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AGO 1956 No. 256 -
Attorney General Don Eastvold


1. Bail must be set individually.2. Amount of bail may not be set by police officers.3. Prisoner may not be held without recourse to bail.4. Limitation of telephone calls by one in custody.5. City attorney may sign complaints without facts.6. Only cities over 300,000 required have night courts.7. No requirement to bond chief of police.
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                                                                    May 1, 1956 

Honorable Neil J. Hoff
State Senator, 27th District
Sixth Floor, Rust Building
Tacoma, Washington                                                                                                              Cite as:  AGO 55-57 No. 256

 Dear Sir:

            By letter of March 13, 1956, previously acknowledged, you have requested our opinion on certain procedural problems affecting arrest and bail.

             1. Does the law allow a justice of the peace or municipal police judge to set up a schedule of bail which can legally be posted at the jail for use by the police department when a person is arrested?

             2. Can the individual police officer determine the size of the bail?

             3. Can a person arrested for a misdemeanor be held incommunicado and without recourse to bail?

             4. Can the police department limit the number of calls a person can make upon arrest?

              [[Orig. Op. Page 2]]

            5. It is customary in the City of Tacoma for the city attorney to sign all or most of the complaints and this is done after the arrest has been made.  Is he exceeding his authority when he admits that he engages in this practice without knowledge of the facts surrounding the case?

             6. Can one or all of the justices of the peace be required to serve as night magistrate?

             7. Can the city be forced to bond its chief of police on other than an indemnity bond?

             We answer questions 1 through 3 in the negative; question 4 and 5 in the negative as qualified in the analysis; and questions 6 and 7 in the negative.


             1, 2. The statutory provisions with respect to fixing bail and receiving the same clearly show that the function is judicial.  There is no provision in our law authorizing the delegation of this authority.  It is clear from a reading of the statutes that the justice or committing magistrate shall fix the amount of the bail in each case.

             RCW 10.19.010 provides:

             "Every person charged with an offense, except that of murder in the first degree where the proof is evident or the presumption great, may be bailed by sufficient sureties.  The amount of bail in each case shall be determined by the court in its discretion and may from time to time be increased or decreased as circumstances may justify."

             RCW 10.04.040 provides:

              [[Orig. Op. Page 3]]

            "Justices of the peace or committing magistrates may accept money as bail for the appearance of persons charged with bailable offenses, and for the appearance of witnesses in all cases in which the recognizance of witnesses is required.  The amount of such bail or recognizance in each case shall be determined by the court in its discretion, and may from time to time be increased or decreased as circumstances may justify.  The money must be received and accounted for in the same manner as provided by law for the superior courts."

             We refer you further to two attorney general opinions on this subject, one to the prosecuting attorney of Lewis County, December 20, 1923, and the other to the prosecuting attorney of King County, June 21, 1945, both of which hold that police officers may not set bail from a schedule prepared or approved in advance by a justice of the peace.  Copies of the same are enclosed.

             3. While we realize that there may be some merit in the practice of holding a person arrested for a misdemeanor incommunicado for a period of four hours when intoxication is involved, there is no foundation for so doing in the law.  On the other hand, there are decisions stating that a person arrested without a warrant may not be restrained for a period longer than reasonably necessary to obtain a proper warrant.  Housman v. Byrne, 9 Wn. (2d) 560.  In Runnels v. United States, 138 F. (2d) 346, at page 347, we find the following unequivocal statement:

             ". . .  While Washington appears to have no statute on the subject, in that state, as elsewhere in this country, it is the duty of a peace officer who has effected an arrest without a warrant promptly to take the person before a magistrate.  This directive is not something which the officer is free to comply with or ignore according as he may think the exigencies of the situation demand; it is a fundamental imperative designed to safeguard the individual in a free land against the arbitrary exercise of power."

              [[Orig. Op. Page 4]]

            4. The police department has no authority to refuse a person arrested the use of a telephone to contact his attorney and a bail bondsman.  However, reasonable rules and regulations may be established and enforced for the maintenance of good order in jails.  To allow unlimited telephoning could possibly constitute an abuse of such reasonable rules and regulations.

             5. Prosecutions for violations of ordinances of cities of the first class may be instituted "upon complaint of any person."  (RCW 35.22.500).  Commenting on similar provisions in the justice court code (RCW 10.04.010) which provides that "on complaint in writing before a justice of the peace charging" a crime, our supreme court, in State v. Strickland, 146 Wash. 632, stated that such a complaint "may be made by any person."  It would seem, however, that there is a moral, even though no legal, obligation on the prosecutor signing the complaint to know something about the evidence on which he prefers the charge.

             Prosecutions for violations of city ordinances are among those duties generally committed by law to the control and supervision of the city attorney.  Considerable latitude in the exercise of this power and the immunity attached thereto is pointed out inAnderson v. Manley, 181 Wash. 327, in which a demurrer to a malicious prosecution action against a prosecuting attorney was sustained.

             We are of the opinion that the city attorney of a first class city may sign complaints for violations of the ordinance of his city based on such information as he may deem sufficient to justify him in so doing.  Even though the legality of the procedure cited may not be open to question, the propriety of initiating actions in this manner is open to criticism and is not to be recommended as good practice.

             6. RCW 3.24.010 provides for establishment of a night court in cities having a population in excess of three hundred thousand.  County commissioners have only such powers as have been granted them expressly by the constitution and statutes or necessarily implied therefrom.  State ex rel. King County v. Superior Court, 33 Wn. (2d) 76.  We conclude that the legislature intended county commissioners to  [[Orig. Op. Page 5]] have the power to appoint a judge of a night court only in cities meeting the population requirement set out in the statute.

             7. Considering the matter of the bonding of police chiefs, we find no statutory provisions which would force a city of the first class to bond its police chief.  We conclude that the matter is one which should be taken care of by city ordinance, if there is felt a necessity therefor.

             We hope this opinion will be of help to you.

 Very truly yours,
Attorney General 

Assistant Attorney General