HEA~~RNEY GENERAL

OFTEXAS

Honorable R. H. Dally CountyAttorney HutchInson County Borger, Texas

Dear Sir: Opinion No. 0-2308 Re: Llabllity ofHutchlnson County for fees to a city clerk acting as registrar of vital statisticsunder Article 4477,Rules 34a through 55a,Vernon's Annotated Civil Statutes, the Vital Statlstlcs Law of Texas.

We are inreceipt of your request for an opinion on the followingquestion:

"Woulda City Clerk,who also serves as registrar of vital statistics in an incorporated city havinga population of more than 2500, which does not have an ordinanceproviding a salary or fee for his duties as registrar but whose salary is flxed In the minutes by the City Commissioners, without reference to his duties or obligations to register births and deaths, be entltled to receive from the County the regular fees as provided by law under rule 33a, Article 4477 of the 1925 Revised Civil Statutes."
Article 4477,Rules 34a through yja,Vernon's Annotated Civil Statutes, and Article 781a, Penal Code, constitute the Vital StatisticsLaw of this State.

Rule 34a provides:

"That the StateDepartment ofHealth shall have charge of the reglstratlon of births and deaths; shallprepare the necessary instructions, forms and blanks for obtafning and preserving such records and shall procure the faithfulregistration of the same in each primary registration district as constituted in Section 3 of this Act (rule 36a), and in the central bureau of vital statisticsat the capitol of the State.HonorableR. H. Dally, page 2 0-2308

The said department shall be chargedwith the uniform and thorough enforcement of the law throughout the state, and shall from time to time recommend any additional legislation that may be necessary for this purpose."

Rule 86a reads as follows:

"For the purposes of thisAct (Rules 34a55a; P.C,, Art. 78la) the State shallbe divided into PrimaryRegistrationDistricts as follows:

"EachJustice of the Peace Precinctand each incorporatedtown of 2,500 or more populatlon, according to the United States Census, shall constitute a PrimaryRegistrationDistrict, provided the State Board ofHealth may combine two or more RegistrationDistricts, or may divide a Primary RegistrationDistrict into two or more parts, so as to facilitatereglstratlon,and In cities of 2,500 ormore, according to the last United States CensusReport, where births and deaths are registered in accordancewith a City Ordinancenot in confll.ct

with this Act, the City Clerk shall be the Local Registrar of Births andDeaths,

"It is herebydeclared to be the duty of the Justice of the Peace In the Justfce of the Peace Precinct,and the City Clerk or City Secretary in the city of 2,500 or= more population, to secure a complete record of each birth and death that occurswithin their respective and Is required by this Act (Rules 'urisdictions, i 3 a-55a; P.C. art, 78la)." (Underscoringours)

Rule 53a dealswith the fees for local registrars. It states:

"That each Local Registrar shall be paid the sum of Fifty cents for each birth and death certificateproperly and completelymade out and registeredwith him, and correctlyrecorded and promptly returnedby him to the State Bureau of Vital Statistics, as required by this Act (Rules 34a-55a; P,C!. art, 781a) unless such Local Registrar shallbe actfnn as Renistrar of Births andDeaths in an Fncorporatedcitywhere the compensation of the Registrar is otherwise flxedby City Ordinance.Honorable K. H. Dally, page 3 O-2308

"The State Registrar shall annually certify to theme

County CommissionersCourt or County Audltor, as the case may be, the number of birth and death certificates filed by each Local Registrarat the rates fixed herein, and provided that the State Registrar may render such statements monthly or quarterly, at the discretion of the State Board of Health; and the Commissioners Court or CountyAudltor, as the case may be, shall audit such statementand the County Treasurer shallpay such fees as are approvedbg the CommissionersCourt or the CountyAuditor, at the time such statement is issued.

"Andprovided further, that the Local Registrar shall submit to the Commissioners Court or the CountyAuditor, as the casemay be, a true and accurate copy of each birth and each death certificate filedwith him, and such copies shall be deposited in the County Clerk's Office, and the County Clerk shallbe paid for indexingand preserving such records, such compensationas may be decided upon by the Commissioners Court." (Underscoringours)

In order to answer your question, it Is necessary that
we construe the above quoted provisions of Article 4477,Vernon s Annotated Civil Statutes.

the aim and object of construction is to as&aln and enforce the legislative intent, and not to defeat, nullifyor thwart It." 30 Tex.
our. 167.

A city clerk in a city of 2,500 people or more'"shall be the Local Registrar of Births andDeaths". Rule 36a, supra.

In the facts submitted the city clerk servingas Registrar ofVital Statistics receives a fixed salary. This salary is presumably compensation for the performance of duties and obligations of the office of city clerk. The minutes of the City Commissionersrelating to the salary of the city clerk contain no mention of compensation in the form of salary or fees to him for the performance of the duties and obligations of a registrar of vital statistics.
Therefore, the city clerk Is not within the exceptionto the law that each local registrar shall receive fifty cents for each birth and death registration.HonorableR. H. Dally, page 4 o-2308

The exceptTonreads:

"Unless such Local Registrar shallbe acting
as Registrar of Births and Deaths in an incorporated citywhere the compensation of the Registrar is otherwise fixed by City Ordinance." Rule 53a.

The city clerk in the situationunder consideration is
a local registrar. His compensationas registrar is not "otherwise fixed'by city ordinancewithin the meaning of the statute since it isdeterminedwithout reference to his duties or obligatlons to register births and deaths. If itwas fixed with reference to saidduties and obligations,then itwould bring the city clerkwlthln the exception of Rule 53a. We think the reference shouldbe specific since the dutles and obligations of a city clerk are separateand distinct ordinarily from those of a local registrar, although not necessarily incompatibleand conflicting. Furthermore, the statute is explicit on the point that each local registrar shall be paid the sum of fifty cents for each birth and death certificateproperly and completely made out and registeredwith him, and correctlyrecorded and promptly returned by him to the State Bureau ofVital Statlstlcs, unless he comeswithin the exception contained inRule 53a.

It appears to have been the Intention of the Legislature that the local registrar receive specific compensation for the performance of hisVital Statisticsduties whether he be justice of the peace or a city clerk. In the case of the city clerk, the Legislatureprovided tbttIn incorporatedcities containing
a population of over 2,500 inhabitants,according to the last United States Census Report, the citymight give him such compensation as a registrar. Otherwlse, the city clerkwas to receive the statutory fifty cent fee from the county. Consldering the languare, subjectmatter, and the obvious legislative lntent, this isa fair and reasonable construction.

It is our opinion that a city clerk also servingas registrar of vital statistics in an incorporatedcity havinga population of more then 2,500 inhabitants,which does not have
an ordinanceprovidinga salary or fees for his duties as registrar,but whose salary is fixed in the minutes of~the City Commissionwithout reference to his duties or obligations to register births and deaths, is entitled to receive from the county the regular fee as provided by law under Rule 53a, Article 4477,Vernon's Annotated Clvll Statutes, if said city clerk is serving as registrar of vital statisticsperforms all the duties and requirements imposedupon a local registrar by Article 4477, Rule 34a through 55a,Vernon's Annotated Civil Statutes.- -

Honorable X. H. Dally, page 5 0-2308

Under Rule 53a, supra, it is provided "thateach local registrar shall be paid the sum of fifty cent for each birth and death certificateproperly and completelymade out and registeredwith him, and correctlyrecorded and properly returned by him to the State Bureau of Vital Statistics." It Is also provided further inparagraph 3 ofRule 53a, supra, "that the local registrar shall submit to the CornmIssioners' Court or the County Auditor, as the case may be, a true and accurate copy of each birth and each death certificate filed with him, and such copies shall be deposited in the County Clerk's office * * * *."

Under the facts stated inyour inquirythe city clerk has not compliedwith paragraph 3 of Rule 53a, supra, and, therefore, the city clerkwould not be entitled to receive compensation from the county for performing the duties of a local registrar.

Statutes prescribing fees for public officersare strictly construed; hence, a right to feesmay not rest in lmplicatlon. Where this right is left to construction, the language of the law must be construed in favor of the government. Where a statute is capable of two constructions,one ofwhich would give an officer compensation for his services in addition to his salary,and the other not, the latter construction,

shouldbe adopted. McCalla vs.'City ofRockdale, 246 S.W. 65~4;

Eastland Countyvs. Hazel, 388 SOW. 518; Madden VS. Hardy, 50 S.W, 926; Tex. Jurisprudence,Vol. 34, page 508.

In view of the foregoing authorltlesand the facts stated in your inquiryyou are respectfully advised that it Is
our opinion that the city clerkwould not be entitled to compensation from the county for performing the duties of a local registrar in that he has not compliedwith Rule 53a, supra. However, as above statedwhere the city clerk in servingas Registrar ofVital Statisticsperforms all the duties andrequirements imposedupon a local registrar by Article 4477,Rule 34a through 55a, Vernon's Annotated Civil Statutes, he would be entitled to receive the fees as herein above stated.

Trusting that the foregoing fully answers your inquiry,
we are- -

Honorable K. H. Dally, page 6 O-2308

Yours very truly

ATTORNFX GENERAL OF TEXAS

By s/ArdellWLlliSms Araell~~'Williams Asshtant

AW:EP:wc

APPROVED JUN 15. 1940 s/Gerald C. Ma% ATTORNEY GENERAL OF, TEXAS

APPROVED OPINION COMMITTEEBY s/BWB CHAIRMAN