Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1966 No. 115 - Oct 20 1966
Attorney General John J. O'Connell


(1) The county commissioners of a second (or lower) class county may not make a law prohibiting their prosecuting attorney from engaging in the private practice of law where the legislature has enacted a statute which permits such practice.

(2) A county may not pay its prosecuting attorney a salary greater than that fixed by RCW 36.17.020, as consideration for his agreement not to engage in private practice.

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                                                                October 20, 1966

Honorable Perry B. Woodall
State Senator, 15th District
P.O. Box 507
Toppenish, Washington

                                                                                                              Cite as:  AGO 65-66 No. 115

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on questions which we paraphrase as follows:

            (1) May a second class county, through action of its board of county commissioners, prohibit the private practice of law by its prosecuting attorney?

            (2) May a county pay its prosecuting attorney a salary greater than provided for in RCW 36.17.020 as consideration for a prohibition of private law practice for that officer?

            We answer both questions in the negative for the reasons set forth in our analysis.


            Question (1):

            The applicable statute relative to the private practice of law by prosecuting attorneys is RCW 36.27.060, which provides:

             [[Orig. Op. Page 2]]

            "The prosecuting attorneys of class A counties and counties of the first class and their deputies shall not engage in the private practice of law."

            Your first question is whether a second class county, through its board of county commissioners, may establish a similar prohibition.1/

             It has long been recognized that prosecuting attorneys of smaller counties must be permitted to engage in private practice to supplement their official salary if the office is to be filled.  State ex rel. Becker v. Wiley, 16 Wn.2d 340, 133 P.2d 507 (1943).  Our supreme court has touched this issue before, and in Callahan v. Jones, 200 Wash. 241, 93 P.2d 326 (1939), at page 248, stated:

            "The general rule in regard to the participation by a prosecuting attorney in civil practice has been well stated as follows:

            "'He [the prosecuting attorney] is not prohibited, in the absence of statute, from representing private litigants where he owes no duty to the state.'  18 C.J. 1308, § 32."

            InState ex rel. Becker v. Wiley, supra, at page 355, the court stated:

            "That it was not the intent of the legislature to prohibit prosecuting attorneys from engaging in certain types of private practice, is evident from Rem. Rev. Stat., § 4138 [P.C. § 1792], which provides:

            "'No prosecuting attorney shall receive any fee or reward from any person, on behalf of any prosecution, for any of his  [[Orig. Op. Page 3]] official services, except as provided in this chapter, nor shall he be engaged as attorney or council for a party in any civil action [or for] a party to any criminal proceedings depending upon the same facts as such criminal [civil] proceedings.'

            ". . .

            "As we have stated, in view of the fact that the above section has been in effect for so many years, it is impossible to escape the conclusion that the legislature has approved of a prosecuting attorney's engaging in private practice, so long as such practice does not conflict with the duties imposed upon him as prosecuting attorney."

            It is, of course, fundamental that no county or other municipal corporation, through action of its governing body, can make a law which is in conflict with general law as enacted by the legislature.  See Article XI, § 11, of the Washington constitution; also, Miller v. Spokane, 35 Wn.2d 113, 211 P.2d 165 (1949), andBellingham v. Schampera, 57 Wn.2d 106, 356 P.2d 292 (1960), among many other cases applying this rule.2/   Accordingly, it follows, in answer to your first question, that where the legislature has, in effect, permitted prosecuting attorneys to engage in the private practice of law in all counties below first class (RCW 36.27.060,supra), no such county can prohibit its prosecuting attorney from doing so.

            Question (2):

            Your second question apparently assumes an inability to legally prohibit (at the county level) a prosecuting attorney of a second (or lower) class county from engaging in the private practice of law.  Your question, in essence, is  [[Orig. Op. Page 4]] whether the county commissioners, or voters, of such a county can nevertheless encourage him not to do so by offering him a salary in excess of that fixed by statute (RCW 36.17.020) as consideration for his agreement not to engage in private practice.

            Article XI, § 8, of the Washington constitution provides:

            "The legislature shall fix the compensation by salaries of all county officers, and of constables in cities having a population of five thousand and upwards; except that public administrators, surveyors and coroners may or may not be salaried officers.  The salary of any county, city, town, or municipal officers shall not be increased or diminished after his election, or during his term of office; nor shall the term of any such officer be extended beyond the period for which he is elected or appointed."  (Emphasis supplied.)

            The legislature has exercised its responsibility under Article XI, § 5, of the constitution by setting the scheduled salaries for prosecuting attorneys in RCW 36.17.020, which provides in part that the salary of the prosecuting attorney in a county of the second class shall be $9,300 per year.

            Our constitution has plainly and unambiguously provided that the legislature shall prescribe the duties for prosecuting attorneys and also fix their compensation.  The legislature has done so.  The legislature undoubtedly has the power, in view of the permissive language in Article XI, § 5, to provide a standard other than county population for the salary of a prosecuting attorney.  However, it has seen fit to adopt that standard, since it has provided in RCW 36.17.020 that the compensation "shall be" $9,300, for the prosecuting attorney of a county of the second class; being mandatory, that is the only salary that can be paid.

            However laudable the attempt of a county to upgrade its office of prosecuting attorney, the fact remains that responsibility for this has been delegated to the legislature through our constitution, and any attempt to give extra compensation  [[Orig. Op. Page 5]] to a prosecuting attorney in a second class county in lieu of his right to engage in private practice would directly violate the letter and intent of Article XI, § 5 and § 8, of our constitution and its implementation by the legislature.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/Obviously, though your question is limited to the case of a second class county, an identical question could be asked as to any other lower class of county; thus, our answer hereto should be regarded as covering all classes of counties below first class.

2/In addition, see so much of Article XI, § 5 of the Washington constitution as expressly provides that

            "The legislature . . . shall provide for the election in the several counties of . . . prosecuting attorneys. . . and shall prescribe their duties, . . ."