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AGO 1955 No. 109 - June 30, 1955
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Don Eastvold | 1953-1956 | Attorney General of Washington


Chapter 87 Laws of 1955 prohibits inclusion of racial or religious information on applications for marriage licenses.

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                                                                   June 30, 1955

Honorable Tom A. Durham
Prosecuting Attorney
Whatcom County Court House
311 Grand Avenue
Bellingham, Washington                                                                                                              Cite as:  AGO 55-57 No. 109

Dear Sir:

            We have your letter of May 31, 1955, previously acknowledged, requesting our opinion upon the following question:

            "* * * whether Chapter 87 of the Laws of 1955 applies to an application for a marriage license."

            It is our opinion that it does.


            The answer to your question depends upon the affirmative answer to the following two questions:

            1. Is a marriage license a state license and in issuing the same is a county auditor acting as an agent of the state?

            2. Is that part of RCW 26.04.160 (Chapter 204, Laws of 1939, § 4) requiring the applicant for a marriage license to state his color repealed by chapter 87, Laws of 1955?

             [[Orig. Op. Page 2]]

            Maynard v. Hill, 31 L.Ed. 654, 657.  Mr. Justice Field stated:

            "Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the Legislature.  That body prescribes the age at which parties may contract a marriage, the procedure or form essential to constitute marriage, the duties and obligations it creates, its effects upon the property rights of both, present and prospective, and the acts which may constitute grounds for its dissolution."

            State ex rel. Taylor v. Superior Court, 2 Wn. (2d) 575, 579:

            "Counties are but arms or agencies of the state organized to carry out or perform some functions of state government.  They, as instrumentalities of the state, have no powers except those expressly conferred by the constitution and state laws, or those which are reasonably or necessarily implied from the granted powers."  State ex rel. Board of Commissioners v. Clausen, 95 Wash. 214, State ex rel. Spokane v. Degraff, 143 Wash. 326,Spokane County v. Certain Lots in Spokane, 156 Wash. 393,Carpenter v. Okanogan County, 163 Wash. 18.

            14 Am.Jr., Counties, § 3, page 185:

            "A county is a subdivision of the state, organized for judicial and political purposes.  In other words, it is a political organization of certain of the territory within the state, particularly defined by geographical limits.  It is not invested with any of the attributes of sovereignty.  In other words, a county is a constituent part of the state government‑-a wholly subordinate political division  [[Orig. Op. Page 3]] or instrumentality, created and existing with a view to the policy of the state at large and serving as an agency of the state for certain specified purposes."  (Emphasis supplied)

            We conclude, in answering our first question, that authority to marry is derived solely from the state through legislative enactments, that a county auditor is an agent acting for the state in taking applications for marriage licenses and in issuing the same, and that a marriage license is a state license.

            We answer our second question as follows:

            Chapter 87, Laws of 1955, § 1, provides as follows:

            "The inclusion of any question relative to an applicant's race or religion in any application blank or form for employment or license required to be filled in and submitted by an applicant to any department, board, commission, officer, agent, or employee of this state or the disclosure on any license of the race or religion of the licensee is hereby prohibited."

            Section 12 of the Laws of 1866, as amended by chapter 204, Laws of 1939, in § 4 thereof, states that:

            "* * * each application shall state the name, address at the time of execution of application, age, color, occupation, birthplace, * * *Provided, That each county may require such other and further information on said application as it shall deem necessary: * * *"

            Chapter 87, Laws of 1955, makes no reference to RCW 26.04.160, and therefore a repeal of any portion thereof would have to be by implication.

            Peterson v. King County, 199 Wash. 106, at page 112:

            "'It is a settled rule that repeals by implication, although not ordinarily favored in law, are nevertheless  [[Orig. Op. Page 4]] effective when it appears that a legislative act is intended to cover the entire field of legislation upon a particular subject, or that subsequent legislation is contrary to, and inconsistent with, a former act.'  State ex rel. Spokane etc. Branch v. Justice Court, 189 Wash. 87, 63 P. (2d) 937."

            State v. Becker, 39 Wn. (2d) 94, at page 97:

            " 'Repeals by implication are ordinarily not favored in law, and a later act will not operate to repeal an earlier act except in such instances where the later act covers the entire subject matter of the earlier legislation, is complete in itself, and is evidently intended to supersede the prior legislation on the subject, or unless the two acts are so clearly inconsistent with, and repugnant to, each other that they cannot, by a fair and reasonable construction, be reconciled and both given effect.'"

            It clearly appears that chapter 87, Laws of 1955, was intended by the legislature to cover the entire field of legislation on the subject of race or religion in the field of applications for state employment and state licenses.  Insofar as color is required to be stated on an application for a marriage license, chapter 87 of the Laws of 1955, and chapter 204, Laws of 1939, § 4, are so clearly inconsistent with and repugnant to each other that they cannot, by fair and reasonable construction, be reconciled and both be given effect.  It is our opinion, therefore, that chapter 204, Laws of 1939, § 4, insofar as it requires color to be stated by an applicant for a marriage license, is repealed by implication by chapter 87 of the Laws of 1955.

            We hope that the foregoing analysis will be helpful to you.

Very truly yours,

Attorney General

Assistant Attorney General

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