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AGO 1959 No. 29 - April 16, 1959
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John J. O'Connell | 1957-1968 | Attorney General of Washington

OFFICES AND OFFICERS - COUNTY - SHERIFF - AUTHORITY TO BE APPOINTED DEPUTY SHERIFF IN AN ADJOINING COUNTY AND RECEIVE COMPENSATION FOR HIS WORK WHILE STILL SHERIFF - RESIDENCE REQUIREMENT OF DEPUTY SHERIFF.

(1) A deputy sheriff with a regular commission must be a resident of the county in which he holds such commission.

(2) An elected sheriff may not be appointed a regular deputy sheriff in another county; if he is so appointed he is a de facto officer and is not entitled to compensation from the appointing authority.

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

                                                                   April 16, 1959

Honorable Wayne Roethler
Prosecuting Attorney
Cowlitz County Court House
Kelso, Washington                                                                                                           Cite as:  AGO 59-60 No. 29

Attention:  Mr. Richard Norman, Deputy

Dear Sir:

            This is in answer to your request for the opinion of this office on the following questions:

            (1) May an elected sheriff who was defeated for re election be appointed a regular deputy sheriff in another county for the remainder of his unexpired term?  If so, may he receive payment as part-time extra help from the appointing county when he is receiving the regular salary as sheriff in his own county?

            (2) Must a deputy sheriff, with a regular commission, be a resident of the county in which he holds said commission?

            We answer your first question in the negative and your second question in the affirmative.

                                                                     ANALYSIS

            The office of sheriff is one of the oldest offices known to the common law jurisprudence.  A clear statement of the significance of the office of sheriff within  [[Orig. Op. Page 2]] the county, both historically and under present statutes, is found in 1 Anderson on Sheriffs, Coroners and Constables, § 6, p. 5, as follows:

            ". . . In the exercise of executive and administrative functions, in conserving the public peace, in vindicating the law, and in preserving the rights of the government, he (the sheriff) represents the sovereignty of the State and he has no superior in his county. . . ."

            In addition, Anderson states as follows:

            ". . . It is not only the power, but the duty, of sheriffs in their various jurisdictions to preserve the peace, enforce the laws and arrest and commit to jail felons and other infractors of statutory or common law, and to execute all process to him directed and attend upon the trial courts of record and to preserve peace and quiet, to execute and carry out the mandates, orders and directions of the courts.

            "He (the sheriff) may and is bound ex officio to pursue and take all traitors, murderers, felons, and other misdoers and commit them to gaol for safe custody.  He is also to defend his country against any of its enemies, when they come into the land; and for this purpose, as well as for keeping the peace or pursuing felons, he may command all of the people of his county to attend him; . . . When a situation arises calling therefor it becomes the sheriff's right, and it is his duty, to determine what the public safety and tranquillity demand, and to act accordingly. . . ."

            The office of sheriff in this jurisdiction was created by § 5, Article XI, as amended by the Twelfth Amendment, which provides, in part, as follows:

            "The legislature, by general and uniform laws, shall provide for the election in the several counties of boards of county commissioners, sheriffs, county clerks, treasurers, prosecuting attorneys and other county, township or precinct and district officers, as public convenience may require, and shall prescribe their duties, and fix their terms of office:  . . ."

            RCW 36.28.010 prescribes the general duties of the sheriff as follows:

            "The sheriff is thechief executive officer and conservator of the peace of the county.  In the execution of his office, he and his deputies:

             [[Orig. Op. Page 3]]

            "(1) Shall arrest and commit to prison all persons who break the peace, or attempt to break it, and all persons guilty of public offenses;

            "(2) Shall defend the county against those who, by riot or otherwise, endanger the public peace or safety;

            "(3) Shall execute the process and orders of the courts of justice or judicial officers, when delivered for that purpose, according to law;

            "(4) Shall execute all warrants delivered for that purpose by other public officers, according to the provisions of particular statutes;

            "(5) Shall attend the sessions of the courts of record held within the county, and obey their lawful orders or directions;

            "(6) Shall make complaint of all violations of the criminal law which shall come to their knowledge within their jurisdiction;

            "(7) May call to their aid such persons or power of their county as they deem necessary to keep and preserve the peace of the county and quiet and suppress all affrays, riots, unlawful assemblies, and insurrections, and to apprehend or secure any person for felony or breach of the peace.

            "The county is not responsible for the acts of the sheriff."  (Emphasis supplied.)

            In addition, RCW 36.16.030 requires that certain enumerated county officers, including the sheriff, be elected from among the qualified voters of the county.

            RCW 36.16.070 provides for the appointment of deputies as follows:

            "In all cases where the duties of any county office are greater than can be performed by the person elected to fill it, the officer may employ deputies and other necessary employees with the consent of the board of county commissioners.  The board shall fix their compensation and shall require what deputies shall give bond and the amount of bond required from each.  The sureties on deputies' bonds must be approved by the board and the premium therefor is a county expense.

             [[Orig. Op. Page 4]]

            "A deputy may perform any act which his principal is authorized to perform.  The officer appointing a deputy or other employee shall be responsible for the acts of his appointees upon his official bond and may revoke each appointment at pleasure."

            RCW 36.28.020 sets forth the powers of deputies as follows:

            "Every deputy sheriff shall possess all the power, and may perform any of the duties, prescribed by law to be performed by the sheriff, and shall serve or execute, according to law, all process, writs, precepts, and orders, issued by lawful authority.

            "Persons may also be deputed by the sheriff in writing to do particular acts; including the service of process in civil or criminal cases, and the sheriff shall be responsible on his official bond for their default or misconduct."

            Thus, it is clear from the foregoing statutes that a deputy sheriff possesses all the powers and duties of the sheriff and is authorized to act in his name and stead.

            In the recent case ofState ex rel. Day v. King County, 50 Wn. (2d) 427, 312 P. (2d) 637, the court reaffirmed the case of Carter v. King County, 120 Wash. 536, 208 Pac. 5, which held that a deputy sheriff is not a servant of the county but a public officer.  47 Am. Jur., § 154, page 930.  The general rule is stated in 1 Anderson on Sheriffs, Coroners and Constables, § 78, as follows:

            "In the eyes of the law the sheriff or constable and his deputy are one officer. . . . A deputy is usually defined as one who, by appointment, exercises an office in another's right. . . ."

            This office has ruled consistently in the past that one person can hold two offices and receive compensation for each where the offices are not incompatible.  See our opinions of March 1, 1941, and July 3, 1941, to the division of municipal corporations.  To the same general effect, see the opinion of November 19, 1943, to the director of health and one dated February 8, 1945, to State Senator Alfred J. Hansen.  Accordingly, the question which must be resolved is whether the two offices in question are incompatible.  In an opinion of this office dated October 19, 1927, to the prosecuting attorney of Island County (No. 1895) [[1927-28 OAG 269]], this office was concerned with whether the offices of court commissioner and deputy sheriff were incompatible and whether compensation could be paid for both offices.  In that opinion we state as follows:

             [[Orig. Op. Page 5]]

            "There being no constitutional or statutory inhibition, the question is whether or not incompatibility at common law exists between these two positions.

            "We have uniformly held the rule against the occupancy of incompatible offices to be applicable to deputies as well as principal officers especially where by statute the deputy is vested with all powers and duties devolved upon his superior.  Section 4167, Rem. Comp. Stat., provides:

            "'Every deputy sheriff shall possess all the power, and may perform any of the duties, prescribed by law to be performed by the sheriff.'

            ". . .

            "Incompatibility between offices depends upon whether one is subordinate to the other and whether the duties of the two are inherently inconsistent with regard to the public interest.  State ex rel. Crawford v. Anderson, 136 N.W. 128 (Iowa).  It does not depend on physical inability to discharge the duties of both, but on the character and relation of the offices; whether the functions of the two are inherently consistent or repugnant.  State ex rel. Young v. Hays, 117 N.W. 615 (Minn.) . . ."

            That opinion concluded that the offices in question were incompatible and compensation could not be paid for both offices.

            In the absence of any constitutional or other statutory prohibition against the duly elected sheriff of one county holding office as a deputy sheriff of another county, the question remains whether incompatibility exists at common law between the two offices.

            The general test of incompatibility is set forth in 42 Am. Jur., Public Officers, § 70, page 936, as follows:

            ". . . Incompatibility of offices exists where there is a conflict in the duties of the offices, so that the performance of the duties of the one interferes with the performance of the duties of the other.  This something more than a physical impossibility to discharge the duties of both offices at the same time.  They are generally considered incompatible where such duties and functions are inherently inconsistent and repugnant so that, because of the contrariety and antagonism which would result from the attempt of one person to discharge faithfully, impartially, and efficiently the duties of both offices,  [[Orig. Op. Page 6]] considerations of public policy render it improper for an incumbent to retain both.  It is not an essential element of incompatibility of offices at common law that the clash of duty should exist in all or in the greater part of the official functions. . . . It is immaterial on the question of incompatibility that the party need not and probably will not undertake to act in both offices at the same time.  The admitted necessity of such a course is the strongest proof of the incompatibility of the two offices. . . ."

            The rule is stated as follows in the recent case of Kennett v. Levine, 50 Wn. (2d) 212, 216, 310 P. (2d) 244:

            "The offices are incompatible when the nature and duties of the offices are such as to render it improper, from consideration of public policy, for one person to retain both.  [Citing cases.]  Or, as was said inBarkley v. Stockdell (1933), 252 Ky. 1, 66 S.W. (2d) 43:

            "'The question [of incompatibility] is . . . whether the functions of the two are inherently inconsistent or repugnant, or whether the occupancy of both offices is detrimental to the public interest.'"  (Emphasis supplied.)

            In view of the specific enumerated duties set forth in RCW 36.28.010,supra, and the common-law duties which were in existence at the time our constitution was adopted, the sheriff of a county is, for all practical purposes, on duty twenty-four hours a day; he must be available at all times to carry out the duties and functions imposed upon him by virtue of this office.  We think it is clear from the foregoing discussion that one individual could not be the elected sheriff of one county and a regularly appointed deputy sheriff in another county and still be available to carry out his duties to each county at one and the same time, and accordingly the occupancy of both offices is detrimental to the public interest.

            There is an additional reason, however, why a sheriff cannot be a deputy sheriff in an adjoining county and it involves the consideration of your second question concerning the residence of deputy sheriffs.  Although there is no specific provision in chapter 36.28 RCW requiring that deputy sheriffs as well as the sheriff be residents of the county, we think that such is the rule.  Some states apparently have statutes which specifically require that a deputy sheriff must be a qualified elector of the county where he is a deputy.  It has been held, however, that even in the absence of such a statutory provision, where the law requires the sheriff to be a qualified elector and empowers him to appoint  [[Orig. Op. Page 7]] deputies for whose acts he shall be responsible, the deputy must also be a qualified elector.  State v. Nichols, 63 So. 1025, 106 Miss. 419; People ex rel. Andrus v. Champlain Auditors, 37 N.Y. Supp. 633, 16 Misc. 92; 80 C.J.S. § 24.

            In theAndrus case, supra, the court was concerned with whether or not, in the absence of a specific statutory provision, a person appointed deputy sheriff had to be a resident of the county in which he was appointed.  Other pertinent statutes required that sheriffs be residents of the county or city in which their duties were to be performed and authorized the sheriff to appoint such deputies as were required and gave the deputies authority to perform all the duties and functions of the sheriff.  All of the New York statutes are in essence the same as the pertinent Washington statutes.  The court then quoted from the statute pertaining to vacancies in public offices as follows:

            "'Sec. 34.  Every office shall become vacant on the happening of either of the following events before the expiration of the term of such office.  * * * (4) His ceasing to be an inhabitant of the state, or, if the office be local, of the district, county, town or city for which he shall have been chosen or appointed, or within which the duties of his office are required to be discharged.'"  (p. 635)

            The court then stated:

            ". . . It can hardly be argued, I think, with any degree of force, since a sheriff must, of necessity, under the law, be a resident of the county in which he is sheriff, that he may appoint deputies residing in other counties throughout the state, who may exercise all the functions of the sheriff himself, both civil and criminal.  This idea is so repugnant to our understanding of the intention of the law to make local officers residents of the locality in which they officiate, that without a special statute giving authority to the sheriff to establish deputies, to discharge his duties, resident all outside of the limits of his county, I think the court must hold that there is no ground, in reason or analogy, upon which to base the suggestion of such absolute and unreasonable power.  I find no provision of the statute authorizing or creating any such power in the sheriff, and every statute on the subject is opposed to the idea that any such power exists in the sheriff. . . ." (p. 635)

            The pertinent statute in Washington which is comparable to § 34,supra, is RCW 42.12.010, which provides as follows:

            "Every office shall become vacant on the happening of either of the following events before the expiration of the term of such officer. . . . fourth, his ceasing to be  [[Orig. Op. Page 8]] an inhabitant of the district, county, town or village for which he shall have been elected or appointed, or within which the duties of his office are to be discharged; . . ."

            TheAndrus case was subsequently cited in Isereau v. State, 139 N.Y.S. (2d) 739, 743, 207 Misc. 665 (1954), as authority for the proposition that the sheriff is a local officer and the fact that he acts through his deputies is immaterial since of necessity he must act through them and he and they are considered to be one and the same officer.

            A contrary result was reached in Rehmel v. Muscatine County, 154 N.W. 596, 172 Iowa 455, L.R.A. 1916 B. 897, but the decision was based upon an unusual factual situation arising out of a two-year strike in Muscatine County.  The court upheld the appointment by the sheriff of nonresidents, stating that they had no friends to serve or enemies to punish in the administration of the law and no concern over the outcome of the controversy.

            We find the reasoning of the court in the Andrus case more persuasive however and in the absence of any additional authorities to the contrary, we conclude that a deputy sheriff must be a resident of the county in which he is appointed.

            Accordingly, the fact that the sheriff may have been on vacation from his own county during the time he served as deputy sheriff in the adjoining county would not change the answer since he could not be a resident of both counties at the same time.

            Having thus established that the two offices in question are incompatible, and that the sheriff was ineligible to be appointed as deputy sheriff in another county, such appointment made him at most a de facto officer.

            A de facto deputy sheriff is defined in 80 C.J.S., Sheriffs and Constables, § 28, as follows:

            "One who is actually acting as a deputy sheriff or constable under color or right is such officer de facto, although the statutory requisites of appointment have not been complied with, as where the appointment is not in writing, or not under seal, filed, or confirmed by the judge of a particular court, or where the appointment contains limitations which are void.  Likewise,one acting a deputy is a de facto officer notwithstanding he is ineligible, or has failed to take, or file, the requisite oath, or has failed to give, or sign the necessary bond. . . ." (Emphasis supplied.)

            The question then remains as to whether or not the individual in question is entitled to his compensation for his services rendered as a de facto officer.   [[Orig. Op. Page 9]] The weight of authority is to the effect that a de facto officer cannot maintain an action to recover the salary, fees or emoluments attached to the office even though he has performed the duties thereof.  It is stated in 2 Anderson on Sheriffs, Coroners and Constables, § 724, page 687, as follows:

            "Where one holds the office of sheriff or constable when he is ineligible or disqualified so to do, he not only cannot collect compensation or expenses laid out in the discharge of his official duties, either from the public treasury, or from an individual litigant, but he is a trespasser in the execution of process and may, in each case, be sued for, and mulcted in damages by those on, or against whom he executes process.  Whenever a public officer proffers against a state, county or city a claim for compensation for official services, he puts his title to the office in issue, and must stand or fall by the result of that inquiry."

            See the Annotation in 93 A.L.R. 258; 151 A.L.R. 952, for a general discussion of the right of a de facto officer to salary or other compensation, fees, etc.

            The only case in this jurisdiction involving the payment of the salary of a de facto officer isSamuels v. Harrington, 43 Wash. 603, 86 Pac. 1071.  The court there held that as a matter of public policy a municipality which pays the salary of a de facto officer will not be liable to the de jure officer for such salary.  However, that case is not authority for the proposition that a de facto officer is entitled to the compensation attached to the office.

            The Annotation in 151 A.L.R. previously cited, cites the case ofWarnock v. Marysville, 17 Wn. (2d) 515, 136 P. (2d) 188, as authority in this jurisdiction that a de facto officer is not entitled to the compensation attached to the office even though he has performed the duties thereof.  However, it appears from the facts of that case that the individual in question was not a de facto officer since he had been discharged by the mayor prior to the time he obtained an injunction restraining the town from interfering with him in the performance of his duties.

            Accordingly, it is the opinion of this office that a de facto deputy sheriff is not entitled to receive compensation from the appointing county while he is a duly elected and qualified sheriff of another county.

            In view of the fact that we have previously answered your second question, no further discussion appears necessary.  However, we wish to call to your attention Initiative 23 providing civil service for sheriffs' deputies and employees, which became effective on December 4, 1958.  Section 10 of that act provides as follows:

            "An applicant for a position of any kind under civil service, must be a citizen of the United States andan elector of the  [[Orig. Op. Page 10]]county in which he resides, who can read and write the English language, and must have been a resident of the state for at least one year."  (Emphasis supplied.)

            We think it is clear both from the provisions of § 10 and the other provisions found in the initiative that the only residence requirement is that an applicant for any position in the sheriff's office must be a resident of the state and an elector of the county in which he is then residing.  Such a requirement is not inconsistent with our previous ruling that the deputy sheriff must be a resident of the county where he is appointed, and so there is no change in the residence qualification.

            In answer to your second question, therefore, an applicant for the office of deputy sheriff with a regular commission must be a resident of the county in which he would hold said commission.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

JANE DOWDLE SMITH
Assistant Attorney General

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