# Wimberly v. Deacon > Supreme Court of Oklahoma · December 21, 1943 · 195 Okla. 561 URL: https://www.frixlaw.com/law-library/cases/3799212 ## Case - **Full name:** Wimberly v. Deacon. - **Court:** Supreme Court of Oklahoma - **Decided:** December 21, 1943 - **Citations:** 195 Okla. 561; 144 P.2d 447; 1943 OK 432; 1943 Okla. LEXIS 58 - **Precedential status:** Published - **Opinion:** Dissent by Gibson - **Judges:** Hurst, Hon, Chamberlin, Corn, Osborn, Bay-Less, Davison, Gibson, Welch, Arnold - **Cited by:** 54 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3799212 ## How later opinions describe it (automated extraction) - finding it "unnecessary to determine whether the two offices [were] incompatible under the common law," the court held both offices were prohibited by the State Constitution ## Opinion text GIBSON, V.C.J. (dissenting). I cannot agree with the majority opinion wherein it holds that Hunt by his entry upon military duty immediately vacated his office as a member of the Board of Regents. -1 am of the opinion that the constitutional provision involved (section 12, art. 2) should be interpreted to mean that one holding an office of trust and profit in this state renders himself ineligible to hold that office by accepting an office of trust or profit in another state or under the federal government. As I view it, final determination of the controversy depends upon the interpretation to be placed upon section 12, art. 2, Constitution, and upon certain Territorial statutes adopted by the Constitution (Schedule, sec. 2). The question of incompatibility in public offices arising under the rule obtaining at common law plays little, if any, part in the matter. The constitutional provision, above, supersedes the common law, and furnishes the exclusive key to the situation. It is clearly self-executing, and required no vitalizing force by subsequent enactment of the Legislature. Section 12, I mean to say, superseded the common-law rule of incompatibility so far as concerns holding office under separate governments. I may say here that the rule of implied resignation or ipso facto vacation of an office as a result of the acceptance by the incumbent of another and incompatible office does not apply in those instances where the two offices were ere *569 ated by different governments. 100 A. L.R. 1183, Ann. It is there said that the rule, above, does not apply in cases such as this; and in support of the statement cases from a number of states are cited, among them, DeTurk v. Com., 129 Pa. 151 , 18 Atl. 757 , 5 L.R.A. 853 . Therein it is said: “ ‘Regard must be had to the fact that the former is an office under the government of the United States and the latter an office under the state government. If the titles to these offices were derived from a common source it might well be held that an acceptance of the second office was an implied resignation and vacation of "the first. This is the common-law rule, and the current of authority in this country sustains it. But the state cannot declare the federal office vacant, nor remove the incumbent from it. It may, however, enforce the constitutional provision by proceedings to test his title to the office he holds under its laws, and it may remove him from that office if he does not surrender the office he holds under the government of the United States.’ ” Other cases might be cited to the effect that the rule that the acceptance of a second incompatible office operates as the vacation of or resignation from the first office does not apply in such cases. Said section 12 does not say that a public officer of this state shall be deemed to have vacated his office by accepting an office of trust or profit under the laws of the United States. It acts somewhat in reverse of that principle. The section simply makes an officer of the United States ineligible to hold state office. If a United States officer were to accept and occupy a state office and enter upon the duties thereof, one would hardly contend that he was not actually a de facto state officer. So, if a legally constituted state officer accepts a federal office, he thereby may become ineligible to hold the state office, but, unless he resigns the state office, in any event he remains a de facto state officer. His office is not summarily to be declared vacant. It has long been the law in this state that when an office exists under the law and one is elected or appointed to such office, and duly qualifies and enters upon his official duties, as in this case, he is a de facto officer, and his acts are valid, notwithstanding he may not possess all the necessary qualifications as prescribed by law to hold such office. Morford v. Territory, 10 Okla. 741 , 63 P. 958 . In Stafford v. Cook (Ark.) 252 S. W. 597 , the court had under consideration the effect of subsequent ineligibility of a duly constituted officer with respect to the question of vacancy in the particular office'. My views here are in accord with the holding in that case, which was as follows: “If officers were eligible at the time they took office, their subsequent ineligibility, though it may afford ground for removal, held not to vacate the office ipso facto. . . .” See, also, 46 C. J. 974, 120. Here, Hunt became ineligible to hold his membership on the board by reason of the provisions of the Constitution. But that did not deprive him of color of title. In 46 C. J„ 1056, § 370, it is said, “Persons having color of title may be regarded as de facto officers, even though legally they are not eligible for the position.” Had the framers of the Constitution thought it advisable to declare a state office vacant, ipso facto, on acceptance by the incumbent of an office under the laws of the United States, they easily could have so provided. They undoubtedly had this question in mind, for by adopting certain of the statutes of the Territory it is made clear that they were not unmindful of the evils of dual office holding, and of the conditions under which an office shall become vacant. Section 2, Schedule. The statutes so adopted by the Constitution were 51 O. S. 1941 §§ 6, 8. Said section 6 provides that no person holding any office under the laws of this state shall, during his term of office, hold any other office under the laws of this state. The Constitution, section 12, *570 above, merely enlarged that law to dual office holding in the state and federal governments. The statute does not provide that dual office holding in the state shall work a vacancy or forfeiture of the first of the offices to be occupied by the party. To declare an office vacant, or to declare a forfeiture thereof, is a serious matter, and the power in this regard should be well defined and cautiously invoked. By the adoption of section 8, above, the framers of the Constitution clearly and specifically defined the conditions under which the appointing authority could declare an office vacant. Said section 8 reads as follows: “Every office shall, become vacant on the happening of either of the following events before the expiration of the term of such office: “First. The death of the incumbent or his resignation. “Second. His removal from office or failure to qualify as required by law. “Third. Whenever any final judgment shall be obtained against him for a breach of his official bond. “Fourth. Ceasing to be a resident of the state, county, township, city or town, or of any district thereof, in which the duties of his office are to be exercised or for which he may have been elected or appointed. “Fifth. Conviction of any infamous crime or any offense involving a violation of his official oath; provided, that no conviction, as a cause of vacation of office, shall be deemed complete so long as an appeal may be pending, or until final judgment is rendered thereon. “The fact by reason whereof the vacancy arises shall be determined by the authority authorized to fill such vacancy.” Though it has been held that the expression in the Constitution or statutes of the circumstances which shall bring about a vacancy does not necessarily exclude all other grounds (42 Am. Jur.' 977), the circumstances which will work a forfeiture must be prescribed by the Constitution or statutes, and neither the appointing authority nor the courts may declare a forfeiture unless the law specifically grants the authority. Here, we have a statute having the force and effect of a constitutional provision, which sets out specifically the circumstances under which the appointing authority may declare a vacancy or a forfeiture. It does not say that he may declare a vacancy or forfeiture where an incumbent accepts another office. As said in 43 Am. Jur. 39 : “Where statutes relate specifically to forfeitures of an office and to the removal of the incumbent, it is presumed that the Legislature intended to cover the entire ground, and that there are no causes for forfeiture or removal except those prescribed.” In those instances where an office is held under color of title, as in this case, the power to declare a vacancy is nothing short of the power to declare a forfeiture. Section 8, supra, empowers the appointing authority to declare a vacancy in certain cases where a vacancy clearly exists, such as death or resignation of the incumbent, or his removal from office. And he may declare a vacancy in certain instances where there has been a forfeiture of the office, or a forfeiture of the right to claim the office. So far as the appointing authority’s power to declare a vacancy is concerned, the statute is exclusive as respects those offices which are held by one under color of title. Other than the grounds under which the appointing authority is empowered to act, the question whether an officer has forfeited his office is a judicial one to be determined by proper proceedings. Section 12 of the Constitution, supra, says that a person holding a federal office of trust or profit shall hold no state office of trust or profit. The total effect thereof so far as concerns a state officer is that he may forfeit his state office by accepting a federal office. The question whether the federal office is one of trust or profit within the *571 meaning of the constitutional provision has not been left to the decision of the appointing authority; it is a judicial question to be determined by proper proceedings. , The Governor has no inherent power to declare a vacancy by reason of forfeiture. He must find that power in the Constitution or statutes. 46 C. J. 984, § 146. In cases of this character where a forfeiture is said to have taken place, the proper remedy so far as concerns the state is a proceeding in the nature of quo warranto to declare a vacancy. 12 O. S. 1941 §§ 1531, 1532, 1533. Such proceeding is proper “when any person shall. . . unlawfully hold or exercise any public office. . . .” Section 1532. And the Attorney General may institute the proceeding on his own motion. Section 1533. As said by the Territorial Supreme Court in Bradford v. Territory, 2 Okla. 228 , 37 P. 1061 : “Such proceeding is authorized whenever any public officer shall have done or suffered any act which, by the provisions of law, shall work a forfeiture of his office.” The purpose is to have the office declared vacant. Id. See, also, State v. Batson, 170 Okla. 103 , 39 P. 2d 76 . Since the officer in question remained a de facto officer of this state, the office could not have become vacant until he resigned or the same declared vacant by judicial decree in proceedings in the nature of quo warranto, or unless it should become vacant on account of some other of the conditions designated in section 8, supra. Here, Hunt resigned before his office was declared vacant by judicial process, or before it became vacant for any other cause. The appointment of the respondent, Erl Deacon, occurred before Hunt resigned, and therefore before a vacancy occurred. His appointment was premature and of no effect. Petitioner, Wimberly, received his ap- ■ pointment after Hunt resigned. His appointment was therefore timely, and served to fill the vacancy created by the resignation. For the foregoing reasons, I respectfully dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3799212. Public record. Not legal advice.