I am willing to subscribe to the result of the foregoing opinion, but not to the reasoning by which the result is arrived at.
The case is simply this: At a time when the respondent auditor of King county had in his possession a legal document to which it is undisputed C.H. Sherman had become fully entitled, Judge C.E. Claypool presented a power of attorney, duly executed by Sherman, authorizing him to receive the document on Sherman's behalf. The respondent auditor refused to recognize or honor the power of attorney. This action was brought to compel the auditor to deliver the document to Judge Claypool, Sherman's legal attorney in fact.
The document was a marriage license, and, since this was so, the majority sustain the auditor's refusal to deliver the document upon the following grounds: It is first pointed out that courts will not enforce contracts which are manifestly evil in tendency, even though there be no proof of actual evil in the particular case. This is a sound and familiar rule. It is then said:
"We think the power of attorney under consideration falls within this category. It is akin to marriage brokerage contracts, which are universally held to be against public policy."
But if the power of attorney can properly be regarded as a contract, it would seem that no evil tendency can be found to inhere in a mere agreement that one shall go to a public office and as attorney in fact for another receive a marriage license to the possession of which his principal is entitled. The majority, in making the statement above quoted, must, I think, have had some other contract subconsciously in mind.
It was repeatedly stated in argument — although I *Page 344 recall no actual proof in the record — that appellant had made some arrangement or contract with Judge Claypool that he should perform the marriage ceremony which the license authorized to be performed. Let us assume that such a contract was in fact made. Judge Claypool is a justice of the peace. Rem. Rev. Stat., § 8441, provides:
"The following named officers and persons are hereby authorized to 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 anywhere within the state, and justices of the peace within their respective counties."
Since Judge Claypool had the full statutory right to perform the marriage ceremony in King county, he had the right to promise to do so, and, since Sherman clearly had the right to select and employ any qualified person to perform that service for him, I cannot see how such a contract can be regarded as being inherently evil in tendency.
It was further assumed during the argument of the cause — and I use the word "assumed" advisedly — that a consideration for performing the marriage ceremony was stipulated for or at least implied. If so, did that of itself convert an otherwise innocent agreement into one manifestly evil in tendency? To so hold, it seems to me, would be to cast an undeserved and unwarranted imputation upon the hundreds of ministers of the gospel who customarily charge fees for performing marriage services. I cannot concede that in so doing they are engaged in evil transactions or violating public policy.
I think, however, that the result may be sustained upon other grounds. The official duty and responsibility of issuing marriage licenses is imposed upon the auditor by statute. Is not the delivery thereof so far *Page 345 a component part of the issuance as to be subject to his reasonable regulation and discretionary control? It is clearly his duty to issue such licenses to the parties entitled thereto. He may have reasonably concluded that his official duty in this regard could be best performed by refusing to assume the risk and burden of passing upon the validity and legal sufficiency of written powers of attorney. To compel him to do so by court order would seem to constitute an unwarranted interference with discretionary power.
JEFFERS and DRIVER, JJ., concur with ROBINSON, C.J.