HABITUAL DRUNKARDS PROCEEDINGS ‑- CRIMINAL OR CIVIL ‑- FEES

HABITUAL DRUNKARDS PROCEEDINGS ‑- CRIMINAL OR CIVIL ‑- FEES

Habitual drunkard proceedings are civil in nature, the prosecuting attorney is not obligated to bring the action, and filing fees and other fees are to be paid by the complainant, who may recover costs if the complaint be sustained.

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                                                               November 14, 1951

Honorable Lowell B. Vail
Prosecuting Attorney
Garfield County
Pomeroy, Washington                                                                                                              Cite as:  AGO 51-53 No. 171

Dear Sir:

            This is to acknowledge your letter of November 6, 1951 in which you asked our opinion relative to habitual drunkard proceedings.  In this connection you asked as follows:

            "1. Is it a criminal procedure?

            "2. Is it a probate procedure?

            "3. Is the prosecuting attorney obligated to bring the proceedings on behalf of the state or anyone else?

            "4. Are any filing fees, sheriff's fees, witnesses fees payable, and if so by whom and to whom?"

            Our conclusion is that habitual drunkard proceedings are civil in nature, that the prosecuting attorney is not obligated to bring the action, and filing fees and other fees are to be paid by the complainant, who may recover costs if the complaint be sustained.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            The statutes applicable herein are Rem. Rev. Stat., sec. 1708, et seq.  These statutes, though not expressly providing that the procedure thereunder is civil, do so clearly by inference.  The inference becomes apparent when it is discovered that there is no penalty or fine or other criminal forbearance imposed upon a person declared to be an habitual drunkard.

            For an action to be criminal in nature there is generally some penalty imposed, either in the nature of a fine, imprisonment, or other penalty.

            Rem. Rev. Stat., sec. 1709, authorizes those who "may make complaint" against one addicted to excessive use of intoxicating liquor.  This section further provides that the "complaint must be verified by the oath of the complainant."

            The use of the above quoted phrases, we feel, further suggests that a proceeding to declare one an habitual drunkard is civil rather than criminal.

            Rem. Rev. Stat., sec. 1710, provides for filing the complaint, service of summons, and the time for a hearing, which further imports the idea that the matter is civil in nature.  Accordingly, we conclude that a proceeding to declare one an habitual drunkard is civil, and as such, need not necessarily be instituted by the prosecuting attorney in his official capacity.

            In regard to filing fees and other fees incidental to this proceeding we feel that Rem. Rev. Stat., sec. 1711, makes it clear that such fees shall be paid in the same manner "as are allowed by law for like processes, and services and like fees for witnesses, as in civil cases before Justices of the Peace."  In other words, the fee schedule for civil matters in justice court shall be the fee schedule pertaining to an habitual drunkard proceeding.

            Rem. Rev. Stat., sec. 1711, further provides that the costs are to be borne by the complainant if the accused is sustained, and where the complaint is sustained, the accused shall pay the costs.

            We feel that this provision, however, does not have the effect of relieving the complainant from initially paying filing fees and other fees incurred at his instance.

Very truly yours,

SMITH TROY
Attorney General

ROBERT L. SIMPSON
Assistant Attorney General