(Punctuation omitted.) Tarpley v. Carr , 204 Ga. 721, 728 (1), 51 S.E.2d 638 (1949), quoting Norton v. Shelby County , 118 U.S. 425, 445, 6 S.Ct. 1121, 30 L.Ed. 178 (1886).The principle on which the whole doctrine ... rests, is not how [officers] happen to act de facto,—whether the cause be an illegal appointment or election, or an illegal holding over, but [instead] it is the convenience of the public—the necessity of the thing—the impossibility of one always knowing when an officer to whom he goes on business of a ministerial character is legally in office, was properly elected or has held too long.

Gamier v. Louisiana Milk Coram., 8 So.2d 611, 615 (La. 1942), citing Herrington, supra. Although the county commissioners and superior court judges may have been authorized by law to create an assistant magistrate's office, OCGA § 15-10-20 (a), they did not do so here. It follows that the office of assistant magistrate did not exist and the acts of the individual who purported to occupy that office were invalid. Tarpley v. Carr, 204 Ga. 721, 727-728 ( 51 SE2d 638) (1949); Herrington, supra. See also Pruitt v. State, 123 Ga.App. 659 (182 SE2d 142)(1971) (lack of jurisdiction to issue warrant is not mere technicality, but results in a nullity).

Dennison Mfg. Co. v. Wright, 156 Ga. 789, 797 ( 120 S.E. 120) (1923). See also State Highway Dept. v. H. G. Hastings Co., 187 Ga. 204, 215 ( 199 S.E.2d 793) (1938); Tarpley v. Carr, 204 Ga. 721, 727 ( 51 S.E.2d 638) (1949) (City officers were not de facto officers of office created under an unconstitutional charter); Franklin v. Harper, 205 Ga. 779, 784 ( 55 S.E.2d 221) (1949); Baggett v. Linder, 208 Ga. 590, 591 ( 68 S.E.2d 469) (1952); Milam v. Adams, 216 Ga. 440, 444 ( 117 S.E.2d 343) (1960); K. Gordon Murray Productions, Inc. v. Floyd, 217 Ga. 784, 787 ( 125 S.E.2d 207) (1962) ("... the remedy provided in the ordinance is not even law if the petitioner's constitutional attack is sustained.") Dobson v. Brown, 225 Ga. 73, 76 ( 166 S.E.2d 22) (1969) ("`Not even estoppel can legalize or vitalize that which the law declares unlawful and void.'"); and Mapp v. First Ga. Bank, 156 Ga. App. 380 ( 274 S.E.2d 765) (1980). (See note 7, infra.)

Smith v. Bohler, 72 Ga. 546 (7). See also Varnadoe v. Housing Authority of the City of Doerun, 221 Ga. 467 (7) ( 145 S.E.2d 493), and Tarpley v. Carr, 204 Ga. 721 (1) ( 51 S.E.2d 638). The court did not err in sustaining the general demurrer and dismissing the petition.

This contention is unsustainable. Conceding, but not holding, that Slocumb and Short were ineligible to serve and act as members of the authority, their official acts while so serving were nevertheless valid as those of de facto officers and cannot be here collaterally attacked upon the ground that they were incompetent members of the authority. See Code § 89-101; Wright v. State, 124 Ga. 84 ( 52 S.E. 146); Tarpley v. Carr, 204 Ga. 721 ( 51 S.E.2d 638); and Zorn v. Walker, 206 Ga. 181 (1) ( 56 S.E.2d 511). 8. For the reasons stated in the preceding divisions of this opinion, it necessarily follows that the court did not err as contended in sustaining a general demurrer to and striking the condemnees' answer and cross action.

Accordingly, the trial judge did not err in sustaining the general demurrer to the petition, which sought to oust the respondents from office on account of the abolition of their offices and the expiration of their terms of office, and before their successors are elected and qualified. See Stephenson v. Powell, 169 Ga. 406, 408 (2) ( 150 S.E. 641); Tarpley v. Carr, 204 Ga. 721 ( 51 S.E.2d 638). Judgment affirmed. All the Justices concur.

1. While a justice of the peace is such an elective officer of the State ( Long v. State, 127 Ga. 285, 56 S.E. 424) as would render him ineligible under the provisions of the Code (Ann. Supp.) § 99-503, for appointment by the constituted fiscal or financial agents of a county as a member of the county board of public welfare, yet, notwithstanding such ineligibility, if he be appointed as a member of the county board of public welfare and acts as such, he is, while so acting, a member of the county board of public welfare de facto, and the official acts of the board wherein he participates are valid, and cannot be collaterally attacked upon the ground that such person was incompetent to hold such office. Wright v. State, 124 Ga. 84 ( 52 S.E. 146); Tarpley v. Carr, 204 Ga. 721 ( 51 S.E.2d 638). 2.

In a long line of cases both the Supreme Court and this court have held that the fact that a person in ineligible to hold a particular office, or has failed to take an oath, does not prevent that person from being an officer de facto, and while de facto in such office, competent to act therein. Pool v. Perdue, 44 Ga. 454 (1871); Wright v. State, 124 Ga. 84 (1) ( 52 S.E. 146) (1905); Tarpley v. Carr, 204 Ga. 721 (1) ( 51 S.E.2d 638) (1949); Varnadoe v. Housing Auth., 221 Ga. 467, 471 (7) ( 145 S.E.2d 493) (1965); Westley v. State, 143 Ga. App. 344, 345 (1) ( 238 S.E.2d 701) (1977); Beck v. State of Ga., 144 Ga. App. 361, 363 (2) ( 241 S.E.2d 305) (1977). In Westley, supra, we pointed out that the doctrine of the validity of acts of de facto officers is so well settled that it has been embodied in our code (OCGA § 45-2-1).

The public interest in protecting the certainty of judicial decrees and judgments has attached. See Hinton v. Lindsay, 20 Ga. 746; Stone v. Wetmore, 42 Ga. 601; Tarpley v. Carr, 204 Ga. 721 ( 51 S.E.2d 638). Judgment affirmed. Deen, P. J., Quillian, P. J., Webb and Banke, JJ., concur.

3. As to the conviction on the charge of possessing beer for the purpose of sale in violation of the provisions of Ch. 58-7 of the Code, it does not appear positively from the record whether the place where the defendant resides is within or without the city limits of Buford in Gwinnett County. However, whether or not the accusation was drawn under the provisions of Code § 58-716 or §§ 58-717 and 58-718, which specifies that there can be no retail sale of malt beverages within the unincorporated area of a county or within an incorporated municipality without a permit from the governing authority, is immaterial. "While mere possession of more than one quart of taxpaid liquor in this State is illegal in a dry county, the possession of beer is legal and `under the law authorizing the sale of malt beverages, in Georgia, it is not required that an election be first held to authorize the sale.' Tarpley v. Carr, 204 Ga. 721 (2) ( 51 S.E.2d 638). Therefore, this court does not take judicial notice of counties [or municipalities] which do or do not permit the possession and sale of beer. Where the proof does not show otherwise, it will assume that beer may be legally sold within the county [or municipality].