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AGO 1951 No. 464 - March 06, 1951
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Smith Troy | 1941-1952 | Attorney General of Washington

COUNTIES ‑- AUDITOR ‑- DEPUTY ‑- UNDER 21 YEARS OF AGE.

A person under the age of 21 who is otherwise qualified may be appointed a deputy county auditor and may perform authorized functions of the office which are ministerial in nature.

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

                                                                   March 6, 1951

Honorable Richard A. Perry
Prosecuting Attorney
Ferry County
Republic, Washington                                                                                                  Cite as:  AGO 49-51 No. 464

Dear Sir:

            Receipt is acknowledged of your letter of February 14, 1951, requesting our opinion as to the legality of hiring a person under twenty-one years of age as a deputy in the county auditor's office and whether such person could use the auditor's seal, take oaths, issue marriage licenses and/or use the seal of the office on legal documents.

            It is our conclusion that a person under twenty-one years of age may lawfully be appointed a deputy county auditor and may lawfully perform the authorized duties described above, if otherwise qualified.

                                                                     ANALYSIS

            You refer to an opinion rendered September 30, 1927, in Opinions of Attorney General, 1927-1928, at page 244, [[to C. W. Clausen, Supervisor of Municipal Corporations]]wherein the conclusion was reached that a person under the age of twenty-one could lawfully be appointed a deputy county clerk.

            In an opinion to the Prosecuting Attorney of Klickitat County, dated January 2, 1935, the above opinion was cited and was held equally applicable to the office of deputy county treasurer.

             [[Orig. Op. Page 2]]

            The reasoning of the above opinions and the cases and authorities cited therein is to the effect that, in the absence of constitutional or statutory restriction, an office or employment which is ministerial in character and in which judgment, discretion and experience are not absolutely essential, may be held by a minor.  (Copies of opinions referred to are enclosed.)

            Our statutes set forth in detail the duties and powers of county auditors and other county officers.  County officers have only such powers as have been expressly delegated to them by specific statutory language or by necessary implication therefrom.  State ex rel. Taylor v. Superior Court, 2 Wn. (2d) 575, 98 P. (2d) 985.

            In the case ofTacoma v. Peterson, 165 Wash. 461, 5 P. (2d) 1022, our Supreme Court cites with approval the following quotation:

            "'A ministerial duty is one regarding which nothing is left to discretion‑-a simple and definite duty, imposed by law, and arising under conditions admitted or proved to exist . . . .  If the duty is one that requires the exercise of judgment in its performance it is not ministerial but discretionary . . .  The ascertainment of a fact which raises the duty, or is collateral to its performance, is not such an exercise of judgment as will deprive the duty of its ministerial character . . .  If the duty imposed is itself definite and precise, the fact that the official is permitted a choice of methods or instrumentalities in discharging it will not control the classification.'"

            Whether a person is a ministerial officer depends not so much on the character of the particular act which he may be called upon to perform, or whether he exercises judgment or discretion with reference to such act, as upon the general nature and scope of the duties devolving upon him.  If these are of a ministerial character, then the person charged with their performance is undoubtedly a ministerial officer, and the courts have generally held that a county auditor is a ministerial officer.  42 Am. Jur. 900, section 29.  Thus we hold that a minor may hold the office of deputy county auditor.

             [[Orig. Op. Page 3]]

            As to the acts which you specifically enumerate, we must caution you that the line between ministerial and discretionary acts is finely drawn, as the character of a duty must be determined by the nature of the act to be performed, and not by the general nature of the office itself.  A ministerial officer may sometimes exercise discretionary powers.  43 Am. Jur. 74, section 258.

            The administration of an oath is a ministerial act.  27 W. & P. (Supp.) 53 [[27 Words and Phrases 53]].  The issuance of licenses and permits by a county under conditions laid down by legislative authority is a ministerial function.  27 W. & P. (Supp.) 57 [[27 Words and Phrases 57]].

            A ministerial act has been further described by our Supreme Court as one done under and in obedience to instructions of a superior officer or sovereign.  State v. Womack, 4 Wash. St. 19 [[4 Wash. 19]], 29 Pac. 939; People v. Hinkle, 130 Wash. 419, 227 Pac. 861.

            Therefore, the use of the auditor's seal and other functions of the office may be performed by a deputy auditor under the age of 21 where the acts are accomplished with the consent of the auditor or under his direction and control.

            We conclude that a person under the age of 21 who is otherwise qualified may be appointed a deputy county auditor and may perform authorized functions of the office which are ministerial in nature.

Very truly yours,

SMITH TROY
Attorney General

GEORGE H. HOLT
Assistant Attorney General and

Chief of Staff

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