The complaint in this action recited that, March 30, 1940, the plaintiff and his intended wife applied for a marriage license and were issued a "will call receipt"; that, April 2, 1940, plaintiff was entitled to receive a license to wed; that, March 30, 1940, the plaintiff by an instrument in writing made and constituted C.E. Claypool his attorney in fact to receive the license; and that, April 3, 1940, the attorney in fact presented the receipt and power of attorney to the auditor and demanded the license which was refused. The answer admitted the facts to which I have just referred, and then set up the defense as stated in the majority opinion. The evidence substantiated the allegations made by each party. *Page 346
The facts alleged and proven by respondent did not constitute a defense to the action. Admitting arguendo that a situation exists such as shown by respondent, it is clear to me that any evidence relating to that situation was irrelevant and immaterial. It had nothing whatever to do with the rights of appellant to have another secure his license for him. It was neither charged nor proven that Judge Claypool was a "marriage license runner," and there was no proof that he had anything to do with the situation of which respondent complains.
This case concerns the right of but one person, the appellant. The condition brought about by other parties was not of his making and he should not have his rights affected thereby.
The duties and powers of county auditors are defined by statute. Nowhere have they been given the rule-making power. The act, Rem. Rev. Stat. (Sup.), §§ 8450-1, 8450-6, Laws of 1939, chapter 204, p. 716, gives to the county auditor the right to refuse a license if
". . . in his discretion, the applications executed by the parties or information coming to his knowledge as a result of the execution of said applications, justifies said refusal."
That discretion relates to the merits of the application and has nothing whatever to do with the delivery of the license when issued. After a county auditor has exercised his discretion allowed by the act, he must perform the ministerial duty of delivering the license to the parties named in the license or their duly authorized agent.
The judgment should be reversed. *Page 347