CITIES AND TOWNS ‑- THIRD CLASS ‑- ORDINANCES ‑- VIOLATIONS ‑- PROSECUTION BY CITY ATTORNEY

CITIES AND TOWNS ‑- THIRD CLASS ‑- ORDINANCES ‑- VIOLATIONS ‑- PROSECUTION BY CITY ATTORNEY.

The chief of police of third class cities may not represent the city as its attorney in the prosecution of ordinance violations before a police judge but must act through the city attorney in actual prosecution.

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                                                               December 18, 1962

Honorable John Bigley
State Representative, 30th District
26903 148th Southeast
Kent, Washington

                                                                                                              Cite as:  AGO 61-62 No. 184

Dear Sir:

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

            (1) May the chief of police of third class cities rather than the city attorney prosecute city ordinance violations before the police judge?

            (2) Assuming the first answer to be in the affirmative, where the third class city elects to participate fully under the new justice court act (chapter 299, Laws of 1961) would the same conclusion be reached on the theory that the justice of the peace is in effect a "police justice" in certain cases?

            We answer your first question in the negative, and it is unnecessary therefore to answer your second question.

                                                                     ANALYSIS

            A municipal corporation, being but a creature of the state, derives its existence, powers and duties from the legislative body of the state.  2 McQuillin, Municipal Corporations (3rd ed.) 12, § 4.04; 578 § 10.03.  The officers of a municipality have only such powers and duties as are conferred upon them expressly or by necessary implication by the applicable statutes.  Othello v. Harder, 46 Wn. (2d) 747, 284 P. (2d) 1099 (1955).

            The applicable statutes here are (a) RCW 35.24.110, enacted in 1915,  [[Orig. Op. Page 2]] which provides in part:

            ". . . He [the city attorney] shall represent the city in all actions broughtby or againstthe city or against city officials in their official capacity. . . ."  (Emphasis supplied.)

            and (b) RCW 35.24.160 (cf. § 27, chapter 184, Laws of 1915), providing in pertinent part that:

            ". . . The chief of police shall prosecute before the police justice all violations of city ordinances which come to his knowledge. . . ."

            If RCW 35.24.160 actually delegated to the chief of police the duty to prosecute, meaning to represent the city as its attorney in criminal actions, the statute would be manifestly inconsistent with RCW 35.24.110 which declares that the city attorney shall represent the city in "all" actions.

            It is a general rule in the interpretation of statutes that effect should be given to words which are plain and unambiguous, yet it is well settled that where the literal interpretation of a particular word or phrase is repugnant to the intent of the legislature manifested by the act taken as a whole, such interpretation ought not to prevail.  Howlett v. Cheetham, 17 Wash. 626, 50 Pac. 522 (1897); Cory v. Nethery, 19 Wn. (2d) 326, 142 P. (2d) 488 (1943).  It is also a well-established rule that statutes should be harmonized and effect should be given to each, wherever possible.  See,State v. Houck, 32 Wn. (2d) 681, 203 P. (2d) 693 (1949), and alsoLindsey v. Superior Court, 33 Wn. (2d) 94, 204 P. (2d) 482 (1949).

            The chief of police is made by law the chief enforcement officer and it is his duty to secure the enforcement of all ordinances.  However, the chief of police cannot practice law unless he is duly licensed as an attorney.  See, RCW 2.48.170, which provides:

            "No person shall practice law in this state . . .unless he shall be an active member [of the state bar] . . ."  (Emphasis supplied.)

            In addition, Rule 7, Rules for Admission to Practice, promulgated by our supreme court, would take precedence over any inconsistent statute on the subject.  See,State ex rel. Laughlin v. State B. A., 26 Wn. (2d)  [[Orig. Op. Page 3]] 914, 176 P. (2d) 301 (1947).  The rule provides in pertinent part as follows:

            "No personshall appear as attorney or counsel in any of the courts of this state, unless he is an active member of the state bar:  Provided, That a member in good standing of the bar of any other state may, with permission of the court, appear as counsel in the trial of an action or proceeding in association only with an active member of the state bar, who shall be the attorney of record therein and responsible for the conduct thereof."  (Emphasis supplied.)

            See, also, the discussion by this office on the subject of unauthorized practice, in AGO 61-62 No. 6, a copy of which is enclosed.

            When we construe the 1915 act as a whole, and the various other statutes and rules on the subject, it is our opinion that RCW 35.24.160 merely means that the chief of police shall prosecute ordinance violations in the manner provided by law; i.e., through the city attorney.  Thus, when actual prosecution before the police judge is necessary, the chief of police can act only through the instrumentality of the city attorney.

            Your second question assumes an affirmative answer to the first question.  Since we answered in the negative, there is no reason to discuss your second question.

            In summary, it is our opinion that the chief of police of third class cities may not represent the city as its attorney in the prosecution of ordinance violations before the police judge but must act through the city attorney in actual prosecutions.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General