Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1953 No. 463 - Jan 19 1953
Attorney General Don Eastvold


The broad power granted court commissioners by the constitution has been specifically defined by the legislature, and does not include the power to perform marriage ceremonies.

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                                                                 January 19, 1953 

Honorable Philip M. Noon
Deputy Prosecuting Attorney
Yakima County
Yakima, Washington                                                                                                              Cite as:  AGO 51-53 No. 463

 Dear Sir:

             Receipt of your letter of January 8, 1953, requesting our opinion on the question of authority of a court commissioner to perform marriage ceremonies is hereby acknowledged.

             Our conclusion may be summarized as follows:

             Court commissioners do not have legal authority to perform marriage ceremonies.


            RCW 26.04.050 enumerates the officers and persons authorized to solemnize marriages.

             "The following named officers and persons may solemnize marriages, to wit:  Judges of the supreme court, judges of the superior courts, any regularly licensed or ordained minister or any priest of any church or religious denomination,  [[Orig. Op. Page 2]] anywhere within this state, and justices of the peace within their respective counties."

             Since court commissioners are not expressly included in the statute, their authority, if it exists, must arise either from some other express provision of the constitution or statute, or by implication, from the general powers granted them by the constitution.  No other provision of the constitution or laws of this state expressly grants this authority to court commissioners.  Consequently, the only remaining question is whether that authority is included by implication in the general powers granted them under the constitution.

             Const. Art. IV, § 23 provides:

             "There may be appointed in each county, by the judge of the superior court having jurisdiction therein, one or more court commissioners, not exceeding three in number, who shall have authority to performlike duties as a judge of the superior court at chambers, subject to revision by such judge, to take depositions and to perform such other business connected with the administration of justice as may be prescribed by law."  (Emphasis Supplied.)

             The italicized portion defines the constitutional authorities of court commissioners. They are:

             1.         "To perform like duties as a judge of the superior court at chambers, subject to revision by said judge."

             2.         "To take depositions."

            3.         "To perform such other business connected with the administration of justice as may be prescribed by law."

             Number two, above, is inapplicable.  Under number three, it is unnecessary to inquire whether the performance of a marriage ceremony is "business connected with the administration of justice" since the specific duties of a court commissioner have been "prescribed by law."  See RCW 2.24.04.  The authority in question is not included.

             [[Orig. Op. Page 3]]

            The exact question, then, is whether the constitutional grant of "like duties as a judge of the superior court at chambers * * *" included the authority to perform marriages.  These duties must be interpreted in the light of the law of the territory in effect at the time of the adoption of the constitution, as well as the intent of the framers of the constitution.  Peterson v. Dillon, 27 Wash. 78, 67 Pac. 397.  If the law in effect at that time is clearly ascertainable, it would follow that the intent of the framers of the constitution should be determined as having been identical with that law, where no express intent to the contrary appears.

             The supreme court of this state inState ex rel. Lockhart v. Claypool considered this exact question and held that the duties of a judge at chambers at that time were defined by § 2138, Code of 1881, P. 368.  Performance of marriages was not included.  Superior courts did, however, have the authority to perform marriages at that time under § 2381, Code of 1881, P. 411.  But the former section was a statute dealing specifically with the matter of the powers of a judge at chambers, while the latter pertained to an entirely unrelated subject, conferring upon these same judges an authority separate and apart from those inherent in their office, and did not, either expressly or by implication, make this authority one of the "duties of a judge * * * at chambers."

            It is the opinion of this office that the duties referred to in Const. Art. IV, § 23, has reference to those duties set forth in § 2133, Code of 1881.  The general rule of construction that the express mention of one thing in a statute implies exclusion of another would seem to be applicable.  SeeRamsay v. Dept. of Labor & Industries, 36 Wn. (2d) 410, 218 P. (2d) 765, 222 P. (2d) 855.

             It is our opinion that court commissioners do not have authority to solemnize marriages.

 Very truly yours,
Attorney General  

Assistant Attorney General