SHERIFFS, PROSECUTING ATTORNEYS ‑- DUTIES AND POWERS

SHERIFFS, PROSECUTING ATTORNEYS ‑- DUTIES AND POWERS

While the county sheriff is obligated to investigate alleged violations of the law, the prosecuting attorney has no authority to compel any action by the sheriff.

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                                                                    June 9, 1952

Honorable John Panesko
Prosecuting Attorney
Lewis County
Chehalis, Washington                                                                                                              Cite as:  AGO 51-53 No. 322

Dear Sir:

            We have your letter inquiring whether this office has previously given any opinions defining the duties of a county sheriff generally and particularly as to the investigation of criminal charges.  You also inquire to what extent a prosecuting attorney can compel a county sheriff to investigate and secure evidence to support a criminal charge, both prior and after the time of filing an information.

            The conclusions reached are that the sheriff is obligated to investigate alleged violations of the law but that the prosecuting attorney has no authority to compel any action on the part of the sheriff other than by the indirect method of prosecution for perpetration of crime by the sheriff himself.

                                                                     ANALYSIS

            This office has not rendered any prior opinions on this matter.  The duties of the sheriff, who is a constitutional officer, Article II, section 5 as amended;State v. Melton, 192 Wash. 379, 73 P. (2d) 1334, (1937), have been established by the legislature and appear in chapter 36.28 RCW.  Nowhere does there appear any specific mandate to the sheriff to investigate criminal charges.

             [[Orig. Op. Page 2]]

            However, where the office of sheriff is named in the constitution, his duties are the same as they were at the time the constitution was adopted.  State v. Melton, supra.  The office of sheriff carries with it all its common law powers and duties except as modified by the constitution and statutes.  Anderson on Sheriffs, § 44.

            There are but few cases concerning the extent to which there is a duty on the part of the sheriff to investigate criminal charges under common law. A Minnesota case,In re Olson, 211 Minn. 114, 300 N.W. 398 (1941), states that the duty of a sheriff requires initiative on his part; that he must be reasonably alert with respect to possible violations of the law and is not entitled to wait until they come to his personal knowledge, but must follow up information received from any source.  In that case an order of the governor removing a sheriff for nonfeasance of office was affirmed by the court.  The sheriff in defense denied knowledge of widespread gambling violations although responsible citizens had informed him by letter of alleged violations.  The court stated that information of offenses received from responsible sources cannot be ignored.

            A similar result was reached in State v. Reichman, 135 Tenn. 685, 188 S.W. 225 (1916).  In defense to a petition for removal the sheriff insisted he was under no duty to do detective services to discover violations of law.  In reversing a decree refusing to remove the sheriff, the court held that the duties of the sheriff cannot be performed without some degree of diligence to inform himself of conditions in his county.  The court added he need not patrol the streets as the police do, but he must keep his eyes and ears open for public offenses.

            In both of these cases the inaction of the sheriff was flagrant and the violations of law about which nothing was done were many.  Whether either court would have upheld an order of removal had the nonfeasance consisted of failure to investigate merely one or a few alleged violations of which the sheriff had been informed, of course, is doubtful.  Nevertheless the rule laid down is that the sheriff must use initiative in discovering violations and must follow up information received from responsible sources.

            In answer to your second question, it appears that a county prosecutor has no authority to compel any act by the sheriff.  The prosecuting attorney and the sheriff are both constitutional, popularly elected officers whose spheres of authority, while springing from the same source, are separate and distinct.  Each officer is required only to act according to law.  In the exercise of executive and administrative functions and in conserving the public peace  [[Orig. Op. Page 3]] the sheriff represents the sovereignty of the state and he has no superior in his county.  State v. McCarty, 104 Kans. 307, 179 Pac. 309.  Of course, if the situation should arise in which a sheriff had committed a misdemeanor such as set out in RCW 36.28.140, or misconduct as set out in chapter 42.20 RCW, it would then become the duty of the county prosecuting attorney to prosecute the action in behalf of the county and the state, but this authority can be exercised only in respect to prior action or inaction of the sheriff and cannot be used prospectively to move the sheriff to any action.

Very truly yours,

SMITH TROY
Attorney General

DON CARY SMITH
Assistant Attorney General