporation Commissioner. On July 11, 1994 he declared his candidacy for office of United States Representative, 4th District, Oklahoma. During his campaign he stated his intention to retain his Corporation Commission office and - if elected - to delay acceptance of the congressional post until a newly-elected governor could name his successor. After Watts' election to Congress, then-Governor David L. Walters appointed Charles Nesbitt [Nesbitt], effective January 9, 1995, to serve Watts' unexpired Corporation Commission term. The term of the 104th Congress began on January 3, 1995. It assembled on January 4, 1995 without Watts' attendance.

¶3 On January 9, 1995 Watts formally resigned as Corporation Commissioner and newly-inaugurated Governor Frank Keating appointed Ed Apple [Apple] to Watts' Corporation Commission seat.

¶4 Nesbitt brought this action in the nature of quo warranto,

II

THE ART. 2,

¶5 At common law4 and under constitutional and statutory prohibitions against holding incompatible offices, a person who accepts a second office ipso facto vacates the first.5 Our jurisprudence recognizes and articulates this unassailable principle.6 The historical requirement of incompatibility between the two offices is often removed by statutory and fundamental-law restatements of the doctrine. submerging that element into the public-policy underpinnings of the constitutional and legislatively-crafted provisions.7 Where simultaneous office holding is forbidden by a codification of the common law, a statutory or fundamental-law incompatibility is created, similar in its effect to that of the common-law element.8

¶6 The public policy underlying this rule, sometimes called one of implied-resignation.

¶7 Section 12, when construed together with Art. 9,

¶8 The temporal point - when under

¶9 On January 3, 1995 Watts was a duly elected and qualified Congressman but he was not then acting.

III

THE COURT IS CORRECT IN HOLDING THAT - IN THE FEDERAL-LAW SENSE - WATTS COULD NOT, UNTIL AFTER SWEARING-IN, BE ACTING AS A MEMBER OF CONGRESS

¶10 Congress is the arbiter of elections, qualifications and seating of its members.

IV

AUTHORITY CITED BY APPLE IS CONTRARY TO OUR

¶11 Apple relies on United States v. Dietrich,

V

SECTION 12'S DISABILITY IS OF THE KIND WHICH MAY NOT BE ESCAPED BY THE ACTION OF THE OFFICEHOLDER

¶12 The terms of ' 12 are triggered and its disability attaches when a state officer stands elected, mid-term, to be a member of Congress and the congressional term begins before the expiration of state office tenure.32 This resulting disability may be neither defeated, escaped nor erased. The ' 12 scenario must be distinguished from (1) that in which a state official under a statutory disability to seek another office during his/her term resigns, removing the impediment33 and (2) where a member of the Oklahoma Legislature - mid-term - seeks an office created or funded during the session of which the candidate was a legislator.34 In the first instance the statute's impact may be eluded through voluntary, pre-candidacy resignation.35 The disability in the second causes an unavoidable disqualification with a prohibitory effect similar to ' 12's, though not fueled by the same policy considerations.36

VI

CONCLUSION

¶13 Were I writing for the court today I would find Watts' Corporation Commission post vacated ex lege on January 3, 1995 - the instant he acquired an unclouded, present possessory claim to his congressional seat. That date is the temporal point when he became a member of Congress within the meaning of our fundamental law's prohibition against dual office holding. If it is to be given its clearly intended effect of prohibiting dual office holding, the Constitution must be deemed violated at the very instant a state officeholder may take - rather than when he/she actually takes - the newly-won federal office. The interdicted act of dual office convergence in the same person most certainly occurs at the earlier point in time. It is then that (a) the same person first becomes vested with a present possessory interest in two offices; (b) a severance of these interests becomes imperative to make the Constitution's ban meaningfully enforceable and (c) the winner's claim to his or her then-occupied state office must be deemed at once extinguished by the self-activated hand of the State's highest law. Today's adoption of a much less rigid enforcement regime for the Constitution's clear and unequivocal command significantly waters down the People's protection against a perceived political evil. I hence recede from the court's pronouncement.

Footnotes:

1 Nesbitt's action is properly cast in the nature of quo warranto. 12 O.S. 1991 ' 1531 provides in pertinent part:

"The writ of quo warranto, and proceedings by information in the nature of quo warranto are abolished and the remedies heretofore obtainable in those forms may be had by civil action . . . ."

12 O.S. 1991 ' 1532 provides in pertinent part: "Such action may be brought in the Supreme Court or in the district court in the following cases. 1st, When any person shall usurp, intrude into, or unlawfully hold or exercise any public office . . . ." (Emphasis added.)

12 O.S. 1991 ' 1533 provides in pertinent part: ". . . [W]here the action is brought by a person claiming an interest in the office . . . which is the subject of the action, it shall be prosecuted in the name and under the direction, and at the expense of such [person]. . . ."

See Abitbol v. Priore, Okl., 797 P.2d 335, 336 (1990).

2 See 12 O.S. 1991 ' 1532 , supra note 1.

3 Art. 2, ' 12 Okla. Const. provides:

"No member of Congress from this State, or person holding any office of trust or profit under the laws of any other State, or of the United States, shall hold any office of trust or profit under the laws of this State." (Emphasis added.)

In another part, Art. 9, ' 16 , the State Constitution prohibits a corporation commissioner from holding any federal office. In its pertinent part Art 9, ' 16 Okla. Const. expresses in these words the fundamental-law policy against dual office holding:

". . . Nor shall any such commissioner hold any other office under the government of the United States. . . ." (Emphasis added.)

4 Except as altered by our Constitution and statutes, the common law remains in full force. Wright v. Grove Sun Newspaper Co., Inc., Okl., 873 P.2d 983, 987 (1994). 12 O.S. 1991 ' 2 provides in pertinent part:

"The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force. . . ." (Emphasis added.)

5 Dykeman v. Symonds, 54 A.D.2d 159, 388 N.Y.S.2d 422, 426 (1976); State v. Runslow, 21 Comm.Sup. 294, 154 A.2d 526, 529 (1959); Wimberly v. Deacon, 195 Okl. 561, 144 P.2d 447, 452-453 (1944); Kobylarz v. Mercer, 130 N.J.L. 44, 31 A.2d 208, 211 (1943); Fekete v. City of East St. Louis, 315 Ill. 58, 145 N.E. 692, 693-694 (1924); People v. Sohmer, 211 N.Y. 565, 105 N.E. 647 (1914): Oliver v. Mayor, Etc., of Jersey City, 63 N.J.L. 634, 44 A. 709, 711 (1899); Bishop v. State, 149 Ind. 223, 48 N.E. 1038, 1041 (1898); Attorney General v. Common Council, 112 Mich. 145, 70 N.W. 450, 459 (1897); cf. Gryzik v. State, 380 So. 2d 1102, 1104 (Fla.App. 1980); Smith v. Dillon, 267 A.D. 39, 44 N.Y.S.2d 719, 723 (1943); State v. Watt, 92 Neb. 313, 138 N.W. 159, 163 (1912). No explanation is given for failure to follow this doctrine in a minority of jurisdictions. See State v. Hill, 181 Or. 585, 184 P.2d 366, 372 (1947); Webb v. Reynolds, 160 S.W. 152, 155 (Tex. 1913). A narrow exception to the common law the so-called "Alabama rule," finds the second office vacated where, under applicable law, the person is ineligible to hold it. State ex rel. Van Antwerp v. Hogan, 283 Ala. 445, 218 So. 2d 258, 266 (1969).

6 Gibson v. Crowder, 196 Okl. 406, 165 P.2d 628, 629 (1946); Wimberly, supra note 5, 144 P.2d at 452-453.

7 Wimberly, supra note 5, 144 P.2d at 452-453.

8 Wimberly, supra note 5, 144 P.2d at 453; Kobylarz, supra note 5, 31 A.2d at 212.

9 Advisory Opinion to Governor, 121 R.I. 64, 394 A.2d 1355, 1357 (1978).

10 Wimberly, supra note 5, 144 P.2d at 453, 454.

11 State v. McCarthy, 255 Wis. 234, 38 N.W.2d 679, 680 (1949); Wimberly, supra note 5, 144 P.2d at 449; Fekete, supra note 5, 145 N.E. at 693; Oliver, supra note 5, 44 A. at 710; Bishop, supra note 5, 48 N.E. at 1038.

12 Cf. Lesieur v. Lausier, 148 Me. 500, 96 A.2d 585, 587 (1953).

13 Sutherland v. Miller, 79 W. Va. 796, 91 S.E. 993, 998 (1917). Art. 1, ' 5 , cl. 1 U.S. Const. provides in pertinent part:

"Each House [of Congress] shall be the Judge of the Elections, Returns and Qualifications of its own Members. . . ."

14 Watts waited for six days from January 3, 1995 at twelve o'clock p.m. until the gubernatorial inauguration on January 9, 1995 to resign his Corporation Commission post.

15 Art. 2, ' 12 , supra note 3.

16 See, e.g., Petition of Hennessey, 146 Pa. Cmwlth. 520, 606 A.2d 612, 613 (1992); Gryzik, supra note 5 at 1104; Advisory Opinion, supra note 9, 394 A.2d at 1358; Lesieur, supra note 12, 96 A.2d at 587-588; People v. Bagshaw, 55 Cal. App. 2d 147, 130 P.2d 237, 241 (1942).

17 A duly elected and qualified officer is prima facie entitled to enter into the duties of office. Fleming v. Anderson, 187 Va. 788, 48 S.E.2d 269, 273 (1948). An officer need not be acting to hold office. See, e.g., Coates v. Parchman, 334 S.W.2d 417, 424 (Mo. App. 1960).

18 Art. 1, ' 5 , cl. 1 U.S. Const., supra note 13; Art. 1, ' 2 , cl. 2 U.S. Const. provides:

"No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an inhabitant of that State in which he shall be chosen."

19 Joyner v. Mofford, 706 F.2d 1523, 1528-1531 (9th Cir. 1983), cert. denied, 464 U.S. 1002, 104 S. Ct. 509, 78 L. Ed. 2d 698 (1983).

20 McCarthy, supra note 11, 38 N.W.2d at 683.

21 Amend. 20, ' I U.S. Const. provides in pertinent part:

". . . [T]he terms of Senators and Representatives [shall begin] at noon on the 3d day of January. . . ." (Emphasis added.)

22 See Lesieur, supra note 12, 96 A.2d at 587-588.

23 State prohibitions of dual office holding may not call for vacation of a federal office. Art. 1, ' ' 5 , cl. I U.S. Const., supra note 13; State ex rel. Santini v. Swackhamer, 90 Nev. 153, 521 P.2d 568, 570, (1974); State v. Senner, 92 Ariz. 243, 375 P.2d 728, 730 (1962).

24 126 F. 676, 681-682 (C.C.D.Neb. 1904).

25 175 Tenn. 181, 133 S.W.2d 473, 474 (1940).

26 215 Or. 303, 334 P.2d 482, 485 (1959).

27 Amend. 20, ' ' I U.S. Const., supra note 21.

28 Dietrich, supra note 24 at 681-682.

29 Kelly, supra note 25, 133 S.W.2d at 475.

30 Appling, supra note 26, 334 P.2d at 485.

31 Wimberly, supra note 5, 144 P.2d at 452-453.

32 See Lesieur, supra note 12, 96 A.2d at 587-588; Bagshaw, supra note 16, 130 P.2d at 241.

33 See Oklahoma State Election Bd. v. Coats, Okl., 610 P.2d 776, 780 (1980).

34 See Fair v. State Election Bd. of Oklahoma, Okl., 879 P.2d 1223, 1224 (1994).

35 Coats, supra note 33, 610 P.2d at 780.

36 Fair, supra note 34, 879 P.2d at 1224.