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AGO 1955 No. 42 - March 18, 1955
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Don Eastvold | 1953-1956 | Attorney General of Washington


A county sheriff may permit a concession to sell tobacco, candy, etc. in a county jail where not prohibited by superior court rule from so doing.

The proceeds from the operation of a concession in a county jail are public funds and should be reported to the credit of the current expense fund.

The sheriff is not authorized to create a fund for the welfare of prisoners from the proceeds of a concession permitted to be operated in a county jail.

                                                                  - - - - - - - - - - - - - 

                                                                  March 18, 1955 

Honorable Charles O. Carroll
Prosecuting Attorney
King County
County-City Building
Seattle, Washington                                                                                                                Cite as:  AGO 55-57 No. 42

 Attention:  !ttMr. K. G. Smiles            Chief Civil Deputy

 Dear Sir:

             You have requested the opinion of this office on the following questions:

             (1) Can a county sheriff permit a private party to operate a concession to sell tobacco, candy, etc., to inmates of the county jail?

             (2) Should the fees received for the privilege of operating such a concession be deposited in the county current expense fund?

             Our answer to both questions is in the affirmative.

              [[Orig. Op. Page 2]]


             (1) We interpret our statutes to contemplate a joint duty to be discharged by various public officials in connection with the custody and supervision of prisoners in the county jail. See RCW 36.63.010, 36.63.020, and 36.63.060; AGO 1927-28, p. 360, and AGO 1951-53 No. 145 [[to John M. Leavitt, Prosecuting Attorney, Okanogan County on Oct. 3, 1951]].

             The responsibility for furnishing and maintaining a suitable jail or place of confinement is imposed upon the county commissioners.  They must provide the necessary housing, food and care for the prisoners under RCW 36.63.010.

             The sheriff has direct charge of the jail facilities and custody of the prisoners, under chapters 10.70 and 36.63 RCW.

             The judges of the superior court are authorized to prescribe rules governing the welfare of the prisoners, § 1, p. 302, Laws of 1877 (cf. RCW 36.63.060) provides in relevant part that they

             "* * * shall from time to time as they may deem necessary, prescribe in writing rules for the regulation and government of the jails of the several counties * * *" (Emphasis supplied)

             Such rules when promulgated are obligatory upon the sheriff.  SeeKohler v. Powell, 115 Ohio St. 418, 154 N.E. 340, holding that a sheriff cannot disregard rules made under an essentially similar statute.  The rules adopted by the judges of the King County Superior Court, enclosed with your letter, do not specifically cover the problem; but under Rule 12

             "The sheriff is authorized to make and enforce such additional regulations not inconsistent herewith as he may deem necessary."

             Thus, except as the judges may by rule provide, the general welfare of the prisoners is left to the sheriff.  We do not believe that a grant of permission to operate a concession such as is contemplated, under proper supervision, would be beyond the sheriff's discretion in the circumstances, or unlawful.

              [[Orig. Op. Page 3]]

            Joint consideration and cooperation among those officials charged with responsibility for the various matters pertaining to the overall administration of the jail, as has apparently been initiated by the sheriff in this case, is of course appropriate and desirable.

             (2) The sheriff would of course be authorized to make such an arrangement only by virtue of his public office.  Any sums which might be received on account thereof would thus be public funds.  RCW 36.33.010 provides that

             "Every county shall maintain a current expense fundto which shall be credited all taxes levied for that purpose andall fees collected, fines assessed, and forfeitures adjudged in the county, the proceeds of which have not been specifically allocated to any other purpose."  (Emphasis added)

             Viewing the fixed charges to be collected for the privilege of operating such a concession as county funds not specifically allocated, we believe that they should be placed in the current expense fund.  The establishment of a trust fund in the sheriff's office, although conscientiously administered and applied solely to the welfare of the prisoners, would apparently violate the quoted statute.  Some question might also arise under RCW 36.16.050, which provides in relevant part that

             "Every county officer before he enters upon the duties of his office shall furnish a bond conditioned that he will faithfully perform the duties of his office and account for and pay over all money which may come into his hands by virtue of his office * * *" (Emphasis supplied)

             The two statutes mentioned are of course designed to insure that all county funds are subjected to the regular audit and accounting procedure:  the existence of a permanent fund in the sheriff's office, rather than in the county treasury, might frustrate that purpose.

             Sums accruing to the county by reason of the concession could nonetheless be used for the welfare of the prisoners by compliance with the budget provisions  [[Orig. Op. Page 4]] of chapter 36.40 RCW.

             We conclude that the sheriff may authorize the operation of such a concession, but that any money received by virtue thereof should be placed in the current expense fund.

             In conclusion, we would like to add that we appreciate the analysis and thinking of your office on the question involved, which have been of considerable assistance to us.  We hope the foregoing conclusions will satisfactorily resolve the problem.

 Very truly yours,
Attorney General 

Assistant Attorney General

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