SHERIFF'S DUTIES REGARDING ANIMALS RUNNING AT LARGE AS PUBLIC NUISANCES.
Sheriff may cause animals running at large, which are not under the care of a herder, to be transported to the nearest community livestock sales yard even though the nearest such yard is in another county.
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March 31, 1952
Honorable Robert C. Conner
Prosecuting Attorney of Chelan County
Wenatchee, Washington Cite as: AGO 51-53 No. 275
Attention: !ttJon H. Phelps, Deputy,Prosecuting Attorney
This is in response to your recent inquiry which was stated as follows:
"Chapter 31, Laws of 1951, provides that it shall be unlawful for the owner of any horse, etc., to permit such animal to run at large and not under the care of a herder. The act provides the sheriff may impound such animal, cause it to be transported to and impounded at the nearest community livestock sales yard.
"May the Sheriff of Chelan County impound said animals found running at large in Chelan County in the Community Sales Yard of a town outside of this county, cause the animal to be there inspected, and if unclaimed, sold at such yard, where no Community Sales Yard exists in this county?
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"This situation would require the Sheriff here to have these animals transported 50 to 60 miles away to the Okanogan or Ephrata Community Livestock Sales Yard, and he has grave doubts as to the legality of his taking such action outside of this county."
You are advised that it is the opinion of this office that the sheriff upon taking custody of any such animal should "cause it to be transported to and impounded at the nearest community livestock sales yard" even though it is located in another county.
It is noted that the only duties of the sheriff prescribed in the act are stated in §§ 2 and 3 as follows:
"Any horse, mule or ass running at large in violation of section 1 of this chapter is declared to be a public nuisance, and shall be impounded by the sheriff of the county where found.
"Upon taking custody of any animal, the sheriff shall cause it to be transported to and impounded at the nearest community livestock sales yard licensed under chapter 16.64 RCW. The sheriff shall forthwith notify the nearest brand inspector of the department of agriculture, who shall examine the animal and by brand, tatoo (tattoo) or other identifying characteristic, shall attempt to ascertain the ownership thereof."
It is realized that it is somewhat unusual and contrary to the general rule for a sheriff to act in his official capacity outside of his county, even to the limited extent provided herein, although there are other instances in which it is done; e.g., transportation of prisoners. However, it seems quite clear that the legislature is clearly possessed with the power to provide for the sheriff to act in a prescribed official capacity outside of his county, and we are not aware of any specific provision in our Constitution or principle of constitutional law that would prevent it. A general statement dealing with the authority of a sheriff to act outside of his county is given in § 29, 47 Am.Jur. 842, where the common law rule is stated to be that "the acts of an officer outside [[Orig. Op. Page 3]] of his county or bailiwick are unofficial and necessarily void unless expressly or impliedly authorized by some statute," and reference is made to cases from other states and text authority which we find agree with this statement. We believe it is apparent that the statute has authorized such action under these circumstances. From these considerations it seems to follow that where the legislature has specifically provided a duty for a sheriff to perform which may require him to act in his official capacity in another county, he may do so.
You may be interested to know that, as a practical solution to the problem, the Department of Agriculture has advised us that upon being informed of the presence of such an animal by your sheriff, their brand inspectors would be most happy to cooperate with the sheriff in causing the animal to be transported to the nearest community livestock sale yard to be there properly disposed of. We are also advised that a State Brand Inspector is a resident of Wenatchee.
Very truly yours,
WILLIAM C. KLEIN
Assistant Attorney General