STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5409

December 18, 1978

MARRIAGE:

Duty of the county clerk to examine marriage licenses and certificates of marriage

COUNTY CLERKS:

Duty of the county clerk to examine marriage licenses and certificates of marriage

Except for authority to request proof of the parties' ages, a county clerk has practically no discretion to look behind the representations made on the sworn application unless it appears that the parties are not legally entitled to be married. The acceptance of the application being a ministerial act, the circumstances must be extraordinary before the clerk can refuse to issue the marriage license.

If, after a certificate of marriage has been registered, it is alleged that the facts are not correctly stated, the county clerk shall require the evidence in the form of an affidavit or otherwise and submit the evidence for approval by the circuit court by ex parte order.

Mr. Eliot G. Striar

Office of Corporation Counsel

Washtenaw County Building

P.O. Box 8645

Ann Arbor, Michigan 48107

You have requested my opinion on the following questions:

County clerks are elected officials who have only such duties and powers as are conferred on them by law. Const 1963, art 7, Sec. 4. See also, Sittler v Board of Control of the Michigan College of Mining & Technology, 333 Mich 681; 53 NW2d 681 (1952); and Roxborough v Unemployment Compensation Comm, 309 Mich 505, 15 NW2d 724 (1944).

1887 PA 128, MCLA 551.101 et seq; MSA 25.31 et seq, is an act requiring a civil license in order to marry and sets forth the duties and functions of county clerks in the issuance and recording of marriage licenses. Such duties and functions are wholly ministerial in nature, leaving no additional discretion to the clerks. Sabbe v Wayne County, 322 Mich 501; 33 NW2d 921 (1948); Toms v Judge of Recorder's Court of Detroit, 237 Mich 413; 212 NW 69 (1927); Wilson v Circuit Judge of Genesee County, 87 Mich 493; 49 NW 869 (1891).

1887 PA 128, supra, Sec. 3(1), requires the county clerk to complete the marriage license according to the answers given in the sworn application, to issue the license where it appears from those answers that the persons are legally entitled to be married, and to record a copy of the license in the books of registration. In pertinent part, this subsection states:

Thus, the act provides county clerks with practically no discretion to look behind the representations made on the sworn application unless it appears that the parties are not legally entitled to be married. E.g., see OAG, 1949-1950, No 1059, p 374 (November 4, 1949), wherein it was held that a county clerk had no authority to issue a marriage license for the purpose of allowing a man to marry his son's wife as state law forbids such unions. Also, if the marriage certificate is not signed by a person authorized to perform the marriage, the clerk may not accept the certificate for recording.

1887 PA 128, Sec. 3(1), supra, however, does allow the county clerk to request proof of the parties' ages 'in addition to the statement of ages on the application,' and to require the written consent of one of the parents of a female applicant whenever it appears from the affidavit that she has not attained the age of 18 years. No license may be issued until the consent requirement is met.

Accordingly, the county clerk may look behind the sworn application to corroborate the ages of applicants for a marriage license. In other cases, except for those involving extraordinary circumstances, the county clerk must accept the application as submitted and, if the application is complete and it appears that the parties are legally entitled to be married, the clerk must issue the marriage license and record a correct copy thereof in the books of registration. Being a ministerial act, the circumstances must be extraordinary before the clerk may refuse to so issue the license. Iron County Board of Supervisors v Crystal Falls, 23 Mich App 319; 178 NW2d 512 (1970); e.g., where the county clerk has personal knowledge that the parties are not legally entitled to be married. See OAG, No 1059, supra. It may also be noted that a county clerk who refuses to issue a marriage license to persons properly applying and legally entitled to be married is subject to criminal penalties. 1887 PA 128, supra, Sec. 4. An action in mandamus would also lie in order to cause the county clerk to issue a marriage license to the applying parties.

As to the recording of the license with a certificate of marriage after the marriage ceremony has been performed, 1887 PA 128, supra, Sec. 3(2) provides:

Again, the act allows little, if any, discretion with respect to recordation, and does not authorize the county clerk to look beyond the representations of the clergyman or magistrate on the certificate of marriage, ⁽²⁾ absent extraordinary circumstances.

It should be noted, however, that after a certificate of marriage has been registered, 1887 PA 128, supra, Sec. 11, as added by 1969 PA 196, provides a mechanism for the correction of the same whenever it is alleged that facts are not correctly stated in the subject license or certification.

Accordingly, the legislature has authorized the county clerk to require the submission of evidence to establish the true facts upon allegations that a previously registered license or certificate of marriage contains incorrect facts. The submission of such evidence and approval by the circuit court are conditions precedent to changing any of the facts previously recorded. Hence, county clerks are granted limited investigatory authority in order to make changes or previously registered documents.

In summary, it is my opinion that a county clerk is required to examine all marriage licenses and certificates of marriage submitted to his or her office for recording. The clerk's examination, however, is limited to the sworn representations made upon the license application or certificate of marriage. If the license or certificate is properly completed and the parties appear to be legally entitled to be married, the county clerk may not refuse to record them in the book of registration.

Frank J. Kelley