            HEA~~RNEY               GENERAL
                        OFTEXAS




Honorable R. H. Dally
County Attorney
HutchInson County
Borger, Texas
Dear Sir:                Opinion No. 0-2308
                         Re: Llabllity of Hutchlnson County for
                              fees to a city clerk acting as reg-
                              istrar of vital statistics under
                              Article 4477, Rules 34a through
                              55a, Vernon's Annotated Civil Sta-
                              tutes, the Vital Statlstlcs Law of
                              Texas.
       We are in receipt of your request for an opinion on the
following question:
       "Would a City Clerk, who also serves as reg-
    istrar of vital statistics in an incorporated
    city having a population of more than 2500, which
    does not have an ordinance providing 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 Re-
    vised Civil Statutes."
       Article 4477, Rules 34a through yja, Vernon's Annotated
Civil Statutes, and Article 781a, Penal Code, constitute the
Vital Statistics Law of this State.
      Rule 34a provides:
       "That the State Department of Health shall
    have charge of the reglstratlon of births and
    deaths; shall prepare the necessary instructions,
    forms and blanks for obtafning and preserving
    such records and shall procure the faithful reg-
    istration of the same in each primary registra-
    tion district as constituted in Section 3 of
    this Act (rule 36a), and in the central bureau
    of vital statistics at the capitol of the State.
Honorable R. H. Dally, page 2        0 -2308


   The said department shall be charged with 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 this Act (Rules 34a-
    55a; P.C,, Art. 78la) the State shall be divided
    into Primary Registration Districts as follows:
      "Each Justice of the Peace Precinct and each
   incorporated town of 2,500 or more populatlon,
   according to the United States Census, shall con-
   stitute a Primary Registration District, provided
   the State Board of Health may combine two or more
   Registration Districts, or may divide a Primary
   Registration District into two or more parts, so
   as to facilitate reglstratlon, and In cities of
   2,500 or more, according to the last United States
   Census Report, where births and deaths are reg-
   istered in accordance with a City Ordinance not
   in confll.ctwith this Act, the City Clerk shall
   be the Local Registrar of Births and Deaths,
      "It is hereby declared 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 se-
   cure a complete record of each birth and death
   that occurs within their respective 'urisdictions,
   and Is required by this Act (Rules 3ia-55a; P.C.
   art, 78la)." (Underscoring ours)
       Rule 53a deals with the fees for local registrars.   It
states:
      "That each Local Registrar shall be paid
   the sum of Fifty cents for each birth and death
   certificate properly and completely made out
   and registered with him, and correctly recorded
   and promptly returned by him to the State Bureau
   of Vital Statistics, as required by this Act
   (Rules 34a-55a; P,C!.art, 781a) unless such Local
   Registrar shall be actfnn as Renistrar of Births
   and Deaths in an Fncorporated city where the com-
   pensation of the Registrar is otherwise flxed by
   City Ordinance.
Honorable K. H. Dally, page   3       O-2308


       "The State Registrar shall annually certi-
    fy to theme
              County Commissioners Court or County
    Audltor, as the case may be, the number of birth
    and death certificates filed by each Local Reg-
    istrar at the rates fixed herein, and provided
    that the State Registrar may render such state-
    ments monthly or quarterly, at the discretion of
    the State Board of Health; and the Commissioners
    Court or County Audltor, as the case may be,
    shall audit such statement and the County Trea-
    surer shall pay such fees as are approved bg the
    Commissioners Court or the County Auditor, at
    the time such statement is issued.
       "And provided further, that the Local Regis-
    trar shall submit to the Commissioners 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, and
    the County Clerk shall be paid for indexingand
    preserving such records, such compensation as may
    be decided upon by the Commissioners Court."
    (Underscoring ours)
       In order to answer your question, it Is necessary that
we construe the above quoted provisions of Article 4477, Ver-
non 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 and Deaths". Rule 36a, supra.
       In the facts submitted the city clerk serving as Regis-
trar of Vital 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 Commissioners relating 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 exception to
the law that each local registrar shall receive fifty cents for
each birth and death registration.
Honorable R. H. Dally, page 4         o-2308


       The exceptTon reads:
       "Unless such Local Registrar shall be acting
    as Registrar of Births and Deaths in an incor-
    porated city where the compensation of the Reg-
    istrar is otherwise fixed by City Ordinance."
    Rule 53a.
       The city clerk in the situation under consideration is
a local registrar. His compensation as registrar is not "other-
wise fixed' by city ordinance within the meaning of the statute
since it is determined without reference to his duties or obli-
gatlons to register births and deaths. If it was fixed with
reference to said duties and obligations, then it would bring
the city clerk wlthln the exception of Rule 53a. We think the
reference should be specific since the dutles and obligations
of a city clerk are separate and distinct ordinarily from those
of a local registrar, although not necessarily incompatible and
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 certificate properly and completely
made out and registered with him, and correctly recorded and
promptly returned by him to the State Bureau of Vital Statlstlcs,
unless he comes within the exception contained in Rule 53a.
       It appears to have been the Intention of the Legislature
that the local registrar receive specific compensation for the
performance of his Vital Statistics duties whether he be justice
of the peace or a city clerk. In the case of the city clerk,
the Legislature provided tbttIn incorporated cities containing
a population of over 2,500 inhabitants, according to the last
United States Census Report, the city might give him such com-
pensation as a registrar. Otherwlse, the city clerk was to
receive the statutory fifty cent fee from the county. Consld-
ering the languare, subject matter, and the obvious legislative
lntent, this is a fair and reasonable construction.
       It is our opinion that a city clerk also serving as
registrar of vital statistics in an incorporated city having a
population of more then 2,500 inhabitants, which does not have
an ordinance providing a salary or fees for his duties as reg-
istrar, but whose salary is fixed in the minutes of~the City
Commission without 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 statistics performs all the duties
and requirements imposed upon 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 "that each local
    registrar shall be paid the sum of fifty cent for each birth
    and death certificate properly and completely made out and
    registered with him, and correctly recorded and properly re-
    turned by him to the State Bureau of Vital Statistics." It
    Is also provided further in paragraph 3 of Rule 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 in your inquiry the city clerk
    has not complied with paragraph 3 of Rule 53a, supra, and,
    therefore, the city clerk would not be entitled to receive com-
    pensation from the county for performing the duties of a local
    registrar.
           Statutes prescribing fees for public officers are
    strictly construed; hence, a right to fees may not rest in
    lmplicatlon. Where this right is left to construction, the
    language of the law must be construed in favor of the govern-
    ment.  Where a statute is capable of two constructions, one
    of which would give an officer compensation for his services
    in addition to his salary, and the other not, the latter con-
    struction,should be adopted. McCalla vs.'City of Rockdale,
    246 S.W. 65~4;Eastland County vs. Hazel, 388 SOW. 518; Madden
    VS. Hardy, 50 S.W, 926; Tex. Jurisprudence, Vol. 34, page 508.
           In view of the foregoing authorltles and the facts
    stated in your inquiry you are respectfully advised that it Is
    our opinion that the city clerk would not be entitled to com-
    pensation from the county for performing the duties of a local
    registrar in that he has not complied with Rule 53a, supra.
    However, as above stated where the city clerk in serving as
    Registrar of Vital Statistics performs all the duties andre-
    quirements imposed upon 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/Ardell WLlliSms
                                        Araell~~'Williams
                                        Asshtant
AW:EP:wc

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

APPROVED OPINION COMMITTEE BY s/BWB CHAIRMAN
