OFFICES AND OFFICERS ‑- COUNTY ‑- SHERIFF ‑- AUTHORITY TO INVESTIGATE FELONY CASES IN THIRD AND FOURTH CLASS CITIES

OFFICES AND OFFICERS ‑- COUNTY ‑- SHERIFF ‑- AUTHORITY TO INVESTIGATE FELONY CASES IN THIRD AND FOURTH CLASS CITIES

A sheriff, as chief law enforcement officer of a county, has the authority to investigate upon his own initiative all felony cases which occur within cities of the third and fourth class in his county.

                                                              - - - - - - - - - - - - -

                                                                   April 28, 1961

Honorable James J. Solan
Prosecuting Attorney
Grays Harbor County
Montesano, Washington

                                                                                                                Cite as:  AGO 61-62 No. 25

Dear Sir:

            By letter previously acknowledged, you have requested the advice of this office upon the following question:

            What authority, if any, does the sheriff have to enter into and conduct an investigation in those felony cases which occur within the jurisdiction of cities of the third class and towns of the fourth class?

            Our answer is contained in the analysis.

                                                                     ANALYSIS

            The office of sheriff is a constitutional office created by Article 11, § 5 of the Washington State Constitution (Amendment 12) which reads in part as follows:

            "The legislature, by general and uniform laws, shall provide for the election in the several counties of boards of county commissioners, sheriffs, county clerks, treasurers, prosecuting attorneys and other county, township or precinct and district officers, as public convenience may require,and shall prescribe their duties, and fix their terms of office: . . ." (Emphasis supplied.)

             [[Orig. Op. Page 2]]

            In accordance with this constitutional mandate, the legislature has prescribed the general duties of the sheriff in RCW 36.28.010, which reads as follows:

            "The sheriff is the chief executive officer and conservator of the peace of the county.  In the execution of his office, he and his deputies:

            "(1) Shall arrest and commit to prison all persons who break the peace, or attempt to break it, and all persons guilty of public offenses;

            "(2) Shall defend the county against those who, by riot or otherwise, endanger the public peace or safety;

            "(3) Shall execute the process and orders of the courts of justice or judicial officers, when delivered for that purpose, according to law;

            "(4) Shall execute all warrants delivered for that purpose by other public officers, according to the provisions of particular statutes;

            "(5) Shall attend the sessions of the courts of record held within the county, and obey their lawful orders or directions;

            "(6) Shall make complaint of all violations of the criminal law which shall come to their knowledge within their jurisdiction;

            "(7)May call to their aid such persons or power of their county as they deem necessary to keep and preserve the peace of the county and quiet and suppress all affrays, riots, unlawful assemblies, and insurrections, and to apprehend or secure any person for felony or breach of the peace.

            "The county is not responsible for the acts of the sheriff."  (Emphasis supplied.)

            It is well established that the office of sheriff also carries with it the common-law powers and duties of such office.  State ex rel. Johnston v. Melton, 192 Wash. 379, 73 P. (2d) 1334 (1937); State v. Reichman, 135 Tenn. 653, 188 S.W. 225 (1916); Anderson on Sheriffs, § 44.  As stated by our court in the Melton case,supra, at page 388:

             [[Orig. Op. Page 3]]

            ". . . The office of sheriff is a constitutional office.  In naming the county officers in § 5, Article 11 of the constitution, the people intended that those officers should exercise the powers and perform the duties then recognized as appertaining to the respective offices which they were to hold. . . ."

            Taken together, the provisions of RCW 36.28.010, supra, set out the duties of the sheriff very much as they existed at common law.  Such powers and duties are detailed and elaborated upon in State v. Williams, 346 Mo. 1003, 144 S.W. (2d) 98 (1940).  Since that case bears directly upon our inquiry here, we shall quote therefrom at some length, beginning at page 104 as follows:

            "A further argument of respondent is to the effect that he should not be charged with the failure of law enforcement in Kansas City as charged because the duty to enforce the law there was upon the metropolitan police department.  We find from the evidence that while the violations charged were prevalent throughout Jackson County the greater number did take place in Kansas City.  But it cannot be successfully asserted that a local police force has supplanted the sheriff in his duties as a peace officer.  His is an important office and one of the oldest known to law.  Under the common law he was the conservator of the peace within the county, had the safe keeping of the county jail and commanded the posse comitatus.  One author says that 'for a thousand years the sheriff has been the principal conservator of the peace in his county, with full power to command, whenever necessary, the power of the county.'  Murfree on Sheriffs.  He has also been referred to as the chief executive officer of his county.  By statute (Secs. 11516, 11518, R.S. 1929, Mo. St. Ann. §§ 11516, 1518 [11518], p. 7435) as well, he is made the conservator of the peace within his county.  His duties are described inFarmers' Mut. Fire A. v. Hunolt, Mo. App., 81 S.W.2d 977, 981:  'Sheriffs are given power, and it is made their duty, to preserve the peace, arrest and commit to jail all felons, traitors, and other misdoers, to execute all process, and to attend upon courts of record.  The powers and duties of conservator of the peace exercised by the sheriff are not strictly judicial; but he may be said to act as the chief magistrate of his county, wielding the executive  [[Orig. Op. Page 4]] power for the preservation of the public peace, and it has been held that the duty of a sheriff in the enforcement of the law implies initiative on his part, and that he must be reasonably alert with respect to possible violations of the law, and is not entitled to wait until they come to his personal knowledge, but must follow up information received from any source'.

            "His authority is county wide.  He is not restricted by municipal limits.  For better protection and for the enforcement of local ordinance the cities and towns have their police departments or their town marshals.  Even the state has its highway patrol.  Still the authority of the sheriff with his correlative duty remains.  It has become the custom for the sheriff to leave local policing to local enforcement officers but this practice cannot alter his responsibility under the law.  Usage cannot alter the law.  United States v. McDaniel, 7 Pet. 1, 8 L.Ed. 587.  It is self evident that a custom or usage repugnant to the express provision of a statute is void.  A policeman is an officer whose duties have been, for local convenience, carved out of the old duties of constable, and the constables were always part of the general force at the disposal of the sheriff.  There is no division of authority into those of the sheriff and the police.  Each is a conservator of the peace possessing such power as the statutes authorize.  See Vickers on Police Officers.  In every county there are a number of peace officers of varying authority.  They and the sheriff must work in harmony.  In the larger communities where dense population has increased the hardship of proper law enforcement police departments have developed scientific methods of crime detection and prevention.  Larger means and a greater number of men are available to a local police department than to the county sheriff.  Methods of rapid communication and transit are provided.  Under these circumstances the sheriff may leave local enforcement in local hands, but only so long as reasonable efforts in good faith are made to enforce the law.

            "The courts have taken cognizance of the development of local enforcement agencies.  It has been held, and correctly so, that a sheriff may assume  [[Orig. Op. Page 5]] that a city police department will do its duty in enforcing the law and hence will not be guilty of any serious neglect of duty if he gives little attention to police matters in such city.  But this rule has a proper qualification.  If the sheriff has reason to believe that the police force is neglecting its duty it is his duty to inform himself.  And if he knows that the police are ignoring or permitting offenses his duty to prevent and suppress such offenses is the same as it would be if there was no municipality and no police force.  The derelictions of other officials cannot excuse his failure to perform his statutory duties.  [Citation omitted.]

            "Therefore, under the facts of this case the sheriff cannot excuse his neglect of duty in Kansas City by placing the responsibility on the Kansas City Police Department.  The evidence shows the police department was permitting, knowingly and without interference, such violations; had done so over a period of time and respondent had knowledge both of such violations and of the willing neglect of the police to enforce the law.  The excuses now advanced by respondent that he was engaged in other duties, that he had not a sufficient staff for proper enforcement, and that he relied on the advice of his statutory attorney are not sufficient or valid.  A public official holds his office cum onere with all responsibilities attached.  [Citation omitted.]"

            To the same effect isState v. Reichman, supra, wherein it is stated at page 228:

            ". . . it is clear that the duties and powers of a sheriff within the limits of an incorporated city are precisely the same that they are in the remainder of the county.  The law draws no distinction.  The city officials are conservators of the peace.  But they do not supplant him. . . ."

            See also,In re Sulzmann, 125 Ohio St. 594, 183 N.E. 531 (1932), 80 C.J.S., Sheriffs and Constables, § 36, and AGO 51-53 No. 322 [[to Prosecuting Attorney, Lewis County on June 9, 1952]], a copy of which is enclosed herewith.

            We should bear in mind that as a practical matter, proper law enforcement requires that the various agencies charged therewith  [[Orig. Op. Page 6]] work in close co-operation [[cooperation]]and harmony, so that the functions of one do not operate to the exclusion of the others.  In this respect, we note that the powers and duties of the chief of police in cities of the third class and the marshal in towns of the fourth class are set forth in RCW 35.24.160 and 35.27.240, respectively.  A provision common to both statutes reads as follows:

            "He shall have the same authority as that conferred upon sheriffs for the suppression of any riot, public tumult, disturbance of the peace, or resistance against the laws or the public authorities in the lawful exercise of their functions and shall be entitled to the same protection."

            It is to be noted that the provision just quoted does not grant the chief of police or the marshal exclusive authority within their respective jurisdictions.

            We conclude, therefore, that the sheriff, as the chief law enforcement officer in the county, with jurisdiction coextensive with the county, including municipalities and townships, has the authority to investigate upon his own initiative all felony cases which occur within cities of the third class and towns of the fourth class in his county.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

DUANE S. STOOKEY
Assistant Attorney General