All officers of this state shall reside in this state at such places as are designated by law and shall discharge the duties of their offices until the successors are commissioned and qualified, except that public officers appointed by the Governor and subject to confirmation by the Senate shall not hold over until their successors have been appointed and confirmed; and all officers whose certificates or records or other papers are admissible in evidence in any court in this state must have and keep an official seal.
(Orig. Code 1863, § 128; Code 1868, § 123; Code 1873, § 132; Code 1882, § 132; Civil Code 1895, § 226; Civil Code 1910, § 261; Code 1933, § 89-105; Ga. L. 1982, p. 3, § 45; Ga. L. 1990, p. 8, § 45.)
Cross references.- Governor filling certain vacancies, § 45-12-52.
Law reviews.- For article examining history of recall in Georgia local government law, and considering future developments, see 10 Ga. L. Rev. 883 (1976).
JUDICIAL DECISIONS
No vacancy created.
- The office does not expire at the expiration of the term, but the elected officer holds over until a successor is commissioned and qualified. Holding over prevents vacancy. Stephenson v. Powell, 169 Ga. 406, 150 S.E. 641 (1929).
An office is not vacant so long as it is filled by an incumbent who is legally qualified to exercise the powers and perform the duties which pertain to it. Garcia v. Miller, 261 Ga. 531, 408 S.E.2d 97 (1991).
Superior court judge to serve "until his successor is qualified."
- Previous state constitutions explicitly provided that the term of office for superior court judges "shall be for four years, and until his successor is qualified." Omission of the phrase "until his successor is qualified" in the 1983 Constitution does not prevent judges from remaining in office after their four-year term of office ends. Garcia v. Miller, 261 Ga. 531, 408 S.E.2d 97 (1991).
Because a complete and continuous judicial system is required to ensure that governmental functions continue without interruption, the judicial power of holdover superior court judges remains vested in them until their successors are qualified. Garcia v. Miller, 261 Ga. 531, 408 S.E.2d 97 (1991).
Commission not conclusive evidence as to term of office.
- A commission issued by the Governor to a duly elected member of the board of education of a county, in which the term of such officer is stated to be for a given number of years and to end on a designated date, is not conclusive evidence of the right of such officer to hold beyond such term and designated date, and does not prevent courts from looking behind the commission and determining, in a proper case, when the term of such officer legally begins and ends. The statute and not the commission determines the commencement and ending of the term of such officer. Stephenson v. Powell, 169 Ga. 406, 150 S.E. 641 (1929).
Board of commissioners to hold over.
- After a local Act was enacted to abolish the board of county commissioners and establish a new board, but the Act failed to provide for an election date for the new members, the members of the board existing at the date of its passage should discharge the duties and functions of their office until the members of the new board are elected and qualified. Kidd v. Nelson, 213 Ga. 417, 99 S.E.2d 123 (1957).
Legislature may specify a special procedure to fill vacancies in positions of county commissioners as long as that procedure violates no other constitutional provision. Smith v. Abercrombie, 235 Ga. 741, 221 S.E.2d 802 (1975).
Liability on bond continues.
- The effect of this section is to extend the term of office under the original appointment until a successor has been qualified, with the further effect that liability on an official bond continues when an official elected for a fixed period thereafter holds over, after its expiration, until a successor is appointed. City of Elberton v. Jones, 35 Ga. App. 536, 133 S.E. 745 (1926).
While the general rule is that sureties are liable only for a breach of official duty committed by their principal during the term of office for which the bond was given, the effect of this section is to extend the term of office under the original appointment until a successor has been qualified, with the further effect that liability on such a bond continues when an official elected for a fixed period thereafter holds over, after its expiration, until a successor is appointed. Century Indem. Co. v. Fidelity & Deposit Co., 175 Ga. 834, 166 S.E. 235 (1932).
Hold over official properly replaced.
- Removal of the appellant from a city zoning board was upheld because once the appellant held over, the appellant could be replaced at any time, without regard to cause, by the city council appointing a successor and since the member did not have a legitimate claim of entitlement to the position once becoming a holdover official, the appellant was not entitled to due process protections before the city council appointed the successor. Kanitra v. City of Greensboro, 296 Ga. 674, 769 S.E.2d 911 (2015).
Cited in Bashlor v. Bacon, 168 Ga. 370, 147 S.E. 762 (1929); Wiley v. Douglas, 168 Ga. 659, 148 S.E. 735 (1929); Avery v. Bower, 170 Ga. 202, 152 S.E. 239 (1930); Mitchell v. Pittman, 184 Ga. 877, 194 S.E. 369 (1937); Britton v. Bowden, 188 Ga. 806, 5 S.E.2d 47 (1939); Roan v. Rodgers, 201 Ga. 696, 40 S.E.2d 551 (1946); Brooks v. Malone, 247 Ga. 314, 275 S.E.2d 653 (1981).
OPINIONS OF THE ATTORNEY GENERAL
No vacancy of office as long as authorized officer exists.
- There cannot be a vacancy in an office so long as there is an officer authorized by law to perform the officer's functions. 1958-59 Op. Att'y Gen. p. 107.
Officers not permitted to hold over.
- Members of the Professional Standards Commission may not continue to serve past their appointed three-year terms and until their successors are appointed and qualified; they are public officers subject to O.C.G.A. § 45-2-4, in the absence of express language to the contrary. 1998 Op. Att'y Gen. No. 98-3.
Duty of incumbent to hold over.- Upon the expiration of the term of the incumbent, whose tenure is for a definite term, it is the duty of the incumbent to continue in the discharge of that office until a successor is qualified; the superadded period being a part of the rightful term of office. 1958-59 Op. Att'y Gen. p. 107.
To whom holding over requirement applies.- A county welfare board member whose term has expired can and should hold over and perform the duties of such office until a successor has been duly appointed and qualified. 1948-49 Op. Att'y Gen. p. 466.
A justice of the peace must continue in office until a successor is appointed and qualified for taking the oath of office. 1958-59 Op. Att'y Gen. p. 54.
As local board of education members are public officers, their terms shall continue until their successors are commissioned. 1975 Op. Att'y Gen. No. 75-15.
Members-elect of a local board of education shall not enter upon the duties of office until qualified, commissioned, and administered the appropriate oaths. An incumbent board member who has been reelected or reappointed may continue to serve as an official member of the board prior to receiving the commission and being administered the appropriate oaths for the new term. 1975 Op. Att'y Gen. No. 75-15.
An incumbent soil and water conservation district supervisor continues in office until a successor has been duly elected, sworn in, and commissioned. 1976 Op. Att'y Gen. No. 76-10.
Justices of the peace, constables, and notaries public ex officio justices of the peace act in a hold-over capacity and discharge the duties of their offices until their successors are commissioned and qualified. 1969 Op. Att'y Gen. No. 69-173.
Compensation for holding over period.- A district attorney held in office pending outcome of the election of a successor is entitled to payment for that period. 1969 Op. Att'y Gen. No. 69-361.
Senate's declining to consider appointments.- Adjournment of the Senate sine die without confirmation of gubernatorial appointments created vacancies in those offices and the Governor is free to fill those vacancies through the Governor's own ad interim appointments until the Senate should next meet. 2003 Op. Att'y Gen. No. 2003-5.
RESEARCH REFERENCES
Am. Jur. 2d.
- 63C Am. Jur. 2d, Public Officers and Employees, § 80 et seq.
C.J.S.- 67 C.J.S., Officers and Public Employees, § 26.