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AGO 1956 No. 264 - May 8 1956
Attorney General Don Eastvold


 County Commissioners have no authority to provide for clerical assistance to justice of peace in third class city.

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                                                                     May 8, 1956 

Honorable George W. Sibbald
Prosecuting Attorney of Cowlitz County
Cowlitz County Court House
Kelso, Washington                                                                                                              Cite as:  AGO 55-57 No. 264

 Attention:  Mr. Richard L. Norman, Deputy

Dear Sir:

            Your letter of April 23, 1956, previously acknowledged, requested our opinion on the following question:

             May the county commissioners budget an amount for clerical assistance for a justice of the peace in a city of the third class?

             We answer in the negative.


              [[Orig. Op. Page 2]]                                                                       

            RCW 3.12.090 provides for one chief clerk and such assistant clerks as may be deemed necessary in cities of the first class having populations of more than one hundred thousand, and provides for salaries.  The same section authorizes one clerk in second class cities and those first class cities having less than one hundred thousand population.  It must be presumed that remuneration for such clerk's services was contemplated.                                                                     

             We find, however, no provision in our laws authorizing a clerk for justice courts in cities of less than ten thousand population.  It has been queried whether a clerk may be appointed to a justice court in this category and paid under the provisions of RCW 3.14.050.  We conclude that this section of the code is not applicable to the situation considered herein.  RCW 3.14.050 provides in part:

             "The board of county commissioners shall furnishfor the use of each district justice of the peace. . . clerical assistance . . . the cost thereof to be paid out of the current expense fund of the county."  (Emphasis supplied.)

             The office of district justice was, however, specifically abolished by chapter 7, Laws of 1955, § 1 of which act reads as follows:

             "Section 8, chapter 156, Laws of 1951, section 1, chapter 206, Laws of 1953, and RCW 3.14.010; section 11, chapter 156, Laws of 1951 and RCW 3.14.030; section 12, chapter 156, Laws of 1951, section 6, chapter 206, Laws of 1953, and RCW 3.14.040 are each repealed."

             The repeal by the legislature of §§ 3.14.010, 3.14.030 and 3.14.040 followed a decision by our court in Manue v. Snohomish County Justice Court District Committee, 44 Wn. (2d) 893, wherein the court held the sections subsequently repealed to be unconstitutional.

             We are of the opinion that RCW 3.14.050 authorizing clerical assistance for district justices, is for all practical purposes a nullity.  It would  [[Orig. Op. Page 3]] appear logical that one cannot be a clerk to a court which, in fact, does not exist.

             A well recognized principle in our law is that expressed inState ex rel. King County v. Superior Court, 33 Wn. (2d) 76, to the effect that county commissioners have only such powers as have been granted them expressly by our constitution and statutes or necessarily implied therefrom.  We can find no authority in the law for the appointment of clerks to justice courts in third class cities, nor the budgeting of any sum for the payment of salaries to a person performing those duties at the request of the justice.  It is necessary therefore that we conclude county commissioners may not set aside moneys, even nominal amounts, to be used for this purpose.

             This is in accord with an attorney general's opinion to Eugene Cushing, prosecuting attorney of Clark County, April 3, 1942, a copy of which is enclosed.

             We hope this opinion will be of help to you.

 Very truly yours,
Attorney General 

Assistant Attorney General