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AGO 1959 No. 47 - June 25, 1959
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John J. O'Connell | 1957-1968 | Attorney General of Washington


(1) For violations of the motor vehicle code which constitute gross misdemeanors, a justice of the peace can impose both fine and imprisonment.

(2) A person previously convicted of operating a vehicle while under the influence of intoxicants under the provisions of a city ordinance may not be charged as a second offender under the state motor vehicle code.

(3) A justice of the peace may not impose a sentence suspended by another justice of the peace within the same county during the term of suspension.

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

                                                                   June 25, 1959

Honorable Gordon L. Walgren
Prosecuting Attorney
Kitsap County
245 Fourth Street Building
Bremerton, Washington                                                                                        Cite as:  AGO 59-60 No. 47

Attention:  William H. Fraser, Deputy

Dear Sir:

            By letter previously acknowledged you have solicited our opinion on three questions which we paraphrase as follows:

            1.  May a justice of the peace impose both a jail sentenceand a fine upon conviction of a violation of the motor vehicle code (Title 46 RCW), other than driving while intoxicated or driving in violation of the state safety and financial responsibility acts?

            2.  May a person previously convicted of operating a vehicle while under the influence of intoxicants or drugs under the provisions of a city ordinance be properly charged as a second offender under RCW 46.56.010?

            3.  May a justice of the peace impose a sentence suspended by another justice of the peace within the same county during the term of suspension?

             [[Orig. Op. Page 2]]

            We answer question number one in the affirmative, as qualified in the analysis, and questions two and three in the negative.


            Your first question is evidently prompted by an apparent conflict between RCW 3.20.040 and RCW 46.08.190.  The former provides as follows:

            "Justices of the peace shall have jurisdiction concurrent with the superior courts of all misdemeanors and gross misdemeanors committed in or which may be tried in their respective counties: Provided, That justices of the peace in cities of the first class shall in no event impose greater punishment than a fine of five hundred dollars, or imprisonment in the county jail for six months; and justices of the peace other than those elected in cities of the first class shall in no event impose greater punishment than a fine of one hundred dollars, or imprisonment in the county jail for thirty days."

            RCW 46.08.190 provides as follows:

            "Every justice of the peace and police court judge shall haveconcurrent jurisdiction with superior court judges of the state for all violations of the provisions of this title and may impose any punishment provided therefor."  (Emphasis supplied.)

            Clearly, there is an inconsistency between these two sections.  RCW 3.20.040 is a general statute governing the jurisdiction of justices of the peace.  The power to impose penalties and punishment is quite restricted as compared with the powers of the superior court.  RCW 46.08.190 purports to give justices of the peace the same power to impose punishment and penalties as that of the superior court for violations of the motor vehicle code.  Our supreme court has repeatedly relied on the rule that the special act controls over the general when the two are inconsistent.  SeeState ex rel. Sherman v. Benson, 111 Wash. 124, 189 Pac. 1000 (1920);State v. Becker, 39 Wn. (2d) 94, 234 P. (2d) 897 (1951);State v. Davis, 48 Wn. (2d) 513, 294 P. (2d) 934 (1956).  It would appear, therefore,that for violations of the traffic code, justices of the peace have the same power to punish or penalize as do superior court judges.  Complete analysis requires inquiry into this power.

            For certain driving offenses particular penalties are expressly set out in the code, and are, of course, controlling on the jurisdiction of the superior  [[Orig. Op. Page 3]] court to impose the provided penalties.  Where no particular penalty is provided by the traffic code, jurisdiction of the superior court is limited only by the general statutes providing the punishment for misdemeanors or gross misdemeanors.  RCW 9.92.030 provides:

            "Every person convicted of a misdemeanor for which no punishment is prescribed by any statute in force at the time of conviction and sentence, shall be punished by imprisonment in the county jail for not more than ninety days,or by a fine of not more than two hundred and fifty dollars."  (Emphasis supplied.)

            RCW 9.01.090 provides:

            "Whenever the performance of any act is prohibited by any statute, and no penalty for the violation of such statute is imposed, the committing of such act shall be a misdemeanor."

            Obviously, the foregoing statutory sections limit the penalties for misdemeanors and prohibited acts not expressly classified as misdemeanors, gross misdemeanors or felonies to a fine of not more than two hundred and fifty dollars,or imprisonment in a county jail for not more than ninety days.  The use of the disjunctive "or" is considered controlling and limits the penalty power for misdemeanors to a fine or, in the alternative, incarceration.  For those activities prohibited by the traffic code which do not provide a classification of the crime involved, or those which identify a particular prohibited activity as a misdemeanor, we conclude that the penalty can be either a fine or imprisonment, but not both.

            RCW 9.92.020 provides:

            "Every person convicted of a gross misdemeanor for which no punishment is prescribed in any statute in force at the time of conviction and sentence, shall be punished by imprisonment in the county jail for not more than one year, or by a fine of not more than one thousand dollars, or by both."  (Emphasis supplied.)

            For gross misdemeanors coming under this statute, we conclude that both fine and imprisonment can be imposed.  The language "or both" is susceptible to no other conclusion.

            We conclude, then, that justice courts may impose both a fine and imprisonment when the motor vehicle code provides for both, or when a  [[Orig. Op. Page 4]] particular offense is identified as a gross misdemeanor by said code without a provision setting out the appropriate penalties.

            This conclusion should not be construed as support for the proposition that justice courts have concurrent jurisdiction with superior courts for the felonies provided in the traffic code.  Under the reasoning ofState v. Schaffer, 31 Wash. 305, 71 Pac. 1088 (1903), andMoore v. Perrott, 2 Wash. 1, 3 Pac. 195 (1891), the legislature is without authority to grant jurisdiction to justice courts over any matters within theoriginal jurisdiction of the superior court.  See Article IV, § 6, of the state constitution.  The grant of concurrent jurisdiction should be construed as limited to what the legislature could constitutionally extend to the justice courts.  Sutherland Statutory Construction, Third Edition, Volume 2, § 4509, p. 326.

            Your second question has been answered in a previous opinion of the attorney general.  See an opinion dated July 20, 1955 to the Honorable John Panesko, Prosecuting Attorney of Lewis County, (AGO 55-57 No. 118), a copy of which is attached hereto.  Page 4 of that opinion reads in part as follows:

            "Prior convictions for the purposes of involving the increased penalties of the act are limited to convictions under the laws of this state."

            Although the specific question dealt with in the cited opinion was whether convictions from other states could be considered, we feel that the issue raised by your question is analogous.  InState v. Tucker, 137 Wash. 162, 167, 242 Pac. 363, 246 Pac. 758 (1926), in considering whether prosecution under a city ordinance is a bar to prosecution under the state law for the same act, the court said:

            ". . . it is generally held that an act may be in violation of both the state law and municipal ordinance; that it constitutes separate offenses, and the acquittal or conviction for the violation of one is not a bar to a subsequent prosecution for the violation of the other."

            Section 3, chapter 393, Laws of 1955 (cf. RCW 46.56.010) which provides for increased penalties for subsequent convictions for driving while intoxicated, provides in part as follows:

            "Upon the . . . conviction for the violation of provisionsof this section. . ." (Emphasis supplied.)

             [[Orig. Op. Page 5]]


            ". . . Upon any subsequent conviction for a violation of the provisionsof this section. . ." (Emphasis supplied.)

            Literal interpretation of the language "this section" in the light ofState v. Tucker, supra, compels the conclusion that the legislature did not intend consideration of any convictions except those under state law.

            We have considered the possible application of section 2, chapter 393, Laws of 1955 (cf. RCW 46.52.100) which provides in part:

            "It shall be the duty of the officer, prosecuting attorney orcity attorney signing the charge or information in any case involving a charge of driving under the influence of intoxicating liquor or any narcotic drug immediately to make request to the director of licenses for an abstract of convictions and forfeitures which the director shall furnish."  (Emphasis supplied.)

            Thereafter follows a recital of language similar to that contained in section 2, providing for increased penalties for driving while intoxicated.  An argument can be made that by including city attorneys the legislature intended that municipal convictions should be treated the same as convictions under state law.  The most that can be said for this argument is that it creates an ambiguity between the two sections.  That being the case, the rule of strict construction of penal statutes in favor of the accused is applicable.  SeeState v. Thompson, 38 Wn. (2d) 774, 232 P. (2d) 87 (1951).  On this basis we have concluded that only convictions under the motor vehicle code may be considered in determining applicability of the increased penalty provisions provided in the traffic code.

            Your third question concerning whether a justice of the peace may impose a sentence suspended by another justice of the peace during the period of suspension is resolved by a determination of whether the several justices of the peace in a given county are one court or separate courts, since if each justice of the peace constitutes a separate court the second justice of the peace is without jurisdiction to impose sentence.  24 C.J.S. 19, § 1559,Jurisdiction, sets out the jurisdictional requirements for a court to impose sentence in the following language:

            "In order that a sentence be valid it is essential that the court pronouncing it be an existing one, lawfully constituted, lawfully in session at the time of rendition, with jurisdiction over the person and the crime with which he is charged, . . ."

             [[Orig. Op. Page 6]]

            The court must then have jurisdiction over the "crime charged."  Unless the court is the one in which the complaint was filed it has no jurisdiction over the person for the crime charged.  We have discovered no authorities directly in point, but are persuaded that no other court can acquire jurisdiction over a person whose sentence has been suspended for the same offense without running into the double jeopardy clause of the state and federal constitutions.  As previously indicated then, the question is whether the various justice courts in one county or one precinct are one or separate courts.

            RCW 9.92.060 provides for suspension of sentence in criminal matters in part as follows:

            "Whenever any person shall be convicted of any crime except murder, burglary in the first degree, arson in the first degree, robbery, carnal knowledge of a female child under the age of ten years, or rape, the court may in its discretion, at the time of imposing sentence upon such person, direct that such sentence be stayed and suspended until otherwise ordered by such court, . . ." (Emphasis supplied.)

            A literal interpretation of the underscored words above supplements our conclusion that other courts would be without jurisdiction to revoke a suspended sentence.

            State ex rel. Graham v. Willey, 168 Wash. 340, 12 P. (2d) 393 (1932) holds that Rem. Comp. Stat. § 2280, (now RCW 9.92.060) above quoted, applies to justice courts and controls their power to suspend sentences.

            RCW 3.12.080 relates to the exchange of services by justices in first class cities.  One can act for the other on written request.  In addition, every justice of the peace must keep a separate docket.  See RCW 3.04.110.  RCW 3.04.130 provides for transfer of all cases to the nearest justice of the peace within the precinct in the case of vacancy of the justice of peace office.  In the case ofState ex rel. Pac. Coast Adjust. Co. v. Taggart, 159 Wash. 201, 205, 292 Pac. 741 (1930), it was said:

            "There is no court apart from the officer designated as the justice of the peace.  A cause is entitled in the superior court without regard to the personnel of the judge, but it is not sufficient to entitle a cause in the justice court of a precinct without naming the particular officer."

             [[Orig. Op. Page 7]]

            It is apparent from the foregoing that justices of the peace are each separate courts, even with reference to other justices of the peace in the same precinct.  Therefore, one justice of the peace cannot revoke a suspended sentence given by another justice of the peace because of the language of the statute governing who may revoke, and because of the double jeopardy provisions of the state and federal constitutions.

            We trust the foregoing will be of assistance.

Very truly yours,

Attorney General

Assistant Attorney General

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