State v. Allen, Registrar of Vital Statistics

• Decision Date: 02 December 1942
• Citation: 29 A.2d 306,129 Conn. 427
• Parties: STATE ex rel. FELSON et al. v. ALLEN, Registrar of Vital Statistics.
• Court: Connecticut Supreme Court

29 A.2d 306

129 Conn. 427

STATE ex rel. FELSON et al.

v. ALLEN, Registrar of Vital Statistics.

Supreme Court of Errors of Connecticut.

Dec. 2, 1942.

Appeal from Superior Court, Fairfield County; Daly, Judge.

Action by the State, on relation of Lewis S. Felson and another, against Harold W. Allen, Registrar of Vital Statistics of Greenwich, for mandamus to compel correction of records of vital statistics by adding a record of marriage of plaintiffs, which action was subsequently amended to claim a declaratory judgment determining whether or not plaintiffs were married, brought to superior court and tried to the court. From a judgment denying relief, plaintiffs appeal.

No error.

Before MALTBIE, C. J., JENNINGS, and ELLS, JJ., and O'SULLIVAN, Superior Court Judge.

Julius B. Kuriansky, of Stamford, for appellants (plaintiffs).

H. Allen Barton, of Greenwich, for defendant (appellee).

MALTBIE, Chief Justice.

The plaintiffs, alleging that they were married in 1921 in the town of Greenwich in this state, brought this action seeking, by mandamus, to compel the defendant, the registrar of vital statistics of that town, to make a record of the marriage. Judgment was rendered for the defendant. Thereafter the plaintiffs moved to open the judgment to permit them to file a proposed amendment to the complaint seeking a declaratory judgment determining, first, whether they were lawfully married in Greenwich on September 21, 1921, and, secondly, whether they are, as the result of the claimed marriage on that day, husband and wife. The motion was granted and the amendment filed. Thereafter the trial court rendered a second judgment for the defendant, holding that the plaintiffs were not entitled to the mandamus, sought, and that, in an action seeking that relief, they did not have a right to the declaratory judgment they asked. The plaintiffs have appealed.

On September 21, 1921, both plaintiffs were residents of New York. They were engaged to be married. On the evening of that day they drove to Greenwich for the purpose of being married. They accosted a person on a street there, who directed them to an address. They found a house on which was fastened a small card with the words "Justice of the Peace" on it. There they signed a paper which they assumed was an application for a marriage license, and a man purporting to be a justice of the peace went through a marriage ceremony with them. In the course of it they entered into a mutual agreement to take each other as husband and wife. A document purporting to be a marriage certificate was delivered to them. That paper has been lost and the address of the house and the names of the persons present are now unknown. There is no record in the office of the defendant of the issuance of a marriage license to the plaintiff's, or of their marriage. After the ceremony, they immediately returned to New York and resided there until 1927, when they moved to Montreal in the province of Quebec, Canada, and they have since resided there. During all this time they have held themselves out, and have been regarded by their friends and in the communities in which they have lived, as husband and wife. They have a son, born to them in 1926.

The claim of the plaintiffs is that, even lacking proof that the person who purported to perform the marriage ceremony was qualified to do so, the mutual interchange of promises on that occasion was sufficient to constitute a common-law marriage which would be valid under the laws of this state. Unless under our laws that interchange of promises would constitute a valid marriage, the plaintiffs would not be entitled to a declaratory judgment that they were validly married on the occasion in question or to the specific relief by mandamus which they sought, and, whether or not the trial court was right in its conclusion that they were not entitled to the declaratory judgment asked in the amended complaint, the judgment rendered was substantially correct. We pass, then, other questions suggested by the record and consider only whether the plaintiffs, upon the facts before us, were validly married at Greenwich on the occasion in question.

Previous to 1820 our statutes provided that no person other than a "Magistrate or Justice of the Peace" or an "ordained minister" could join persons in marriage; but while it provided a qui tarn penalty if the marriage was performed in the absence of certain requirements, as the publication of banns, it fixed no penalty for the performance of the ceremony by one not qualified and did not expressly declare a marriage so performed to be void. Statutes, 1796, p. 286. Judge Tapping Reeve, in his work on Domestic Relations written in 1816, notes the fact (p. 197) that there seemed to be much difference of opinion whether a marriage ceremony performed by one not qualified under the statute was void, and he was of the opinion that it was not. That, previous to 1820, marriages of that nature were valid in Connecticut, as they were in England before the statute 26 Geo. II, Ch. 33, is strongly suggested in a note by the reporter Thomas Day, found 6 Conn. 53. The English statute just cited expressly provided that marriages not performed in accordance with its provisions were null and void, and Judge Reeve, in his discussion, contrasted that statute with our own. In 1820 our marriage law was amended so that it authorized judges of the Superior and County Courts, justices of the peace and ordained ministers to join persons in marriage and added that "all marriages attempted to be celebrated by any other persons, shall be void." Public Acts, 1820, Chap....