172 P.2d 625 | Okla. | 1946
Lead Opinion
Plaintiff, J.C. Pinson, commenced this action on March 16, 1945, against the defendant. A.E. Robertson, to try title to the office of county judge of Wagoner county.
The question of title to said office has been before us twice before. See Robertson v. Brewer,
While the parties argue several questions, we think the question as to whether this action was timely commenced is decisive.
By 12 O. S. 1941 § 1531 an action to try title to public office is created and it is provided that the "action may be instituted and maintained by the contestant for such office at any time after the issuance of the certificate of election by the state, county, township or city election boards, and before the expiration of 30 days after such official is inducted into office."
Pinson argues (1) that Robertson was not inducted into the office until one day before this action was filed, and (2) that in any event, since the injunction suit involved in Robertson v. Brewer, above, was commenced within the 30 days authorized for filing such contests, and was decided otherwise than on its merits, and since the present action was commenced within one year after the injunction action terminated, the present action was timely filed under 12 O. S. 1941 § 100. That section provides:
"If any action be commenced within due time, and a judgment thereon for *420 the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if he die, and the cause of action survive, his representatives, may commence a new action within one year after the reversal or failure."
1. Was Robertson "inducted into the office on January 8, 1945, within the meaning of 12 O.S. 1941 § 1531[
In Robertson v. Brewer, above, we determined from the record before us that subsequent to the election held on November 7, 1944, Robertson was duly issued a certificate of election, and that on January 2, 1945, Robertson duly qualified for the office by filing in the office of the county clerk his oath of office and his official bond duly approved by the board of county commissioners, and that on January 8, 1945, Pinson's term of office ended and Robertson's term began. By filing his oath of office and official bond (20 O.S. 1941 § 279[
2. Is. 12 O.S. 1941 § 100[
Thus the requirement as to the time of filing the action if, in effect, held to be a limitation upon the right itself and not merely a limitation upon the remedy. We think the Legislature so intended in enacting 12 O. S. 1941 § 1531. It was aware of the evils resulting from delay, and may be presumed to *421 have been aware of the construction uniformly given similar statutes by other courts. Sutherland Statutory Construction (3rd Ed.) § 4510. We cannot think that it intended that claimants mistaking their remedy should be allowed one year, or a period constituting over one-half the term in case of county office, in which to commence the proper action.
It follows that the trial court correctly held that 12 O.S. 1941 § 100[
In view of our conclusion it is not necessary to discuss the other errors assigned.
Affirmed.
GIBSON, C.J., and OSBORN, WELCH, and DAVISON, JJ., concur. CORN, J., concurs in result. RILEY and BAYLESS, JJ., dissent.
Dissenting Opinion
"The issue presented", says the majority opinion, "is whether Robertson is eligible to hold the office (county judge of Wagoner county) by reason of nonregistration and nonresidence in Wagoner county".
But the issue presented is not decided. That which is decided is in error. It is that the action, in the nature quo warranto, was not commenced in time.
The action was commenced one day after plaintiff in error, Pinson, by judgment of court, was ousted from the office and Robertson was "inducted into office". It is quite obvious that these proceedings could not have been expedited with more dispatch. Moreover, 12 O.S. 1941 § 1531[
"Inducted," as used in the phrase "inducted into office," connotes, by common law, "corporeal possession," and is compared in common law to livery and seisin, by which possession is given to temporal estates. Godwin v. Lunan (Va.) Jeff. 96, 100; 21 Words Phrases, Perm. Ed., p. 224.
"Inducted into . . . office" means to put in enjoyment or possession, "especially to introduce into possession of an office or benefice," as "to place in a seat". State ex rel. Slattery v. Raupp,
The tolling statute of limitations, 12 O. S. 1941 § 100, has no application whatever to this action. When a litigant fails otherwise than on the merits, by the statute he is given an additional year of grace to commence a proper action. Never before, in this jurisdiction, has the saving grace of the statute been denied a litigant. To the contrary, a liberal construction of the statute is the heretofore unbroken rule. Tulsa Rig Reel Mfg. Co. v. Arnold,
Pinson's term of office was not ended *422 on January 8, 1945, unless Robertson was qualified to be his successor, because, by law, the term of every public official in Oklahoma extends for a definite period of time and until his successor is elected and qualified. Whether Robertson is qualified is the issue now squarely presented and it ought to be determined, not upon the statute of limitations or the tolling statute of limitations, but upon the fact as measured by the law whether Robertson met the constitutional requirements for the office of county judge by being "Aqualified voter and a resident of the county at the time ofelection". It is admitted he is "a lawyer licensed to practicein any court of record of the state". Section 11, art. 7, Const. Whether Mr. Robertson is a qualified voter is dependent upon whether he was registered as such, and a resident of Wagoner county at the time of his election to the office. If he was, he is entitled to hold the office he now possesses. If he was not, Judge Pinson is entitled to the immediate possession of the office which, by this action, he seeks, and to maintain possession of it until his successor is elected and qualified.
51 O. S. 1941 § 5, relied upon, is no authority for the majority statement that "the issuance of the injunction did not operate to prevent his (Robertson's) induction", nor was that issue of Robertson's induction into the office by administration of the oath of office to him decided by "our finding in the former appeal". That which was decided was that injunction was not the proper remedy to try title to public office and that Robertson, having been issued a certificate of election and having subscribed to the oath of office, was prima facie entitled to possession and to be inducted into the office. As soon as he was inducted into the office, by our judgment, and Pinson was ousted from it, Pinson had right, by this action, in its nature quo warranto, to try out Robertson's qualifications and consequent title to the office. Indubitably, Judge Pinson has right to have that exact issue by this court determined on the merits.
There is no difference in American jurisprudence between private rights and actions maintainable to try title to public office. While the law abhors a vacancy in public office, in the case at bar no vacancy in office can exist. The judgment of the law should be deeply concerned with qualifications for public office. The majority opinion wholly fails to determine that paramount issue. No loss in salary to the party rightfully entitled to the office would result from a proper judgment. 51 O.S. 1941 § 5[
Equitable considerations mentioned in majority opinion are beside the issue of law. The delay that has occurred has been occasioned by the fact that judgment of the law treads with leadened heels. That, of itself, is bad, but the fact that the highest court in the land labors in error is horrendous.