Request By:
Ms. Helen O'Dell
Larue County Clerk
Hodgenville, Kentucky 42748
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You raise the question as to whether or not a young man who is 17 years of age, and who is licensed as a minister, may be licensed to solemnize marriages in Kentucky.
KRS 402.060 reads:
"No minister or priest shall solemnize marriages until he has obtained a license therefor from the appropriate court of the county in which he resides, or in which he serves as a minister or priest in a place of worship, upon satisfying the court that he is a person of good moral character and in regular communion with his religious society, and upon giving covenant to the Commonwealth, with good surety, not to violate the law of this state concerning marriage. Any such license may be annulled by any county court, after notice to the person holding the license. "
Ministers of the gospel are permitted by KRS 402.050 to solemnize marriages in Kentucky. Both KRS 402.050 and 402.060 are silent as to any qualifying age of the minister.
Under KRS 402.020 and 402.210, a 17 year old person cannot procure a marriage license, generally, unless his father, mother or guardian signs a written consent thereto. However, the statutes are so worded that being qualified to get married to some other person and being qualified to pronounce the legal wedding ceremony where others are getting married are two mutually exclusive activities.
Generally, 18 is the age of majority for all purposes in this Commonwealth. KRS 2.015. However, it has no application here, since neither KRS 402.050 nor 402.060 refer to age as a qualifying factor. The qualification of a minister, including age, is apparently left up to the particular denomination or religious society. The courts have said that statutes must be construed literally if it is reasonably possible. Here it is reasonably possible to so interpret KRS 402.050 and 402.060 literally.
Barrett v. Stephany, Ky., 510 S.W.2d 524 (1974) 526.
In
Commonwealth v. Hallahan, Ky., 391 S.W.2d 378 (1965) 380, the court held that KRS 2.015 [age of majority] can apply only where the statutes do not designate age in terms of a precise number of years. Thus, implicitly, the court was thinking of statutes imposing expressly an age qualification by way of: (1) a specifically named numerical age such as "21"; or (2) a reference to the age of "majority" or its equivalent. The court went on to add that the "vague and sweeping terminology of this statutory effort to simplify something that is not simple" suggests a broad and fertile area of future litigation. However, as we said above, there is nothing in KRS 402.050 and 402.060 suggesting any age qualifications for the minister, either as relates to "majority" or chronological age. KRS 402.060 requires the minister applying for a license to solemnize marriages to execute a bond to the Commonwealth not to violate the marriage laws. An infant's contracts are generally voidable at his election before majority.
Hudson's Guardian v. Hudson, 160 Ky. 432, 169 S.W. 891 (1914) 893. The philosophy underlying the rule of voidability of infant contracts was expressed in
Davis' Committee v. Loney, 290 Ky. 644, 162 S.W.2d 189 (1942) 190: "Infants and persons of unsound mind have always been regarded as special wards of the court and any transaction which might result in financial loss to them or in depletion of their estates should be scrutinized with great care." Thus the rule was designed for private transactions, not a public transaction such as giving a bond under KRS 402.060. Thus we seriously doubt that the courts would apply the voidability doctrine to such a bond, since it would be against public policy and he would, as an applying minister, have a legal obligation to execute the bond. In 43 C.J.S., Infants, Sec. 188, page 502, we find this: "An infant may bind himself by contract for the performance of obligations which are imposed upon him by law, or which he is authorized by law to incur." As a qualified minister he is required by law to execute the bond, infant or not. Thus he fits under this latter role.
Notwithstanding the voidability question, since KRS 402.060 requires a "good surety" on the bond for a license to solemnize marriages, if the surety is a qualifying adult or a commercial surety, there is no problem, since even if the infant's bond contract is voidable [which we doubt], the surety could be held on the bond, and that would satisfy the statute. See 43 C.J.S., Infants, Sec. 188, page 502; and
Wright v. Stanley Motor Co., 249 Ky. 20, 60 S.W.2d 144 (1933). Ordinarily the surety is not liable if the principal is not. However, as is written in 74 Am.Jur.2d, However, as is written in 74 Am.Jur.2d, Suretyship, Sec. 25, p. 28, "when the defense applicable to the principal is altogether of a personal character, as infancy or coverture, it cannot avail as a defense for the surety. "
In 74 Am.Jur.2d, Suretyship, Sec. 109, p. 79, we find this rule as to the incapacity of the principal to contract:
"As an exception to the rule that the surety may plead any defense available to the principal, it is generally held that the surety may not avail himself of a defense which is purely personal to the principal, as, for example, the personal incapacity of the principal. Where there is no fraud, duress, deceit, or violation of law in procuring the contract, the surety of a principal who is incapable of contracting is bound although the principal is not. This rule has been applied with respect to sureties on contracts of married women subject to common-law disabilities, infants, insane persons, and government agencies which have sovereign immunity. Among the reasons assigned for the rule is the fact that the disability of the principal may have been the very reason why the surety was required. The law recognizes the obligation of the surety as being independent and binding."
Thus where the 17 year old minister can procure a surety on the license bond, after fully disclosing the fact of infancy, KRS 402.060 will be complied with.
Our role, under KRS Chapter 15, is to give legal advice, after careful research, as to the best possible legal interpretation of the statute or statutes in question, and leave policy to the General Assembly, where it belongs under the Constitution [see Sections 27, 28, and 29, Ky. Const.]. As the court said in
Walters v. Bindner, Ky., 435 S.W.2d 464 (1968) 467, "The wisdom or expediency of such legislation cannot be subjected to judicial review."
It is our opinion that the 17 year old minister of the Gospel is qualified, under KRS 402.050 and 402.060, to apply to the county judge/executive for a license to solemnize marriages in Kentucky, provided he is a resident of the county in which he applies or serves as a minister in a place of worship in that county, satisfies the county judge/executive that he is a person of good moral character and in regular communion with his religious society, and makes the bond required by KRS 402.060 .