JUDGES ‑- JUSTICE OF PEACE ‑- MUST ACCEPT APPOINTMENT AS POLICE JUDGE.
The one elected justice of the peace in a city of the third class must accept the appointment as police judge as part of the duties of his office.
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February 10, 1955
Honorable Donald H. Webster
Director, Bureau of Governmental
Research and Services
University of Washington
266 J. Allen Smith Hall
Seattle 5, Washington Cite as: AGO 55-57 No. 20
We have your letter of January 12, 1955, in which you requested an opinion as to whether a justice of the peace in a city of the third class having a population of 5,000 or more may decline to accept the appointment as police judge.
In our opinion, the elected justice of the peace in a city of the third class having a population of 5,000 or more must accept the appointment to be police judge as part of the duties of his office.
RCW 35.24.450 provides that the mayor, when making his regular appointments, shall appoint a regularly elected justice of the peace of the city as police judge. This provision has been previously construed by this office to be mandatory. 25 AGO 2. The supreme court in State ex rel. Van Moss v. Sailors, 164 Wash. 211, has held that where the mayor refused to appoint the elected justice as police judge, the justice may bring an action in quo warranto to require to do so.
In Everett v. Johnson, 37 Wn. (2d) 505, the court citing State ex rel. Evans v. Superior Court, 92 Wash. 375, said that:
[[Orig. Op. Page 2]]
"* * * all the duties performed by a police judge are done in his capacity as a justice of the peace, * * * In that case we said:
" 'But the fundamental error in the position assumed by respondents is that they seem to conceive that the office of justice of the peace, and police justice are two offices, the one held at the suffrage of the people, the other at the will of the appointing power.
"'There is but one office, that of justice of the peace. * * *'"
It would appear from the foregoing language that the office of justice of the peace includes that of police judge when the appointment is made. The legislature is expressly empowered by Article IV, § 10, of the Constitution (28th Amendment), to
"* * * prescribe by law the powers, duties and jurisdiction of justices of the peace; * * *" (Emphasis supplied)
If there is only one justice of the peace in the city then it follows that the duties of police judge and justice of the peace have all been attached to the single office‑-justice of the peace. Therefore, since he is the only elected justice in the city, he must accept the appointment as part of the duties of the office to which he was elected.
Very truly yours,
EDWARD M. LANE
Assistant Attorney General