December 3, 1998
Mr. Garris Neil Yarborough Hoke County Attorney Hoke County
P.O. Box 266 Raeford, N.C. 28376
Re: Advisory Opinion: Incumbent Sheriff Holds Over Until Successor Qualified; N.C. Const. Art. VI, Sec. 10
Dear Mr. Yarborough:
You have requested an advisory opinion from this office and your request has been referred to me for a response. It arises from a disputed election for sheriff in Hoke County. The State Board of Elections has directed the Hoke County Board of Elections to withdraw an improperly issued certificate of election for the sheriff’s race in Hoke County and the certificate has been withdrawn. It was improperly issued because an election contest was pending, and under North Carolina law no certificate should have been issued while the contest was pending. See N.C. Gen. Stat. § 163-181. The appeal has not yet been resolved and will not be resolved before the expiration of the incumbent sheriff’s term of office on December 7, 1998, pursuant to N.C. Const. Art. VII, Sec. 2 and N.C. Gen. Stat. § 162-1. The incumbent sheriff has indicated he is willing to serve in office until the election dispute is resolved. Your question is who will act as sheriff of Hoke County during the pendency of the election protest after the expiration of the incumbent’s term.
The North Carolina Constitution provides in Article VI, Section 10 as follows: "In the absence of any contrary provision, all officers in this State, whether appointed or elected, shall hold their positions until other appointments are made or, if the offices are elective, until their successors are chosen and qualified." There is no other provision applicable to the office of sheriff that overrides this constitutional provision.
N.C. Gen. Stat. § 162-5 provides a process to fill the office of sheriff upon the occurrence of a vacancy in the office. However, it is our opinion that this process will not be invoked in this case since, pursuant to Article VI, Section 10 of the North Carolina Constitution, the incumbent sheriff will retain his position and no vacancy will occur.
Thus, by operation of this provision in the Constitution, the incumbent sheriff in Hoke County will hold his position until his successor has been qualified. Obviously, it is important that the Hoke County Board of Elections act expeditiously to resolve the election contest.
signed by:
Ann Reed Senior Deputy Attorney General
Susan K. Nichols
Special Deputy Attorney General