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Call Now: 904-383-7448(a) When any public office shall become vacant by death, resignation, or otherwise, the Governor shall promptly fill such vacancy unless otherwise provided by this Constitution or by law; and persons so appointed shall serve for the unexpired term unless otherwise provided by this Constitution or by law.
(b) In case of the death or withdrawal of a person who received a majority of votes cast in an election for the office of Secretary of State, Attorney General, State School Superintendent, Commissioner of Insurance, Commissioner of Agriculture, or Commissioner of Labor, the Governor elected at the same election, upon becoming Governor, shall have the power to fill such office by appointing, subject to the confirmation of the Senate, an individual to serve until the next general election and until a successor for the balance of the unexpired term shall have been elected and qualified.
- Art. IV, Sec. II, Para. I; Art. IV, Sec. IV, Para. I; Art. IV, Sec. V, Para. I; Art. IV, Sec. VI, Para. I; Art. V, Sec. II, Para. IV; Art. V, Sec. III, Para. I.
- Determining disability of executive officers, Ga. Const. 1983, Art. V, Sec. IV, Para. II.
Vacancies in office generally, see Ch. 5, T. 45.
Incapacity of Commissioner of Insurance, § 45-12-23.
Filling of vacancy in office for which advice and consent of Senate required, § 45-12-52.
- The constitutional amendments (Ga. L. 1984, p. 1716, § 1) and (Ga. L. 1988, p. 2100, § 2) which would have revised subparagraph (b) to delete the reference to the State School Superintendent were defeated at the general elections on November 6, 1984, and on November 8, 1988.
- For article discussing appointment and removal power of Governor, see 14 Ga. B.J. 171 (1951). For article, "Legislative Delegation of Executive Power of Appointment to Private Organizations Held Unconstitutional," see 16 Ga. St. B.J. 129 (1980).
This paragraph confers no power to create a vacancy by any declaration or judgment that one exists; there must be an actual vacancy before the power or duty of filling it arises. Patten v. Miller, 190 Ga. 123, 8 S.E.2d 757 (1940); Mulcay v. Murray, 219 Ga. 747, 136 S.E.2d 129 (1964); Partain v. Maddox, 227 Ga. 623, 182 S.E.2d 450 (1971) (see Ga. Const. 1983, Art. V, Sec. II, Para. VIII).
- Although this paragraph and former Code 1933, § 40-301 (see now O.C.G.A. § 45-12-50) required the Governor to fill vacancies in office by appointment, this requirement did not extend to or embrace filling a vacancy in term, but had reference solely to filling a vacancy in office. Roan v. Rodgers, 201 Ga. 696, 40 S.E.2d 551 (1946) (see Ga. Const. 1983, Art. V, Sec. II, Para. VIII).
- Trial court's denial of the challenger's petition for a writ of quo warranto was affirmed because the newly created positions on the Georgia Court of Appeals qualified as vacancies under Ga. Const. 1983, Art. VI, Sec. VII, Para. III; thus, the governor had the authority to appoint judges to the vacancies created by amended O.C.G.A. § 15-3-1(a). Clark v. Deal, 298 Ga. 893, 785 S.E.2d 524 (2016).
- Requesting and receiving intra-county judicial assistance did not unconstitutionally create a judgeship as the juvenile court judges who assisted the superior court did not become superior court judges; thus, no judicial position constitutionally required to be filled by election under Ga. Const. 1983, Art. VI, Sec. VII, Para. I, or by gubernatorial appointment until election under Ga. Const. 1983, Art. V, Sec. II, Para. VIII, was created by the exercise of O.C.G.A. § 15-1-9.1(b)(2)(C). Earl v. Mills, 278 Ga. 128, 598 S.E.2d 480 (2004).
- The General Assembly may, within constitutional limitations, establish qualifications for public office and designate a governmental appointing authority; but it cannot delegate the appointive power to a private organization, thus, where the Medical Association of Georgia, a private organization, controls the appointment of the members of the State Board of Medical Examiners under Ga. L. 1971, p. 689, § 1 (see now O.C.G.A. § 43-34-22) which provides that the Governor must appoint from its nominees, the Act violates this paragraph. Rogers v. Medical Ass'n, 244 Ga. 151, 259 S.E.2d 85 (1979)(decided prior to 1997 amendment).
- A resignation of a public office, to be effective, must be made with the intention of relinquishing the office, accompanied by the act of relinquishment. Partain v. Maddox, 227 Ga. 623, 182 S.E.2d 450 (1971).
- The Governor does not have the constitutional right to create a vacancy in an office by requiring the prospective appointee, either before or immediately after such appointment, to tender an undated resignation from such office, although it was not then contemplated by either party that the resignation would then and there take effect, but might at some remote uncertain day in the future be "accepted" by the Governor. Partain v. Maddox, 227 Ga. 623, 182 S.E.2d 450 (1971).
- There is no specific provision in the Constitution relating to the manner of filling a vacancy in the office of Attorney General, but this paragraph is sufficiently broad in scope to cover the subject. Wood v. Arnall, 189 Ga. 362, 6 S.E.2d 722 (1939) (see Ga. Const. 1983, Art. V, Sec. II, Para. VIII).
Act providing for appointment of additional judge by Governor constitutional. (Ga. L. 1920, p. 96). Ross v. Jones, 151 Ga. 425, 107 S.E. 160 (1921).
Cited in Stanley v. Sims, 185 Ga. 518, 195 S.E. 439 (1937); Kaigler v. Floyd, 187 Ga. 441, 200 S.E. 784 (1939); Britton v. Bowden, 188 Ga. 806, 5 S.E.2d 47 (1939); Stephens v. Reid, 189 Ga. 372, 6 S.E.2d 728 (1939); Maddox v. Fortson, 226 Ga. 71, 172 S.E.2d 595 (1970); Perdue v. Palmour, 278 Ga. 217, 600 S.E.2d 370 (2004); DeKalb County Sch. Dist. v. Ga. State Bd. of Educ., 294 Ga. 349, 751 S.E.2d 827 (2013).
This paragraph does not extend to or embrace filling vacancy in term, but has reference solely to filling vacancy in office. 1965-66 Op. Att'y Gen. No. 66-231.(see Ga. Const. 1983, Art. V, Sec. II, Para. VIII).
- The Secretary of State, Attorney General, State School Superintendent, Commissioner of Agriculture, and Commissioner of Labor must be elected by a majority vote. 1997 Op. Att'y Gen. No. U97-20.
- When there is a failure of election to fill the office in a general election, in the absence of some specific provision of law to the contrary, a special election is necessary to fill the office. 1969 Op. Att'y Gen. No. 69-179.
Governor has the authority to fill the office of State Treasurer (now director of the Office of Treasury and Fiscal Services) if such office is vacated by resignation. 1972 Op. Att'y Gen. No. 72-18.
- Since there is no provision in the law providing for mid-term elections to replace resigned State Treasurer (now director of the Office of Treasury and Fiscal Services), the Governor's appointment of a State Treasurer (now director) would be for the remainder of the unexpired term. 1972 Op. Att'y Gen. No. 72-18.
- Where the elected Commissioner of Labor withdrew prior to taking the oath of office and another person was appointed to serve until the next general election in 1992, the proper ballot caption for the office for the 1992 primary and general elections was: "For Commissioner of Labor (To Succeed Al Scott for the Unexpired Term of Joe Tanner, withdrawn)." 1991 Op. Att'y Gen. No. 91-16.
- Since the Commissioner of Labor is routinely elected at the same time as the Governor and holds his or her office for the same term, an election which must be held to fill the balance of the unexpired term after the Commissioner withdraws is one "that arises from some exigency or special need outside the usual routine," which would be categorized as a "special election" under Georgia law. The Georgia Election Code certainly authorizes, but does not require, a special primary in this situation. 1992 Op. Att'y Gen. No. 92-11.
- 38 Am. Jur. 2d, Governor, § 6 et seq.
- 81A C.J.S., States, § 177.
- Conclusiveness of Governor's decision in removing officers, 52 A.L.R. 7; 92 A.L.R. 998.
Validity of delegation to private persons or organizations of power to appoint or nominate to public office, 97 A.L.R.2d 361.