Opinion No. (2001) ( 2001 )

The Honorable Jon Dolan State Representative, District 13 State Capitol Building Jefferson City, MO 65101

Dear Representative Dolan:

You have submitted a question to this office regarding the correct time that a recorder can collect fees for the issuance of a marriage license. From the information that you have submitted it appears that some recorders have collected the fees at the time the application for a license is submitted, while other recorders collect the fees upon issuance of the marriage license. You have also asked what would be the proper method of refunding the fees depending upon when such fees are collected.

It is axiomatic that a public officer has only those powers that are clearly conferred by law or necessarily implied from the powers granted. 67 C.J.S. Officers and Public Employees S190 and Opinion No. 400-63, a copy of which is enclosed.

Accordingly, in order to determine when a recorder can collect fees for marriage licenses, it is necessary to examine the statutory provisions applicable to the collection of such fees.

Section 451.150 RSMo 1994 provides:

The recorder shall record all marriage licenses issued in a well-bound book kept for that purpose, with the return thereon, for which he shall receive a fee of ten dollars to be paid for by the person obtaining the same.

Section 451.151 RSMo 1994 provides, in part:

1. In addition to any other fee for the issuance of a marriage license there is hereby imposed a fee of twenty dollars to be paid by the person applying for such license. Such fee shall be collected by the recorder of deeds at the time the marriage license is issued.

2. In addition to any other fee for a certified copy of a marriage license there is hereby imposed a fee of seven dollars to be paid by the person applying for such certified copy. Such fee shall be collected by the recorder of deeds at the time the certified copy is issued. The recorder of deeds shall have the authority to differentiate, for fee imposition purposes, between a certified copy and a mere photocopy copy.

Section 193.195 RSMo 1994 provides:

Every officer authorized to issue marriage licenses shall be paid a recording fee of two dollars for each marriage license filed and reported by him or her to the state registrar. The recording fee shall be paid by the applicant for the license and be collected together with the fee for the license.

When interpreting statutes, courts must ascertain the intent of the legislature from the language used, give effect to that intent if possible, and consider the words used in their plain and ordinary meaning. State ex rel. Riordan v. Dierker, 956 S.W.2d 258, 260 (Mo.banc 1997). There is normally a three day waiting period between the application for a license and the issuance thereof. See Section 451.040.2 RSMo 1994. Section 451.151 RSMo 1994 provides for the imposition of a twenty dollar fee "for the issuance of a marriage license". Section451.150 RSMo 1994 provides that the recorder shall receive a ten dollar fee for recording in a separate book "all marriage licenses issued". Section 193.195 RSMo 1994 provides for the collection of a recording fee of two dollars for each marriage license filed and reported by "every officer authorized to issue marriage licenses". Section 455.205.1 RSMo 1999 Supp. permits a governing body of a county to impose a five dollar fee "upon the issuance of a marriage license" to provide financial assistance to shelters of domestic violence victims. Each of these statutory provisions refer to the issuance of the marriage license, not the receipt of the application for such a license. Therefore, the fees are to be collected upon issuance of the license, or the recording of an issued license, or the copying of an issued license.

If the fees for recording the marriage license were collected before the issuance of the license, the recorder would be obligated to refund those fees if the license is not issued. If the applicant did not seek reimbursement, the provisions of unclaimed property law, Chapter 447 RSMo, would apply. However, because we have concluded that fees can only be collected on issued marriage licenses, there would be no reason to provide a mechanism for a refund.

CONCLUSION The recorder of deeds is authorized to collect marriage license fees established by Section 451.150 RSMo 1994, Section 451.151 RSMo 1994, Section 193.195 RSMo 1994, and Section 455.205.1 RSMo 1999 Supp. at the time of the issuance of the license, not at the time of application for the license.

Very truly yours,

JEREMIAH W. (JAY) NIXON Attorney General

Enclosure