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AGO 1956 No. 316 - September 17, 1956
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Don Eastvold | 1953-1956 | Attorney General of Washington

ARREST AND BAIL ‑- DUTY OF SHERIFF TO SERVE WARRANT ISSUED BY COMMITTING MAGISTRATE FROM ANOTHER COUNTY WITH OR WITHOUT BAIL ENDORSED ON THE WARRANT

A sheriff has the duty of serving a warrant issued by a committing magistrate sitting in another county.  If the warrant does not have the amount of bail endorsed on its face the sheriff may request the same to be done; otherwise, he must serve the same.

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

                                                              September 17, 1956

Honorable Paul A. Klasen, Jr.
Prosecuting Attorney
Grant County
Ephrata, Washington

                                                                                                              Cite as:  AGO 55-57 No. 316

Attention:  Mr. Gary Box, Deputy

Dear Sir:

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

            Where a justice of the peace in one county issues a felony warrant valid upon its face, is it mandatory for a sheriff of another county, having the warrant in his possession, to arrest the defendant although no bail has been set in the case?

            We answer your question in the affirmative as qualified in the following analysis.

                                                                     ANALYSIS

            The statutes involved in this question are in pertinent part as follows:

            RCW 36.28.010

            "The sheriff . . . and his deputies:

             [[Orig. Op. Page 2]]

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

            RCW 10.16.020

            "If it appears that any offense has been committed of which the superior court has exclusive jurisdiction, the magistrate shall issue a warrant reciting the substance of the accusation, and requiring the officer to whom it is directed, forthwith to take the person accused and bring him before the person issuing the warrant, . . ."

            RCW 10.16.030

            "If the offense is bailable, the magistrate before whom the accused person is brought, at the request of such person, with or without examination, may allow him to furnish a bond, with sufficient sureties, to be approved by the magistrate, conditioned for his appearance in the superior court having jurisdiction of the offense."

            RCW 10.16.070

            "If it appears that a bailable offense has been committed, the magistrate shall order the defendant to furnish a bond, with sufficient sureties, for his appearance in the superior court, to answer the charge.  If the defendant does not do so, or if the offense be not bailable, the magistrate shall commit him to jail."

            RCW 10.07.070

                        "FORM OF A WARRANT OF ARREST

            "State of Washington, !tt)

"County of       ,            ) ss.

"To the sheriff or any constable of said county:

            "Whereas, A B has this day complained in writing under oath to the undersigned, one of the justices of the peace in and for said county, that on the        day of      , 19      , at      , in said county (here insert the substance of the complaint, whatever it may be), THEREFORE, in the name of the state of  [[Orig. Op. Page 3]] Washington, you are commanded forthwith to apprehend the said C D, and bring him before me, to be dealt with according to law.

            "Given under my hand this        day of      , 19      .

                        "J.P., Justice of the Peace."

            RCW 10.19.020

            "At the time of directing the clerk to issue the warrant the court must fix the amount in which persons charged by indictment or information are to be held to bail, and the clerk must indorse the amount on the warrant.  If no order fixing the amount of bail has been made, the sheriff may present the warrant to the judge of the court, and the judge must thereon indorse the amount of bail to be required; or if there is no such judge in the county, the clerk may fix the amount of bail."

            For purposes of clarity, we shall divide the above question into three parts:  (1) Whether the justice of the peace of one county may have the sheriff of another county serve a felony warrant issued by said justice; (2) whether such act of service is compulsory upon said sheriff, and (3) whether the absence on the face of the warrant of a bail figure affects the validity of the warrant.

            The first portion of the question has been answered in the opinion of the attorney general to the King County prosecuting attorney dated January 16, 1946.  We quote the last paragraph of that opinion:

            "To summarize, we advise you that when a justice of the peace issues a warrant based on a felony charge, his only jurisdiction in so doing is based on the fact that he is acting, not as a justice of the peace, but as a committing magistrate, and that this warrant can be served in any county of the state by either the sheriff of the county of issuance or by the sheriff of the county in which the arrest is to be effected in view of the decision in Nadeau v. Conn [142 Wash. 243], that Rem.Rev.Stat. 1949 and 1950 must be read together."

            In answer to the second portion of the question, we again refer to the heretofore mentioned opinion and quote, to-wit:

             [[Orig. Op. Page 4]]

            "Since a superior court warrant can be served in any county of the state, predicated, we assume, on the fact that the superior court has jurisdiction of felonies, and since a justice of the peace when sitting as a magistrate can only issue a warrant for the commission of a felony, the jurisdiction of the justice of the peace when sitting as a committing magistrate is coextensive with the jurisdiction of the superior court."

            RCW 36.28.010, in defining the duties of a sheriff, states in part:

            ". . . In the execution of his office, he and his deputies:

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

            Since a justice of the peace when sitting as a committing magistrate in a felony proceeding has statewide jurisdiction to issue a warrant, it necessarily follows that the sheriff of each county within the state has the duty to serve such a warrant in compliance with § 3 of RCW 36.28.010.

            Neither RCW 10.16.020, which grants a committing magistrate power to issue warrants in offenses within the exclusive jurisdiction of the superior court, nor RCW 10.07.070, which sets out the statutory form and contents of a warrant, make necessary the mention of a bail figure on the face of the warrant.

            RCW 10.16.030 and RCW 10.16.070 both refer to posting of bail, but the wording of the statutes suggests that they both pertain to setting bail on the actual appearance of the accused before the committing magistrate and do not refer to the inclusion in the contents of the warrant of a bail figure.

            RCW 10.19.020 states that the court must, at the time of issuing the warrant, fix the amount of bail on the face of the warrant.  This apparent mandatory language in the first sentence is rendered nonobligatory by the second sentence which states the sheriff serving the warrant may request the court issuing the warrant to state a bail figure on the face of the warrant.  This, we believe, means the sheriff may serve the warrant without a bail figure on its face, or before serving it, require a bail figure to be placed on the face of the warrant.  The court must upon the sheriff's request order bail to be set and endorsed upon the warrant.  If the sheriff does not request bail to be endorsed upon the warrant, he must serve the warrant as it stands.

             [[Orig. Op. Page 5]]

            We hope this opinion will be of service to you.

Very truly yours,

DON EASTVOLD
Attorney General


CLYDE A. BARNARD
Assistant Attorney General

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