The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

CITIES:

HUSBAND AND WIFE:

MARRIAGES:

Authority of mayor pro tem to solemnize marriages

A city charter provision which authorizes its mayor pro tem to act in the mayor's stead during the mayor's absence, includes the authority to solemnize marriages.


Opinion No. 6985

June 8, 1998


Honorable John J. H. Schwarz, M.D.
State Senator
The Capitol
Lansing, MI 48909-7536

You have asked whether a city charter provision which authorizes the mayor pro tem to act in the mayor's stead during the mayor's absence includes the authority to solemnize marriages.

Information supplied with your inquiry indicates that a city charter provides that its mayor pro tem shall act in the stead of the mayor during the mayor's absence and shall succeed to the office of mayor, in the event a vacancy occurs in that office.

The marriage law, 1846 RS c. 83, MCL 551.1 et seq; MSA 25.1 et seq, governs marriage and the solemnization thereof. Section 2 provides that a marriage requires consent of the parties, followed by the issuance of a license and by solemnization as authorized by sections 7 to 18 of the Act. Section 7, which delineates those persons authorized to solemnize marriages, provides in relevant part as follows:

(1) Marriages may be solemnized by any of the following:


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(f) A mayor of a city, in the city in which the mayor serves.

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(3) If a mayor of a city solemnizes a marriage, the mayor shall charge and collect a fee to be determined by the council of that city, which shall be paid to the city treasurer and deposited in the general fund of the city at the end of the month.

In Cytacki v Buscko, 226 Mich 524; 197 NW 1021 (1924), the court considered the issue of a mayor pro tem's authority to act in the mayor's absence. In that case, the mayor pro tem had terminated a mayoral appointee pursuant to a city charter provision vesting the mayor pro tem with the power to perform the duties of the mayor during the mayor's absence, without any express limitation on such authority. The court found that unless a mayor's absence is so prolonged as to render the mayor unable to perform the duties of that office, a mayor pro tem may not interfere with mayoral duties or usurp mayoral authority, such as firing a mayoral appointee. However, the court pointedly noted that during a mayor's absence, a mayor pro tem "may, of course, perform the routine duties of the office and meet such cases of emergency as may arise." Cytacki, 226 Mich at 530. (Emphasis added.)

In Smith v Mayor of Ecorse, 81 Mich App 601; 265 NW2d 766 (1978), the court found that in a mayor's absence, a mayor pro tem properly exercised his city charter authority to conduct an administrative hearing, although the charter did not explicitly address the mayor pro tem's authority to undertake such a function. The court found that the mayor pro tem's authority to conduct administrative hearings was implied under the city charter, and that to hold otherwise would negate the intent of the charter. See also, Helmkamp v Livonia City Council, 160 Mich App 442; 408 NW2d 470 (1987), construing a city charter provision empowering a mayor pro tem to act in the mayor's absence.

The above authorities establish that a mayor pro tem is authorized to perform routine mayoral duties during a mayor's absence, even if a city charter fails to recite the specific duty. Solemnizing a marriage, being a ministerial act, is one such routine mayoral duty which, if performed by a mayor pro tem, does not interfere with mayoral duties or usurp mayoral authority.

It is my opinion, therefore, that a city charter provision which authorizes its mayor pro tem to act in the mayor's stead during the mayor's absence, includes the authority to solemnize marriages.


FRANK J. KELLEY
Attorney General

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