Request By:
Mr. Ray L. Slone
Boyd County Court Clerk
Catlettsburg, Kentucky 41129
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request our opinion as to whether a nonresident minister could come into Kentucky to perform a marriage.
The matter of licensing ministers to solemnize marriages in Kentucky is controlled by KRS 402.060. It was amended in the 1978 regular session by two bills: (1) H.B. 269 [Ch. 246, § 1]; and (2) H.B. 607 [Ch. 384, § 517, Reviser's Bill]. Both bills were approved by the governor on March 30, 1978. The amendment version adopted by Bobbs-Merrill, official publishers of the Kentucky Revised Statutes, is that of H.B. 269. It reads:
"No minister or priest shall solemnize marriage 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. "
Before we can reach the question about a nonresident minister, we must first determine who is required to issue licenses in the appropriate situation.
Prior to the 1974 amendment [Acts 1974, Ch. 386, § 92], the statute [KRS 402.060] provided that such a license to solemnize Kentucky marriages would be issued by the "county court" of the county in which the minister resides. The 1974 amendment did not change that wording, "county court". However, the 1978 amendment [H.B. 269, Ch. 246, § 1] deleted the term "county" from "county court"; but in the last sentence of the statute it is provided that any such license may be annulled by any "county court", after notice to the person holding the license. So in the first sentence of the statute the term "county" is removed from the term "county court"; but in the second sentence the term "county court" is retained. The 1978 amendment as reflected in H.B. 607 [Ch. 384, § 517], the reviser's bill, substitutes "county judge/executive" for "county court".
It can be seen that H.B. 269, which is the present KRS 402.060, is in obvious conflict with the Kentucky Statutes Reviser's Bill [H.B. 607, Ch. 384, § 517]. The published statute says that the "court" or "county court" shall issue such licenses. But the Reviser's bill says that only the "county judge/executive" shall issue such licenses. KRS 7.136(3) provides in part that "If a conflict appears between any section amended in an act to revise and amend the Kentucky Revised Statutes and the same section in any other act adopted at the same session of the general assembly the change or alteration effected by the nonrevisory act shall be inserted in the section as incorporated in the statute publication."
The difficulty with KRS 402.060, as it literally reads, is that there is no such thing as a "county court". Section 109, Kentucky Constitution. The county judge was stripped of his judicial functions in the Judicial Reform. The legislature created the office of county judge/executive, with administrative and executive functions. KRS 67.700 et seq. Further, in the 1976 Extraordinary Session, [S.B. 18, Ch. 20, Section 6], it was provided that wherever the words "county judge" "appear in previously existing statutes," the language shall be changed by the Revisor of Statutes to read "County judge/executive." (Emphasis added). This section was never assigned a statutory section number, and was narrowly restricted to previously existing statutes. If "court" is to mean the district court or circuit court [the statute does not say precisely], then § 28 [separation of powers] of the Kentucky Constitution prohibits the vesting of an administrative or executive function in the courts. See Huggins v. Caldwell, 223 Ky. 468, 3 S.W.2d 1101 (1928) 1105.
The court, in City of Owensboro v. Noffsinger, Ky., 280 S.W.2d 517 (1955) 519, wrote that "It has always been a recognized power of courts in the construction of statutes to delete or interpolate words to prevent an absurd consequence or to resolve an ambiguity in order to carry into effect the spirit, purpose and intent of the lawmakers."
There is a rule, as stated in 16 Am.Jur.2d, Constitutional Law, § 144, that "Statutes are construed liberally in order to save them from constitutional infirmity."
In the interest of construing the statute in terms of a constitutional application thereof, and in considering the unworkability of the statute in its present literal form, and considering the entire history of the statute in terms of the county judge [now county judge/executive], it is our opinion that the courts [if presented with this question] would rule that only the county judge/executive in each county has authority to issue licenses to ministers to solemnize marriages. We believe that the principle of construing the statute to be constitutional and workable transcends the application of KRS 7.136(3) in this literal language situation.
Concerning your original question as to whether a nonresident minister can qualify to perform marriages in Kentucky, we must keep in mind that prior to the 1978 amendment of KRS 402.060, the literal wording of the statute required that the applicant for a license to solemnize marriages be a resident of some county in Kentucky. However, the 1978 amendment reads in part: "No minister or priest shall solemnize marriage 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, * * *." (Emphasis added).
From the literal language there are two categories of qualification, either of which would suffice: (1) a minister or priest residing in a Kentucky county; (2) a minister or priest who serves as a minister or priest in a Kentucky county in a place of worship. Thus, for example, a minister or priest who resides in Cincinnati but who serves as a minister or priest in a place of worship in Covington could qualify under the statute to apply for a license to solemnize marriages in Kentucky. In this example the applicant, under category no. 2, would apply for the license to the county judge/executive of Kenton County. Even under this situation as just outlined, the minister or priest residing in Ohio could not perform marriages in Kentucky without first getting a license from the county judge/executive of the county in which the minister or priest serves as a minister or priest in a place of worship.
The literalism of this part of the statute makes sense, and we believe the courts would construe that portion of the statute binding on them, should the matter be presented to them. Barrett v. Stephany, Ky., 510 S.W.2d 524 (1974) 526.