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Bob Ferguson

AGO 1955 No. 35 -
Attorney General Don Eastvold


A justice of the peace in a first class city may indulge in private practice or business if it does not interfere with the full performance of his duties during the normal hours of his court.

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                                                                   March 2, 1955 

Honorable Tom A. Durham
Prosecuting Attorney
Whatcom County
311 Grand Avenue
Bellingham, Washington                                                                                                                Cite as:  AGO 55-57 No. 35

 Dear Sir:

             By letter as previously acknowledged you have requested the opinion of this office upon a question which may be summarized as follows:

             "May a justice of the peace in a city of more than 20,000 engage in private practice of law in a manner which will not conflict with the full time performance of the duties of his office?"

             We answer your question with a qualified "yes."  In any case the principles hereinafter set out would have to be applied in the light of a specific factual context.


             Justices of the peace in cities of more than 20,000 population are required by RCW 3.16.004 to "devote their full time to the duties of the office," and receive a fixed salary.  The problem therefore involves a definition of the quoted phrase.

              [[Orig. Op. Page 2]]

            In 3 McQuillin, Municipal Corporations (3d ed.), 464, sec. 12.130, it is said that

             "Many laws, in express terms, provide the officer shall give his entire time during office hours to the discharge of the duties appertaining to the office.  However, it may be affirmed that such requirement is contemplated, without express declaration."

             A good general statement is to be found inState v. Cumpton, 240 S.W. (2d) 887 (1951), in which the supreme court of Missouri,en banc and without dissent, considered a case involving the alleged breach of a somewhat similar statute:

             " * * The acceptance of a public office implies the obligation to subordinate private interests to public duties.  City of Minneapolis v. Canterbury, 122 Minn. 301, 142 N.W. 812, 814, 48 L.R.A. N.S. 842.  It is the duty of public officers to refrain from outside activities which interfere with the proper discharge of their duties.  43 Am.Jur. 81, Public Officers, sec. 265.  * * *

             "* * * We do not think the words of Sec. 54.  100, that 'the county treasurer shall keep his office at the county seat of the county for which he was elected, and shall attend the same during the usual business hours,' and the words of Sec. 106.220 'who shall fail personally to devote his time to the performance of the duties of such office' should be construed to require the actual continuous physical presence of the respondent in his office during the usual business hours or to require respondent to devote hisentire time personally during such hours to the actual physical performance of the duties of the office on peril of forfeiture of his office.  * * *

              [[Orig. Op. Page 3]]

            "In the case of Fairly v. Western Union Telegraph Co., 73 Miss. 6, 18 So. 796, 797, it was held that a constitutional provision that no person shall hold an office of profit 'without personally devoting his time to the performance of the duties thereof' must be given a reasonable construction.  The court said:  'If the public duties of an office require all the time of a public servant, then the whole time must be given.  If all the time of the officer be not required for the complete and faithful execution of his trust, then he shall give such time and devote such service as shall suffice for the full and faithful discharge of the duties of his office.'  * * *"  (Emphasis by the court.)

             In construing a statute which provided that a state industrial commissioner should not "engage in any occupation or business other than his duties as such commissioner," the supreme court of Arizona came to the same general conclusion in Holmes v. Osborn, 57 Ariz. 522, 115 P. (2d) 775, 784:

             In McQuade v. Stoneham, 263 N.Y. 323, 189 N.E. 234, 237, the New York court of appeals said:

             "The Inferior Criminal Courts Act * * * provides that '* * * No city magistrate shall engage in any other business or profession * * * but each of said justices and magistrates shall devote his whole time and capacity, so far as the public interest demands, to the duties of his office.  * * *' * * * Occasional transaction of business, or voluntary assistance rendered in the management of a business, may not violate the statutory command that a magistrate shall devote to the duties of his office 'his whole time and capacity, so far as the public interest demands;' the assumption for a substantial salary of important executive office of a corporation with prescribed regular duties in the management  [[Orig. Op. Page 4]] of the business does violate the express provision that a magistrate shall not engage in any business."

             It may be observed that none of the decisions cited or quoted above is directly in point; and that none of the statutes involved, although they all have the same general purpose, is exactly the same as RCW 3.16.004.  They do, however, involve public officers, and set the apparent trend of judicial thought on the question.

            Courts have said much the same thing regarding such language in a contractual context.  SeeJohnson v. Stoughton Wagon Co., 118 Wis. 438, 95 N.W. 394; andFirst Calumet Trust and Savings Bank v. Rogers, 289 Fed. 953, 958 (C.A.A. 7th).

             From the foregoing and an analysis of statutes of our state dealing with somewhat similar situations, we feel that it is possible to arrive at a fairly definite understanding of the application of the statute in question to the problem presented.

             Our present statutes specifically prohibit certain public officials from engaging in the practice of law: Prosecuting attorneys in class A and first class counties (RCW 36.27.060), and judges of courts of record (RCW 2.48.200).

             On the other hand, justices of the peace, who are attorneys, are specifically permitted to "act as an attorney in any court other than the one of which he is judge."  (RCW 2.28.040).  It is noted that RCW 3.16.002, applicable to justices of the peace in cities of 5,000 to 20,000 population, specifically permits such justices to "engage in private practice of law."

             This brings us to the ultimate question, then, of how much RCW 3.16.004, providing that justices of the peace in cities of over 20,000 "shall devote their full time to the duties of the office," modifies the provisions of RCW 2.28.040, permitting justices of the peace who are attorneys to practice in any court except their own.

              [[Orig. Op. Page 5]]

            We think it was the intention of the legislature in the enactment of RCW 3.16.004 to provide for full time justice courts in cities of over 20,000 and to require the holders of such offices to devote full time to their official duties.

             The term "full time" is naturally ambiguous.  Had the legislature intended to prohibit the justices from practicing law, it could very easily have said so, as it did with reference to supreme and superior court judges and prosecutors in class A and first class counties.  But, not having done so, the legislature, by its choice of words, evidently intended to permit a limited practice when the full performance of duties of the office permitted.  It would be our opinion that the intention of the legislature was to provide that justice courts in cities of over 20,000 should be open at least during office hours (see RCW 36.16.100: under this section office hours are fixed by resolution of the boards of county commissioners), during which time the first and paramount duty of such justices is to perform, and to be prepared to perform, all the functions of their office.  Occasional transactions of business may not violate this duty provided they do not interfere with those functions.

             It may be easily seen that the wording of the statute permits flexible application, dependent upon different situations.  Under such circumstances it is impossible for us to apply hard and fast rules applicable to all situations.  We have herein endeavored to set out the general principles which we feel should be applicable.

             We trust the opinion herein set out will be helpful.

 Very truly yours,
Attorney General

Assistant Attorney General