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HARRIATT v. LILLO

June 2, 1978

Wylie HARRIATT, Jr., Plaintiff,
v.
Dominick LILLO et al., Defendants



The opinion of the court was delivered by: BIUNNO

 Alan C. Higgs, a constable by virtue of his appointment by the City of Plainfield, has served the Union County District Court under annual appointment by the Presiding Judge of that court since 1961.

 On or about February 20, 1976, he executed a Warrant for Possession issued by the Union County District Court in landlord/tenant summary dispossess proceedings in which Dominick and Julia Tattoli (lessors) were plaintiffs and Wylie Harriatt, Jr. (tenant) was defendant.

 As a consequence of his removal from possession, Harriatt filed a pro se complaint in this court under the Civil Rights Act, 42 U.S.C. sec. 1981, et seq. naming as defendants the lessors who brought this dispossess action, their realty agent (Croucher), their attorney (Weissman), the Linden Chief of Police (Lillo), and other parties, including the constable, Higgs, who executed the warrant. The complaint was filed March 29, 1976, in forma pauperis. On April 28, 1976, Judge Stern appointed an attorney for Harriatt, and on April 14, 1977, with leave of the court, an amended complaint was filed.

 An answer to the original complaint, with cross-claims against the other defendants, was filed on behalf of Constable Higgs by the Union County Counsel on June 16, 1976, as was an answer to this amended complaint on May 17, 1977.

 On March 1, 1978, Union County Counsel filed a notice of motion for an order relieving that office of any duty to further represent Constable Higgs, notice being served on him, and he appeared pro se for the purpose of the motion only.

 The motion is grounded on the proposition that Higgs' appointment is by the City of Plainfield and the Presiding Judge of the Union County District Court; that he is not an employee since he receives no salary or wage from the City, County or State, but is compensated for his services solely from fees allowed by law to constables, which fees are charged to parties in the proceedings in which they serve. A letter opinion from Deputy Attorney General Abbotts to the Administrative Office of the Courts, under date of July 29, 1977, is relied on to support the motion.

 With due regard and respect to the view of the Deputy Attorney General, it is plain to the Court that in the execution of the Warrant of Possession, Constable Higgs was acting as an officer of the Union County Court, and not as an "independent contractor". The motion to be relieved will accordingly be denied.

 The confusion that has arisen in this regard is no doubt attributable to the fact that since the end of World War II and the adoption of New Jersey's third constitution soon thereafter, the training of lawyers for practice in New Jersey has almost entirely ignored the fact that New Jersey is a common law state, and that the common law of England still prevails, except as modified by constitution or statute.

 The basic rule is preserved by all three of New Jersey's constitutions, with which few lawyers are familiar today although free copies are available for the asking from the Secretary of State. See, N.J. Const. 1776, Art. XXII ; N.J. CONST. 1844, Art. X, sec. 1; N.J.Const.1947, Art. XI, sec. 1, par. 3.

 The office of constable is said to be of ancient origin. One author observes that it is questioned whether this office existed in England before the statute of Westminster enacted in the thirteenth year of Edward I, while others assert that it is of Norman origin and was introduced to England by William (The Conqueror), citing 1 Blackstone 356, and other references. See Anderson on "Sheriffs, Coroners and Constables", sec. 3 (Dennis & Co., Buffalo, 1941). The same author traces the name itself to the French term "comestable", derived in turn from the Latin "comes stabuli". Idem. sec. 4. *fn1"

 In New Jersey, the office was inherited along with the common law, later modified by statute. As observed by Susskind, "New Jersey Constables" (Soney & Sage, 1937), at p. 1:

 
"Today, in New Jersey, constables though elected in cities and towns, have jurisdiction throughout the county in which they are elected." (Emphasis added)

 The statute law today is essentially the same. N.J.S.A. 40A:9-120, which provides for the appointment of constables by municipal governing bodies, still states that they "may exercise their functions and perform their duties anywhere in ...


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