AGO 1972 No. 1 - Jan 10 1972
OFFICES AND OFFICERS ‑- COUNTY ‑- CORONER ‑- PROSECUTING ATTORNEY ‑- APPOINTMENT OF DEPUTY CORONERS IN CERTAIN COUNTIES
(1) A prosecuting attorney of a fourth through ninth class county, in his separate capacity as county coroner under RCW 36.16.030, may appoint one or more deputy coroners with the consent of his board of county commissioners.
(2) The compensation of any persons so appointed as deputy coroners is to be fixed by the board of county commissioners.
(3) There is no legal requirement that a person appointed to serve as a deputy county coroner in a fourth class county be admitted to the practice of law in this state.
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January 10, 1972
Honorable C. J. Rabideau
P.O. Box 951
Pasco, Washington 99301
Cite as: AGO 1972 No. 1
By letter previously acknowledged you have requested an opinion of this office on three questions relating to the appointment of deputy county coroners in a fourth class county. We subdivide and paraphrase your question as follows:
(1) Where, pursuant to RCW 36.16.030, the prosecuting attorney of a fourth through ninth class county is the ex officio coroner as well, may he appoint one or more deputy coroners?
(2) If question (1) is answered in the affirmative;
(a) by whom is the compensation of such deputy coroners to be fixed?
(b) must any deputy so appointed be admitted to the practice of law in this state?
[[Orig. Op. Page 2]] We answer question (1) in the affirmative as qualified in our analysis; question (2) (b) in the negative; and question (2) (a) as set forth in our analysis.
The first statute to be noted in connection with your request is RCW 36.16.030, relating to the election of county officers. This statute provides, in material part:
". . . That in counties of the fourth, fifth, sixth, seventh, eighth, and ninth classes no coroner shall be elected and the prosecuting attorney shall be ex officio coroner: . . ."
In an opinion dated November 23, 1926, to the prosecuting attorney of Island county (copy enclosed) this office concluded that the legislature, by its enactment of the foregoing provision pursuant to chapter 148, Laws of 1925, Ex. Sess., had not abolished the office of county coroner in those counties specified; instead, we said that this legislation,
". . . continues the offices of prosecuting attorney and coroner separate, distinct and unchanged except that one person holds both offices instead of the offices being held by two persons."
Questions (1) and (2) (a):
Your first two questions, in our judgment, are fully answered by another statute, RCW 36.16.070, which provides as follows:
"In all cases where the duties of any county office are greater than can be performed by the person elected to fill it, the officer may employ deputies and other necessary employees with the consent of the board of county commissioners. The board shall fix their compensation and shall require what deputies shall give bond and the amount of bond required from each. The sureties on deputies' bonds must be approved by the board and the premium therefor is a county expense.
[[Orig. Op. Page 3]] "A deputy may perform any act which his principal is authorized to perform. The officer appointing a deputy or other employee shall be responsible for the acts of his appointees upon his official bond and may revoke each appointment at pleasure."
This statute has been determined to be applicable to the appointment and compensation of deputy county coroners in three previous opinions of this office, copies of which we are also enclosing. The first of these was written to the Pierce county prosecuting attorney on February 26, 1943; the second to a former occupant of your office as Franklin county prosecuting attorney on June 23, 1952; and the third and most recent to the Lewis county prosecuting attorney on May 5, 1971. On the basis thereof, we conclude, first, that a prosecuting attorney of a fourth through ninth class county, in his separate capacity as county coroner, may appoint one or more deputy coroners so long as his board of county commissioners consents thereto. Secondly, we conclude that the compensation to be paid to such deputy or deputies is to be fixed by the board of county commissioners as expressly provided for in the subject statute.
In thus answering your first two questions, we have not overlooked four other prior opinions of this office wherein it was concluded that a prosecuting attorney serving ex officio as county coroner under RCW 36.16.030, supra, was not authorized to appoint any deputy coroners. See opinions dated April 3, 1951, to the prosecuting attorney of Douglas county; August 3, 1950, to the prosecuting attorney of Grant county; August 3, 1950, to the prosecuting attorney of Grant county [[Opinion No. 49-51-316]]; April 15, 1927, to the prosecuting attorney of Wahkiakum county; and December 20, 1926, to the prosecuting attorney of Cowlitz county [[1925-26 OAG 269]], copies enclosed. However each longer valid; namely, that those counties having a population of less than 50,000 inhabitants ‑ and thus, all counties of the several classes wherein the prosecuting attorney is also the coroner1/ - do not have any authority to have deputy coroners at all.
This earlier lack of authority of the smaller counties to [[Orig. Op. Page 4]] have deputy coroners existed by reason of a 1905 statute (§ 1, chapter 60, Laws of 1905) which was expressly repealed by § 36.98.040, chapter 4, Laws of 1963, as part of the legislature's recodification of Title 36 RCW, after having earlier been rendered obsolete by reason of the enactment of the several statutory sources of our present RCW 36.16.070,supra. See, in particular, § 6, chapter 148, Laws of 1925; § 3, chapter 198, Laws of 1937, and § 2, chapter 219, Laws of 1957.2/ Because of this line of statutes, we specifically concluded in our June 23, 1952, opinion to your predecessor that:
". . . a coroner of county which has less than 50,000 population may appoint a deputy coroner with the consent of the Board of County Commissioners, and such deputy so appointed and approved by the Board of County Commissioners shall not receive any larger compensation than provided for the officer employing him."
Therefore, each of the several previous opinions of this office above cited which expressed a view contrary to that which we have set forth herein should presently be regarded as being of historical significance only and not as containing a correct statement of current law on the subject of deputy coroners in fourth through ninth class counties.
Question (2) (b):
This disposition of these several previous opinions also bears upon our answer to your remaining question; i.e., [[Orig. Op. Page 5]] whether a person appointed to serve as a deputy county coroner in a fourth through ninth class county must be admitted to the practice of law in this state.
RCW 36.27.010, of course, requires that the person holding the office ofprosecuting attorney in any county of this state must have been admitted to the practice of law; and RCW 36.27.040 requires that each deputy prosecutor ". . . shall have the same qualifications required of the prosecuting attorney. . . ." Thus, obviously, if a person serving as "prosecuting attorney-coroner" of a fourth through ninth class county were still to be regarded as being (1) barred by statute from appointing one or more deputy coroners and (2) required to utilize the services of one of his deputy prosecutors for assistance in the performance of his job as coroner, it would follow (as stated in the above distinguished prior opinions) that the person performing the functions of "deputy coroner" would be required to be an attorney. However, because deputy coroners may now be appointed in such counties pursuant to RCW 36.16.070,supra (in accordance with the reasoning set forth above) this conclusion, likewise, is no longer valid.
Simply stated, when the "prosecuting attorney-coroner" of a fourth through ninth class county appoints a deputy coroner, he now does so in exercise of the general authority granted to all county officers by this last cited statute, rather than in exercise of the special power relating to the appointment of deputy prosecuting attorneys which is contained in RCW 36.27.040. Therefore, the mere fact that deputy prosecutors must have been admitted to the practice of law in this state (because this is one of the qualifications to be possessed by the prosecutor himself) does not mean that deputy county coroners ‑ even in these several classes of counties ‑ must also possess this same qualification.
We trust that the foregoing will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/See, RCW 36.13.010 classifying all counties on the basis of their population.
2/Conceptually, the express repeal of chapter 60, Laws of 1905 by the 1963 legislature demonstrates a legislative understanding that this statute had already become a "dead letter" by reason of these other enactments for, as stated in § 36.98.010 of the 1963 recodification act:
"The provisions of this title insofar as they are substantially the same as statutory provisions repealed by this chapter, and relating to the same subject matter, shall be construed as restatements and continuations, and not as new enactments."