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AGO 1958 No. 188 - May 05, 1958
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John J. O'Connell | 1957-1968 | Attorney General of Washington

JUSTICES OF THE PEACE ‑- DETERMINATION OF NUMBER IN CITIES OF OVER 5,000.

The constitutional provision for electing salaried justices of the peace in cities of over 5,000 is self-executing; and the county auditor or the board of county commissioners has the power to determine when a city has attained a population of 5,000 entitling it to elect a salaried justice of the peace at the next regular election subject to review by the courts in a proper proceeding.

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                                                                    May 5, 1958

Honorable Perry B. Woodall
State Senator, 15th District
Box 507
Toppenish, Washington                                                                                      Cite as:  AGO 57-58 No. 188

Dear Sir:

            We acknowledge receipt of your request for an opinion of this office on a question which we paraphrase as follows:

            Can the population of a city be determined to be 5,000 or more by any method other than the last federal census for the purpose of providing for the election of one salaried justice of the peace who must be an attorney, instead of two fee justices of the peace?

            Your question is answered in the affirmative.

                                                                     ANALYSIS

            Although your question involves the means of determining population, it is to be noted that upon such a determination, a number of other results automatically follow.  When a city has been determined to have a population of 5,000 and not more than 30,000, only one justice of the peace is to be elected (RCW 3.12.021); he must be an attorney (RCW 3.12.080); and he receives a salary (RCW 3.16.002) instead of being compensated on a fee basis.  Since salary is involved  [[Orig. Op. Page 2]] it is pertinent to note that the justice of the peace's salary is paid by the county (RCW 3.16.008).

            We quote pertinent portions of the following constitutional and statutory provisions applicable to your question.

            "The legislature shall determine the number of justices of the peace to be elected . . . In incorporated cities or towns having more than five thousand inhabitants, the justices of the peace shall receive such salary as may be provided by law, . . ."  (Article IV, § 10, State Constitution, Amendment 28.)

            "The number of justices of the peace to be elected in cities having a population of five thousand or more, according to the last census, shall be as follows: Five thousand to thirty thousand, one; . . . "  (RCW 3.12.021)

            "The salaries of justices of the peace in cities having a population of five thousand but less than twenty thousand shall be two thousand four hundred dollars each per annum, and such justices of the peace may engage in private practice of law:  Provided, That the county commissioners shall have the power to raise the salaries of such justices of the peace to an amount not to exceed three thousand six hundred dollars each per annum."  (RCW 3.16.002)

            The two statutes quoted above, although codified in different chapters, were adopted as part of the same act in 1951.  (See chapter 153, Laws of 1951.)  In interpreting similar statutory provisions relating to justices of the peace, the court has always impliedly recognized that the provisions governing the number to be elected and the salaries they are to receive are to be interpreted together.  When a city is determined to have a population in excess of 5,000, only one justice of the peace is to be elected, and he receives the salary due the office.  State ex rel. Williams v. Brooks, 58 Wash. 648; Ogden v. Chehalis County, 41 Wash. 45;State ex rel. Elwood v. Lovering, 78 Wash. 624.  Thus, the provision relating to a determination "according to the last census" for the purpose of ascertaining the number to be elected also applies to a determination for the purpose of ascertaining salary.

             [[Orig. Op. Page 3]]

            The essential question then is whether or not the statutory provision for a determination of population "according to the last census" places a limitation on the means and manner of determination.

            First, let us consider what is meant by "the last census."  This could refer to one of three means presently provided for determining population: That of the state census board (chapter 43.62 RCW); or the state or federal census referred to in our State Constitution (Article II, § 3).

            Initially, we point out that while the constitution makes provision for a state census, it is a matter of judicial knowledge that no such census has ever been taken.  Article II, § 3, State Constitution; DeGrief v. Seattle, 50 Wn. (2d) 1.  Thus, legislature could not have intended to refer to the state census provided for in the constitution when it referred to "the last census" in RCW 3.12.021.

            Next for consideration as a means of determining the population is the state census board.  The state census board is limited in its scope of authority in determining population to the specific act creating it, or by reference in some other act adopting its determination.  The act (chapter 175, Laws of 1957) specifically applies to the distribution of liquor revenues (§§ 6 through 8, RCW 43.66.090 through 43.66.110); the motor vehicle fund (§§ 10 and 11, RCW 46.68.100 and 46.68.110); and the motor vehicle excise tax fund (§ 12, RCW 82.44.150).

            Our search has revealed at least one instance in which the determination of population by the state census board is used as the basis for classification in establishing a municipal court (chapter 290, Laws of 1955, chapter 35.20 RCW).

            InDeGrief v. Seattle, supra, our supreme court held that the term "state census" as used in a statute relating to municipal courts referred to the census made by the state census board.  However, there was specific reference to the state census board in the act being interpreted.  There is no such reference in the act under consideration, and the basic act dealing with the state census board clearly limits the purpose of the census to its use as a basis for the allocation of certain funds to cities and towns.  Thus, it is our opinion that the legislature did not intend to refer to the census made by the state census board when it referred to "the last census" in RCW 3.12.021.

            This conclusion requires us to overrule a previous opinion of this office (AGO 53-55 No. 142 [[to R. S. Campbell, Prosecuting Attorney, Grant County on October 5, 1953]]) holding such a census to be controlling in determining the number 53-55 No. 142) holding such a census to be controlling in determining the number of justices of the peace to be elected under RCW 3.12.021.

            Consequently, the census referred to in the act can, under the circumstances, have reference only to the federal census which was last taken in 1950.  In order  [[Orig. Op. Page 4]] to determine whether or not the federal census is the exclusive means of determining population, resort must be had to our supreme court's construction of Article IV, § 10, of the State Constitution.

            InAnderson v. Whatcom Co., 15 Wash. 47, a justice of the peace sought to recover the salary provided by law for a justice of the peace in a city having a population in excess of 5,000.  The statute then in effect provided that justices of the peace in incorporated cities and towns of the third class having more than five thousand inhabitants, "as shown by the last state or federal census," shall receive an annual salary of twelve hundred dollars.  The city had been incorporated after the last federal census was taken and no state census had been taken.  The court held that the constitutional provision was self-executing and required no implementing legislation.  In holding that the court might take evidence and determine the population of the city, the court stated at page 52:

            "In this instance the enactment of the legislature might absolutely destroy the right conferred by the constitution.  The legislature has not seen fit to provide for the state census, so that under the statute law as it exists the only means of ascertainment of the population of the city is the federal census, which is taken only every ten years.  It might very reasonably occur that a city which did not have quite the requisite five thousand population at the time of the taking of the federal census in 1890 might within six months or a year have the requisite population, and yet this fact could not receive a judicial determination or announcement for the period of nine or ten years, so that, if the law should receive this construction, its effect would be to destroy or limit the right which the constitution gave. . . ."

            In the case ofState ex rel. Cornell v. Smith, 155 Wash. 422, 433, the court referred toAnderson v. Whatcom Co., supra, and stated:

            "The case is authority for the proposition that the act of the legislature referred to does not make the last state or Federal census an exclusive criterion by which the population of a town shall be determined for the purpose of ascertaining whether or not a justice of the peace therein shall receive an annual salary or fees. . . ."

            We conclude, therefore, that the federal census provided for in RCW 3.12.021 is not the exclusive method for determining the population of a city under the constitutional provision (Article IV, § 10).

             [[Orig. Op. Page 5]]

            From the decisions of our supreme court, we draw the following conclusions:

            (1) That a city reaches a population of more than 5,000 does not ipso facto work a change in the tenure of office of a justice of the peace previously elected or a change in his compensation.  There must be some official determination that the city has a population in excess of 5,000 prior to the election.  State ex rel. Williams v. Brooks, supra.

            (2) Such official determination may be made by the court in a proper proceeding.  Anderson v. Whatcom Co., supra; State ex rel. Williams v. Brooks, supra; see alsoState ex rel. Smith v. Neal, 25 Wash. 264.

            (3) The city itself may not determine the population for the purpose of determining the number of justices of the peace to be elected or their salaries.  State ex rel. Elwood v. Lovering, supra.

            Previous decisions of our court indicate that the county auditor or the county commissioners might make such an official determination.  InState ex rel. Williams v. Brooks, supra, our supreme court stated at page 651:

            ". . . We must presume, also, that the fact that Puyallup had more than 5,000 inhabitants was not determined by the county auditor; for in performing his official duty in preparing the ballots for the November, 1908, election, he proceeded upon the assumption that there were to be elected in the city two justices of the peace, and so instructed the voters.  This was a part of his official duty under sections 4891, 4893, Rem. & Bal. Code.  We mention this since it might be held that the county auditor could officially determine that the city had more than 5,000 inhabitants, if not otherwise officially determined, incident to his duty in calling elections and in instructing the voters how many justices were to be elected. . . . "

            The language of the court is dicta but it nonetheless implies that the county auditor might make such a determination for the purpose of ascertaining the number of justices to be elected, subject to review by the courts.

            Since the county commissioners must pay the salary attached to the office and must budget the same, it would appear that the board of county commissioners might properly make such a determination, subject to review by the court.  State ex rel. Smith v. Neal, supra.

             [[Orig. Op. Page 6]]

            In our opinion, the county auditor or the board of commissioners has the power to determine when a city has attained a population of 5,000 entitling it to elect a salaried justice of the peace, but such a determination can only be effective at the end of a regular term, and is subject to review by the courts in a proper proceeding.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

MITCHELL DOUMIT
Assistant Attorney General

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