Opinion No. Oag 92-79, (1979) , 68 Op. Att'y Gen. 311 ( 1979 )

DONALD E. PERCY, Secretary Department of Health and SocialServices

You ask whether the fees payable to county registers of deeds for certified copies of birth, death, and marriage records as established by sec. 59.57 (7), Stats., are in conflict with the fees required by sec. 69.24 (1) (a), Stats., for certified copies of the same types of records, and, if they do conflict, which one prevails. More specifically, you ask whether the register of deeds is to charge $4 or $1 for these records.

It is my opinion that these statutes do not conflict. Section69.24 (1) (a), Stats., calling for a $4 charge, applies when a register of deeds must search for the records. Section 59.57 (7), Stats., calling for a $1 charge, applies where no search is necessary.

Section 59.57, Stats., in pertinent part provides:

Register of deeds; fees. Every register of deeds shall receive the following fees:

. . . .

(7) For a certified copy of the full record of any marriage, birth or death, $1; and for a short-form certificate, 25 cents, with the exceptions stated in ch. 69.

Section 69.24 (1), Stats., in pertinent part provides:

The state registrar, register of deeds, and city health officer who are authorized to issue certified copies, as stated in this subchapter, shall collect the following fees for the search, filing and issuing of certified copies of birth, death, marriage and divorce records . . . .

(a) A fee of $4 for the search of the files. If a record is located, no additional fee is required for issuance of the first certified copy. The department may set additional fees, not to exceed $2 for each additional copy after the first copy.

. . . .

(d) A fee of $1 for a short form certificate, except that such certificate for a person under 18 years of age shall be issued free.

A construction which contains an implied statutory repeal is disfavored. State ex rel. Sauk County D. A. v. Gollmar,32 Wis. 2d 406, 412, 145 N.W.2d 670 (1966). Accord, State v. DairylandPower Cooperative, 52 Wis. 2d 45, 51, 187 N.W.2d 878 (1971);State v. Consolidated Freightways Corp., 72 Wis. 2d 727, 738,242 N.W.2d 192 (1976). The general rule of statutory construction is that where two provisions are susceptible of a construction which will give operation to both, without doing violence to either, it is incumbent to search for a reasonable theory under which to reconcile them so that both may be given full force and effect.State ex rel. Thompson v. Gibson, 22 Wis. 2d 275, 292,125 N.W.2d 636 (1964). Accord, Raisanen v. Milwaukee, 35 Wis. 2d 504, 516,151 N.W.2d 129 (1967); Kramer v. Hayward, 57 Wis. 2d 302, 311,203 N.W.2d 871 (1973).

The key to harmonizing these statutes is the provision of sec.69.24 (1)(a), Stats., which reads "for the search of the files." The Legislature evidently intended that a county should be compensated for the time required for a register of deeds to search through county files for birth, death, marriage or divorce records. The larger fee of sec. 69.24 (1) (a), Stats., must be paid whether or not the search produces the desired records. The fee in sec. 59.57 (7), Stats., applies where there is no search.

In addition, the legislative history of sec. 69.24 (1) (a), Stats., supports this harmonization. Chapter 43, sec. 162, Laws of 1967, amended sec. 69.24 (1)(a), Stats. (1965), in the following manner: "A fee of [$1]^* $2 for the [issuance of a certified copy ofany record previously filed]^* search of the files. If a record islocated, no additional fee is required for issuance of acertified copy." (Emphasis and deletion in original.)

The substantive changes in the provisions of sec. 69.24 (1)(a), Stats., clearly illustrate the Legislature's intent. The fee required by sec. 69.24 (1) (a), Stats., is not for the issuance of certified copies of records. Rather, the fee is for the time and effort required to locate records in public files.

For purposes of clarification, it should also be noted that the language of sec. 59.57 (7), Stats., which refers to "the exceptions stated in ch. 69," applies to the provision of sec.69.24 (1) (d), Stats., that "such certificate for a person under 18 years of age shall be issued free." The grammatical structure of sec. 59.57 (7), Stats., which places the language of exception after the semicolon, indicates that the language does not apply to certified copies of full records, but to short form certificates.

BCL:CDH

^* [EDITORS' NOTE: THE TEXT CONTAINED WITHIN THE BRACKETS WAS STRICKEN THROUGH IN THE ORIGINAL TEXT.]