Letter Opinion 1970 No. 161

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                                                               December 30, 1970
 
 
 
Honorable Robert K. Leick
Prosecuting Attorney
Skamania County
Stevenson, Washington 98648
                                                                                                             Cite as:  AGLO 1970 No. 161
 
 
Dear Sir:
 
            This is written in response to your recent letter requesting our opinion on the following two questions:
 
            "(1) Can the County Commissioners hire a private citizen who does not hold a law enforcement commission from the County Sheriff or otherwise to police county roads with regard to weight and measures?
 
            "(2) Assuming the commissioners could hire the man, could this man be given any powers of arrest other than the power of a citizen's arrest which all citizens possess in common?"
 
                                                                     ANALYSIS
 
            By way of background, you have stated the facts giving rise to your questions as follows:
 
            "In the past the County Road Department has employed a deputy sheriff on a contractual basis with the County Sheriff's Office to police county highways within Skamania County with regard to weight and measure controls.  This man in the past has possessed a deputy sheriff's commission.  The sheriff has since relieved this man of his commission and [the foregoing] two specific questions arise, . . ."
 
            In the case of State ex rel. Johnston v. Melton, 192 Wash. 379, 73 P.2d 1334 (1937), the Washington court held that, because of the provisions of Article XI, § 5 of our state Constitution,1/ certain legislation providing for the appointment of investigators having ". . . the same authority as the sheriff . . . to make arrests anywhere in the county . . ." was unconstitutional.  The thrust of this opinion, as we view it, is that in so far as the powers and  [[Orig. Op. Page 2]] functions of a county sheriff are concerned, those powers and functions must be performed (at the county level) by the sheriff or his deputies, and not by some other county officer or employee.
 

            Therefore, to the extent that the duties of the position to which your questions refer involve those powers of arrest which are possessed only by a peace officer, as distinguished from the powers of arrest which are possessed by a citizen, it would be our opinion that the position could only be filled by a sheriff or deputy sheriff.  On the other hand, if the position contemplated by the county commissioners does not call for the individual to perform any of the functions of the sheriff's office, or require that the individual occupying the position possess the special powers of arrest which only a peace officer has, then we see no difficulty in filling the position with a private citizen who does not hold a law enforcement commission from the county sheriff's office.
 
            It is hoped that the foregoing will be of some assistance to you.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL
 
 
PHILIP H. AUSTIN
Assistant Attorney General
 
 
                                                         ***   FOOTNOTES   ***
 
1/Article XI, § 5 provides, 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 . . ."