JUSTICE OF PEACE ‑- POLICE JUDGE ‑- APPOINTMENT NOT CONTRACT.

JUSTICE OF PEACE ‑- POLICE JUDGE ‑- APPOINTMENT NOT CONTRACT.

 The elected justice of the peace in a city of the third class over 5,000 population must be appointed police judge, and the fact that his wife is a member of the city council is not such a disability that will bar his appointment.

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                                                                January 24, 1955

 Honorable Wally Carmichael
State Representative, 38th District
Legislative Building
Olympia, Washington                                                                                                                Cite as:  AGO 55-57 No. 14

 Dear Sir:

             In your letter of December 30, 1954, you requested our opinion as to whether the one qualified justice of the peace in the city of Mountlake Terrace should be appointed police judge when his wife is a member of the city council.

             It is our opinion that the justicemust be appointed police judge and the fact that his wife is a member of the city council would not disqualify him.

                                                                      ANALYSIS

             Mountlake Terrace, a city of over 5,000 population, has only one regularly elected justice of the peace.  His wife is a member of the city council.  The question is whether the wife's membership on the council is such a disability as will prevent the justice from being appointed police judge.

             RCW 35.24.450 provides as follows:

             "At the time he makes his other appointments, the mayor shall appoint a police judge who shall be the regular elected justice of the peace in all cities of the third class, having a population of five thousand or more, if there is any such justice of the peace present in the city and not under  [[Orig. Op. Page 2]] any disability.  Said police judge shall, before entering upon the duties of his office, give such additional bond to the city for the faithful performance of his duties as the city council may by ordinance direct, and shall receive such salary in addition to his salary as justice of the peace as the council shall by ordinance direct."

             This provision has been held to be mandatory, and the subject of an action in quo warrant.  SeeState ex rel. VanMoss v. Sailors, 164 Wash. 211, 2 P. (2d) 725 (1931).  In an opinion of this office dated January 19, 1925, 25 OAG 2, we said in regard to this section that:

            "* * * The intent * * * was to compel the appointment, in cities of the third class having in excess of 5,000 population, of the salaried justice of the peace who has been elected sole justice * * *"

             The provision with which you are apparently concerned on the question as to whether the justice is under disability due to his wife's membership on the city council is as follows:

             RCW 35.24.170:

             "No officer of a city of the third class shall be directly or indirectly interested in any contract with the city or with any officer thereof in his official capacity, or in doing any work or furnishing any supplies for the use of the city or any officer thereof in his official capacity, and any claim for compensation for work done or materials or supplies furnished in which any officer is interested shall be void and, even though audited and allowed, shall not be paid by the treasurer.

              [[Orig. Op. Page 3]]

            "Any officer of the city who is resident agent for a local dealer in the goods and supplies of any person, firm or corporation furnishing such goods and supplies for the use of the city or of any officer thereof in his official capacity or of a contractor in the performance of any contract with the city shall be deemed interested as contemplated in this section.

            "The provisions of this section shall not apply to any contract or work or the purchase of any material, goods or supplies when the expenditure thereof is one hundred dollars or less for any calendar month.

             "Any wilful [[willful]]violation of the provisions of this section shall be a ground for removal from office and shall also be punished as a misdemeanor."

             This provision is generally construed to relate to contracts between a public officer in his private capacity and the public corporation of which he is an officer.  The intention of the legislature is obviously to prevent fraud and collusion.  Though the restriction has been construed to apply in situations where a wife or relative contracts with the corporation, it is inconceivable that the court would construe it to apply in a situation of this type.  A justice of the peace is a public officer.  All duties performed by a municipal police judge are done in his capacity as a justice of the peace.  Everett v. Johnson, 37 Wn. (2d) 505, 224 P. (2d) 617 (1950).  Therefore, it would appear that the appointment merely broadens the duties of the justice and does not constitute a contract which would come within the provisions of RCW 35.24.170.

 Very truly yours,
 DON EASTVOLD
Attorney General

EDWARD M. LANE
Assistant Attorney General