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AGO 1963 No. 54 - September 09, 1963
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John J. O'Connell | 1957-1968 | Attorney General of Washington


COURTS ‑- JUSTICE COURT ACT OF 1961 ‑- ADOPTION OF ACT BY COUNTIES AFTER 1962 ‑- EFFECT ON TERMS OF ELECTED JUSTICES OF THE PEACE ‑- SALARY.

(1) Counties in which the justice court act of 1961 is not presently in effect may put the act into effect at any time, although the term of office of existing justices of the peace might thereby be terminated.

(2) When a justice of the peace, under the 1961 justice court act, serves in a municipal department or as a municipal judge, the city pays a portion of his salary as justice of the peace, not an additional salary.

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                                                               September 9, 1963

Honorable Alf M. Jacobsen
Prosecuting Attorney
Klickitat County
Goldendale, Washington

                                                                                                                Cite as:  AGO 63-64 No. 54

Dear Sir:

            By letter, previously acknowledged, you have requested the opinion of this office on the following questions:

            "1. May the board of county commissioners, during the term of office of an elected justice of the peace, adopt the provisions of the 1961 Justice of the Peace Act and thereby terminate the term of office of the elected justice of the peace and appoint two of their number as justices of the peace for the anticipated two justice court districts in Klickitat County?

            "2. If so, is the salary of a justice of the peace who serves a municipal department part-time in a district having more than 5,000 persons but less than 7,500 restricted to a maximum of $3,000.00 or, in other words, may a city pay a salary to a justice of the peace of a justice court district over and above the salary received by such justice of the peace from the county?"

            Your questions are answered in the analysis.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            In 1961, the legislature enacted a new justice court act, chapter 299, Laws of 1961.  Section 2 of the act,cf. RCW 3.30.020, provides:

            "The provisions of this act shall apply to class AA and class A counties: . . . The provisions of this act may be made applicable to any county of the first, second, third, fourth, fifth, sixth, seventh, eighth, or ninth class upon a majority vote of its board of county commissioners."

            Klickitat county is not a class AA or class A county.  We understand from your letter that the board of county commissioners of Klickitat county has considered adopting the provisions of the 1961 justice court act, but has taken no action to date.

            The pre‑1961 statutes governing the functioning of justice courts have not been expressly amended or repealed by the 1961 act, and they continue to govern justice courts until the provisions of the 1961 act are brought into effect.  See, AGO 61-62 No. 56, to the Honorable Charles O. Carroll, Prosecuting Attorney of King County.  We therefore assume that justices of the peace were elected in various precincts in Klickitat county in November, 1962, for terms of office running from January, 1963, to January, 1967.  See, RCW 3.04.010, 3.04.080, 36.16.010 and 36.16.020.

            Section 3 of the 1961 justice court act, cf. RCW 3.30.030, provides:

            "The judges of the justice court of each justice court district shall be the justices of the peace of the district elected or appointed as provided in this act."  (Emphasis supplied.)

            (1) Your first question is whether the county commissioners can make the provisions of the 1961 justice court act applicable in Klickitat county during the term of office of the present justices of the peace so as to terminate their offices and substitute justices of the peace selected as provided in the 1961 act.

            The answer to your question depends entirely on the intention of the legislature.  The legislature has power to determine the number of justices of the peace, and it may exercise this power in a manner resulting in elimination of a particular justice court during the term of office of a justice of the peace.  See, Opinions of Attorney General to Honorable Lloyd Shorett, Prosecuting Attorney, King County, Washington, December 26, 1944 [[1945-46 OAG 6]], and to Honorable R. DeWitt Jones,  [[Orig. Op. Page 3]] Prosecuting Attorney, Clark County, September 30, 1947 [[1947-48 OAG 65b]], copies of which are attached.

            The 1961 justice court act has no express language governing adoption of its provisions by less populous counties after 1962.  Section 129 of the act, RCW 3.74.920, reads:

            "All justice courts and inferior courts in counties affected by this act on the effective date of this act shall continue to function until the second Monday in January, 1963 as if this act had not been enacted: . . .Provided further, That in such counties the terms of office of all justices of the peace, municipal judges and police court judges whose terms commenced prior to the second Monday in January, 1963 shall, except as otherwise provided in this act, expire on the second Monday in January, 1963."  (Emphasis supplied.)

            The "effective date of this act" was June 8, 1961.  Preface, 1961 Session Laws.  We do not believe that the procedure set forth in § 129 was intended to provide the exclusive manner and time for changing to the new justice court system, except in the class AA and class A counties.  It is unreasonable to suppose that the option given in § 2 to counties other than class AA and A was intended to be available only before June 8, 1961, so that the time schedule in § 129 could be used.  That is, we think it would be unreasonable to construe the option statute as authorizing exercise of the option only during the time before the statute became effective.

            No provision of the justice court act sets out procedure for conversion of justice court systems if the act were made applicable in a county after 1962.  The option provision in § 2, (quoted previously) specifies no time or times for its exercise.  Nor are any dates specified in the provision for transfer of proceedings from old to new justice courts.  Section 127,cf. RCW 3.74.900.

            In sections 26 and 27, RCW 3.38.020, 3.38.030, procedures and dates for adoption of justice court districting plans are specified.  In a letter to Mr. R. C. Watts, Washington State Association of County Commissioners, August 18, 1961, a copy of which is attached, this office expressed the opinion that in other than class A and AA counties, the sections of the justice court act prescribing the composition and duties of the districting committees do not apply unless the county commissioners have taken affirmative action to make the provisions of the act applicable in the county.

             [[Orig. Op. Page 4]]

            We do not see any legislative intent that the option given in § 2 must be exercised in time to use the time schedule for districting in §§ 26 and 27.  The time schedule was part of the original bill, which contemplated that all justice courts in every county should change to the new system in January, 1963.  The provisions excluding less populous counties first appeared in the substitute bill which was reported to both houses by a free conference committee on the last day of the legislative session.  See, Senate Journal, 1961, p. 1142, and following; House Journal, 1961, p. 1240, and following.  The dates prescribed in the original bill for districting seem designed to ensure an orderly transition in counties where new justices of the peace were to be elected in November, 1962, to take office in January, 1963.  In our opinion, to hold that the time schedule for districting limits the time in which the option to come under the act may be exercised would be to place undue emphasis on the districting provisions.  The different sections of a statute must be construed in relation to the entire act, and in light of the purpose and objective of the act, so as to produce a harmonious whole.  Crippen v. Pulliam, 161 Wash. Dec. 728 (1963) [[61 Wn.2d 725]]; State ex rel. Port of Seattle v. Dept. of Public Ser., 1 Wn.2d 102, 95 P.2d 1007 (1939).  The purpose of the 1961 justice court act was to improve the quality of our inferior courts.  See, Dean George Neff Steven's note, 36 Wash. Law Rev. 297, 298 [[36 Wash. L.Rev. 297]].  Reading the act as a whole and considering its purpose, we conclude that the option provision in § 2 was intended to be continuing, and that the legislature favored application of the act in any county which voluntarily assented to its provisions.

            Having concluded that the option to make the provisions of the 1961 justice court act applicable in a county is still available, we proceed to your exact question, which is whether the act can be made applicable during the term of existing justices of the peace, terminating their offices.  This is a problem because the legislature has not expressed itself on the time for bringing a county under the provisions of the act after 1962.  That being the case, we are of the opinion that it is up to the board of county commissioners to select an orderly method of bringing the change into effect, if it chooses to make the provisions of the 1961 justice court act applicable in a county.  Cf. 2 McQuillin, Municipal Corporations (3rd ed.) § 10.29.  This could involve voting to make the act applicable in the county, establishing districts, and then waiting until the election in 1966 to select justices of the peace, or the change of courts could be made at some other time selected by the board of county commissioners, and it could appoint justices of the peace to fill the vacant offices until the next general election.  Other transitional procedures might be appropriate.

            The conclusion we have reached is consistent with the sparse legal authority we have found in this field of law, but we emphasize that our conclusion is based primarily on our interpretation of the 1961  [[Orig. Op. Page 5]] justice court act viewed in the light of the purposes of the legislature as we understand it.  Of course, the question can only be finally answered by an appropriate legal action presented to the courts.

            (2) Your second question is whether a city which has established a municipal department of a justice court may pay the justice of the peace a salary over and above the salary paid by the county, or the maximum salary which may be paid by the county.

            Your question specifically concerns a justice of the peace serving in a district having more than 5,000 but less than 7,500 persons.

            Section 101, chapter 299, Laws of 1961 RCW 3.58.020 states:

            "The annual salaries of part time justices of the peace shall be as follows:

            ". . .

            "(3) In justice court districts having a population of five thousand persons or more, but less than seven thousand five hundred, a minimum of four hundred dollars and a maximum of three thousand dollars;

            ". . .

            "(8) That all salaries of part time justices of the peace shall be set by the county commissioners in each county, in accordance with the minimum and maximum salaries as provided in this section."

            Sections 35-49, chapter 299, Laws of 1961, chapter 3.46 RCW, authorizes cities to establish a municipal department of the justice court and prescribes the manner of formation and operation of such departments.

            Section 38, chapter 299, Laws of 1961, RCW 3.46.040, states in part:

            ". . . The districting committee in its plan shall designate the proportion of the salary of each justice serving as a part time municipal judge to be paid by the city, which shall be proportionate to the time of such judge allotted to the municipal department by the districting plan. . . ."

            Section 43, chapter 299, Laws of 1961, RCW 3.46.090, states in part:

            ". . . The salary of a justice of the peace serving a municipal department part time shall be paid jointly by the county and the city in the same  [[Orig. Op. Page 6]] proportion as the time of the justice has been allocated to each."

            Sections 50-96, chapter 299, Laws of 1961, chapter 3.50 RCW, provides alternative provisions for a municipal court in cities or towns with a population less than 20,000.

            Section 53, chapter 299, Laws of 1961, RCW 3.50.040, states in part:

            ". . . Any city or town shall have authority to appoint a duly elected justice of the peace as its municipal judge when the municipal judge is not required to serve full time.  In the event of the appointment of a justice of the peace, the city or town shall pay a pro rata share of his salary."

            In each case the statutes provide that the city shall pay a share of the salary of the justice of the peace.  The salaries of part-time justices of the peace are set by the county commissioners within the salary ranges prescribed in § 101, chapter 299, Laws of 1961, RCW 3.58.020, quoted in part above.

            These statutes are consistent with a long-standing rule in this state that the office of justice of the peace and police justice (the term used in Article IV, § 10 [Amendment 28], Washington Constitution), are not separate offices, but are one.  InState ex rel. Evans v. Superior Court, 92 Wash. 375, 159 Pac. 84 (1916), our court said:

            "There is but one office, that of justice of the peace.  That he exercises jurisdiction over violations of city ordinances in no way changes his official character or his office.  The framers of the constitution, foreseeing that the time would come in all cities when the convenience of the public would demand that the jurisdiction then exercised by all justices of the peace in corporate limits should be exercised by one or more of them, declared (art. 4, § 10) that the legislature should provide for the number of justices of the peace to be elected in incorporated cities and towns, and prescribe by law their powers, duties and jurisdiction, and further, that 'justices of the peace may be made police justices of incorporated cities and towns.'  No new office was created.  The justice who is selected as police justice is exercising the same jurisdiction that he would have exercised if  [[Orig. Op. Page 7]] none of the justices had been selected as police justice; the only difference being that the legislature has provided a way in which the jurisdiction theretofore extending to all of the justices, shall, in so far as it relates to city ordinances, licenses, etc., be exclusively exercised by one of them. . . ."  (pp. 377, 378.)

            Accordingly, we conclude that the salary of a part-time justice of the peace is that set by the county commissioners, and if the justice of the peace serves as a municipal justice, the city shall pay a proportion of the salary set by the county commissioners, rather than an additional salary.  This eliminates the possibility that the salary of the justice of the peace could be more than the maximum allowed in § 101, chapter 299, Laws of 1961, RCW 3.58.020.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

MORTON M. TYTLER
Assistant Attorney General

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