Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1953 No. 177 -
Attorney General Don Eastvold


It is our opinion that the justice court district act (RCW 3.14.010 and RCW 3.14.030) is an unconstitutional delegation of legislative power, both as it relates to the determination of the number of justices of the peace to be elected and to the qualifications of candidates for such office.  It also violates Amendment 21 of the state constitution relating to uniformity in county government.

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                                                                December 3, 1953

Honorable Charles O. Carroll
Prosecuting Attorney
King County
County City Building
Seattle 4, Washington                                                                                                              Cite as:  AGO 53-55 No. 177

Dear Sir:

            By letter as previously acknowledged you have requested the opinion of this office upon the constitutionality of the justice court district act.  In our opinion RCW 3.14.010 and RCW 3.14.030 1953 Supp. are unconstitutional; both as unlawful delegations of legislative power and as violative of the 21st amendment to the Washington constitution relating to uniformity in county government.


            At the outset, a question arises as to the policy to be followed by this office in issuing legal opinions.  The validity of a statute has been challenged.  It is  [[Orig. Op. Page 2]] generally conceded that one of the inherent duties of the office of attorney general is to uphold and defend the validity of laws enacted by the legislature.  But that general duty must give way to the more specific duty imposed upon the office by RCW 43.10.030 (4) and (5); to render impartial opinions for state officials and prosecuting attorneys, upon constitutional or legal questions.  We cannot decline to consider the problem.

            RCW 3.14.010 establishes a justice court district committee in each county.  Each committee must meet before January 1, 1954, to group those precincts in its county which lie outside cities of five thousand or more population into justice court districts.  The districts must be established in accordance with the findings and recommendations of the committee.  RCW 3.14.020 provides that one justice of the peace shall be elected for each justice court district in November, 1954.  Thus, the committee is empowered, in fact, to determine the number of justices to be elected in the county.

            RCW 3.14.030 provides that candidates for justice of the peace in justice court districts must be either attorneys at law duly admitted to practice, or persons whose qualifications are approved by the justice court committee.  The committee is, therefore, empowered to determine the qualifications of non-attorney [[nonattorney]]candidates for justice of the peace.

            Amendment 28 to the state constitution provides in part:

            "The legislature shall determine the number of justices of the peace to be elected and shall prescribe by law the powers, duties and jurisdiction of justices of the peace; * * *" (Emphasis supplied)

            It is clear that the committee, under RCW 3.14.010, is to exercise the very power which is vested in the legislature by the language emphasized in the above quotation.  The first question is whether or not the legislature has unlawfully delegated that power.

            It is a fundamental rule of constitutional law that powers expressly vested in the legislature by the constitution, as well as those powers which are by nature inherently legislative, cannot be delegated to non-legislative [[nonlegislative]]bodies.  1 Cooley's Constitutional Limitations (8th ed.) 224, and authorities cited.  There are three well-defined exceptions to this rule:

             [[Orig. Op. Page 3]]

            1. Legislative power of a purely local nature may be delegated to political subdivisions created for local self-government.  Maricopa Co. Municipal Water Cons. Dist. No. 1 v. LaPrade, 45 Arizona 61 [[45 Ariz. 61]], 40 P. (2d) 94;Efird v. Board of Com'r's. Forsyth Co., 219 N.C. 96, 12 S.E. (2d) 889, 893;State ex rel. Williams v. Sawyer Co. Board of Supervisors, 140 Wis. 634, 123 N.W. 248; DeSilvia v. State, 229 S.W. 542 (Tex. Crim. App.).

            2. Legislatures may delegate power to executive or administrative officials to determine the details of, and to establish rules for the execution of a general legislative plan.  U.S. v. Rock Royal Cooperative, 307 U.S. 533 (1939); Senior Citizens League v. Department of Social Security, 38 Wn. (2d) 142, 153, 228 P. (2d) 478; Home Owner's Loan Corp. v. Rawson, 196 Wash. 548, 559, 83 P. (2d) 765;State v. Gilroy, 37 Wn. (2d) 41, 45, 221 P. (2d) 549;State v. Miles, 5 Wn. (2d) 322, 325, 105 P. (2d) 51, and many cases cited.  But the legislature must state its purpose, and establish standards by which the purpose is to be achieved, so that the limits of the power delegated are clear.

            3. Legislatures may confer upon other bodies the power to determine the existence of facts upon which the application of the legislative act is made to depend.  Again, it is essential that the legislature establish the standard by which the fact-finding body is to be guided.  Panama Ref. Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446;Schechter Poultry Corp. v. U.S., 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570;Senior Citizens League v. Department of Social Security, supra; State ex rel. Washington Toll Bridge Authority v. Yelle, 195 Wash. 636, 643, 82 P. (2d) 120 and cases cited.

            The delegation of power to fix the number of justices of the peace does not fall within any of these exceptions.  The committee is not a political subdivision, within the first exception.  Nor can the statute fall within the other two exceptions, because it contains no hint of any standard by which the committee is to be guided.

            Furthermore, with respect to the creation of inferior courts, it is the rule in this state that where such power is expressly vested by the constitution, it cannot be exercised in any manner other than that specifically pointed out.  SeeIn re Cloherty, 2 Wash. 137, where the court in discussing the power to create inferior courts under Article IV, § 1 of the constitution said:

             [[Orig. Op. Page 4]]

            "* * * the power conferred upon the legislature to create inferior courts is not one of its original, inherent powers as the supreme legislative body of the state, which can be delegated by it, but is a delegated power which must be exercised in the manner pointed out, and cannot be again delegated.  * * *"

            See, also,Vesta Mills v. Charleston, 60 S.C. 1, 38 S.E. 226;People v. Aptake, 25 N.Y.S. (2d) 950; State ex rel. Cherrington v. Hutsinpiller, 112 Ohio St. 468, 147 N.E. 647;Efird v. Bd. of Com'r's. Forsyth Co., supra, p. 893;Russell St. Bank of Russell v. Steinle, 159 Kan. 293, 153 P. (2d) 906, 909;State v. Adams, 90 Tenn. 722, 18 S.W. 393;State ex rel. Williams v. Sawyer Co. Board of Supervisors, supra, p. 248;De Silvia v. State, supra, p. 543; Durham Provisions Co. v. Daves, 189 N.C. 7, 128 S.E. 593.  See, also, 16 C.J.S. 339, § 133 "Delegation of Powers,"  Rottschaefer on Constitutional Law, p. 72, "Delegation of Powers."

            The cases cited above are closely analogous to the factual situation here, and some are directly in point, even including the pertinent language of the constitutional provisions involved.  In de Silva v. State, supra, the court considered the applicability of the exception mentioned above in favor of vesting in political subdivisions legislative power over matters of purely local concern.  The court held flatly that the exception was not broad enough to "embrace the right of the legislature to delegate its authority to control the organization of [inferior] courts specially committed to it.  [Citing cases and authorities]."

            In Efird v. Commissioners, supra, the North Carolina court held directly contrary.  It permitted a legislative delegation of the power to abolish county courts, to the board of county commissioners.  The exception relating to local selfgovernment was applied, and the court held specifically that the absence of a standard of guidance was not material on the question of constitutionality.  This case is contrary to the weight of authority on the validity of legislative delegation of the power to create or abolish inferior courts.

            It has long been the law in Washington that each election precinct may have "one or more justices of the peace."  (RCW 3.04.010.)  The city council in first class cities and the boards of county commissioners in counties have had the power to create new precincts where more than three hundred votes were cast at a single voting place.  (RCW 29.04.040.)  This, of course, has  [[Orig. Op. Page 5]] made it possible for those two inferior legislative bodies to exercise the power to create justice courts indirectly.  We find no evidence that the old system was ever subjected to judicial scrutiny.  Whether the existence of that system is an implied recognition of the local self-government exception to the rule of nondelegability we are not prepared to say.  It should be noted, however, that the weight of authority is to the contrary.

            Except for the Efird case, supra, the cited authorities establish the rule that where the constitution expressly vests in the legislature the power to create inferior courts, it cannot delegate that power either with or without standards of guidance.  RCW 3.14.010 1953 Supp. attempts to delegate to the various justice court district committees the power to determine the number of justice courts to be created outside cities of 5,000 or more population.  This is the equivalent of the power to determine the number of justices of the peace to be elected in the county.  That power is expressly vested in the legislature by Amendment 28 to the constitution, and cannot be delegated in the manner here prescribed.  We believe that the attempted delegation of legislative power renders that provision unconstitutional.

            The second question relates to the delegation of power to fix the qualifications of non-attorney candidates for justice of the peace.  This power is not expressly vested in the legislature by the constitution; but the rule is well established that the fixing of qualifications for candidates for public office, where those qualifications are not defined by the constitution, is a legislative function, 67 C.J.S. § 11 "Officers."  Heck v. Hall, 238 Ala. 274, 190 So. 280;In re Opinion of the Justices, 303 Mass. 631, 22 N.E. (2d) 49 lawpoint (29), 123 A.L.R. 199; Application of O'Connor, 43 N.Y.S. (2d) 412, 180 Misc. 630;State ex rel. Braverman v. Vitullo, 150 Ohio St. 289, 82 N.E. (2d) 92.

            The question is again one of the validity of the delegation of legislative power, and the rules set forth above are applicable.  RCW 3.14.030, provides as follows:

            "Justices of the peace of justice court districts shall be attorneys at law duly admitted to practice in this or any other state, or may be any person who, upon filing his declaration of candidacy for the office shall file also with the county auditor a certificate of the justice court district committee approving his qualifications to exercise the duties of the office.  In determining whether to approve a certificate the committee shall consider the age, education, business or  [[Orig. Op. Page 6]] legal experience, and the general reputation for honesty of the candidate, and other factors which the committee deems pertinent."

            The legislature recites five specific things which shall be considered by the committee in its determination, and then states expressly "other factors which the committee deems pertinent."  There is no attempt to indicate the weight or effect to be given any particular factor.  There is no hint in the remainder of the act as to any fixed or definite standard of personal qualification which the legislature sought to establish.

            It is difficult to conceive any language more devoid of a definite standard of guidance than that quoted above.  The various justice court committees could accept the candidacy of every citizen in their respective districts, or they could narrow the selection down to a specific individual, and still be within the terms of the statute.  In our opinion RCW 3.14.030 embodies no standard by which the committee can be guided in fixing the qualifications for non-attorney [[nonattorney]]candidates for justice of the peace.  If our view is correct, the statute attempts an unconstitutional delegation of legislative power.

            We think there is a second constitutional objection to both statutes discussed above.  Amendment 21 of the state constitution provides, in part:

            "The legislature shall establish a system of county government,which shall be uniform throughout the state except as hereinafter provided * * *" (Emphasis supplied) (The exception relates to the adoption of "Home Rule" charters.)

            There is no guide in either statute to assure uniformity in the various counties, whether in determining the qualifications of non-attorney [[nonattorney]]justices, or in fixing the number to be elected.  Of course this constitutional provision does not require identical conditions with respect to county government throughout the state, but it does require that the same standards be followed statewide, which takes us back to the very objection discussed above.  The lack of any ascertainable standard of guidance, in our opinion, renders the act unconstitutional on both grounds indicated.

            We are reluctant to set forth the views expressed herein, because a majority of the members of our staff feel that there is serious need of modification of  [[Orig. Op. Page 7]] the justice court system in this state and we are in sympathy with the obvious objective of the statute.  If the matter were left to our personal discretion we would decline to express an opinion upon this question and leave the matter to the courts.  But the responsibilities of the office and the mandate of the law compel us to issue this opinion at this time.  We realize that if action is too long delayed county officials may expend a considerable amount of time and money to no avail.  Possibly, the justice court system of the state could be seriously disrupted.  We hope that this opinion will eliminate such risks.

            As you know, this opinion is advisory only and does not have the effect of a judicial determination of the validity of the statute.  The statute continues in effect, and is still entitled to a presumption of constitutionality.  (State ex rel. Evans v. Brotherhood of Friends, 41 Wn. (2d) 133, 247 P. (2d) 787.)  It is our sincere hope that court proceedings will be commenced in the near future to obtain a judicial determination of the validity of this act in time to be of practical assistance to the public officials affected.

Very truly yours,

Attorney General

Assistant Attorney General