Gould v. Gould

• Decision Date: 05 August 1905
• Citation: 61 A. 604,78 Conn. 242
• Parties: GOULD v. GOULD.
• Court: Connecticut Supreme Court

61 A. 604

78 Conn. 242

GOULD

v. GOULD.

Supreme Court of Errors of Connecticut.

Aug. 5, 1905.

Appeal from Superior Court, Hartford County; John M. Thayer, Judge.

Action by Marion D. Gould against Roy S. Gould for a divorce or a decree of nullity. At the hearing on default the complaint was dismissed, and plaintiff appeals. Reversed

Hugh O'Flaherty and John J. Dwyer, for appellant

BALDWIN, J. In 1895 a statute was enacted of which the first section reads as follows: "No man or 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." Pub. Acts 1895, p. 667, c. 325. Cf. Gen. St. 1902, § 1354. In 1899 the plaintiff, at the age of 22, 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, 46 Atl. 242, 49 L. R. A. 142, 84 Am. St Rep. 135.

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 Pub. Acts 1895, p. 667, c. 325. The Constitution of this state (preamble and article 1, § 1) guaranties to its people equality under the law in the rights to "life, liberty, and the pursuit of happiness." State v. Conlon, 65 Conn. 478, 489-491, 33 Atl. 519, 31 L. R. A. 55, 48 Am. St. Rep. 227. One of these is the right to contract marriage, but it is a right that can only be 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. Gen. St. 1902, § 4538. 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, 37 Atl. 80, 36 L. R. A. 623, 61 Am. St Rep. 30. 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 kind 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, 18 Sup. Ct. 383, 42 L. Ed. 780; Bissell v. Davison, 65 Conn. 183, 192, 32 Atl. 348, 29 L. R. A. 251. 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; Sess. Laws Ohio, 1904, p. 83. Laws of this kind may be regarded as an expression of the conviction of modern society that disease is largely preventable 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 Conn. 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, 11 Sup. Ct. 54, 34 L. Ed. 636. 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 be 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 3, c. 17; Kenn's Case, 7 Rep. 42. 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. 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 the marriages celebrated in contravention of the prohibition 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 questioned 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 Hardwicke's act of 1753, expressly declaring such a marriage to be void. Rev. 1821, pp. 316, 318, note; Gen. St. 1902, § 4538. The act of 1895 did not (and Gen. St. 1902, § 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 45. 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 (Gen. St. 1902, §§ 4534, 4538), and not in a third (section 4535). It may well be that the General Assembly were no more inclined to bastardize the issue of the marriage of an...