CONSTABLES.

See EQUITABLE PLAINTIFFS; FACTORIES; FEES; LIQUORS; MAGISTRATES' COURTS; QUARTER SESSIONS AND OYER AND TERMINER.

IV. THEIR DUTIES AND LIABILITIES IN CIVIL fendant. In joint action against justice and constable,

I. Election and qualification of constables.

1. The several acts that have been passed relating to the election of constables in the different boroughs, wards and townships, in the several counties in this commonwealth, shall be so altered and construed as that each of the electors of elected annually. each borough, ward and township shall annually (q) vote for only so many can

P. L. 50S.

didates for the office of constable as there shall be persons required to fill said office, 9 April 1849 § 3.
in their respective boroughs, wards or townships; the candidates receiving the
highest number of votes shall be declared elected.

2. The qualified voters of every borough and township, and when a borough is 14 February 1889 See amendmen
divided into wards, of every ward, in the commonwealth of Pennsylvania, shall on P. L. 6. 26 June 1895,
P. L. 375,
a properly qualified person for constable, in each of said districts, who shall serve To serve for threeSupp. 2552.
for three years.(r)

the third Tuesday of February next, and triennially thereafter, vote for and elect When constables

to be elected.

years.

Ibid. § 2.

12 Feb. 1889 § 1.
P. L. 3.

Election

3. All acts or parts of acts inconsistent herewith are hereby repealed. 4. Whenever any new ward is erected or created in any city of the first class Repealing clause. within this commonwealth, the qualified electors of such ward, at the next general or municipal election occurring not less than forty days after the decree of the proper court having jurisdiction, declaring the election or creation of such new on onereerd. ward in conformity to law, shall elect one person to serve as a member of select council, such a number of members of common council as the ward is entitled to, according to the list of taxable inhabitants, such a number of constables as is directed by law, and a full board of directors of public schools, together with such a number as they are annually entitled to elect for full terms.

Ibid.

5. On the second Monday after the election of such officers *** the constables shall, if they have filed their bonds, enter upon the execution of the duties of their Commencement offices, and all councilmen and constables residing in said new ward or wards, who of terms. were elected by the qualified electors of the old ward, shall serve out the respective terms for which they were elected as members from the old ward, and if any election should occur for councils or constables previous to the expiration of their respective terms, they shall be counted as part of the whole number to which said ward is entitled, according to the list of taxable inhabitants.

6. The term of the constables shall be until the first Monday of April, in the fifth year succeeding the year in which such election has been held.

Ibid.

Term of con-
stables.

4 May 1889 § 1.
P. L. 83.

Term made three
years in 2d and 3d

7. The qualified voters of each ward in cities of the second and third classes shall, on the third Tuesday of February next, and triennially thereafter, elect a properly qualified person for constable in each of said wards, who shall serve for three years.(s) Whenever a constable shall be appointed by the court, as provided by existing laws, the constable so appointed shall serve for the unexpired term. 8. All acts and parts of acts inconsistent herewith be and the same are hereby appoints. repealed.

class cities.
Term when court

Repealing clause.

9. The acting constable in every ward, town, township or district in this com- 1 March 1799 § 6. monwealth shall, within six days after the election for a constable or constables 3 Sm. 356. has been held, give notice in writing to the person or persons who shall be chosen, Acting constables of his or their election to the said office; and if such acting constable shall neglect to notify person so to do, he shall forfeit to the commonwealth the penalty of sixty dollars.(t)

elected.

P. L. 556.

10. It shall be the duty of every person elected to the office of constable in any 15 April 1834 § 107. township, to appear on the first day of next court of quarter sessions of the same Person elected to county, to accept or decline such office; and if any person so elected and duly appear, and accept notified thereof, shall neglect or refuse so to appear, he shall forfeit to the town- or decline. ship the sum of forty dollars, to be levied by order of the court.

Penalty for neg

lect.

11. The court to which a return as aforesaid shall be made, shall appoint [one Ibid. § 108. of] the persons returned to be constable of the township for the term of one year from the date of his appointment, and until a successor shall be duly appointed, Term of office. if it shall appear to the satisfaction of the court that he possesses a freehold estate Constable to be a in his own right, clear of all incumbrances, of the value of at least one thousand freeholder, or to give bond. dollars; or if he does not possess such freehold estate, he shall give bond, with at least one sufficient surety, to be approved of by the court, in the sum and manner hereinafter directed.(u)

Ibid. § 109.

12. If the electors of any township shall fail to elect [two] persons for the said office, or if [both of] the persons returned should be incompetent with respect to Court to appoint estate, or unable to give the required security, or should refuse to take upon them- in case of vacancy. selves the said office, or in the event of a vacancy in the office, by death or otherwise, it shall be the duty of the said court to appoint some other respectable person, possessing a freehold estate of the value aforesaid, or who shall give the security required, to serve as constable until the next annual election, and until a successor be duly appointed.

13. If any person who shall be duly elected and appointed a constable, or who shall be appointed as such by the court in the cases herein before mentioned, and

(r) Notwithstanding this act, the terms of constables in Philadelphia remain at five years. Barr's Petition, 8 C. C. 64. This act applied to the election on the third Tuesday of February 1889. Constables' Case, 7 C. C. 550; s. c. 25 W. N. C. 555. Weikel's Bond, 8 C. C. 121. Contrà, Tallon's Bond, 7 C. C. 636. Huntsinger's Case, 8 Ibid. 173. Constables' Bonds, Ibid. 282. Elections for constables are to be held but once in three years; in case of a vacancy, an appointment is to be made by the court for the unexpired term. Tyson's Case, 13 C. C. 212. This repeals

Ibid. § 110.

so much of the act of 15 April 1834, § 109, P. L. 556,
as provides, that the appointee to fill a vacancy shall
hold only to the next annual election. Beaver Falls'
Election, 14 C. C. 289.

(s) This act is not in conflict with article III., sec-
tion 7, of the constitution. A constable is not strictly
a township or ward officer within the meaning of that
section, and his election is capable of classification.
Readings' Constables, 8 C. C. 101.

(t) See act 2 July 1839, § 54, infra 44.

(u) Remainder of this section supplied, supra 1.

15 April 1884 § 110. who shall possess a freehold estate of the value aforesaid, shall refuse or neglect P. L. 556. to take upon himself the said office, or shall not procure a deputy to undertake Penalty for refusal the duties thereof, he shall be fined by the court in the sum of forty dollars, for to accept the office. the use of the proper township.

Ibid. § 111.

Exceptions.

Ibid. § 112. Condition of constables' bonds.

29 March 1824 § 4. 8 Sm. 302.

15 April 1834 § 115. P. L. 557.

How penalties to be recoverable.

Ibid. 116.

Local laws not to be repealed.

15 April 1834 § 113. P. L. 557.

14. Provided, That no person shall be liable to the penalty aforesaid who shall have served personally, or by deputy, in the office of constable of the same township, within fifteen years of his said election or appointment, or having been elected or appointed within that period, shall have paid the penalty aforesaid.

15. The bond to be given by a constable shall be in such sum, not less than five hundred dollars, nor more than three thousand dollars, as the court shall direct, and shall be taken by the clerk of the court, (v) in the name of the commonwealth, with conditions (w) for the just and faithful discharge by the said constable of the duties of his office;(x) and such bond shall be held in trust for the use and benefit of all persons who may sustain injury from him in his official capacity by reason of neglect of duty, (y) and for the like purposes and uses as sheriffs' bonds are given and held.(z)

16. Suits against the sureties mentioned in the 3d section of this act (a) shall not be sustained, unless the same be instituted within three years after the date of such obligation.

17. In every case in which any pecuniary penalty or forfeiture is imposed by this act, the proceedings for the recovery of the same shall be by indictment in the court of quarter sessions of the proper county, or to be recovered as debts of equivalent amount are by law recoverable, unless herein otherwise specially provided: Provided always, That aldermen or justices of the peace shall not have jurisdiction of any suit or action, for the recovery of any penalty imposed by this act for official misconduct and that such suit or action, when brought in the court of common pleas of the proper county, shall have a preference for trial over all other actions.

:

18. Nothing in this act contained shall be so construed as to repeal any special provision heretofore made by law, for any city, borough, district or township in this commonwealth.

II. Appointment of deputies.

19. No deputy (b) shall be appointed by any constable, either by general or partial deputation, without the approbation of the court of quarter sessions of the Deputies not to be proper county first had and obtained, (c) except the same be made specially, in appointed without some civil suit or proceeding, at the request and risk of the plaintiff or his the approbation of the court. agent.(d)

Ibid. § 114.

Vacancy in the office of deputyconstable, how supplied.

9 May 1889 § 1. P. L. 156.

20. In the event of the death, inability or refusal to act of his deputy, the constable of any township may, with the approbation of any one of the judges of the court of quarter sessions of the same county, appoint another deputy, with full authority(e) to act as such until the next regular sessions of such court, and, for the acts of such deputy, (g) the constable and his sureties shall be liable as in other cases; and in every such case, the constable shall file a written copy of such deputation in the office of the clerk of the court of quarter sessions of each county.

21. Upon the petition of not less than twenty-five tax-payers of any township of any county of this commonwealth, to the court of quarter sessions of said county, representing that the safety of the citizens and the security of property makes, in their opinion, necessary, the appointment of one or more deputy-conmen of townships. stables, to act as policemen, it shall be the duty of the court to consider said

Court to appoint deputy-constables

to act as police

(v) If it be found among the records of the office, in its proper place, though no entry of the approval and filing of it be shown, it will be presumed. Mussel v. Commonwealth, 7 P. S. 241. See Petit v. McAdam, 2 S. & R. 420.

man

(2) A condition that a constable shall "execute all writs and process to him directed," is not greater than required by law. Musselman v. Commonwealth, 7 P. S. 240.

(x) A constable's bond may be amended, in case of error, apparent on its face. Ex parte Bransby, 1 W. N. C. 326. Commonwealth v. Bransby, Ibid. 533.

(y) A party aggrieved may either bring suit on the bond, or proceed against the constable under the 19th section of the act 20 March 1810, infra 34. Palmer v. Commonwealth, 6 S. & R. 245. Campbell v. Commonwealth. 8 Ibid. 414.

(z) The sureties are liable for the act of the officer in levying upon the goods of a stranger. Brunott v. McKee, 6 W. & S. 513. Carmack v. Commonwealth, 5 Binn. 184. And for money collected under a landlord's warrant. Commonwealth v. Sheppard, 2 Clark 393. Clark v. Worley, 7 S. & R. 349. A judgment against the constable for official misconduct, is conclusive against the sureties, as to the misconduct and

the extent of the damage. Masser v. Strickland, 17 S. & R. 354. Evans v. Commonwealth, 8 W. 398. Eagles v. Kern, 5 Wh. 144. Musselman v. Commonwealth, 7 P. S. 240. But they may take advantage of any defence personal to themselves. Masser v. Strickland, 17 S. & R. 354.

(a) This section supplied, supra 15.

(b) A constable who has appointed a deputy, is still capable to act and execute process. McCormick v. Miller, 3 P. & W. 236.

(c) The court will not appoint a deputy-constable when the constable elect is able to attend to the duties of his ward. Deputy-Constables' Case, 11 Phila. 391. (d) See Warren v. Wells, 3 Luz. L. Reg. 111. (e) A general deputy of a constable, when so appointed, can execute all process. McCormick v. Miller, 3 P. & W. 236.

(g) A constable would be liable for the misfeasance of a deputy who derived his authority from a special deputation made by his deputy. Hummel's Case, 9 W. 430. But one who employs a special constable, deputed at his own instance, must bear the consequences of his misfeasance, as that of any other servant employed by him. Ibid.

9 May 1889 § 1. P. L. 156.

petition and, if satisfied of the reasonableness and propriety of said application, to
make such appointment for such time and number as to the court may seem
proper; and such deputy-constables, so appointed, shall severally possess and Powers.
exercise all the powers of policemen of cities of this commonwealth, in the
several townships in which they shall be so appointed as aforesaid, and the
keepers of jails, lock-ups or station-houses are required to receive all persons
arrested by such policemen for the commission of any offence against the laws of
this commonwealth, within the township for which they shall be appointed as
aforesaid.

Ibid. § 2.

22. Such deputy-constables shall, when on duty, severally wear a shield or badge with the words "township police" and the name of the township for which ap- To wear a shield pointed inscribed thereon.

23. The said deputy-constables shall be paid such compensation as may be approved by the court of quarter sessions, and may be discharged whenever the court appointing them shall be satisfied that their services are no longer required.(h)

III. Removal for misconduct, &c.

or badge.

Ibid. § 3.

Compensation.
Discharge.

P. L. 403.

24. The courts of quarter sessions of each county shall have full power, on 27 May 1841 § 14. petition of any surety of any constable, setting forth the complaint, and verified by affidavit, to inquire into (the) official conduct of such constable, and in all cases In case of interwhere said court shall be satisfied that, from habits of intemperance or neglect of perance or misconduty, any constable is unfit and incompetent to discharge his official duties, it duct, constable may be required, shall be lawful for said courts, respectively, to decree the removal of such consta- on complaint of his ble from office, unless such constable gives such additional surety as the court may ditional security. surety, to give addirect, and to appoint a suitable person to fill the vacancy, who shall have a free- In default, to rehold estate with (worth) at least one thousand dollars beyond incumbrance, or give moval. security, as in other cases of constables, to continue in office until the next succeeding election for constable, and until a successor be duly qualified. And in all cases In certain cases, where any constable, elected or appointed, shall not have given security, and has constable appointso neglected his business, or the situation of his estate is such, as to render it ed without security may be reunsafe to entrust him with the execution of official duties, the said courts shall also quired to give have power to require such constable to give security in the same sum, and in the bond. same manner, required by law from other constables who have not such estate as exempts them from giving security; and such security thus given shall be for the same uses, and as valid in law, as the security given by said other constables; and

in default of giving such security, within such time as the said court shall adjudge In default, to be reasonable, said court shall decree the removal of such constable from office, and removed. fill the vacancy in the same manner as is provided herein for cases of constables incompetent to act from habits of intemperance.

IV. Their duties and liabilities in civil cases.

of the peace.

25. Every justice of the peace rendering judgment as aforesaid, shall receive 20 March 1810 § 11. the amount of the judgment, if offered by the defendant or his agent, before exe- 5 Sm. 167. cution, and pay the same over to the plaintiff or his agent, when required; for Duties of constable which service he shall, if exceeding five dollars and thirty-three cents, be allowed on an execution twenty-five cents by the defendant, in addition to his usual fees; and if the said issued by a justice justice shall neglect or refuse to pay over, on demand, the money so received, to the plaintiff or his agent, such neglect or refusal shall be a misdemeanor in office; and if the amount of the judgment is not paid to the justice as aforesaid, he shall grant execution, if required by the plaintiff or his agent, thereupon, if for a sum not exceeding five dollars and thirty-three cents, forthwith, and for any further sum, after the time limited for the stay of the same; which execution shall be directed to the constable of the ward, district or township where the defendant resides, or the next constable most convenient to the defendant :(i) commanding him to levy the debt or demand, and costs, on the defendant's goods and chattels:(k) and by virtue thereof shall, within the space of twenty days next follow- Return-day. ing, expose the same to sale, by public vendue, (1) having given due notice of the

(h) Deputy-constables appointed under this act have no claims upon the county for compensation. Cawley's Case, 5 Kulp 455.

(7) It is the universal practice, for justices to issue their warrants and executions to any constable within the county. Clark v. Worley, 7 S. & R. 353-4. And the sureties of such constable are responsible for their que execution. Ibid. A warrant issued to stable, if executed by the proper constable, is good. Paul v. Vankirk, 6 Binn. 123. The justice is to judge who is the constable most convenient to the defend

ant.

~, con

Smith v. Schell, 13 S. & R. 336. But a sale by a constable of one township, under an execution directed to the constable of another township, passes no title to the property; he is a mere trespasser. Gordon

v. Camp, 3 P. S. 349. And the sureties are only responsible, where the execution is delivered to him in his official capacity, by the justice. Snapp v. Commonwealth, 2 P. S. 49.

(k) By act 12 May 1871, no constable shall levy upon or sell the leasehold estate, machinery, fixtures, improvements, or any greater estate, in lands and fixtures appurtenant to or connected with any colliery or lease in the county of Schuylkill. P. L. 779.

(1) A sale to the plaintiff, no person but the constable being present, is illegal and void. Ricketts v. Unangst, 15 P. S. 90. But a second bidder is not, in all cases, necessary, in order to constitute a valid sale. Swires v. Brotherline, 41 P. S. 135. Constables are indictable for a nuisance, who conduct a sale, under

5 Sm. 167.

20 March 1810 § 11. same, by at least three advertisements, (m) put up at the most public places in his township, ward or district, returning the overplus, if any, to the defendant, [and for want of sufficient distress, to take the body of such defendant into custody, and him or her convey to the common jail of the county; and the sheriff or keeper of such jail is hereby directed to receive the person or persons, so taken in execution, and him, her or them safely keep, until the sum recovered and interest thereon accrued from the date of the judgment, together with costs, be fully paid; and in default of such keeping, to be liable to answer the damage to the party injured, as is by law provided in case of escapes ;] (n) or, in case no goods and chattels can be found, and the defendant be possessed of lands or tenements, the plaintiff may waive imprisoning the defendant, and proceed by a transcript to the prothonotary aforesaid: Provided, That executions against executors or administrators shall only be for the assets of the deceased.

Ibid. § 18.

Schedule of goods levied on, to be made.

Lien of levy.

Constable may

bond.

Form thereof.

at

26. In all cases where a constable levies an execution issued from a justice of the peace, he shall indorse the goods or chattels so levied, on the execution, or schedule thereto annexed, which levy shall be a lien on such chattels for twenty days after levying the same, and no longer. And the constable making such levy is hereby authorized and empowered to take a bail-bond in the following or like take forthcoming words, viz.: “ We, A. B. and C. D., or either of us, are held and firmly bound unto E. F., constable, in the sum of -, upon condition that the said A. B. shall deliver unto E. F. aforesaid, the following goods and chattels on the day of the house of which is taken in execution at the suit of G. H. against A. B., or pay the amount of the said execution with costs. Witness our hands and seals this day of " But if the said defendant shall not deliver the chattels so specified in such bond, or pay the amount of such execution, the constable may then proceed to the sale of such goods or chattels so levied: Provided, The lien created by such levy be not expired; but should the lien be expired, the justice may issue an alias execution, which may be proceeded on as aforesaid, or the constable taking such bond may assign it to the plaintiff, who may recover the same before any justice Constable to be ac- of the peace, without stay of execution: Provided always, That any constable takcountable for suffi- ing such bail shall be accountable to the plaintiff for the sufficiency thereof, notciency of bail. withstanding such assignment.

Proceedings in case of breach.

28 March 1820 § 4. 7 Sm. 309.

27. Whenever a constable shall levy on the goods and chattels of a defendant, as is directed by the 11th section of the act to which this is a supplement, he To indorse time of shall indorse the time of such levy on the execution; and no execution issued by levy. a justice of the peace shall be a lien on the property of the defendant, before levy made thereon.

Execution not a

lien before levy.

Ibid. § 3.

Constable to give

receipt, with bill of

particulars of his

fees and charges.

Penalty for refusal.

20 March 1810 § 12. 5 Sm. 167.

On delivery of an execution, account

docket.

28. In all cases where any constable shall collect or receive the debt, interest and costs, or any part thereof, of any execution, it shall be his duty to make out and deliver to the defendant or defendants in such execution, a bill of particulars of his fees and charges, together with a receipt, signed by him, for the same, if paid; and if any constable shall neglect or refuse, upon application to him made by the party interested, to give such bill or receipt, he shall, for such neglect or refusal, forfeit and pay the sum of ten dollars, to be recovered in the manner and for the use prescribed in the act to which this is a supplement.

29. On the delivery of an execution to any constable, an account shall be stated in the docket of the justice, and also on the back of the execution, of the debt, interest and costs; from which the said constable shall not be discharged, to be stated on the but by producing to the justice, on or before the return-day (o) of the execution, the receipt of the plaintiff, or such other return as may be sufficient(p) in law; Constable not to be and in case of a false return, or in case he does not produce the plaintiff's receipt, by producing plain- on the return-day, or make such other return as may be deemed sufficient by the tiff's receipt, or justice, he shall issue a summons, directed for service to a constable, or to some making other suffi- other fit person who shall consent to serve the same, and having so consented, by

discharged, except

cient return.

Proceedings against constable

for false or insuffi

cient return.

accepting of such process, shall be bound to execute the same, under a penalty of twenty dollars, to be recovered as other fines are recoverable by this act; but should not a constable, or other fit person conveniently be found to serve the process as aforesaid, the justice shall direct it to a supervisor of the highways of the township, ward or district, where such constable resides, whose duty it shall be to serve the same under the penalty aforesaid; commanding the constable to appear before him on such day as shall be mentioned in the said summons, not exceeding eight days from the date thereof, and then and there show cause why an execution should not issue against him for the amount of the first abovementioned execution; and if the said constable either neglects to appear, on the

execution, in a public street, thereby obstructing the passage. Commonwealth v. Milliman, 13 S. & R. 403.

(m) If he sell any portion of the goods, without levy or advertisement, he is liable. Ward v. Taylor,

1 P. S. 238.

(n) Since the act to abolish imprisonment for debt no execution can issue against the body, in cases of contract.

(0) The mere omission to return the execution within 20 days, will not render the constable liable, if he has sufficient cause for the delay. Keller v. Clarke, 6 W. & S. 534.

(p) Of the sufficiency of the return, the justice must judge in the first instance, but his decision is subject to review; and the return must be in writing. Shover v. Funk, 5 W. & S. 457. Hall v. Galbraith, 8 W. 220. Daniel v. Buss, 4 Wh. 56. And see Pritchett