Gould v. Gould

61 A. 604, 78 Conn. 242, 1905 Conn. LEXIS 76

• Court: Supreme Court of Connecticut
• Decided: August 5, 1905
• Status: Published

Opinions

Baldwin, J.

In 1895 a statute was enacted, of which the first section reads as follows: “No man and woman, either of whom is epileptic, imbecile, or feeble-minded, shall intermarry, or live together as husband and wife, when the woman is under forty-five years of age. Any person violating or attempting to violate any of the provisions of this section shall be imprisoned in the State prison not less than three years.” Public Acts of 1895, p. 667, Chap. 325. Of. General S'tatutes, § 1354. In 1899 the plaintiff, at the age of twenty-two, married the defendant, who was an epileptic. In 1903 a child was born, issue of the marriage, and soon afterwards the plaintiff, then first learning of the statute mentioned, left the defendant, and brought this suit for a divorce or a decree that the marriage was null and void. In her complaint she alleged that the defendant, though an epileptic, falsely and fraudulently concealed this fact from her and represented that he had never had epilepsy, in consequence of which representations she, believing them to be true, had been induced to enter the contract of marriage.

On the trial in this court, no argument was submitted in behalf of the defendant. The proper disposition of a cause of this character is however a matter of public concern, in the interest of society, and we feel bound to examine such considerations in support of the judgment appealed from as he might have urged, had he been represented by counsel. Allen v. Allen, 73 Conn. 54, 55.

Was the statute a valid act of legislation? It forbade the marriage of certain classes of persons, under any circumstances. One of these only, it is now necessary to consider,—that of epileptics. The provisions of the Act of 1895 were separable with respect to the different classes of persons with whom it deals, and so far as this action is concerned it is enough if it can be supported as to marriages contracted after its enactment by those in the condition of the defendant.

The Constitution of this State (Preamble and Art. I, § 1) guarantees to its people equality under the law in the rights to “ life, liberty, and the pursuit of happiness.” State v. Cordon, 65 Conn. 478, 489-491. One of these is the right to contract marriage, hut it is a right that can only he exercised under such reasonable conditions as the legislature may see fit to impose. It is not possessed by those below a certain age. It is denied to those who stand within certain degrees of kinship. The mode of celebrating it is prescribed in strict and exclusive terms. General Statutes, § 4588.

The universal prohibition in all civilized countries of marriages between near kindred proceeds in part from the established fact that the issue of such marriages are often, though by no means always, of an inferior type of physical or mental development.

That epilepsy is a disease of a peculiarly serious and revolting character, tending to weaken mental force, and often descending from parent to child, or entailing upon the offspring of the sufferer some other grave form of nervous malady, is a matter of common knowledge, of which courts will take judicial notice. State v. Main, 69 Conn. 123, 135. One mode of guarding against the perpetuation of epilepsy obviously is to forbid sexual intercourse with those afflicted by it, and to preclude such opportunities for sexual intercourse as marriage furnishes. To impose such a restriction upon the right to contract marriage, if not intrinsically unreasonable, is no invasion of the equality of all men before the law, if it applies equally to all under the same circumstances who belong to a certain class of persons, which class can reasonably be regarded as one requiring special legislation either for their protection or for the protection from them of the community at large. It cannot be pronounced by the judiciary to be intrinsically unreasonable, if it should be regarded as a determination by the General Assembly that a law of this bind is necessary for the preservation of public health, and if there are substantial grounds for believing that such determination is supported by the facts upon which it is apparent that it was based. Holden v. Hardy, 169 U. S. 366, 398; Bissell v. Davison, 65 Conn. 183, 192. There can be no doubt as to the opinion of the General Assembly, nor as to its resting on substantial foundations. The class of persons to whom the statute applies is not one arbitrarily formed to suit its purpose. It is certain and definite. It is a class capable of endangering the health of families and adding greatly to the sum of human suffering. Between the members of this class there is no discrimination, and the prohibitions of the statute cease to operate when, by the attainment of a certain age by one of those whom it affects, the occasion for the restriction is deemed to become less imperative.

While Connecticut was the pioneer in this country with respect to legislation of this character, it no longer stands alone. Michigan, Minnesota, Kansas and Ohio have, since 1895, acted in the same direction. 2 Howard on Matrimonial-Institutions, 400, 479, 480; Laws of Ohio, 1904, p. 88. Laws of this kind may be regarded as an expression of the conviction of modern society that disease is largely preventible by proper precautions, and that it is not unjust in certain cases to require the observation of these, even at the cost of narrowing what in former days was regarded as the proper domain of individual right.

It follows that the statute in question was not invalid, as respects marriages contracted by epileptics, after it took effect.

The next question which presents itself is whether the marriage of the plaintiff was void.

A contract for any matter or thing against the prohibition of a statute is treated as void, although the statute does not declare it to be so, if such contract be relied on in any action as the foundation of the right of recovery. Preston v. Bacon, 4 Conn. 471, 480; Finn v. Donahue, 35 id. 216. But a contract of marriage is sui generis. It is simply introductory to the creation of a status, and what that status is the law determines. A contract executed in contravention of law may yet establish a status which the law will recognize, and, if one of the contracting parties were innocent of any intention to violate the law, may recognize as carrying with it in his favor the same rights and duties as if the contract had been entirely unexceptionable. In re Grimley, 137 U. S. 147, 152, 153.

The common law of England followed the canon law in regarding a marriage once lawfully entered into as dissoluble only by an extraordinary act of the sovereign power. It followed the canon law also in holding marriages entered into by those under canonical disabilities to be voidable by the spiritual courts, and held them to he voidable only. They were therefore esteemed valid for all civil purposes, unless a sentence of nullity were pronounced during the life of both parties. Glanville, Book III, Chap. XVII; Kenrís Case, 7 Coke 188, 142. On the other hand, there were certain fundamental disabilities, depending not on the canon law but on universal or municipal law, which might render a marriage void ab initio ; such as a prior marriage of either party, a want of age sufficient to give capacity to consent, and a want at any age of the necessary mental capacity., 1 Blackstone’s Comm., 434-439.

In the Revision of 1702, the General Assembly of this State prohibited marriages between those within certain degrees of kinship, and also the celebration of marriages without the publication of banns, and in case of minors, without the consent of the parent or guardian, or before one not having due authority. In case of a violation of the prohibition first mentioned the marriage was expressly declared to be null and void. For a violation of the others a pecuniary forfeiture was prescribed. Rev. of 1702, p. 74. In 1717 bigamous marriages were declared to be null and void, and those between parties under the age of consent.

Questions soon arose as to whether marriages celebrated in contravention of any of the prohibitions of the statute of 1702 could be treated as valid. That they could be, if the only objection was the want of the consent of parent or guardian, or a failure to publish the banns, was generally conceded; but it was seriously doubted if one could be upheld which was celebrated before a person not duly authorized. To settle this point a provision was introduced into the Revision of 1821, following in part Lord Hard wicke’s Act of 1753, expressly declaring such a marriage to be void. Rev. of 1821, 316, 318, note; General Statutes, § 4538.

The Act of 1895 did not (and General Statutes, § 1354, does not) make such a declaration with reference to the marriage of an epileptic. It contented itself with imposing criminal penalties. It inferentially sanctioned, in case of such a marriage, the living together of the parties “ as husband and wife ” after the latter arrived at the age of forty-five. The omission to declare the marriage to be void is made doubly significant by the fact that such a declaration is found embodied in two of the other statutory prohibitions (General Statutes, §§ 4534, 4538) and not in a third (§ 4535). It may well be that the General Assembly were no more inclined to bastardize the issue of the marriage of an epileptic than that of a minor, married without parental consent.

We therefore conclude that the legislature intended to leave the effect of a marriage contracted in violation of the Act of 1895 to be determined by the general principles of the common law. These lead to the conclusion that it is dissoluble, rather than void.

The common law, however, held that, when a marriage was avoided on account of canonical disabilities, it must be by a decree of nullity, which pronounced it void db initio. This doctrine rested on the theory of the Roman Catholic Church, that if a marriage were once contracted under its sanction it acquired a sacramental character and was indissoluble by human authority. A spiritual court could adjudge that two parties, though apparently married, never really were: no court could dissolve what was in fact a marriage, for any cause, ilo such theory was ever recognized in the laws of Connecticut. Divorces have been freely granted from the first, and since 1667 one of the causes has been “fraudulent contract.” This was judicially defined more than a century ago as a fraud entering into the substance of the marriage relation, preceding it; “ and such a one as rendered the marriage unlawful db initio, as consan guinity, corporal imbecility, or the like ; in which case, the law looks upon the marriage as null and void, being contracted in fraudem legis, and decrees a separation a vinculo matrimonii" Benton v. Benton, 1 Day, 111, 114. The words quoted were taken from Blackstone’s Commentaries (III, p. 94) and accurately describe the original theory, as to divorce, of English law. That theory, however, is hardly consonant with the divorce statutes of this State. In the form in which they were incorporated in the Revision of 1702 (p. 28), these provide “that no Bill of Divorce shall be granted, to any Man or Woman lawfully Married, but in case of Adultery, or fraudulent Contract, or willful Desertion for three years, with total neglect of Duty; or in case of Seven years absence of one party, and not heard of, after due enquiry is made, and the matter Certified to the Court of Assistants; in which case the other party may be deemed and accounted single, and unmarried: and in that case, and in all other cases aforementioned, a Bill of Divorce may be granted by the Court of Assistants, to the aggrieved party, who may then lawfully Many, or be Married again.” ' In General Statutes, § 4551, fraudulent contract is described as an “ offense ” and made a cause of divorce, other provisions' being made (§ 4562) for pronouncing a marriage void by a decree of nullity.

That the statute prior to our decision in Benton v. Benton, 1 Day, 111, was not regarded as limiting divorces on the ground of fraudulent contract to cases of marriages void ab initio, is evidenced by the following passages in the first general commentary on the laws of Connecticut: “ The reasons of divorce by statute are such as arise subsequent to the marriage, excepting in the case of fraudulent contract. The issue, however, in no ease will be bastardized by the divorce, because the marriage is legal and valid, till annulled ; not absolutely void, but only voidable. . . . By the common law of England, corporal imbecility, frigidity, or' perpetual impotency, existing prior to the marriage was a ground of divorce from the bond of matrimony. In our statutes, nothing is mentioned of this reason, though perhaps it may be comprehended under the idea of a fraudulent contract—for we cannot form an idea of a greater fraud, than for one person to marry another when labouring under a perpetual incapacity to perform the essential duties of the contract. But this point remains to be settled in future, as no application has ever been made on this ground to the superior court.” 1 Swift’s Sys., 192, 193.

The point adjudged in Benton v. Benton, 1 Day, 111, was that it was no cause of divorce that the man had proposed marriage professedly for love but really to get release from confinement on bastardy process which had been sued out by the woman, and with the design (afterwards executed) of deserting her forever as soon as the marriage was performed. That fraud and false representations of such a kind do not make out a case of fraudulent contract is clear; but the expressions above quoted from our opinion were unguarded in so far as they could be understood as limiting the application of that term to marriages of such a kind as were void ab initio.

If by the common law of England, at the time of the settlement of this country, fraudulent contract would be a cause of nullity and not of divorce, the legislation of Connecticut has been shaped by a different policy and leads to a different result. Looking, as our fathers did, on marriage as a civil institution, it was not to be expected that they would follow the mother country in accepting a doctrine which, in placing divorce beyond the reach of civil government, naturally led to giving the widest possible scope to decrees of nullity obtained in the ecclesiastical tribunals. American legislators, working with a free hand, could pay more regard to the interests of injured parties and the protection of the issue of an illegal marriage from the stain of illegitimacy.

The memorandum of decision filed by the court below shows that it felt bound by the decision in Benton v. Benton, 1 Day, 111, to rule that the cause of divorce claimed by the plaintiff did not come within the scope of the term “ fraudulent contract,” because it was not one rendering the mar riage void ah initio. This ground is untenable. The fraud which makes the contract of marriage fraudulent, as that word is used in the statute of divorce, is a fraud in law and upon the law. Such a fraud is accomplished whenever a person enters into that contract knowing that he is incapable of sexual intercourse, and yet, in order to induce the marriage, designedly and deceitfully concealing that fact from the other party, who is ignorant of it and has no reason to suppose it to exist. Whether such incapacity proceeds from a physical or a merely legal cause is immaterial. The prohibition of the Act of 1895 fastened upon the defendant an incapacity which, if unknown to the plaintiff and by him fraudulently concealed from her with the purpose thereby to induce a marriage, made his contract of marriage, in the eye of the law, fraudulent.

Whether, on such a state of facts, he could ask for a divorce, or would be precluded from thus taking advantage of his own wrong, we have no occasion to determine. The plaintiff could. The Superior Court has power to pass a decree of divorce from the bonds of matrimony in favor of a party to a marriage, not an epileptic, who has been tricked into it by the other party, who was an epileptic, through his fraud in inducing a belief that he was legally and physically competent to enter into the marital relation and fulfil all its duties, when he knew that he was not. Guilford v. Oxford, 9 Conn. 321, 328 ; Ferris v. Ferris, 8 id. 166.

Whether the facts found-by the court were sufficient to support a judgment in her favor we do not think it necessary or proper to determine upon the present record. The finding was prepared under a misconception of the law, which naturally made it less full and precise on certain points than it would otherwise have been, and the case is of such a character that a rehearing will best serve the interests of justice.

There is error and a new trial is ordered.

In this opinion Torrance, C. J., Hall and Prentice, Js., concurred.