Request By:
Ms. Sharon Kay Reed
Boyd County Clerk
P.O. Box 423
Catlettsburg, Kentucky 41129
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
For the county judge executive, you raise the following questions concerning the performing of marriages by a county judge executive. The questions are:
"1. When the County Judge Executive performs a marriage ceremony, is he allowed to accept money for that service. If so, is there a KRS that says what that amount should be.
"2. When the County Judge Executive receives money for such a service, is he required to turn this money over to the Fiscal Court or the County Treasurer, or is this money his to keep."
KRS 402.050, relating to who may solemnize marriages, reads:
(1) Marriage shall be solemnized only by:
(a) Ministers of the gospel or priests of any denomination in regular communion with any religious society;
(b) Judges of the circuit court, county judges/executive, judges of the district court and such justices of the peace as the governor or the county judge/executive authorizes; or
(c) A religious society that has no officiating minister or priest and whose usage is to solemnize marriage at the usual place of worship and by consent given in the presence of the society, if either party belongs to the society.
(2) At least two (2) persons, in addition to the parties and the person solemnizing the marriage, shall be present at every marriage.
Thus under KRS 402.050(1)(a), any incumbent county judge executive may solemnize a marriage in Kentucky under a properly issued Kentucky marriage license.
The statutes prescribe no fees for solemnizing marriage. Thus the remuneration for performing the marriage is left to the good consciences of the parties to the marriage, provided it is reasonable, as will be hereinafter explained.
The legal question is whether a county judge executive has authority to require or ask for a fee for performing marriages in the absence of statute.
The courts established years ago the principle that statutes relating to the fees and compensation of public officers must be strictly construed in favor of the government, and such officers are entitled only to what is clearly given by law.
Overstreet v. Boyle County Fiscal Court, 264 Ky. 761, 95 S.W.2d 584 (1936) 587. However, the principle applies only to governmental services performed by an officer of government. Fees were described in
Holland v. Fayette County, 240 Ky. 37, 41 S.W.2d 651 (1931) 652, as being collected by officers and representing the charge which the state makes for services rendered through its officers.
Here, a county judge executive, in solemnizing marriages, is performing no required governmental service. His performing marriages is in no way related to his role as a constitutional county officer and chief executive of county government.
For the above reasons, we are of the opinion that a county judge executive, in performing marriages under KRS 402.050(1), may receive whatever reasonable amount of money (it is not a fee in the governmental sense) the married parties may wish to give him. The court, in
Ladd v. Commonwealth, 313 Ky. 754, 233 S.W.2d 517 (1950), observed that the statute (KRS 402.090, prohibiting soliciting of marriages) was a reasonable regulation of the performance of marriages in proper exercise of police power for protection of public welfare and good order in the community. The court also pointed out that while a minister or other official is generally given a small fee for performing a marriage ceremony, such a fee is not authorized by statute or required by any law and could not be forced as a condition to the performance of marriage under existing law.
In response to question no. 2, since the charge or money received for marrying people is not for a governmental service, it belongs to the county judge executive as a private asset. He is not required to account for that money to the fiscal court or county treasurer. In addition, KRS 402.090(2) provides that "no person authorized to solemnize marriage shall pay, give to, or divide or share with any other person any sum of money or other thing obtained by him for solemnizing marriage. "