Opinion No. Oag 81-79, (1979) , 68 Op. Att'y Gen. 254 ( 1979 )

PAUL M. CORNETT, District Attorney Shawano and MenomineeCounties

You request my opinion with respect to five questions relating to the office of town constable.

1. Does sec. 60.54 (6), Stats., authorize a town constable to issue traffic citations?

Section 60.54 (6), Stats., provides that a constable shall "[c]ause to be prosecuted all violations of law of which he has knowledge or information."

This and other statutory provisions empower a duly elected town constable to issue traffic citations and to make arrests for traffic violations of state laws occurring within his or her town, and of town ordinances of his or her respective town which are enacted in conformity with state regulations pursuant to sec.349.06, Stats.

2. Can a constable's privately owned vehicle constitute an "authorized emergency vehicle" as defined in secs. 340.01 and 346.03, Stats.?

I am of the opinion that it can. Section 340.01 (3)(a), Stats., defines "authorized emergency vehicle" as including "[p]olice vehicles, whether publicly or privately owned." Section 346.03, Stats., need not be quoted here but allows the operator of an authorized emergency vehicle certain privileges when engaged in activities in line of duty.

3. In the absence of a request from the sheriff, may a constable respond to complaints of crimes occurring within his township?

The answer is yes. The constable is only subject to direction of the sheriff in some areas. Such officer has broad statutory powers which he or she may exercise without direction by the sheriff. See secs. 59.24 (1), 60.54 (1), (3), (5), (6), and (7),170.05, 171.03-171.06, 172.06, 173.05, 173.06, 176.36, and947.06, Stats.

4. May the town board limit the authority and duties of the constable by resolving:

a. That no vehicles of constables are to be authorized as emergency vehicles pursuant to sec. 340.01 (3), Stats.

b. Directing that constables are not authorized to enforce the state traffic code or any traffic ordinance enacted in conformity therewith.

c. That constables are to be paid only for calls authorized by the town board relating to town ordinances and those duties expressly referred to in the statutes?

The answer is no. In most areas the town board does not direct the town constable in the exercise of such officer's duties which are in large part statutory. Under sec. 60.29 (8m), Stats., a town board can delegate the duty of maintaining a jail to a constable. A town board, pursuant to sec. 60.29 (7) and (8), Stats., can increase law enforcement within a town by appointing police officers who are subject to the direction and control of the town board. Adamczyk v. Caledonia, 52 Wis. 2d 270,190 N.W.2d 137 (1971).

5. If compensation of a constable is fixed at an annual meeting of the town board on a per-call basis, can the town board limit the amount of calls for which a constable can be compensated during his term?

The answer is no. The annual town meeting of the electors of the town, rather than the town board, has power to establish the number of constables to be elected in a town and to provide compensation therefor. See secs. 60.07, 60.18, and 60.19 (1), Stats. There is doubt whether a town meeting acting pursuant to sec. 60.18 (11), Stats., can establish compensation on a per-call basis or per diem basis. That section provides that the electors of a town of the annual town meeting may:

Compensation of constable. To set the total annual compensation of the town constable in lieu of all fees and mileage or any portion of such fees and mileage. The compensation established shall not be increased nor diminished during the officer's term and shall remain the same unless changed by further action of an annual town meeting. Any constable on a salary basis or part fees and part salary shall collect all fees appertaining to his office and file with the town clerk a complete record of all fees received, annually or at such times as the town board may require, and shall remit all such fees not specifically reserved to him to the town treasurer at least once each month.

Statutory fees for constables are set forth in sec. 60.55, Stats.

In closing, and for your use with respect to future requests, I direct your attention to the guidelines to be observed by district attorneys and county corporation counsel when requesting an opinion of the Attorney General which are set forth in 62 Op. Att'y Gen. Preface (1973).

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