dissenting.
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 titleholder 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
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.
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.
Nesbitt brought this action in the nature of quo warranto,1 invoking this court’s original *1249jurisdiction2 to settle title to Watts’ Corporation Commission post.
II
THE ART. 2, § 12 OKLA. CONST.,3 PROHIBITION AGAINST DUAL OFFICE HOLDING CANNOT BE DEFEATED BY MERE INACTION OF THE DUAL TITLE-HOLDER WHO ABSTAINS FROM ENTERING UPON THE DUTIES OF THE SECOND OFFICE
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
The public policy underlying this rule, sometimes called one of implied-resigna-tion9 is designed to prevent confusion and to afford certainty — indispensable for protection of the public right to know which office *1250is held and which surrendered.10 The rule applies equally where the second office — the acceptance of which vacates the first — is a federal rather than state position.11 The national jurisprudence does not accommodate the possibility of a post-election contest.12 If, as here, the second office is one within Congress, any cloud over title to that office may be constitutionally decided only by Congress,13 The facts reveal no pending title dispute over Watts’ congressional seat, clearing the path for application of the state-law rule.
Section 12, when construed together with Art. 9, § 16, is clear and unambiguous. The problem is not one of language analysis, but that of the Constitution’s failure to provide a temporal point for the disqualification’s beginning. Neither § 12 nor § 16 provides when one becomes a “member of Congress” within the meaning of our constitutionally-imposed legal disability concurrently to hold certain federal/state offices. I propose today to fill this gap in a manner that effectuates the clear purpose of the constitutional drafters. It keeps officials, like Commissioner Watts, from sitting on two stools six days beyond the earliest moment at which the new office could be claimed.14
The temporal point — -when under § 12 one becomes a member of Congress — must be determined by a neutral, law-driven mechanism rather than the will of the title-holder. Oklahoma’s policy against dual office holding, expressed in our fundamental law,15 stands violated at the very instant the choice between offices is left to the whim of the holder rather than governed by an implied-at-law election. When a holder’s claim to the second office matures and becomes present, failure by him/her timely to exercise the right spawns confusion and uncertainty, trammell-ing the electorate’s fundamental-law right to know who may wield what government authority. The right then becomes subject to and captive of the undefined and unlimited power of the officeholder. When the officeholder delays acceptance of the second office until the occurrence of a ritualistic contingency wholly within his/her discretion (oath-taking, assumption of duties), he/she offends the policy embodied in our fundamental law.16
On January 3, 1995 Watts was a duly elected and qualified Congressman but he was not then acting.17 The factum of Watts’ congressional membership turns on state rather than federal law because we are not called upon to test Watts’ capacity to vote or to deliberate in Congress. Rather, we are testing his status qua state officer against a state constitutional dual office holding prohibition. Watts can offend that provision without meeting the “acting” element of the triad of office-holding attributes. On January 3, 1995 Watts had an unclouded, present pos-sessory claim to his congressional office. *1251This is the point at which he could no longer hang onto his state office but rather must be deemed to have abandoned it by operation of law. I would so hold.
^
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
Congress is the arbiter of elections, qualifications and seating of its members.18 Nonetheless, — where the forbidden office is one in state government — state proscriptions against dually holding state and federal offices present no trespass into congressional constitutional territory.19 The common law and constitutional/statutory doctrine followed by state courts is a necessary attendant of state sovereignty.20 Looking to federal law21 solely for guidance in resolving today’s issue, I would simply hold that our state policy against concurrent office holding is violated upon commencement of the Con-gressmanhvoman’s term of office22 and would not presume to usurp congressional authority to identify for itself and test title of individuals claiming national legislative posts.23 In the case before us Watts’ status as a member of Congress for congressional purposes is not determinative of Nesbitt’s claim. Were I searching for indicia of Watts’ capacity to act as a member of Congress before taking an oath I would reach the very same conclusion as the court.
IV
AUTHORITY CITED BY APPLE IS CONTRARY TO OUR § 12 JURISPRUDENCE
Apple relies on United States v. Dietrich,24 Kelly v. Woodlee25 and State v. Appling26 for the view that one cannot hold office in violation of dual office holding prohibitions until he/she is sworn into the second office. That is not the law in Oklahoma. Dietrich, a pre-20th Amendment federal case,27 merely holds that a person elected to Congress must have taken the required oath of office before he/she could be convicted of bribery — an offense in violation of that oath.28 The court in Kelly inappropriately relied on Dietrich in crafting its swearing-in requirement.29 The Oregon Supreme Court in Appling did not rely on any public policy akin to that expressed in our jurisprudence, and was faced with a state constitutional provision authorizing officers to hold over until qualification of *1252their successors.30 The law of that jurisdiction cannot hence be deemed to affect the clearly aHiculated Oklahoma rule that offending dual office holding occurs at the moment unceHainty and confusion — cattsed by the whim of the officeholder — arise.31
y
SECTION 12’S DISABILITY IS OF THE KIND WHICH MAY NOT BE ESCAPED BY THE ACTION OF THE OFFICEHOLDER
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 duñng 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
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 possesso-ry 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.
. 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:
*12491st, 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, Old., 797 P.2d 335, 336 (1990).
. See 12 O.S.1991 § 1532, supra note 1.
. 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.)
. 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.)
. Dykeman v. Symonds, 54 A.D.2d 159, 388 N.Y.S.2d 422, 426 (1976); State v. Runs low, 21 Conn.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. Wait, 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).
. Gibson v. Crowder, 196 Okl. 406, 165 P.2d 628, 629 (1946); Wimberly, supra note 5, 144 P.2d at 452-453.
. Wimberly, supra note 5, 144 P.2d at 452-453.
. Wimberly, supra note 5, 144 P.2d at 453; Kobylarz, supra note 5, 31 A.2d at 212.
. Advisor)’ Opinion to Governor, 121 R.I. 64, 394 A.2d 1355, 1357 (1978).
. Wimberly, supra note 5, 144 P.2d at 453, 454.
. 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.
. Cf. Lesieur v. Lausier, 148 Me. 500, 96 A.2d 585, 587 (1953).
. 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...."
. 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.
. Art. 2, § 12, supra note 3.
. See, e.g., Petition of Hennessey, 146 Pa. Cmwlth. 520, 606 A.2d 612, 613 (1992); Giyzik, supra note 5 at 1104; Advisoiy 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).
. 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).
. 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."
. 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).
. McCarthy, supra note 11, 38 N.W.2d at 683.
. Amend. 20, § 1 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.)
. See Lesieur, supra note 12, 96 A.2d at 587-588.
. State prohibitions of dual office holding may not call for vacation of a federal office. Art. 1, § 5, cl. 1 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).
. 126 F. 676, 681-682 (C.C.D.Neb.1904).
. 175 Tenn. 181, 133 S.W.2d 473, 474 (1940).
. 215 Or. 303, 334 P.2d 482, 485 (1959).
. Amend. 20, § 1 U.S. Const., supra note 21.
. Dietrich, supra note 24 at 681-682.
. Kelly, supra note 25, 133 S.W.2d at 475.
. Appling, supra note 26, 334 P.2d at 485.
. Wimberly, supra note 5, 144 P.2d at 452-453.
. See Lesieur, supra note 12, 96 A.2d at 587-588; Bagshaw, supra note 16, 130 P.2d at 241.
. See Oklahoma State Election Bd. v. Coats, Okl., 610 P.2d 776, 780 (1980).
. See Fair v. State Election Bd. of Oklahoma, Old., 879 P.2d 1223, 1224 (1994).
. Coats, supra note 33, 610 P.2d at 780.
. Fair, supra note 34, 879 P.2d at 1224.