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Bob Ferguson

AGO 1951 No. 114 -
Attorney General Smith Troy


A justice of the peace may not have an investigator.  County payments to such an investigator would be illegal and the county commissioners would be liable on their bond therefor.

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                                                                 August 31, 1951

Honorable Charles O. Carroll
Prosecuting Attorney King County
County-City Building
Seattle, Washington                                                                                                              Cite as:  AGO 51-53 No. 114

Attention:  !ttMr. K. G. Smiles
            Chief Civil Deputy

Dear Sir:

            You have requested our opinion on whether:

            (I) A justice of the peace may hire an investigator?

            We conclude he may not

            (II) The county commissioners would be liable on their bond if they appropriate and pay money to such an unauthorized investigator.

            We conclude liability exists.



            A justice of the peace is a county judicial officer, Rem. Rev. Stat. § 43, et seq. (P.P.C. Ch. 151 to 165); State ex rel. Pacific Coast Adjustment Company v. Taggart, 159 Wash. 201, 292 Pac. 741 (1930) and cases therein cited.  A judge  [[Orig. Op. Page 2]] should remain aloof and unprejudiced in the matters which come before him.  Prior knowledge, partaking in the investigations, etc., as a basis for judicial action are proper disqualifying reasons.  Such invites and constitutes proper ground for motions of change of judge on affidavits of prejudice.  30 Am.Jur. 783-798, Judges, § 74-93.  "Judicial" duties do not include investigative and prosecutive matters.  See 14 Am.Jur. 258, Imposing Nonjudicial Functions on Courts, § 20:

            "One application of the general principle as to the separation of the powers of government is the rule which has itself been described by some authorities as a rudimentary principle of constitutional law‑-namely, that on judges as such no functions can be imposed except those of a judicial nature.  It has been said that the policy and intent of the constitutional system is that the courts and judges not only shall not be required, but shall not be permitted, to exercise any power or to perform any trust or to assume any duty not pertaining to, or connected with, the administering of the judicial function, and that the exercise of any power or trust or the assumption of any public duty other than such as pertains to the exercise of the judicial function is not only without constitutional warrant, but is against the constitutional mandate in respect of the powers they are to exercise and the character of the duties they are to discharge.  * * *"

            SeeBurnett v. Green, 97 Fla. 1007, 122 So. 570, 69 A.L.R. 244 (1929);Searle v. Yensen, 118 Neb. 835, 226 N.W. 464, 69 A.L.R. 257 (1929);Gutierrez v. Middle Rio Grand Conservancy District 34, New Mexico, 282 Pac. 1, 70 A.L.R. 1261 (N.M. 1929), cert. den. 280 U.S. 610.

            This same rationale was held to prohibit prosecuting attorneys from having investigators with powers of arrest.  State ex rel. Johnson v. Melton, (en banc) 192 Wash. 379, 73 P. (2d) 1334 (1937).  The court stated at 192 Wash. 392:

            "To keep these powers as separate as humanly possible was the studied effort and dominant purpose of the framers of each and every one of our American constitutions, both state and Federal.  This court has said, inIn re Bruen, 102 Wash. 472, 172 Pac. 1192, that the courts have ever been alert  [[Orig. Op. Page 3]] and resolute to keep the legislative, executive, and judicial functions carefully separated, and that to this is due the steady equilibrium of our governmental system; * * *"

            A justice of the peace, we therefore conclude, is not authorized to have an investigator.

                        II. LIABILITY ON BOND

            Rem. Rev. Stat. § 4046 (P.P.C. § 480-53) provides in part as follows:

            "Each county commissioner in this state, before he enters upon the duties of his office, shall give a bond to the county, * * * Said bond shall be payable to the county, and the same shall be conditioned that such commissioner shall well and faithfully discharge the duties of his office,and not approve audit or order paid any illegal, unwarranted or unjust claims against the county for personal services:  * * *" (Emphasis supplied)

            This statute appears clear.  If payment is approved, audited, or ordered, to a person, unauthorized by law, the county commissioners are liable on their bond.  A bond of the county treasurer is required by Rem. Rev. Stat. § 4107 (P.P.C. § 493-3).

            We conclude, therefore, (1) that the justice of the peace has no authority to have an investigator, (2) payment of county funds to such an investigator would be illegal, and (3) the county commissioners would be liable therefor upon their official bond.

Very truly yours,

Attorney General

Assistant Attorney General