STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
August 24, 1972
Dr. Robert H. Hayes
State Health Officer
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 72-45
Usage of birth certificate for application of marriage license.
Dear Dr. Hayes:
You have requested an opinion on the following matter:
Oftentimes couples apply for license to marry without having brought their own witnesses. In lieu of witnesses, they offer certified birth statements to satisfy proof of age as required by SDCL 25-1-14.
You ask whether the clerk of courts can accept a birth certificate in the absence of witnesses.
SDCL 25-1-14 reads as follows:
Unless the clerk of courts is acquainted with the age and condition of the parties applying for license to marry, he must take the testimony of competent and disinterested witnesses on the subject.
Appearance of an applicant with respect to age is one of the conditions for a clerk to consider along with such other statutory provisions as SDCL 25-1-16 which prohibits issuance of a license to a mentally retarded person and SDCL 25-1-12 which provides for under-age marriage in case of pregnancy.
Other age specifications to be considered by a clerk include those of SDCL 25-1-9 On age of consent for males eighteen years of age and over and females age sixteen or over and SDCL 25-1-13 requiring the further consent of parents if the girl is a minor. SDCL 26-1-1 was amended by HB 531, S. L. 1972 to change the age of minority as follows: "Minors are natural male persons and natural female persons under 18 years of age." Because of this amendment, clerks will no longer be required to secure parental consent of a male except when the girl involved is pregnant and the conditions of SDCL 25-1-12 are met.
The law imposes upon the clerk the duty of ascertaining that the parties who apply for a marriage license are of legal age. 1919-20 AGR 454 at page 455. SDCL 25-1-10 designates the clerk of courts as a licensing officer charged with handling formal licensing requirements. This duty although ministerial, involves official and personal discretion. 55 CJS Marriage 25 (1948). SDCL 7-7-22 extends this discretionary power to deputy clerks. This law states: "Such deputies are authorized to sign all papers and do all things which the officers themselves may do respectively."
To assist clerks in making age determinations, SDCL 25-1-14 permitted taking the testimony of competent witnesses unless the clerk was acquainted with the parties. The phrase "acquainted with" requires clarification as it is not restricted to personal acquaintance. Rather it has a legal meaning extending to perusal of legal documents which review familiarizes an official with certain facts. See Bohan v. Case, 5 Mo. App. 101, 107. A birth certificate is a valid instrument from which contents a licensing officer may become acquainted with the age of the applicant and thereby precludes the necessity of witnesses.
The answer to your question is that the clerk of courts in the exercise of SDCL 25-1-14 discretion may accept a birth certificate in the absence of witnesses.
Respectfully submitted,
Gordon Mydland
Attorney General
