B-46242, FEBRUARY 7, 1945, 24 COMP. GEN. 595

B-46242: Feb 7, 1945

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IN THE ABSENCE OF A STATUTE OR DECISION OF A PROPER COURT TO THE EFFECT THAT MARRIAGES BY PROXY ARE AUTHORIZED OR RECOGNIZED IN A PARTICULAR JURISDICTION. SUCH A MARRIAGE WILL NOT BE RECOGNIZED BY THIS OFFICE AS ENTITLING AN OFFICER TO INCREASED RENTAL AND SUBSISTENCE ALLOWANCES ON ACCOUNT OF A "LAWFUL WIFE.'. SUBMITTED WITH YOUR LETTER WAS A CERTIFIED COPY OF A MARRIAGE LICENSE AS FOLLOWS: NO. 273406 MARRIAGE LICENSE TO JUDGE NATHAN R. GREETING: YOU ARE HEREBY AUTHORIZED TO CELEBRATE THE RITES OF MARRIAGE BETWEEN WM. YOU ARE COMMANDED TO MAKE RETURN OF THE SAME TO THE CLERK'S OFFICE OF THE DISTRICT COURT OF THE UNITED STATES FOR SAID DISTRICT WITHIN TEN DAYS. WHO HAVE BEEN DULY AUTHORIZED TO CELEBRATE THE RITES OF MARRIAGE IN THE DISTRICT OF COLUMBIA.

B-46242, FEBRUARY 7, 1945, 24 COMP. GEN. 595

VALIDITY OF PROXY MARRIAGES GENERALLY, IN THE ABSENCE OF A STATUTE OR DECISION OF A PROPER COURT TO THE EFFECT THAT MARRIAGES BY PROXY ARE AUTHORIZED OR RECOGNIZED IN A PARTICULAR JURISDICTION, SUCH A MARRIAGE WILL NOT BE RECOGNIZED BY THIS OFFICE AS ENTITLING AN OFFICER TO INCREASED RENTAL AND SUBSISTENCE ALLOWANCES ON ACCOUNT OF A "LAWFUL WIFE.'

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, FEBRUARY 7, 1945:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 11, 1944, REQUESTING DECISION AS TO THE RIGHT OF LIEUTENANT WILLIAM C. WING, CSC, V (S), USNR, TO PAYMENT OF INCREASED RENTAL AND SUBSISTENCE ALLOWANCES AS FOR AN OFFICER WITH DEPENDENTS (LAWFUL WIFE), BY REASON OF THE OFFICER'S MARRIAGE BY PROXY IN THE DISTRICT OF COLUMBIA, ON OCTOBER 12, 1944.

SUBMITTED WITH YOUR LETTER WAS A CERTIFIED COPY OF A MARRIAGE LICENSE AS FOLLOWS: NO. 273406

MARRIAGE LICENSE

TO JUDGE NATHAN R. MARGOLD, AUTHORIZED TO CELEBRATE MARRIAGES IN THE DISTRICT OF COLUMBIA, GREETING:

YOU ARE HEREBY AUTHORIZED TO CELEBRATE THE RITES OF MARRIAGE BETWEEN WM. CLIVE WING, OF MECHANICSBURG, OHIO, AND GRACE PARKS CAMPBELL, OF TARRYTOWN, N.Y., AND HAVING DONE SO, YOU ARE COMMANDED TO MAKE RETURN OF THE SAME TO THE CLERK'S OFFICE OF THE DISTRICT COURT OF THE UNITED STATES FOR SAID DISTRICT WITHIN TEN DAYS, UNDER A PENALTY OF FIFTY DOLLARS FOR DEFAULT THEREIN.

WITNESS MY HAND AND SEAL OF SAID CORT THIS 10 DAY OF OCTOBER, ANNO DOMINI 1944.

CHARLES E. STEWART, CLERK.

BY (S) MAUD R. RYNEX, DEPUTY CLERK. NO. 273406

RETURN

I, JUDGE NATHAN R. MARGOLD, WHO HAVE BEEN DULY AUTHORIZED TO CELEBRATE THE RITES OF MARRIAGE IN THE DISTRICT OF COLUMBIA, DO HEREBY CERTIFY THAT, BY AUTHORITY OF LICENSE OF CORRESPONDING NUMBER HEREWITH, I SOLEMNIZED THE MARRIAGE OF WM. CLIVE WING AND GRACE PARKS CAMPBELL, NAMED THEREIN, ON THE 12TH DAY OF OCTOBER, 1944, AT MUNICIPAL COURT, CR. DIV., IN SAID DISTRICT.

NATHAN R. MARGOLD, JUDGE.

CLERK'S OFFICE, DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT

OF COLUMBIA

I, CHARLES E. STEWART, CLERK OF THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA, HEREBY CERTIFY THAT THE FOREGOING LICENSE AND CERTIFICATE OF MARRIAGE ARE TRULY COPIED FROM ORIGINALS OF RECORD ON FILE IN SAID OFFICE.

WITNESS MY HAND AND THE SEAL OF SAID COURT, THE 23RD DAY OF OCTOBER, 1944.

CHARLES E. STEWART, CLERK.

BY (S) MAUD R. RYNEX, DEPUTY CLERK. CERTIFIED TO BE A TRUE COPY.

(S) WILLIAM C. WING.

WILLIAM C. WING.

ALSO, THERE WAS TRANSMITTED A LETTER DATED DECEMBER 6, 1944, ADDRESSED TO THE NAVY DEPARTMENT, FORM ANTHONY J. TROMBETTA, CLERK TO JUDGE NATHAN R. MARGOLD OF THE MUNICIPAL COURT OF THE DISTRICT OF COLUMBIA, IN WHICH IT IS STATED---

THE FOLLOWING IS THE INFORMATION WHICH YOU REQUESTED CONCERNING THE PROXY MARRIAGE OF WILLIAM CLIVE WING AND GRACE PARKS CAMPBELL.

THE PROXY PAPERS ARE ALL IN GOOD ORDER. THEY WERE SIGNED ON SEPTEMBER 15, 1944, SOMEWHERE IN THE PACIFIC AND SWORN TO AND NOTARIZED BEFORE COMMANDER F. L. ENDEBROCK, 76TH NAVAL CONST. BATT. CARE OF FLEET POST OFFICE, SAN FRANCISCO, CALIFORNIA. THE PAPERS WERE SIGNED AND SWORN TO BY WILLIAM CLIVE WING IN THE PRESENCE OF JOHN J. FLEMING AND R. E. ATWATER, WITNESSES. THE PROXY NAMED BY MR. WING WAS FRED P. FRANTZ, 10 POKA HOE DRIVE, NORTH TARRYTOWN, NEW YORK. JUDGE MARGOLD CANNOT RECALL ANY OF THE DETAILS ABOUT THIS PARTICULAR CEREMONY, HE IS UNDER THE IMPRESSION, HOWEVER, THAT THERE WERE OTHER PEOPLE PRESENTAT THE TIME OF THE CEREMONY.

IT DOES NOT APPEAR THAT THE VALIDITY OF A MARRIAGE BY PROXY OF TWO PERSONS DOMICILED IN THE UNITED STATES HAS BEEN DETERMINED BY THE FEDERAL OR STATES COURTS, ALTHOUGH THERE ARE A FEW REPORTED DECISIONS INVOLVING IMMIGRATION CASES IN WHICH THE FEDERAL COURTS HAVE RECOGNIZED MARRIAGES BY PROXY WHERE ONE OF THE PARTIES WAS A RESIDENT OF THE UNITED STATES AND THE OTHER A RESIDENT OF A FOREIGN COUNTRY AND WHERE THE CEREMONY WAS PERFORMED IN A COUNTRY IN WHICH SUCH MARRIAGES WERE EXPRESSLY DECLARED VALID. COSULICH, ETC. V. ELTING, COLLECTOR OF CUSTOMS, 66 F.2D 534; SILVA V. TILLINGHAST, COMMISSIONER, 36 F.2D 801; KANE V. JOHNSON, COMMISSIONER OF IMMIGRATION, 13 F.2D 432; UNITED STATES, ETC. V. TUTTLE, IMMIGRATION COMMISSIONER, 12 F.2D 927; UNITED STATES, ETC. V. COMMISSIONER, ETC., 298 F. 103; AND EX PARTE SUZANNA, 295 F. 703. HOWEVER, MARRIAGE BY PROXY IS NO LONGER RECOGNIZED AS ESTABLISHING A MARRIAGE STATUS FOR IMMIGRATION PURPOSES. 8 U.S.C., 1940 USED., SECTION 224 (M). HENCE, FOR GUIDANCE IN OTHER SIMILAR CASES, IT SEEMS DESIRABLE TO CONSIDER, AS A GENERAL QUESTION, THE STATUS OF ANY MARRIAGE BY PROXY OF INDIVIDUALS WHO BOTH ARE RESIDENTS OF THE UNITED STATES.

WHILE IT IS A MAXIM OF THE COMMON LAW THAT WHATEVER A PERSON MAY DO HIMSELF HE MAY DO THROUGH ANOTHER, THERE ARE CERTAIN EXCEPTIONS TO THAT GENERAL RULE. SOME ACTS ARE OF SUCH A PERSONAL NATURE THAT THEIR PERFORMANCE CANNOT BE DELEGATED AND IT HAS BEEN SAID THAT THAT CLASS OF ACTS INCLUDES MAKING A WILL OR CONTRACTING A MARRIAGE. STOREY ON AGENCY, SECTION 6; 2 C.J.S., 1039, SECTION 11. IN THAT CONNECTION, WHARTON, IN HIS " COMMENTARIES ON AGENCY AND AGENTS," SECTION 4, PAGE 3, STATES:

COUNTERVAILING, CONSIDERATIONS LEADING TO A LIMITATION OF AGENCY.--- YET, STRONG AS ARE THE MOTIVES THUS LEADING TO THE PROMOTION OF AGENCY, THERE ARE SOME COUNTERVAILING CONSIDERATIONS WHICH WE MUST WEIGH IF WE WOULD DULY APPRECIATE THE CHARACTERISTICS OF THE GROWTH OF JURISPRUDENCE IN THIS RELATION. THE FIRST IS THE FEELING THAT WHILE IT IS SOMETIMES VERY WELL FOR US TO ACT THROUGH OTHERS, THERE ARE MATTERS OF GERMINAL IMPORTANCE WHICH IT IS NECESSARY WE SHOULD DO FOR OURSELVES. TO PERFORM THESE THE DISCRETION OF THE INDIVIDUAL HIMSELF MUST BE INVOKED; NOR WILL THE LAW ALLOW HIM TO ACT IN SUCH MATTERS THROUGH A PROXY. A MAN CANNOT MAKE A WILL BY A DISCRETIONARY AGENT. A MAN CANNOT MAKE A BINDING CONTRACT OF MARRIAGE THROUGH SUCH AN AGENT. * * * EVEN IN THE HIGHEST STATE OF CIVILIZATION, WHEN DUTIES ARE MOST SUBTLY SUBDIVIDED, THERE ARE POWERS SO INTIMATELY INVOLVED IN THE PERSON OF THEIR POSSESSOR THAT THE LAW TELLS HIM THEY MUST BE EXERCISED BY HIM ALONE.

ALSO, SEE COMMONWEALTH V. FARMERS' AND SHIPPERS' TOBACCO WAREHOUSE CO., 107 KY. 1, 52 S.W. 799; MINNEAPOLIS TRUST CO. V. SCHOOL DISTRICT, 68 MINN. 414; 71 N.W. 679.

WITH RESPECT TO MARRIAGE BY PROXY OF PERSONS DOMICILED IN THE UNITED STATES, VERNIER'S AMERICAN FAMILY LAWS, VOL. 1, SEC. 33, PAGE 143, CONTAINS THE FOLLOWING STATEMENT:

* * * THE VALIDITY OF THE MARRIAGE IS NOT SO CLEAR. THAT MARRIAGES BY PROXY WERE ALLOWED BY THE ROMAN LAW, RECOGNIZED BY THE CANON LAW, AND ARE LEGAL IN SEVERAL FOREIGN COUNTRIES IS BEYOND DISPUTE. THEY WERE ALSO PROBABLY LEGAL BY ENGLISH COMMON LAW, THOUGH NOT POSSIBLE UNDER THE MODERN ENGLISH MARRIAGE ACTS. THESE AND THE STATUTES OF SOME AMERICAN STATES CLEARLY REQUIRE THE PERSONAL PRESENCE OF THE PARTIES AT THE CEREMONY. ASSUMING THAT MARRIAGE BY PROXY WAS PART OF THE ENGLISH COMMON LAW, IT LOGICALLY FOLLOWS THAT IT BECAME A PART OF THE COMMON LAW OF THIS COUNTRY. ANY REASONS FAVORING MARRIAGE BY PROXY IN ENGLAND CAN BE APPLIED EVEN MORE STRONGLY TO THE CONDITIONS OF COLONIAL TIMES, WHEN PERSONS DESIRING TO MARRY WERE OFTEN SEPARATED. ON PRINCIPLES OF LEGAL REASONING IT WOULD SEEM, THEREFORE, THAT THOSE WHO ARGUE THAT SUCH MARRIAGES ARE LEGAL IN THIS COUNTRY UNLESS FORBIDDEN BY LOCAL STATUTES HAVE THE BETTER GROUNDS FOR ARGUMENT.

PROFESSOR ERNEST G. LORENZEN OF HARVARD UNIVERSITY, IN AN ARTICLE PUBLISHED IN 32 HARVARD LAW REVIEW, 473-488, DEALING WITH THE QUESTION OF MARRIAGE BY PROXY AND RELATED MATTERS, STATES, AT PAGE 482:

MARRIAGES BY PROXY HAVE DOUBTLESS TAKEN PLACE IN THIS COUNTRY, BUT NO RECORD THEREOF CAN BE FOUND IN THE DECISIONS OF THE COURTS. THAT THERE ARE SERIOUS OBJECTIONS TO MARRIAGE BY PROXY IS APPARENT.

THE UNCERTAINTY IN REGARD TO THE LEGAL EXISTENCE OF SUCH A MARRIAGE ARISING FROM THE FACT THAT THE POWER OF ATTORNEY IS REVOCABLE AND MAY HAVE BEEN REVOKED WITHOUT KNOWLEDGE OF THE OTHER PARTY OR THE PROXY PRIOR TO THE CELEBRATION OF THE MARRIAGE WOULD SUGGEST OF ITSELF THE EXPEDIENCY OF PROHIBITING SUCH A MARRIAGE. IN VIEW OF THE FACT, HOWEVER, THAT MARRIAGE BY PROXY WAS PERMISSIBLE IN ENGLAND UNTIL THE EIGHTEENTH CENTURY AND HAS BEEN RECOGNIZED IN ALL COUNTRIES SO LONG AS MARRIAGE RESTED UPON MERE CONSENT, IT MUST BE REGARDED AS VALID IN THOSE STATES IN WHICH THE COMMON LAW MARRIAGE STILL EXISTS. SHOULD THIS VIEW BE TAKEN BY THE COURTS IT WOULD FOLLOW LOGICALLY THAT MARRIAGE MIGHT BE CONTRACTED IN SUCH A STATE BY PROXY, ALTHOUGH NEITHER OF THE PARTIES WAS PRESENT WHEN THE CONSENTS WERE EXCHANGED BY THE PROXIES.

ALSO, SEE SCHOULER, SIXTH EDITION," MARRIAGE, DIVORCE, SEPARATION AND DOMESTIC RELATIONS," VOLUME 2, SECTION 1212; 16 IOWA LAW REVIEW 534.

THUS, WHILE TEXT WRITERS SEEM TO BE OF THE OPINION THAT THE COURTS COULD BE EXPECTED TO HOLD THAT A MARRIAGE BY PROXY IS VALID--- UNLESS EXPRESSLY PROHIBITED BY STATUTE--- IN STATES WHEREIN COMMON LAW MARRIAGES ARE RECOGNIZED, THE ABSENCE OF DECISIONS OF COURTS OF COMPETENT JURISDICTION AS TO THE VALIDITY OF SUCH MARRIAGES AND THE ABSENCE OF STATUTES WITH RESPECT THERETO, LEAVE THE MATTER IN DOUBT. FOR THIS OFFICE TO RECOGNIZE A MARRIAGE BY PROXY AS ESTABLISHING A RELATIONSHIP ENTITLING AN OFFICER OF THE NAVY TO INCREASED ALLOWANCES AS AUTHORIZED FOR AN OFFICER WHO HAS A ,LAWFUL WIFE," WOULD BE A RECOGNITION OF THE VALIDITY OF MARRIAGES BY PROXY WITHOUT THE SUPPORT OF EITHER EXPRESS STATUTORY PROVISIONS OR COURT DECISIONS AND THE CORRECTNESS OF SUCH A CONCLUSION, UNDER THE CIRCUMSTANCES, WOULD BE OF SUCH DOUBTFUL CHARACTER THAT I AM CONSTRAINED TO HOLD THAT, GENERALLY, IN THE ABSENCE OF A STATUTE OR DECISION OF A PROPER COURT TO THE EFFECT THAT SUCH MARRIAGES ARE RECOGNIZED OR AUTHORIZED IN A PARTICULAR JURISDICTION, SUCH MARRIAGES WILL NOT BE RECOGNIZED BY THIS OFFICE AS ESTABLISHING AN OFFICER'S RIGHT TO INCREASED ALLOWANCES ON ACCOUNT OF A "LAWFUL WIFE.'

THE EFFECT OF LIEUTENANT WING'S MARRIAGE BY PROXY APPEARS TO BE FOR DETERMINATION UNDER THE LAWS OF THE DISTRICT OF COLUMBIA, THE PLACE WHERE SUCH MARRIAGE CEREMONY WAS PERFORMED AND NO STATUTE OR COURT DECISION HAS BEEN FOUND WHICH EITHER AUTHORIZES OR RECOGNIZES SUCH A MARRIAGE. EVEN COMMON-LAW MARRIAGES APPEAR TO BE RECOGNIZED IN THE DISTRICT OF COLUMBIA ONLY WHEN CONSUMMATED BY COHABITATION AS MAN AND WIFE. HOAGE, ETC. V. MURCH BROS. CONST. CO., ET AL, 60 APP. D.C. 218, 50 F.2D 983. HENCE, GIVING APPLICATION TO THE GENERAL RULE STATED ABOVE, YOU ARE ADVISED THAT, ON THE BASIS OF THE PRESENT RECORD, LIEUTENANT WING MAY NOT BE CREDITED WITH INCREASED ALLOWANCES AS AUTHORIZED FOR AN OFFICER WITH DEPENDENTS (LAWFUL WIFE).