CIVIL PROCESS UNIT
Ancient in origin, the office of Constable has been of high power and prestige in the history of the world. In feudal times, the office of Constable was one of high military rank, and eventually ex officio commander in chief of the military forces. He was the highest judge in military offenses and in questions of chivalry and honor. He was the supreme arbitrator in tilts, tournaments and martial displays.
The term High Office of Constable appears in England shortly after the Conquest as the seventh great officer of the Crown, possessing both Civil and Criminal powers. Since the year 1521, the title of High Constable has not been granted except for a special ceremony of state.
The Constable has been a part of our American civilization since the earliest of Colonial times. In each of our original comunities, the Constable was one of the earliest offices created, and it was his important duty to keep the king's peace.
The Constable continues today as a public officer possessing extensive powers. See Hartley Vs. Inhabitants of Granville 216 Mass.38. However the duties of Constables have been modified from time to time by custom and statue.
POWERS AND DUTIES OF CONSTABLES
Constables possess somewhat extensive powers. Blackstone Commentaries 356. There may be a residue of common law power contained in the office of Constable, but not withstanding this, the office is vested with a broad range of statutory power. The statue providing the general powers of Constables goes so far as to give them the powers of sheriffs to require aid in the execution of their duties. G.L.c.41, section 94 reads in whole:
"Constables may serve the writs and processes described in section ninety-two and warrants and processes in criminal cases although their town, parish, religious society or district is a party or interested. They shall have the powers of sheriffs to require aid in their execution of their duties. They shall take due notice of and prosecute all violations of law respecting the observance of the Lord's day, profane swearing and gaming. They serve all warrants and other processes directed to them by the selectmen of their town for notifying town meetings or for other purposes. They may serve by copy, attested by them, demands, notices and citations, and their returns of service thereof shall be prima facie evidence; but this provision shall not exclude the service thereof by other persons."
In conjunction with this, if a citizen neglects or refuses to assist the Constable in the execution of his duties in a criminal case, in the preservation of the peace or in the apprehension or securing of a person for a breach of the peace, or in a case of escape or rescue of persons arrested upon civil process, then that citizen is subject to fine or imprisonment. G.L.c.286,section24.
A Constable possesses a power of entry not generally found in most municipal offices. G.L.c.140,section 201 provides in whole:
"A sheriff, marshall or their deputies, a constable or police officer may at any time enter a billiard, pool or sippio room, bowling alley, skating rink, the licensed premises of a common victualler or room connected therewith, or a grove required to be licensed under section one hundred and eighty-eight, or any building therein, for the purpose of enforcing any law; and whoever obstructs or hinders the entrance of such officer shall be punished by a fine of not less than five nor more than twenty dollars."
As the powers of the Constable unfold in this memorandum, the words of Chief Justice Rugg take on a significant meaning. He said, in Hartley Vs. Inhabitants of Granville. (supra) "The theory on which the office is now based (apart from the functon of serving papers) is that a number of competent men scattered throughout the territory of each of the county towns, charged with such duties, is an important factor in making them safe for residence by law abiding people." The office is to be reserved for only the most competent and responsible of men.
Indeed, Constables possess the awesome power of arrest in certain circumstances. An illustration of the power of arrest is contained in G.L.c.271, section 2, which reads:
"Whoever, in a public conveyance or public place, or in a private place upon which he is trespassing, playing at cards, dice or any other game for money or other property, or bets on the sides or hands of those playing, shall forfeit not more than fifty dollars or be imprisoned for not more than three months; and whoever sets up or permits such a game shall be punished by a fine of not less than fifty nor more than one hundred dollars or by imprisonment for not less than three nor more than twelve months. If discovered in the act, he may be arrested without a warrant by a sheriff, deputy sheriff, constable or any officer qualified to serve criminal process, and held in custody, in jail or otherwise, for not more than twenty-four hours, Sunday and legal holidays excepted, until complaint may be made against him for such offense."
And again in c.138, section 55, the Constable is given the power of arrest without warrant "any person whom he finds in the act of illegally manufacturing, selling or exposing or keeping for sale, storing, transporting, importing or exporting alcoholic beverages or alcohol......"
The Constable, under G.L.c.266, section 120, may arrest without a warrant any person who he finds commiting a trespass, after notice, upon " a dwelling house, building, boat or improved or enclosed land, wharf or pier of another........"G.L.c.160, section 220 confers upon the Constable the power of arrest without a warrant in certain cases involving persons unlawfully riding upon a " locomotive engine, tender, freight car, caboose or other conveyence not part of a passenger train."
The Constable, may arrest without a warrant, any person who is " keeping a house, room or place resorted to for prostitution or lewdness, "as provided in G.L.c.272, section 10.
The Constable has the statutory power of arrest in several other instances, notably, inter alia, under our health laws. He has also the common law and statutory power to arrest in cases involving breach of the peace.
It is significant to note here that the power of the Constable predates the powers vested in our organized police forces, and is independant thereto. It is for this reason that our police offices, both state and local derive much of their power from that of Constables. Hence, G.L.c.41, section 98 confers Constabular powers on our police. " The Chief and other police officers of all cities and towns shall have all the powers and duties of constables except serving and executing civil process." G.L.c.22, section 9A confers these Constabulary powers upon our state police.
In some instances the Constable has the power to pre-empt our local officials. For example, our Chief of Police as keeper of the lockup, as required by G.L.c.40, section 37 must make the local lockup accessible to the Constable and if he fails or refuses to do so, he is subject to fine. And, under G.L.c.41, section 39 "if a person appointed to collect taxes in a town refuses to serve, or if no person is elected or appointed a collector of taxes, the Constables of the town shall be the collector of taxes."
The Constable has the power to enforce our election laws and, under G.L.c.56, section 57 has the power to arrest without a warrant violaters thereof.
And, even the local drug store is not exempt from the jurisdiction of the Constable, G.L.c.138, section 30F provides that the doings and books of the pharmacy be open to the Constable.
Further, "The jurisdiction of a constable in ordinary cases, is limited tothe Town in which he is (appointed), but for special cases, there are exceptions to this rule." Beard Vs. Seavey, 191 Mass. 503. For example, " A Constable may arrest on a capias, in a criminal case, outside the town for which he was (appointed) but within the same county, and within the jurisdiction of the court issuing the warrant. Sullivan Vs. Wentworth 137 Mass. 233. And also within this context I commend to you G.L.c.41, section 95:
"A Constable, in the execution of a warrant or writ directed to him, may convey prisoners and property in his custody under such process beyond the limits of his town, either to the justice who issued it or to the jail or house of correction of his county. If a warrant is issued against a person for an alleged crime committed within any town, any constable thereof to whom the warrant is directed may apprehend him in any place in the commonwealth."
In most cases, an applicant for the office of Constable will not be aware of the broad range of powers connected with the office. He will be concerned usually with the service of civil process only. G.L.c.41, section 92 provides in parts, a Constable, "may within in his town serve any writ or other process in a personal action in which the damages are not laid at a greater sum than eight hundred dollars, and in a replevin in which the subject matter does not exceed in value eight hundred dollars, and any writ or other process under chapter two hundred and thirty-nine."
A two pronged caveat is in order here. First, while an applicant might be primarily concerned with the civil process aspect of the office, there are cases where a Constable has recklesly invoked his non-civil powers to the great detriment and embarrassment of both the Appointing Authority and the Court. Secondly, on the question of service of civil process, there is a voluminous body of knowledge required to adequately perform in the manner directed by our statues. I believe that this is what Chief Justice Rugg meant when he referred to "competent" individuals in the community.
In this memorandum, it would be impossible to exhaust all of the inherent and statutory powers vested in the Constable. It was my purpose to survey the Powers of Constables with the objective of demonstrating that the office is of extremely high significance in the eyes of the law.
There is no doubt that a Constable is a municipal officer. G.L.c.41,section 1, provides for the election or appointment of Town Officers. It reads in part:
"Every town at its annual meeting shall in every year when the term of any incumbant expires,and except when other provision is made by law, choose by ballot from its registered voters the following Town Officers for the following terms of office................one or more Constables for a term of three years, unless the town by vote provides that they should be appointed."
The appointive power appears to be now in the Board of Selectmen, G.L.c.41,section 91A provides:
"The selectmen in any town may from time to time appoint for terms not exceeding three years, as many constables as they deem necessary."
There are certain formalities and solemnities required as a condition precedent to appointment, under G.L.c.41, section 91B. No person shall be appointed a Constable unless:
1. A person desiring appointment shall make a written application thereof to the appointing authority stating his reasons for desiring such appointment.
2. The applicant shall also supply such information as may be reasonably required by the appointing authority relative to his fitness for the office.
3. The application shall contain a statement as to the moral character of the applicant signed by at least five reputable citzens of the city or town of his residence, one of whom shall be an attorney at law.
4. The appointing authority shall also investigate the reputation and character of every applicant and his fitness for said office.
The statue also directs that, " the Chief of Police or other official having charge of the police shall upon request give the appointing authority all possible assistance in making such investigation."
A Constable who is to serve civil process must give a bond to the Town, with sureties approved by the selectmen. Prudence would seem to require that this be the maximum amount required by statue, which is three thousand dollars. Since service by unbonded constables is void, the Board might consider that all appointments be conditioned upon the Constable obtaining bond within reasonable time of appointment.
In closing, as a point of human interest, even the colloquial term COP had its origin in the activities surrounding Constable. It means " Constable on Patrol."
Frank D. Rodick, Town Counsel
The previous information was taken from a letter written on 7/24/74 to the Board of Selectman of the Town of Weymouth by the Town Counsel. Since that letter was originally written, there have been numerous changes made in the Massachusetts General Laws pertaining to Constables such as the increase of bonds, amount of Ad Damnum, etc. The Northern Essex County Constable Office assumes no responsibilities for the use of any information in the above text and recommends that the MassacusettsGeneral Laws or an attorney be consulted for the most current information.
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