The Honorable Michael K. Davis State Representative Rt. 1, Box 190B Ravenden Springs, Arkansas 72460-9707

Dear Representative Davis:

This is in response to your request for an opinion on whether it is legal for a non-resident to be appointed town marshal by the mayor and town council in an incorporated town. You note that over the years, the mayor and town council have appointed several town marshals, and that to your knowledge, the office of marshal has never been an elected position. You also note that A.C.A. §14-45-110 appears to give the town council the authority to require the marshal to reside within the corporate limits, or outside the corporate limits. Currently, you indicate that the council has appointed a marshal who resides across the state line in Missouri.

It is my opinion that a non-resident may not be appointed town marshal for two reasons.

First, the mayor and the town council of incorporated towns in the State of Arkansas do not have the authority to appoint a town marshal. As stated in Clark v. Mahan, 268 Ark. 37, 594 S.W.2d 7 (1980), "[t]here has been no legislation granting authority to an incorporated town to provide for the appointment of a town marshal. He must be elected. A town is not required to have a marshal but if it does he must be elected." 268 Ark. at 42. Seealso A.C.A. § 14-45-109. The law has not changed since the rendering of this decision.

Second, Article 19, § 3 of the Arkansas Constitution provides that "[n]o persons shall be elected to or appointed to fill a vacancy in any office who does not possess the qualifications of an elector." This article has been interpreted to require a marshal's residence in the town he serves. Thomas v. Sitton,213 Ark. 816, 212 S.W.2d 710 (1948). The statute you cite, therefore, (A.C.A. § 14-45-110), which allows a marshal of an incorporated town to reside outside the city, is constitutionally suspect in this regard.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elana L. Cunningham.

Sincerely,

WINSTON BRYANT Attorney General

WB:cyh