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Unofficial Opinion 95-14

Unofficial Opinion 95-14

July 17, 1995
To: 

County Attorney
Forsyth County

Re: 

Forsyth County did not establish a county police force when it created a county marshal's office in 1985 and, therefore, the county governing authority must comply with the requirements of O.C.G.A. § 36-8-1(b) before creating a county police force.

You have asked for my opinion on whether Forsyth County, by its action in creating a county marshal's office in 1985, created a county police force, thereby rendering inapplicable O.C.G.A. § 36-8-1(b), which requires a referendum before a county governing authority may create a county police force. It is my unofficial opinion that Forsyth County did not establish a county police force when it created a county marshal's office in 1985 and, therefore, must comply with the requirements of O.C.G.A. § 36-8-1(b) before creating a county police force.

Official Code of Georgia Annotated § 36-8-1(b) provides, in pertinent part, that:

(1) Each county governing authority may authorize, through proper resolution or ordinance, the creation of a county police force. No resolution or ordinance adopted pursuant to this paragraph shall become effective until the governing authority of the county has submitted to the qualified electors of the county the question of whether the resolution or ordinance shall be approved or rejected. . . .

Official Code of Georgia Annotated § 36-8-1(c), however, states that: "The provisions of subsection (b) shall not apply to any county which has created a county police force prior to January

1, 1992, which county police force remains in existence and operational." (Emphasis added.)

Thus, the question is whether a marshal's office is the same as a county police force; or, stated a different way, whether a marshal is the same as a county police officer.

The term "marshal" is not defined under Georgia law, and the only express statutory reference to marshals is in O.C.G.A. § 15-10-100, the title of which is "Appointment of constables; compensation; chief constable." The relevant portion of that statute, although enacted in 1991, indicates that a marshal is, in fact, a constable, the difference being that a constable is appointed by a chief magistrate, whereas a marshal is employed or appointed by the governing authority of a county in order "to perform the duties of constables." O.C.G.A. § 15-10-100(c.1)(1). Earlier opinions of the Attorney General support that proposition. See 1983 Op. Att'y Gen. U83-13 (equating powers and duties of marshals and constables for purposes of the State Indemnification Act); 1982 Op. Att'y Gen. 82-45 (referring to marshals and constables as "personnel of courts of limited jurisdiction").

Further, I note that the Forsyth County Board of Commissioners, in its July 10, 1985 letter appointing the first County Marshal (Exhibit 4 to your letter), clearly seemed to indicate that its newly-appointed marshal would be part of the Magistrate Court's personnel:

The purpose of the office of Forsyth County Marshal is to afford the means to enforce its ordinances which presently have no such means. . . . Again, as we have discussed, the methods by which we intend to enforce ordinances will begin with the diss[emination] of information, assistance, encouragement, persuasion, warning, citation, and prosecution in the Magistrate Court in the order listed.

Additionally, although O.C.G.A. § 15-10-100(c.1)(3) mandates that a person employed or appointed as a marshal must meet the requirements of Chapter 8 of Title 35 (relating to certified peace officers), O.C.G.A. § 15-10-100(c.1)(2) expressly limits the scope of a marshal's powers and authority:

No person employed or appointed as a marshal pursuant to paragraph (1) of this subsection [i.e., employed or appointed as a marshal by the governing authority of a county] shall exercise any of the powers or authority which are by law vested in the office of sheriff or any other peace officer, including the power of arrest, except as may be authorized by law.

The scope of a constable's powers and authority is similarly limited by statute. See O.C.G.A. § 15-10-103 ("Constables shall exercise the power of arrest only with a warrant or at the direction of and in the presence of a magistrate or the judge of another court"); O.C.G.A. § 15-10-102 (powers and duties of constables). There are numerous opinions of the Attorney General which hold that constables possess only those limited powers conferred upon them by statute, that they do not have general police powers, and that they are not charged with a general duty to enforce the criminal laws of this state. See, e.g., Ops. Att'y Gen. 69-214; 69-217; U87-21; U83-13; U78-30; U75-17. Of course, a county and, thus, its agencies and departments, "may exercise only powers that are expressly given or necessarily implied from the express grant of other powers." Twiggs County v. Atlanta Gas Light Co., 262 Ga. 276, 277 (1992), citing Dekalb County v. Atlanta Gas Light Co., 228 Ga. 512, 513 (1972) and Ga. Const 1983, Art. IX, Sec. I, Para. I (1994).

In contrast, O.C.G.A. § 36-8-5 provides that county police officers have:

(1) The same power to make arrests and to execute and return criminal warrants and processes in the county of their election or appointment only, as sheriffs have; and

(2) All the powers of sheriffs as peace officers in the county of their election or appointment.

See also 1969 Ga. Laws 875-76 (former O.C.G.A. § 15-17-17), repealed by 1983 Ga. Laws 884, 992 § 4-2, effective July 1, 1983, providing that "Constables shall not hold themselves out to the public as State police or county police or use the name 'State Police' or 'County Police' on their automobiles or any other property;" and Ops. Att'y Gen. 69-214; 69-217; U78-30; U75-17 (interpreting that statute and its predecessor, Ga. Code Ann. § 24-823).

Based on the foregoing authority, it is my unofficial opinion that a county marshal's office is not equivalent to a county police force and, therefore, Forsyth County did not establish a county police force when it created a county marshal's office in 1985. Consequently, the county governing authority must comply with the requirements of O.C.G.A. § 36-8-1(b) before creating a county police force.

Prepared by:

MATTHEW P. STONE
Assistant Attorney General