COURTS ‑- SUPERIOR ‑- COMMISSIONERS ‑- COUNTIES ‑- APPOINTMENT

COURTS ‑- SUPERIOR ‑- COMMISSIONERS ‑- COUNTIES ‑- APPOINTMENT
 
Under Article IV, § 23 of the Washington Constitution there may be appointed one or more court commissioners, not exceeding three in number, for each county.
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                                                                     July 3, 1973
 
Honorable Phillip B. Winberry
Administrator for the Courts
Temple of Justice
Olympia, Washington 98504
                                                                                                               Cite as:  AGLO 1973 No. 71
 
 
Dear Sir:
 
            This is written in response to your recent letter requesting our opinion with respect to the number of superior court commissioners which may be appointed in each county.
 
            We respond to this question in the manner set forth below.
 
                                                                     ANALYSIS
 
            Article IV, § 23 of the Washington State Constitution provides that:
 
            "There may be appointed in each county, by the judge of the superior court having jurisdiction therein, one or more court commissioners, not exceeding three in number, who shall have authority to perform like duties as a judge of the superior court at chambers, subject to revision by such judge, to take depositions and to perform such other business connected with the administration of justice as may be prescribed by law."  (Emphasis supplied.)
 
            Your letter evidences your full awareness of this constitutional provision but points to an apparent conflict between it and the language of a statute now codified as RCW 2.24.010 which reads as follows:
 
            "There may be appointed in each county or judicial district, by the judges of the superior court having jurisdiction  [[Orig. Op. Page 2]] therein, a court commissioner for said county or judicial district.  Such commissioner shall be a citizen of the United States and an elector of the county or judicial district in which he may be appointed, and shall hold his office during the pleasure of the judges appointing him."  (Emphasis supplied.)
 
            Like any duly enacted statute this provision, however, is subject to certain principles of statutory construction which were stated by our court in Soundview Pulp Co. v. Taylor, 21 Wn.2d 261, 267, 150 P.2d 839 (1944) as follows:
 
            "We have adopted the rule that, '"Where the language of a statute is transparent, and its meaning clear, there is no room for the office of construction.  There should be no construction where there is nothing to construe."'  Smith v. Department of Labor and Industries, 8 Wn.2d 587, 593, 113 P.2d 57.  See Ernst v. Kootros, 196 Wash. 138, 82 P.2d 126; Shelton Hotel Co. v. Bates, 4 Wn.2d 498, 104 P.2d 478.
 
            "There are statutes, however, in which their wording may be plain, but it may appear from such wording that a given statute may be applied in different ways, or some of the words may be susceptible of different meanings, and if applied, or the words are used in a certain way, the statute would be unconstitutional, or a grave doubt as to its validity would be raised.  In such cases the rule is that, where a statute is open to two constructions, one of which will render it constitutional and the other unconstitutional or open to grave doubt in this respect, the former construction and not the latter is to be adopted.  State ex rel. Campbell v. Case, 182 Wash. 334, 47 P.2d 24; State ex rel. Dept. of Finance, Budget and Business v. Thurston County, 199 Wash. 398, 92 P.2d 234."
 
             [[Orig. Op. Page 3]]
            RCW 2.24.010, supra, the present terms of which date back to § 1, chapter 124, Laws of 1909, as last amended by § 1, chapter 87, Laws of 1967, Ex. Sess., originated as § 1, chapter 83, Laws of 1895.  In its original form this legislative enactment read, in material part, as follows:
 
            "There may be appointed from each county of this state, where there is no resident judge, by the judge or judges of the superior court having jurisdiction therein, one court commissioner for said county.  . . ."
 
            Not only did this 1895 version of the statute purport in even more literal terms than does the present statute to limit the number of superior court commissioners to one per county but, in addition, it spoke only of the counties "where there is no resident judge."  Accordingly, in Howard v. Hanson, 49 Wash. 314, 95 Pac. 265 (1908), the supreme court was presented with an objection to the appointment of a court commissioner for Snohomish county
 
            ". . . based on the fact that Snohomish county has a resident judge, and the further fact that the legislature has apparently sought to limit the power of the court to appoint a court commissioner to those counties in which there is no resident judge.  . . ."1/
 
             To this contention, however, the court responded as follows:
 
            ". . .  But the power to appoint a commissioner is vested in court by the constitution.  Article 4, § 23 of that instrument reads as follows:
 
            "'There may be appointed in each county, by the judge of the superior court having jurisdiction therein, one or more court commissioners, not exceeding three in number, who shall have authority to perform like duties  [[Orig. Op. Page 4]] as a judge of the superior court at chambers, subject to revision by such judge, to take depositions and to perform such other business connected with the administration of justice as may be prescribed by law.'
 
            "This grant of power is supreme in the courts and the legislature is without power to take it away.  It does not limit the right of the court to appoint a court commissioner to those counties in which there is no resident judge, and in so far as the legislature has attempted to so limit it, its act is invalid for want of power."
 
            We regard this ruling as determination of your present question.  The power to appoint superior court commissioners is granted by Article IV, § 23 of the Constitution, in the manner above quoted, and any mere statute purporting to preclude a superior court from appointing commissioners or to limit the number of authorized commissioners to a number less than the maximum permitted by the Constitution would be void to the extent of any conflict between it and the Constitution.  From this, it follows that in accordance with the rules of construction stated in Soundview Pulp Co. v. Taylor, supra, the present provisions of RCW 2.24.010, supra, must be read as imparting precisely the same authority to appoint superior court commissioners as is granted by that section of the Constitution itself.  Accordingly, in direct answer to your question, it is our opinion that there may be appointed not only one but as many as three superior court commissioners for each county in our state, as expressly provided for in the Constitution.
 
            We trust the foregoing will be of some assistance to you.
 
Very truly yours
 
SLADE GORTON
Attorney General
 
 
PHILIP H. AUSTIN
Deputy Attorney General
 
 
                                                         ***   FOOTNOTES   ***
 
1/Howard v. Hanson, supra, at page 317.