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AGO 1951 No. 37 -
Attorney General Smith Troy


Counties without suitable facilities for women prisoners may arrange for their detention in other nearby counties.

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                                                                   May 11, 1951

Honorable John N. Leavitt
Prosecuting Attorney, Okanogan County
Okanogan, Washington                                                                                                 Cite as:  AGO 51-53 No. 37

Dear Sir:

            You have requested our opinion upon:

            Whether Okanogan County, lacking proper facilities for women prisoners, may arrange for their detention in a nearby county where such facilities are available.

            We conclude that this may be done.


            Generally, the sheriff has the legal custody and charge of the county jail and of prisoners therein confined.  We find no statute which controls the inquiry you outline, and it is thus our opinion that common law would control.  Applicable statutes, however, are:

            Rem. Rev. Stat. § 4034 (P.P.C. § 125-19) which provides:

            "The county in which the court is held shall furnish * * * a jail or suitable place for confining prisoners, * * *"

            Rem. Rev. Stat. § 10205 (P.P.C. § 680-35) RCW 36.37.01 [[RCW 36.63.010]]which provides:  Rem. Rev. Stat. § 10205 (P.P.C. § 680-35) RCW 36.37.01 which provides:

             [[Orig. Op. Page 2]]

            "Counties shall have authority to acquire, build, operate and maintain jails, workhouses, workshops, stockades, and other places of detention and confinement at any placewithin the limits of such county as may be designated by the county commissioners thereof."  (Emphasis supplied)

            Rem. Rev. Stat. § 4056 (1947 Supp.) RCW 36.18.12 [[RCW 36.32.120]]which provides: Rem. Rev. Stat. § 4056 (1947 Supp.) RCW 36.18.12 which provides:

            "The several Boards of County Commissioners are authorized and required:

            "1. To provide for the erection and repairing of court houses, jails and other necessary public buildings for the use of the county; * * *"

            The judge or judges of the county superior courts shall prescribe rules and regulations for the conduct of the jail and prisoners therein.  RCW 36.37.06 [[RCW 36.63.060]]; Rem. Rev. Stat. § 10191 (P.P.C. § 680-61).

            The authority of the sheriff is the commitment, 21 R.C.L. 1172; 1927-1928 AGO 276, or the judgment and sentence, see In re Whipple v. Smith, 33 Wn. (2d) 615, 206 P. (2d) 510 (1949).  He must receive and safely keep the prisoner, so that the latter may be discharged in due course of law, and he

            "* * * must keep the prisoners at the jail and not elsewhere,unless some necessity makes it proper to remove them to another place, the determination as to which is usually held to be within the province of the custodian * * *" (Emphasis supplied) 41 Am.Jur. p. 892 (1942).  See also 21 R.C.L., p. 1172.

            We have previously concluded (see 1927-1928 AGO 276), supra, and we reaffirm that under this rule the sheriff could, in his discretion, remove a prisoner to the jail of another county for safe keeping.  If this be true, it is an "exercise of discretion" rather than "jurisdiction" which is involved.

            Various judicial decisions were thoroughly reviewed in our former opinion.  The general rule determined was that the sheriff, under proper necessity, could remove the prisoner to another county.  Protection from mob violence, for example, was held such a necessity.

             [[Orig. Op. Page 3]]

            As we understand your question, Okanogan county (as well as the cities and towns with the county) lacks facilities for the detention of female prisoners.  This creates a sufficient "necessity" for the sheriff to exercise his discretion and remove such prisoners to the jail of another county in which the sheriff, we postulate, is agreeable.  There is little difference between this situation and where the jail of a county is completely destroyed, rendering that county completely devoid of facilities to detain any prisoners.

            The reasonable salary of a matron, however, does not create such a necessity if the county otherwise has adequate facilities.  This would be a normal expense if the county had properly provided suitable facilities.

            We enclose our opinion of October 20, 1927 (1927-1928 AGO 276) above noted,supra, for your perusal.

Very truly yours,

Attorney General

Assistant Attorney General