(b) (1) Each county governing authority may authorize, through proper resolution or ordinance, the creation of a county police force. No resolution or ordinance adopted pursuant to this paragraph shall become effective until the governing authority of the county has submitted to the qualified electors of the county the question of whether the resolution or ordinance shall be approved or rejected. The county governing authority shall establish the date of the election in compliance with Code Section 21-2-540, which shall be not less than 30 days after the call of the election, and shall notify the county election superintendent of its decision as to the date. The election superintendent shall issue the call for the election and shall specify that the election shall be held on the date determined by the county governing authority. The election superintendent shall cause the date and purpose of the election to be published once a week for two weeks immediately preceding the date thereof in the official organ of the county. The ballot shall have written or printed thereon the following:
"( ) YES Shall the resolution or ordinance adopted by the governing authority of ( Name of County ) to create a ( ) NO county police force be approved?"
Those persons desiring to vote in favor of the creation of a county police force shall vote "Yes," and those persons opposed to the creation of a county police force shall vote "No."If more than one-half of the votes cast on the question are in favor of the creation of a county police force, then the county governing authority shall be authorized to create a county police force pursuant to the provisions of this chapter; otherwise, a county police force shall not be created.If the resolution or ordinance is rejected by the qualified electors, the question of the creation of a county police force may not again be submitted to the voters of the county within 48 months immediately following the month in which such election was held.The county election superintendent shall hold and conduct the election under the same rules and regulations as govern special elections, except as otherwise provided in paragraph (1) of this subsection.He shall canvass the returns and declare and certify the result of the election to the Secretary of State.The expense of any such election shall be borne by the county wherein the election was held.
The provisions of subsection (b) of this Code section shall not apply to any county which has created a county police force prior to January 1, 1992, which county police force remains in existence and operational.
Any county police force created by a county governing authority between January 1, 1992, and February 25, 1992, shall be abolished no later than December 31, 1992, unless, prior to said latter date, a resolution or ordinance authorizing the creation of a county police force is adopted by the county governing authority and approved by the qualified electors of the county in a special election as provided in subsection (b) of this Code section.
(Ga. L. 1909, p. 156, § 1; Civil Code 1910, § 849; Ga. L. 1914, p. 142, § 1; Code 1933, § 23-1401; Ga. L. 1992, p. 324, § 1; Ga. L. 2020, p. 493, § 36/SB 429.)
The 2020 amendment, effective July 29, 2020, part of an Act to revise, modernize, and correct the Code, inserted "of this Code section" near the beginning of subsection (c).
Code Commission notes.- Pursuant to Code Section 28-9-5, in 1992, "February 25, 1992," was substituted for "the effective date of this Code section" in subsection (d).
Law reviews.- For survey article on local government law, see 59 Mercer L. Rev. 285 (2007) and 60 Mercer L. Rev. 263 (2008).
JUDICIAL DECISIONS
Applicability.
- This chapter applies to all counties of the state. Eison v. Shirley, 165 Ga. 374, 141 S.E. 295 (1927).
Effect on powers of sheriff.
- Even when a county police force is established, the power and authority of the sheriff to enforce the law and preserve the peace are not legally diminished. Wolfe v. Huff, 232 Ga. 44, 205 S.E.2d 254 (1974).
Power to direct owner from burning building.
- Under the police power, a deputy sheriff is authorized to go upon private property and direct the owner to move back from a burning building, when the deputy has been made aware of the possibility of an explosion, and in the deputy's opinion the safety of a 21/2-year-old child was unnecessarily endangered because of the proximity to the burning structure. Veit v. State, 182 Ga. App. 753, 357 S.E.2d 113 (1987).
County marshals acting as police force.
- O.C.G.A. § 36-8-1(b)(1) referendum requirement was inapplicable to a county which created a county police force before January 1, 1992, which remained in existence and operational; however, in the context of a suit seeking injunctive and declaratory relief regarding whether the Fayette County, Georgia, Marshal's Department was a valid police force, fact issues remained, and summary judgment was improper, when affidavits claimed that county marshals did not operate as a county police force during the relevant time period. Johnson v. Fayette County, 280 Ga. 493, 635 S.E.2d 35 (2006).
Cited in Cloud v. DeKalb County, 70 Ga. App. 777, 29 S.E.2d 441 (1944); Levine v. Perry, 204 Ga. 323, 49 S.E.2d 820 (1948).
OPINIONS OF THE ATTORNEY GENERAL
Power not delegable to grand jury.
- County commissioners may use a grand jury to advise the commissioners on selection of police, but the commissioners may not delegate their authority to appoint police to a grand jury. 1960-61 Op. Att'y Gen. p. 79.
Qualifications of sheriff as police officer.- When a county police department is established and the law enforcement functions of the sheriff are transferred to such department, the sheriff or the sheriff's deputies may not become members of the police department so as to exercise the police power. 1970 Op. Att'y Gen. No. U70-28.
Creation of marshal's office did not establish police force.
- County marshal's office is not equivalent to a county police force and, therefore, when a county did not establish a police force when the county created a marshal's office, the governing authority must comply with the requirements of subsection (b) of O.C.G.A. § 36-8-1 before creating a county police force. 1995 Op. Att'y Gen. No. U95-14.
RESEARCH REFERENCES
Am. Jur. 2d.
- 70 Am. Jur. 2d, Sheriffs, Police and Constables, § 13.
C.J.S.- 20 C.J.S., Counties, § 164 et seq.
ALR.- Validity, construction, and application of enactments relating to requirement of residency within or near specified governmental unit as condition of continued employment for policemen or firemen, 4 A.L.R.4th 380.