OFFICES AND OFFICERS ‑- COUNTY ‑- AUDITOR ‑- ISSUANCE OF MARRIAGE LICENSE ‑- THREE‑DAY WAITING PERIOD ‑- DELIVERY OF LICENSE

OFFICES AND OFFICERS ‑- COUNTY ‑- AUDITOR ‑- ISSUANCE OF MARRIAGE LICENSE ‑- THREE‑DAY WAITING PERIOD ‑- DELIVERY OF LICENSE.

(1) In computing the three‑day waiting period for issuance of a marriage license a county auditor may count days on which his office is closed.

(2) If the third day falls on a day on which a county auditor's office is closed, the auditor may authorize a qualified person in the sheriff's office to deliver the marriage license to the applicant at the sheriff's office on such date provided (1) the person who actually delivers the license has been appointed as a deputy county auditor under RCW 36.16.070; and (2) the county commissioners by resolution have authorized such activity.

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                                                                 January 21, 1966

Honorable Robert E. Schillberg
Prosecuting Attorney
Snohomish County
Everett, Washington

                                                                                                                Cite as:  AGO 65-66 No. 70

Dear Sir:

            By letter previously acknowledged you requested an opinion of this office on questions which we paraphrase as follows:

            (1) In computing the three‑day waiting period for issuance of a marriage license, may a county auditor count days on which his office is closed?

            (2) If the third day falls on a day on which a county auditor's office is closed, may the auditor authorize the county sheriff to deliver the marriage license to the applicants at the sheriff's office on such date?

            We answer question (1) in the affirmative and question (2) as set forth in the analysis.

                                                                     ANALYSIS

            Question (1):

            RCW 26.04.160 provides in part:

            "Application for such marriage license must be made and filed with the appropriate county  [[Orig. Op. Page 2]] auditor upon blanks to be provided by the county auditor for that purpose at least three full days before the license shall be issued,. . ." (Emphasis supplied.)

            RCW 26.04.170 provides:

            "Any such application shall be open to public inspection as a part of the records of the office of such county auditor, and all applications which have been filed within three days shall be kept separately, and readily accessible to public examination."

            RCW 26.04.180 provides:

            "The county auditor shall issue no license until the third full day following the filing of the application,exclusive of the date of filing.  A marriage license issued pursuant to the provisions of this chapter shall become void if the marriage is not solemnized within thirty days of the date of the issuance of the license."  (Emphasis supplied.)

            In AGO No. 4333 and AGO No. 4345, copies of which are enclosed, this office concluded that a marriage license could be issued by a county auditor on the third day following the filing of the application, exclusive of the date of filing.

            There is nothing in the statutes indicating the legislature intended to exclude days when the auditor's office is closed in computing the three‑day waiting period.

            RCW 26.04.170,supra, does not dictate a contrary result.  It simply provides for public inspection of all applications as a part of the records of the office of the county auditor; that is, public inspection when the office is open for business as provided by law.  In other words, RCW 26.04.170,supra, has no application whatsoever in computing the three‑day waiting period.

            There is some suggestion in AGO No. 4345, supra, that a then existing statute, equivalent to RCW 1.12.040, applied in computing the three‑day waiting period.  RCW 1.12.040 provides:

            "The time within which an act is to be done, as herein provided, shall be computed by  [[Orig. Op. Page 3]] excluding the first day, and including the last, unless the last day is a holiday or Sunday, and then it is also excluded."

            As generally construed by our court, under this statute or its predecessor, all intervening holidays and Sundays are counted.  Martin v. Sunset Telephone and Telegraph, 18 Wash. 260, 51 Pac. 376 (1897);Thompson v. Huron Lumber Co., 5 Wash. 527, 32 Pac. 536 (1893), and cases cited in Code Reviser's notes to RCW 1.12.040.

            In our opinion however RCW 1.12.040 has no application in computing the three‑day waiting period required before a marriage license may be issued.  It is intended to apply where a time limitation is set for performing some affirmative act which is required to enforce or keep alive a legal right, as for example, where an action must be brought within a certain time or the remedy is lost,Perkins v. Jennings, 27 Wash. 145, 67 Pac. 590 (1902); or where a chattel mortgage must be filed so many days after signing and acknowledging the instrument to preserve one's priority, Dando v. West Wind Corp., 67 W.D. 2d 104 (1965) [[67 Wn.2d 104]].  It does not apply where no affirmative act is required to be performed within a specified time to enforce or keep alive a legal right.

            Illustrative of this interpretation is the recent case of State ex rel. Uhlman v. Melton, 66 W.D. 2d 147 (1965) [[66 Wn.2d 157]], in which our court held that RCW 1.12.040 has no application and does not extend to an ordinance which becomes effective a certain number of days from its passage.  The court reasoned:

            "There is no act remaining 'to be done' for an ordinance to become effective after its publication date.  The passage of time alone is all that is required for the ordinance to become effective.  RCW 1.12.040 does not purport to extend the effective date of an ordinance for an additional day of grace, should the effective date fall on Sunday.  The cited statute is not here apposite."  (p. 153.)

            The same situation is involved where two persons apply for a marriage license.  They are charged with no affirmative duty following completion of the application.  All they are required to do is wait three days.

            In summary, therefore, we conclude that neither RCW 26.04.170,supra, nor RCW 1.12.040,supra, have any application in computing the three‑day waiting period under RCW 26.04.160 and RCW 26.04.180.  It is our opinion that all calendar days should be counted, whether they are holidays, Sundays or  [[Orig. Op. Page 4]] other days when the auditor's office is closed, excluding of course the date of filing.

            Question (2):

            For ease in reading we restate your second question:

            If the third day falls on a day on which the auditor's office is closed, may the auditor authorize the sheriff to deliver the marriage license to the applicants at the sheriff's office on such a date?

            To answer this question, we must first ascertain whether the auditor himself may issue a marriage license on a day when his office is closed, assuming the three‑day waiting period has been satisfied.

            RCW 36.16.100 states:

            "All county and precinct offices shall be kept open for the transaction of business during such days and hours as the board of county commissioners shall by resolution prescribe."  (Emphasis supplied.)

            It may well be argued that under this statute the county commissioners establish upon what days the county offices are "open for the transaction of business," and on days when they are not "open for the transaction of business," no office business of that particular office can be transacted.

            We have found no cases precisely in point in our research.  However, a fairly common provision found in the statutes of the several states is the prohibition of the conduct of judicial business on legal holidays.  Our own state has such a statute‑-RCW 2.28.100.  It is generally conceded that these statutes should be construed to prohibit only such acts as are in express terms or by clear implication within the purview of the statute.  State ex rel. Sizemore v. State Election Board, 203 Okl. 1, 217 P.2d 805 (1950).  In other words, unless the act is specifically prohibited, the act is valid, even though it be performed on a holiday.  Moreover, even where the act of a court was expressly contrary to statute, there are a number of cases, including a Washington case, which have upheld the act on grounds of estoppel.  State ex rel. Walter v. Superior Court of Whitman County, 49 Wash. 1, 94 Pac. 665, 17 L.R.A. N.S. 257 (1908).

             [[Orig. Op. Page 5]]

            It must be noted that the issue decided in these cases construing statutes equivalent to RCW 2.28.100 is always the validity of the act and not the authority of the actor to act.  While it might be argued that a decision holding that an act is valid implies that the actor had the authority to act, we think that is not necessarily the case.  Under the familiar doctrine of de facto officers, the act(s) [[act or acts]]of an officer who had no authority to act nonetheless may be held valid if the elements of a de facto status are established.  See,National Bank of Washington v. McCrillis, 15 Wn.2d 345, 130 P.2d 901, 144 A.L.R. 1197 (1942).

            In our research we have found no statutes similar to RCW 2.28.100 which place restrictions on the conduct of business on holidays by county officers, or for that matter by state officers.  The cases dealing with the conduct of judicial business on holidays do however adequately support the proposition that in the absence of any restrictions on the county auditor's conduct of business on a day when his office is closed, the act itself on such a day would not be declared invalid if subjected to an attack.

            Of course there is room for argument on the technical question whether the county auditor has the authority to issue a marriage license on a day when his office is closed.  Any doubt could be removed however by an appropriate resolution of the board of county commissioners authorizing the county auditor's office to be opened by the auditor for the limited purpose of issuing marriage licenses, in the auditor's discretion.  The authority of the county commissioners to adopt a resolution of this nature is necessarily implied from the powers granted to the commissioners to prescribe the days and hours county offices shall be kept open under RCW 36.16.100.

            The specific question you have asked is whether the auditor may elect to leave the marriage license with a responsible person in the sheriff's office for delivery to the applicants if the third day falls on a day that the auditor's office is closed, assuming that there would be authority for the auditor himself to issue the license on the day.

            In answer, to allow someone other than the county auditor or a deputy county auditor to issue a marriage license would be in conflict with the provisions of RCW 26.04.140 through 26.04.180.  Arguably, at least, the actual delivery of the  [[Orig. Op. Page 6]] license to the applicants, upon the expiration of the waiting period, is the "issuance" of the license.  See, Black's Law Dictionary, 4th Ed. "issue ‑ to send forth; . . . to deliver, for use, or authoritatively;".  Thus, the delivery of the marriage license in the manner suggested, would involve either a premature "issue" of the license by the auditor at the time when he actually handed it to someone in the sheriff's office or, alternatively, the issue of the license by someone not authorized to issue it.

            However, in our opinion, the answer would be in the affirmative if the individual in the sheriff's office to whom the county auditor delegated the task of delivering the marriage license to the applicants were a properly qualified deputy auditor, appointed under the provisions of RCW 36.16.070.

            Thus, we would answer your question in the affirmative, with the qualification that the person who is actually entrusted with the duty of delivering the marriage license to the applicants must be a properly deputized county auditor.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General