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Process Servers & Constables Office
Constables in Massachusettes
Tel: 781.985.3903 Fax: 781.293.1335
DiCenso & Affiliates Group
Historical Significance:
The office of constable finds its origin in the ancient Roman civilization as Comes Stabuli (Count of the Stable) the commander of the Roman cavalry. In feudal times the office of constable was one of high military rank. The constable was the highest judge in military offenses and in questions of chivalry and honor, eventually becoming the ex officio commander in chief of the military forces.
In England shortly after the Conquest the High Office of Constable appears as the seventh great officer of the crown possessing both civil and criminal powers. Since 1521 the title of High Constable has been granted only for special ceremonies of state, i.e. Coronations etc. Petty or local constables flourished throughout parishes and townships of Great Britain and were an important factor in maintaining the King's peace and keeping good order among his subjects. In the common law, a constable is referred to as a "peace officer" or "conservator of the peace". It was the constables’ duty to protect and maintain the tranquility enjoyed by the citizens of a community where good order reigns among its members. Any intentional violation of which was considered a breach of the peace. Even today police officers throughout the British Empire, its protectorates, and Canada retain the title of constable.
The office of constable was transplanted in Massachusetts's colonial times with the common law. In each of the original communities, the constable was one of the first offices created and was an important factor in maintaining the King's peace in the new land. The constable continues today as a municipal officer.
M.G.L. c.41, Section I. The office of municipal and State police however, is not known to the Common law. It is a statutory office and has attaches to it only those powers provided in statute. In Massachusetts relatively few new powers are provided, the more important ones existing through the annexation of the Common law powers of constables with the exception of serving and executing civil process. M.G.L..41, section 98 and M.G.L..22c, Section 10.|41, section 98 confers Constabulary 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." 22c, section 10 confers these Constabulary powers upon our state police shall have all the powers and duties of constables except serving and executing civil process).
It is interesting to note how the common law office of constable has adapted to the changes in our society until that portion of its powers of preservation of the peace was assimilated into our present say statutory office of police. This transition eliminated the need to create an entirely new office with specifically enumerated powers and duties.
The Difference Between Constables and Deputy Sheriffs:
Although constables essentially provide the same services at a municipal level that deputy sheriffs provide at a county level there are significant differences between the two offices. Constables may serve judicial process only in the cities or towns in which appointed or elected. Deputy Sheriffs appointed by a county sheriff may serve judicial process within that specific county. Constables are required by law to be bonded for the service of civil process. M.G.L. C.41, Section 92. M.G.L. C.41 Section 93 - Deputy Sheriffs are not required to be bonded; they usually rely upon the Sheriff's bond fixed by the Supreme Court. Constables usually operate as independent contractors. Deputy Sheriffs usually operate as for-profit corporations. The most important distinction between constables and deputy sheriffs apart from territorial jurisdiction is the Ad Damnum (damages) limitation imposed upon constables in the service of original process. Although the work performed is exactly the same, the law provides that if damages being sued for any civil complaint exceed $2,500.00 then service upon a Defendant can only be made by a sheriff or deputy sheriff. M.G.L. C.41, Section 92 - The only alternative to this course of action is for a lawyer to seek approval of a motion under M.R.C.P., R.4c for the appointment of a Special Process Server. This may be helpful if the amount of damages in a suit exceeds the $2500.00 limit, or if the defendants are located in more than one municipality, or more than one county. It does however require a trip to court and an appearance before a Judge who may or may not grant the motion.
Costs of Serving Process:
There may be a cost savings in using constable service where possible. Constables being municipal officials usually travel shorter distances to effect service, whereas deputy sheriffs covering an entire county, out of necessity usually travel longer distances. Since fees in part are based upon travel and the use of a motor vehicle, distance can significantly affect cost of service.
The fees for service of process in Massachusetts by Sheriffs, Deputy Sheriffs and Constables are provided for by statute and are arrived at by combining a number of items provided for in the statute. The fees charged generally include: cost of service, copies, travel, and use of motor vehicle, but may include additional fees for attachments, poundage, keepers, assistants, appraisers, posting, advertising, adjournments, auctioneers, arrests, custody, taking bail, etc. if applicable. M.G.L.-C.262 Section 8 - There are no statutory fees for services provided by special process servers or disinterested persons.
Some Powers and Duties
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.268, 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 victualer 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 function 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 committing 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 conveyance 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.
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 warrant violators 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 to the 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 recklessly 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.
Note: The Constable continues today as a public officer possessing extensive powers. See Hartley Vs. Inhabitants of Granville 216 Mass.38.ns.
Conclusion:
This briefly outlines the evolution of the office of constable and its role in the Massachusetts legal system, and should not be considered as an in-depth review of all aspects of the constable's involvement in the serving and executing of legal process. It would be impossible to exhaust all of the inherent and statutory powers vested in the Constable. It was our 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.
As a point of human interest, even the colloquial term COP had its origin in the activities surrounding Constable. It means “Constable on Patrol.".
