April 24, 2001
You have the following question: Is it legal for a city commissioner to be a bail
bondsman?
In my opinion the answer is no. I realize this answer reflects a change in the oral
answer I gave. However, I have changed my mind several times in the course of
preparing this opinion. Nevertheless, I think this answer is supported by the law that
governs conservators of the peace, and what appear to be the duties (as opposed to
merely the powers) of conservators of the peace.
The reason this question arises is the interplay of several statutes relating to bail
bondsmen, “conservators of the peace,” and to the police authority of elected city
officials:
With respect to bail bondsmen:
- Tennessee Code Annotated, § 40-11-128 provides that:
The following persons or classes shall not be bail bondsmen
or agents of bail bondsmen or surety companies and shall
not directly or indirectly receive any benefits from the
execution of any bail bond: jailers, attorneys, police officers,
convicted felons, committing magistrates, municipal or
magistrate court judges, clerks or deputy clerks, sheriffs,
deputy sheriffs and constables, and any other person having
the power to arrest or having anything to do with the control
of federal, state, county or municipal prisoners.
- Tennessee Code Annotated, § 40-11-313, provides that:
It is unlawful for any person while serving as a constitutionally elected
peace officer, or as such officer’s deputy, or a duly elected or appointed county official
to act as a professional bondsman, directly or indirectly.
With respect to conservators of the peace,
April 24, 2001
Page 2
- Tennessee Code Annotated, § 38-3-103, provides that:
The judicial and ministerial officers of justice in the state,
and the mayor, aldermen, marshals and police of cities and
towns, and the director, commissioner, or similar head of
any metropolitan or municipal police department, whether
elected or appointed, are also conservators of the peace,
and are required to aid in the prevention and suppression of
public offenses, and for this purpose may act with all the
power of the sheriff. [Emphasis is mine.]
- Tennessee Code Annotated, § 38-3-102, makes the sheriff the “principal
conservator of the peace” in the county, and makes it his duty to “suppress all affrays,
riots, unlawful assemblies, insurrections, or other breaches of the peace....” In addition,
Tennessee Code Annotated, § 8-8-123 also makes the sheriff a conservator of the
peace, and gives him the power in order to keep the peace to “prevent crime, arrest any
person lawfully, or to execute process of law.” Such powers of the sheriff as a
conservator of the peace would apparently pass to mayors and aldermen as
conservators of the peace under Tennessee Code Annotated, § 38-3-103.
With respect to the police authority of elected officials, Tennessee Code
Annotated, § 6-54-401 provides that:
It is the duty of the mayors, commissioners, council
members, aldermen, chief of police, recorders, municipal
judges, marshals, and police officers of each municipal
corporation, to faithfully maintain and enforce, within the
corporate limits of their respective municipalities, the statute
laws relating to lewdness, drunkenness, gaming, and the
sale and manufacture of intoxicating liquors by having
arrested and arraigned for trial all persons violating such
laws with their knowledge, and by taking such other
proceedings against such violations as may be authorized
and provided by the ordinances of such municipalities.
It appears to me that we need not be concerned with Tennessee Code
Annotated, § 40-11-313, or with Tennessee Code Annotated, § 6-54-401. The former
statute applies on its face only to “constitutionally-elected” peace officers, their
deputies, and to elected and appointed county officials. Mayors and aldermen are
neither constitutional officers nor county officials of any sort. The latter statute simply
imposes a general duty on members of municipal governing bodies to maintain and
execute the laws relating to certain crimes, by “having arrested and arraigned for trial”
April 24, 2001
Page 3
such persons. Nothing in that statute gives to members of municipal governing bodies
the actual power of arrest, although, as will be seen below, one of the duties of
conservators of the peace in Tennessee is the enforcement of the laws outlined in that
statute.
However, your city commissioners derive not only the power, but the duty, to
arrest as “conservators of the peace,” under Tennessee Code Annotated, § 38-3-103.
In addition, Tennessee Code Annotated, § 38-3-108 provides that:
It is the duty of all peace officers who know or have reason
to suspect any person of being armed with the intention of
committing a riot or affray, or of assaulting, wounding, or
killing another person, or of otherwise breaking the peace, to
arrest such person forthwith, and take such person before
the court of general sessions. [Emphasis is mine.]
On first glance, the term “peace officer” might be thought to apply to police officers,
sheriffs, and other what are commonly called “sworn officers.” But as we shall see
below, a conservator of the peace is a peace officer. For those reasons alone, your city
commissioners have the power to arrest within the meaning and prohibition of
Tennessee Code Annotated, § 40-11-128.
I can find no Tennessee case that expressly defines what is a “conservator of
the peace.” However, Black’s Law Dictionary, and cases in other jurisdictions have
done so, and Tennessee law on the duties of conservators of the peace appears to be
consistent with those definitions. Black’s Law Dictionary, 6th Ed. (1990), p. 306 defines
conservator of the peace as:
Officers authorized to preserve and maintain the public
peace. In England, these officers were locally elected by the
people until the reign of Edward III, when their appointment
was vested in the king. Their duties were to prevent and
arrest for breaches of the peace, but they had no power to
arraign and try the offender until about 1360, when this
authority was given to them by an act of parliament, and
“then they acquired the more honorable appellation of justice
of the peace.”
In Ex Parte Levy, 163 S.W.2d (1942), the Arkansas Supreme Court asks and
answers this question:
April 24, 2001
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But who and what is a conservator of the peace? Many
definitions of the term “Conservator of the peace” are to be
found under that title in Words & Phrases, and the one most
frequently given is that the term “Conservator of the peace,”
is synonymous with the term “Peace officer.” The origin of
this office and the functions of that official are there defined
as follows: “Conservator of the peace” was the name of a
common-law officer, which, prior to St. 1 Ed. iii, c. 17,
authorizing the appointment of justices of the peace, were
elected by the people. They were common law officers, and
their duties as such were to prevent and arrest for breaches
of the peace in their presence, but not to arraign and try the
offender. Smith v. Abbott, 17 N.J.L. (2 Har.) 358, 366; In re
Barker, 56 Vt. 14, 20.” Vol. 8 Words and Phrases,
Permanent Edition, page 645. [At 542]
The Mississippi Supreme Court in Martin v. State, 199 So. 98 (1940), says:
A conservator of the peace, ex vi temrini, is a person
charged with the duty of keeping the peace. In England,
prior to A.D. 1195, the duty was discharged by certain public
officers charged therewith by virtue of their offices. In A.D.
1195, under a proclamation by the king’s Justicular, there
came into existence another class of persons charged
merely with the duty of keeping the peace, who became
known as wardens or conservators of the peace. Prior to
the reign of Henry the Second, a person charged with
keeping the peace discharged that duty by preventing the
commission of crime in their presence, or arresting therefor,
when so committed. Whether this authority was conferred
by the common law or by edict of the king is by no means
clear, but beginning with and after that reign their duties
were prescribed at first, by edict of the king, and, later, by
statute. The second of the classes of conservators of the
peace were superceded by the justice of the peace who
came into existence during the reign of Edward the Third,
and they soon disappeared from the English judicial system,
so that in A.D. 1765, Lord Chief Justice Camden, in Entick v.
Carrington, 19 St. Trials, 1026, 1062, could say, “the
keeping of the peace being so completely transferred to and
so engrossed by the justices, that the name of conservator
is almost forgot.” The powers and duties of the justices of
April 24, 2001
Page 5
the peace, when acting as conservators of the peace, were
gradually enlarged by statute until they came to be about the
same as those with which are justices of the peace are now
invested. [At 100]
That case points to the fact that the constitutions of some states, as well as their
statute, denominate various officers, as “conservators of the peace: various judges,
justices of the peace, election commissioners, and apparently virtually all other civil
officers.”
The Utah Supreme Court declared in State v. Shockley, 80 P.865 (1905), that
where the state constitution made judges of the Supreme Court, district court and
justices of the peace “conservators of the peace,” that such officers had dual
responsibilities as “peace officers” and as committing magistrates. In the former
context, said the Court:
For the word “conservator” when used and associated as it
is here, has a clear and well-defined meaning. Webster
defies it as “an officer who has charge of preserving the
public peace, as a justice or sheriff.” Bouvier defines the
term as “he who hath an especial charge, by virtue of his
office, to see that the King’s peace is kept.” Bouv. L. Dict.
401. In 8 Cyc. 586, conservators of the peace are defined
as “common-law officers whose duties, as such, were to
prevent and arrest for breaches of the peace in their
presence....” [At 868]
The question of whether a county judge was a “peace officer” arose in Jones v.
State, 65 S.W. 92 (1901). Yes, held the Court of Criminal Appeals of Texas, declaring
that under the Texas Constitution, the county judge was expressly a “conservator of the
peace.” “According to the dictionaries,” declared the Court:
A conservator of the peace is an officer authorized to
preserve or maintain in the public peace. It would therefore
seem to follow that one who is authorized to preserve or
maintain the public peace is a peace officer... [At 92]
The Supreme Court of Appeals of West Virginia held in Marcuchi v. Norfolk & W.
Ry. Co., 94 S.W. 979 (1918), that under various West Virginia statutes a railroad
conductor was expressly a “conservator of the peace,” and that a conservator of the
peace had the power to “arrest without a warrant any person who in his presence shall
April 24, 2001
Page 6
engage in an affray, threaten to beat, wound, or ill, commit violence, contend with angry
words to the disturbance of the peace or appear in a state of gross intoxication in a
public place.” But, continued the Court:
...these statutes simply put into tangible and concrete form
the common-law definition of that which when done in public
constitutes a misdemeanor...To prevent or lessen the
danger a conservator has, here the common law prevails,
always possessed ample power to apprehend persons guilty
of misdemeanors where the offense was committed in his
presence in a public place.
A “conservator” is defined as one whose duty requires him to
prevent and arrest for breaches of the peace in his
presence, but not to arraign and try for them. 8 Cyc. 586.
The office was created by an act of Parliament passed in the
reign of Edward III, which ordained:
“That in every shire of the realm good men and lawful which
were no maintainers of evil nor barrators in the county,
should be assigned to keep the peace***to repress all
intention of uproar and enforce even in the first seed thereof
and before that it should grow up to any other offer of
danger.” 1 Edward III, c. 15; 2 Hale, P.C. c. 7, note 1; In re
Barker, 56 Vt. 1, 20.
Such person at first possessed no powers other than to
maintain the public peace and tranquility of the realm.
Gradually, however, their powers were enlarged in the same
reign and they came to constitute a very important agency in
the administration of local government and in 34 Edward III,
c.1, were vested for the first time with judicial powers and
were commissioned by the king. Thus it appears that the
creation of purely peace officers as conservators of the
peace who were later endowed with the right to exercise the
functions now possessed and exercised by the latter.
The authority to suppress disturbances, quell riots, and
repress the commission of offenses when publicly attempted
in the presence or view of such conservators necessarily
implies the right to intervene and intercept without the delay
incidental to the procurement of a warrant. ...There can be
April 24, 2001
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no doubt that an officer upon whom legally devolves the duty
to preserve the public peace may without a warrant
apprehend any person who is in the act of committing or has
committed a public offense in his presence, if it be a
misdemeanor, and he may sometimes also likewise arrest
for a felony not committed in his presence if he has just
cause to believe that such an offense has been recently
perpetrated... [At 980-81]
All those cases make it clear that a conservator of the peace is a “peace officer.”
Although some of those cases involve the question of whether judges who are
conservators of the peace have the power to arrest, it is clear that non-judicial
conservators of the peace do have the power of arrest in certain circumstances. Martin
v. State, above, makes an important point with respect to that power in Mississippi:
...the authority and power of a conservator of the peace with
us are such only as are defined and limited by a statute
enacted by the legislature of the state, except to arrest for
crimes committed in his presence, and authority possessed
at common law and now by statute by every person. [At 100]
[Emphasis is mine.]
The same thing appears to be true in Tennessee. Tennessee Code Annotated,
§ 40-7-101 et seq. governs the power to arrest. Tennessee Code Annotated, § 40-7109 appears to authorize the arrest by private persons under all the circumstances a
conservator of the peace has the power to arrest. For that reason, it could be argued
that the arrest powers that belong to a conservator of the peace do not as a practical
matter amount to much, and that if Tennessee Code Annotated, § 40-11-128 was given
a literal interpretation, no person in Tennessee could be a bail bondsman, every one of
them having the power to arrest.
However, there is an important distinction between the power to arrest on the
part of private persons and the power to arrest on the part of conservators of the peace:
the power in the former case reflects authority to arrest; the power in the latter case
reflects the duty to arrest.
While there is no precise definition of the term “conservator of the peace” in
either Tennessee statutes or case law, State v. Reichman, 135 Tenn. 653 (1916),
contains an excessive outline of the Tennessee sheriff’s powers as a conservator of the
peace, including the power of arrest. [See 662-664]. In outlining that list, the Court
points to pertinent statutes about the powers and duties of municipal officials who are
conservators of the peace:
April 24, 2001
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“The judicial and ministerial officers of justice in the State,
and the mayor, aldermen, marshals, and police of cities and
towns are also conservators of the peace, and required to
aid in the prevention and suppression of public offenses,
and for this purpose may act with the power of the sheriff.”
[Citing Shannon’s Code, § 6895, now Tennessee Code
Annotated, § 38-3-103.]
“It is the duty of all peace officers who know or have reason
to suspect any person of being armed with the intention of
committing a riot or affray, or of assaulting, wounding or
killing another person, or of otherwise breaking the peace, to
arrest such person forthwith and take him before some
justice of the peace.” [Citing Shannon’s Code, § 6900, now
Tennessee Code Annotated, § 38-3-108] [Emphasis is
mine.]
Speaking of the sheriff’s duties as a conservator of the peace, the Court then
makes the observation that:
He is the commander in chief of the law forces of the county.
All judicial and ministerial officers of justice and all city
officials are required to aid him, and the male population of
his county is subject to his command. [At 665] [Emphasis is
mine.]
A member of a municipal governing body is a “conservator of the peace,” a
“peace officer,” within the meaning of the above statutes and cases detailing the
powers and duties of those officers. They have the powers of the sheriff, which
obviously includes the power of arrest. Furthermore, they have the statutory, and
apparently the common law, duty to make arrests in some circumstances. Those
powers and duties bring them within the contemplation and prohibition of Tennessee
Code Annotated, § 40-11-128.
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH