"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[12-1531], relied upon by the majority, contemplates that an action to try title to publicoffice "may be instituted and maintained . . . at any timeafter the issuance of the certificate of election . . . andbefore the expiration of thirty days after such official isinducted into office". Robertson was not inducted into office when he qualified by taking the oath of office because Pinson held the office, contending Robertson did not possess qualifications for it as required by law. An injunction action involving possession of the office was adjudged abortive. Robertson v. Brewer, Judge, 195 Okla. 222, 156 P.2d 804; Robertson v. State ex rel. Pinson, 195 Okla. 641, 163 P.2d 975. Whereupon, Robertson, by judgment, was inducted into the office. The next day Pinson commenced these proceedings which are wrongfully foreclosed by the statute of limitations. 12 O.S. 1941 § 1531[12-1531], supra. How could Pinson contend for the office so long as he held possession of it? A fortiori, so long as that possession was vested in him under a writ of injunction which by this court's judgment was vacated.
"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, 303 Mo. 684, 263 S.W. 834; 21 Words Phrases, Perm. Ed., p. 224.
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, 94 Okla. 120, 221 P. 19; Claussen v. Amberg, 172 Okla. 197, 44 P.2d 92.
Pinson's term of office was not ended *Page 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[51-5].
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.