AGO 1961 No. 15 - Feb 24 1961
OFFICES AND OFFICERS ‑- CITY ‑- POLICE ‑- AUTHORITY OF OFFICER TO ARREST WITHIN CITY WITH ARREST WARRANT ISSUED BY SEATTLE MUNICIPAL COURT FOR VIOLATION OF SEATTLE ORDINANCES AND ACCEPTING BAIL IN CASH OR CHECK.
(1) An officer of the Seattle police department may not arrest a person within another city under authority of an arrest warrant issued by the Seattle city municipal court charging violation of Seattle ordinances (parking violations).
(2) Such officer may not accept bail either in cash or by check in lieu of returning the person named in the warrant to Seattle.
(3) A sheriff or his deputy from one county, without a warrant, may not enter another county and arrest a person for a felony offense previously committed in his county except where specifically authorized by statute, unless he is exercising the authority of a private individual in effecting such an arrest.
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February 24, 1961
Honorable Clayton Farrington
517 East 14th
Cite as: AGO 61-62 No. 15
By letter previously acknowledged, you requested an opinion of this office on the following questions:
"(1) May an officer of the Seattle police department arrest a person within the city of Olympia under authority of an arrest warrant issued by the Seattle Municipal Court charging violations of Seattle ordinances (parking violations)?
"(2) May such officer accept bail, either in cash or by check, in lieu of returning the person named in the warrant to Seattle?
"(3) May a sheriff or his deputy from one county, without a warrant, enter another county and arrest [[Orig. Op. Page 2]] a person for an offense previously committed in his county?"
We answer questions 1, 2 and 3 in the negative.
This question requires examination of the territorial jurisdiction of the municipal judge issuing a warrant and also that of the officer to whom such warrant may be directed.
RCW 35.20.110, pertaining to municipal courts in cities having a population in excess of five hundred thousand, provides that "[a]ll process from such court shall issue under the seal thereof and shall run throughout the state." But this section does not describe the officers to whom such process may be directed. Such officers are named in RCW 35.22.490, relating to cities of the first class having a population of five hundred thousand or less. The latter, after providing that criminal process issued by a police judge shall run throughout the state provides that such process shall ". . . be directed to the chief of police, marshal or other police officer of any city or to any sheriff or constable in the state and shall be served by him."
Inasmuch as RCW 35.22.490 is not inconsistent with RCW 35.20.110, we conclude that these sections are both applicable to municipal courts in first class cities having a population in excess of five hundred thousand. (See RCW 35.20.900) Accordingly, warrants of arrest issued by all municipal or police courts of cities of the first class charging violations of municipal ordinances are valid for service anywhere within Washington.
We next inquire into the authority of the officer to whom such process has been directed.
The general rule applicable to the territorial authority of a public officer is stated in 67 C.J.S., Officers, § 102a, p. 365, as follows:
"Territorial and extraterritorial power. Ordinarily, an officer who holds an office for a particular political subdivision is powerless to perform an official act when beyond the territorial limits of the political subdivision. When the law confers on a [[Orig. Op. Page 3]] person powers that he, as a natural person, does not possess, that power cannot accompany his person beyond the bounds of the sovereignty which has conferred the power, . . ." (p. 368)
To the same effect: cf. 43 Am.Jur. Public Officers, § 251, p. 70.
More specifically, and with reference to the authority of a peace officer to effect an arrest under a warrant therefor, 4 Am.Jur., Arrest, § 17, p. 13, provides:
"In the absence of statutory authority, an arrest may not be made under a warrant outside the territorial jurisdiction of the court or magistrate issuing the warrant,or outside the territorial jurisdiction of the officer to whom the warrant is addressed. . . ." (Emphasis supplied)
Cf. 6 C.J.S., Arrest, § 12 (2), p. 610; Alexander, The Law of Arrest perm. ed. Vol. 1, § 65, p. 411 (1949).
These authorities state the common law which is, of course, the law of Washington ". . . so far as it is not inconsistent with the Constitution and laws of the United States, or of the state of Washington nor incompatible with the institutions and condition of society in this state, . . ." RCW 4.04.010.
We have been unable to find any statute which purports to alter the common law rule. However, RCW 10.34.010 provides:
"If any person against whom a warrant may be issued for an alleged offense, committed in any county, shall either before or after the issuing of such warrant, escape from, or be out of the county, the sheriff or other officer to whom such warrant may be directed, may pursue and apprehend the party charged, in any county in this state, and for that purpose may command aid, and exercise the same authority as in his own county."
This section, when considered alone, would seemingly authorize any officer named in RCW 35.22.490 to pursue and apprehend the person charged in the arrest warrant anywhere within this state. So considered, the statute makes no distinction between the jurisdiction of the court issuing the warrant, whether it be superior, justice, municipal or police. Nor does it distinguish between warrants charging felonies or misdemeanors.
[[Orig. Op. Page 4]]
We cannot, however, read RCW 10.34.010 in this broad light, as if it were a legislative enactment complete in itself. Rather, we must consider it in relation to other sections of the chapter in which it was enacted.
Reviewing the history of RCW 10.34.010, we note that its contents have been a part of our law since territorial days and was continued in force pursuant to Article XXVII, § 2, Washington State Constitution.
In the code of 1854 and in all subsequent codes or compilations of statutes preceding the Revised Code of Washington, this section appeared under the chapter reading "Of examination of offenders, commitment for trial, and taking bail" (Code 1854, ch. IV, 328, p. 107; Code 1873, ch. XX § 220, p. 394; Code 1881, ch. CXXXIV, § 1922, p. 327; Pierce's Code (1912), Tit. 287, ch. 134, § 439, p. 1324, or "Examination of Persons Charged with Crime Before Magistrates" (2 Hill's Code (1891) § 1583, Tit. XVI, ch. XI; 2 Bal. Code (1897) § 6696 ‑ Tit. XXXVII, ch. XI; Rem. & Bal. Code (1910) § 1950 ‑ ch. IV; Rem. Code (1915) § 1950 ‑ ch. IV; Rem. Comp. Stat. (1922) § 1950 ‑ ch. IV; RRS (1932) § 1950 ‑ ch. IV )). In each of the foregoing codes the section presently codified as RCW 10.34.010 appeared immediately following the section now codified as RCW 10.16.010 and immediately preceding that now numbered RCW 10.16.030.
When in the Revised Code of Washington the pertinent section was transposed from its previous location in prior codes to its present position under Chapter 10.34 RCW, entitled "Fugitives of this State" its meaning and effect were considerably expanded. This is illustrated by reference to RCW 10.16.010 which reads in part:
"Upon complaint being made to any justice of the peace, or judge of the superior court, in open court, or in vacation, that a criminal offense has been committed, he shall examine on oath the complainant, and any witness provided by him, and shall reduce the complaint to writing, and shall cause the same to be subscribed by the complainant, and if it shall appear that any offense has been committed of which the superior court has exclusive jurisdiction, the magistrate shall issue a warrant reciting the substance of the accusation, and requiring the officer to whom it shall be directed forthwith to take the person accused and bring him before the person issuing the warrant, . . ." (Emphasis supplied)
[[Orig. Op. Page 5]]
Since the adoption of our constitution the superior courts of this state have had ". . . original jurisdiction . . . in all criminal cases amounting to felony, and in all cases of misdemeanor not otherwise provided for by law; . . ." Art. 4, § 6, Amendment 28, Washington State Constitution. Referring to this constitutional section prior to its amendment, our supreme court, inMoore v. Perrott, 2 Wash. 1, 4, 3 Pac. 195 (1891), said:
"It is the enumeration of the particular matters which are within the original jurisdiction of the superior courts, which we interpret to mean that those matters pertain to them exclusively. . . ."
See, alsoState v. Schaffer, 31 Wash. 305, 71 Pac. 1088 (1903); AGO 59-60 No. 47 [[to Prosecuting Attorney, Kitsap County on June 25, 1959]].
Accordingly, we must consider offenses of which the superior courts have "exclusive jurisdiction" (as used in RCW 10.16.010) as being those over which that court has "original jurisdiction" (as stated in the constitution).
Parenthetically, it must be recognized that the placement of the section now codified as RCW 10.34.010 in its present position rather than among its related provisions codified in Chapter 10.16 RCW cannot be deemed to change its meaning. See RCW 1.04.020, and RCW 1.04.021.
As pointed out by our supreme court in DeGrief v. Seattle, 50 Wn.2d 1, 11, 49 Wn. (2d) 912 (1956):
"'It is too well-established to need citation of authority that a court may not place a narrow, literal, and technical construction upon a part only of a statute and ignore other relevant parts. In the process of construction, the intention of the lawmakers must be extracted from a consideration of all of the provisions of the act.' In re Cress, 13 Wn. (2d) 7, 123 P. (2d) 767.
"In construing a statute, the legislative intent must be gleaned from a consideration of the whole act by giving effect to the entire statute and every part thereof. State v. Houck, 32 Wn. (2d) 681, 203 P. (2d) 693, and cases cited."
And, in the recent case ofParosa v. Tacoma, No. 35022, filed December 22, 1960, our court acknowledged that the contents of [[Orig. Op. Page 6]] the revised code is a prima facie compilation of the statute laws of this state. (Particular attention is invited to this case for its treatment of the history of the revised code and the effectiveness of code provisions which may conflict with legislative acts.)
InNadeau v. Conn, 142 Wash. 243, 252 Pac. 913 (1927) our supreme court held that the sheriff of one county, to whom a warrant of arrest had been directed for service by the superior court of that county as provided in Rem. Comp. Stat. § 2080 (now RCW 10.31.020) could, armed with such warrant, effect the arrest of the accused named therein in any other county in this state under authority of Rem. Comp. Stat. § 1950 (now RCW 10.34.010, above quoted). Since the opinion filed by the court in that case fails to mention whether the warrant issued by the superior court charged the commission of a misdemeanor or felony, we have examined the briefs filed therein and note that the offense charged was, in fact, a felony; therefore, within the original jurisdiction of the superior court.
In theNadeau case our court did not decide that Rem. Comp. Stat. § 2080 (RCW 10.31.020) could be read in connection with Rem. Comp. Stat. § 1950 (RCW 10.34.010) so as to authorize a county sheriff to execute beyond the limits of his county a warrant of arrest issued by a superior court in a misdemeanor case (over which the superior court would not have exclusive jurisdiction). We have been unable to find any case wherein that question has been decided by our courts. Accordingly, that case is of doubtful application to misdemeanor warrants and particularly to those issued for violations of municipal ordinances.
Had our legislature intended to expand the jurisdiction of municipal police officers beyond the corporate limits of the cities in which they serve it would have been relatively easy for it to say so. Instead, our legislature in expanding the jurisdiction of municipal courts of first class cities declared that such warrants "be directed to the chief of police, marshal or other police officer of any city or to any sheriff or constable in the state to be served by him."
As we interpret this provision, it means that if a warrant of arrest for violation of municipal ordinances cannot be served within the city because of the defendant's absence, the warrant may be executed by the chief of police of the city, or marshal of the town, or sheriff or constable of the county wherein the defendant may be found. We do not believe that the legislature [[Orig. Op. Page 7]] intended by this section that the police chief of the city wherein the warrant was issued would have state‑wide [[statewide]]jurisdiction for execution of the warrant, nor do we believe that a town marshal to whom such warrant was directed would be authorized to execute such warrant beyond the territorial limits of the town in which he serves and in any other city or county in this state.
Accordingly, it is our considered opinion that a municipal police officer is without authority to execute a warrant for arrest charging a misdemeanor violation of municipal ordinance beyond the corporate limits of the city in which he serves, notwithstanding the fact that such warrant is valid for service throughout the state.
We have been unable to find any authority, statutory or otherwise, which would permit an officer properly serving an arrest warrant issued by a municipal or police judge for violation of a city ordinance to accept bail either by cash or check in lieu of returning the person arrested thereunder to the court which issued such warrant.
It may appear that RCW 10.19.070, relating to cash bail, authorizes such procedure. However, our supreme court has held that this statute applies only to proceedings in the superior court. Kellogg v. Witte, 107 Wash. 691, 694, 182 Pac. 570 (1919). And, inLee v. Severyns, 151 Wash. 403, 405, 276 Pac. 94 (1929), our court pointed out that prior to 1919 and the enactment of Rem. Comp. Stat. 1957 1/2 (now codified as RCW 10.04.040) ajustice of the peace could not accept cash bail. In that action, brought to recover cash deposited with the chief of police of Seattle as bail to secure the release from custody of several persons against whom charges had not been previously filed, our court said:
"It is admitted that we have no statute authorizing police officers to accept cash bail, and that police officers stand in the same position now as did justices of the peace and committing magistrates prior to the enactment of Rem. Comp. Stat., § 1957 1/2, [RCW 10.04.040] in 1919, and therefore the defendant officers had no authority in law to accept cash bail."
We have been unable to find any statute enacted subsequent to theLee case which purports to grant to police officers authority to accept cash bail. Accordingly, we conclude that a municipal police officer is without authority to accept cash bail in lieu of arresting and taking the person named in the warrant before the court of [[Orig. Op. Page 8]] issuance. This conclusion is consistent with the opinion of this office to the prosecuting attorney of King county dated June 21, 1945 (45 OAG 221) [[1945-46 OAG 221]], a copy of which is hereto attached, to which we adhere upon reconsideration.
For ease of reading we restate your third question:
"May a sheriff or his deputy from one county, without a warrant, enter another county and arrest a person for an offense previously committed in his county?"
In 4 Am.Jur., Arrest, § 51, p. 35, the following general statement appears:
"A public officer appointed as a conservator of the peace for a particular county or municipality as a general rule has no official power to apprehend offenders beyond the boundaries of the county or district for which he has been appointed. . . . Where the sheriff of a county attempts to make an arrest in another county, without a warrant, he is usually considered as having only the authority which a private person may have in apprehending criminals; . . ." (Emphasis supplied)
The quoted material and citations on pages 2 and 3 of this opinion (67 C.J.S., Officers, § 102a, p. 365; 43 Am.Jur., Public Officers, § 251, p. 70; 4 Am.Jur., Arrest, § 17, p. 13; 6 C.J.S., Arrest, § 12 (2), p. 610; Alexander, The Law of Arrest, perm. ed. Vol. 1, § 65, p. 411 (1949)) are equally applicable in answer to this question.
Of course, these rules being applicable at common law would likewise be applicable in Washington unless abrogated or modified by statute. RCW 4.04.010.
As we said in answer to your first question, RCW 10.34.010 must be read and considered in conjunction with the other sections of the chapter in which it was enacted.
It is our opinion that when read in light of the other sections of such chapter and the common law rules set forth above, this statute is not applicable, at least until an arrest warrant has [[Orig. Op. Page 9]] been issued. Note the terms "to whomsuch warrant may be issued" and "person charged". The section immediately preceding the section in the original enactment (now codified as RCW 10.16.010) clearly contemplates a warrant being issued. See alsoNadeau v. Conn, supra.
Therefore it is our conclusion that when an officer of one of the counties makes an arrest outside the boundaries of that county he does so as a private citizen unless he is acting under the authority of RCW 10.34.020, which reads as follows:
"If a person arrested escape or be rescued, the person from whose custody he made his escape, or was rescued, may immediately pursue and retake him at any time, and within any place in the state. To retake the person escaping or rescued, the person pursuing has the same power to command assistance as given in cases of arrest."
This statute is in our opinion clear and unambiguous and is applicable to cases where a personhas been lawfully arrested, either with or without a warrant and then escapes or is rescued. Under such circumstancesthe person from whom he escapes or is rescued may "immediately pursue and rearrest him in any county within the state without a warrant." SeeMcCaslin v. McCord, 116 Tenn. 690, 94 S.W. 79 (1906).
We trust the above will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
R. TED BOTTIGER
Assistant Attorney General
ROBERT J. DORAN
Assistant Attorney General