author: Shea, J.

text:
    American Motorists Insurance Company v. Karen Lathrop Gould
    (13643)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.

      Argued November 3, 1989
    decision released February 6, 1990

      Michael Brodinsky, for the appellant (plaintiff).

      Kathleen S. Mass, for the appellee (defendant).
   Shea, J.

The plaintiff American Motorists Insurance Company brought this application to vacate an arbitration award made to the defendant Karen Gould, pursuant to the compulsory arbitration provision of General Statutes § 38-175c (a) (l) and based upon the uninsured motorist coverage afforded by the automobile liability policy issued by the plaintiff. The trial court denied the application, rendering judgment for the defendant. In its appeal the plaintiff insurer raises two questions involving the construction of § 38-175c, our uninsured motorist coverage statute, and of the uninsured motorist provisions of the policy: (1) Is a tort-feasor’s vehicle “underinsured,” as that word is defined by § 38-175c (b) (2), when the aggregate limits of his liability insurance coverages applicable at the time of the accident exceed the uninsured motorist coverage available to the insured? and (2) When an insurance policy provides that its limit of uninsured motorist coverage shall be reduced by the amounts paid for bodily injury under the liability part of the policy, does this reduction apply only to the amounts received by the insured from the tortfeasor’s liability carrier or does it also include payments made to other accident victims? We answer “No” to the first question and discuss the second only in relation to the first.

The facts are undisputed. On August 31, 1984, the defendant and three other persons were passengers in an automobile being driven by Wesley Bamford when it was involved in a one car accident. All four passengers were injured. The plaintiff had issued a policy-affording $100,000 of liability insurance coverage for the Bamford vehicle. An additional $40,000 of liability insurance for the accident was provided under an excess policy issued by Chubb Insurance Company. The total of $140,000 of liability insurance was made available to the four injured passengers and was allocated among them pursuant to an agreement by which the defendant received $21,000, 15 percent of the total.

The policy issued by the plaintiff on the Bamford vehicle also provided $80,000 of uninsured motorist coverage. Under policies issued by Nationwide Insurance Company on vehicles owned by other members of the defendant’s family, an additional $40,000 of uninsured motorist coverage was available to her. The defendant submitted her uninsured motorist claim to arbitration pursuant to § 38-175c (a) (1). The arbitrators found that the defendant had sustained damages of $35,000 and, after deducting the $21,000 she had previously received, awarded her $14,000. Of this amount, $4666.67 was ordered to be paid by Nationwide and $9333.33 by the plaintiff.

I

Section 38-175c (a) (1) requires insurance, designated as “uninsured motorist coverage,” for protection against operators of uninsured and underinsured motor vehicles, as well as insured motor vehicles whose insurers become insolvent. Thus, statutory provisions relating expressly to uninsured motorist coverage apply also to underinsured motorists.

Section 38-175c (b) (2) defines an “underinsured motor vehicle” as “a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subdivision (1) of this subsection.” 6The plaintiff insurer claims that, because total liability insurance of $140,000 for Bamford was available to all the victims of the accident, an amount exceeding the defendant’s uninsured motorist coverage limit provided by the Bamford policy of $80,000, the automobile involved was not “underinsured” according to this definition. The defendant maintains, however, that the phrase, “limits of liability under all . . . insurance policies applicable at the time of the accident,” refers to the amount of liability insurance available to satisfy the claim of a particular claimant, which for her was only $21,000. The trial court agreed with the defendant that § 38-175c (b) (2) required “a comparison of the policy amounts applicable to the claimant to those available under her underin-sured motorist coverage.” (Emphasis in original.)

We have declared that § 38-175e (b) (2) “mandates that, in determining whether a motor vehicle is ‘underinsured’ for purposes of § 38-175c, the aggregate of the limits of all such bonds and policies on the tortfeasor’s motor vehicle is compared against the amount of uninsured motorist coverage of the insured.” (Emphasis in original.) American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 194, 530 A.2d 171 (1987). “If the aggregate is less than the limits of liability in the uninsured motorist portion of the insured’s policy, then the underinsurance coverage is activated.” Id. Under the DelGreco analysis of § 38-175c (b) (2), the Bamford vehicle would not have been “underinsured,” because total liability insurance of $140,000 was available, a sum substantially in excess of the defendant’s uninsured motorist coverage of $120,000 under both the Bamford vehicle policy and the Nationwide policy. The trial court distinguished DelGreco, however, because that case “involved only one injured claimant, and the Supreme Court had no occasion ... to consider the situation raised when multiple claimants are exhausting the same liability coverages on the tortfeasor’s motor vehicle as to the same collision.”

Unlike statutes in some other states that allow an insured to resort to his underinsured motorist coverage whenever his damages from an accident exceed the total liability insurance covering the tortfeasor, § 38-175c requires that the insured’s uninsured motorist coverage limits be greater than the total liability limits for a vehicle before it may be deemed underin-sured. American Universal Ins. Co. v. DelGreco, supra; R. T. Phillips, No Fault and Uninsured Motorist Automoble Insurance (D. Slavin ed. 1984) § 30.50 [2]. When there is only one accident victim, it is clear that in Connecticut the insured may not utilize his uninsured motorist coverage unless its limit exceeds the total amount of insurance available to satisfy claims against the tortfeasor. The defendant does not contend otherwise.

Statutes, like § 38-175c, that make the applicability of uninsured motorist coverage depend upon a comparison of uninsured motorist coverage limits with total liability insurance limits have been construed as intended “to permit the injured party to recover the amount he would have received had the tortfeasor been insured to the same extent as the injured party.” Connolly v. Royal Globe Ins. Co., 455 A.2d 932 (Me. 1983). “It could not have been intended to place the insured who is injured by an underinsured motorist in a better position than one who is harmed by a motorist having the same insurance as the insured.” Dewberry v. Auto-Owner Ins. Co., 363 So. 2d 1077, 1081 (Fla. 1978). In the few cases involving such statutes as applied to a situation where there is more than one accident victim and the resulting claims exceed the total liability insurance limits, the courts have continued to regard uninsured motorist coverage as inaccessible when its limit is less than the total liability insurance available to all claimants. In Manfredo v. Centennial Ins. Co., 124 App. Div. 2d 979, 508 N.Y.S.2d 811 (1986), the court rejected the plaintiffs argument that the tort-feasor was an underinsured motorist when, due to recoveries by two other accident victims, the limits of liability insurance available to satisfy the plaintiffs judgment were insufficient. But see Nationwide Mutual Ins. Co. v. Figliomeni, 147 App. Div. 2d 942, 537 N.Y.S.2d 387 (1989). In Billings v. State Farm Mutual Auto Ins. Co., 680 F. Sup. 778 (E.D. Va. 1988), where the plaintiff’s uninsured motorist coverage was $50,000 as compared to the tortfeasor’s liability coverage of $25,000, of which only $22,500 remained to satisfy the plaintiff’s claim after the payment of $2500 to another accident victim, the court held that the full $25,000 liability limit would be deducted in determining the maximum liability of the uninsured motorist coverage carrier. In Thiry v. Horace Mann Mutual Ins. Co., 269 N.W.2d 66 (Minn. 1978), it was held that a tortfeasor, whose liability insurance equaled the limit of an accident victim’s underinsured motorist coverage, was not underinsured, even though a substantial portion of the liability coverage had been paid to other accident victims.

Courts construing statutes like § 38-175c that compare uninsured motorist coverage limits with tortfeasor liability limits have generally held that the legislative objective was simply to give an insured who is injured in an accident the same resource he would have had if the tortfeasor had carried liability insurance equal to the amount of the insured’s uninsured motorist coverage. “Where an underinsured motor vehicle is statutorily defined as an insured motor vehicle with applicable liability limits less in amount than the injured person’s uninsured motorist’s limits, it is clear that the underinsured motorist coverage is not applicable if the insured person’s uninsured motorist limits are equal to, or less than, the tortfeasor’s liability limits.” 3 I. Schemer, Automobile Liability Insurance § 35.06. The defendant in this case was better able to obtain satisfaction of her claim than if Bamford had carried even $120,000 of liability insurance, the total of her uninsured motorist coverage, because $140,000 of liability insurance was available to her and the other claimants. The fact that liability coverage has now been exhausted because of multiple claims does not change the effect of the statute in activating uninsured motorist coverage only when the liability insurance of the tortfeasor is less in amount. When, in a one car accident such as this, the policy provides for an uninsured motorist limit less than its liability limit, it is evident that no protection is afforded by the uninsured motorist coverage provided by the policy to the passengers beyond that already available as liability insurance. The legislature, however, must have been aware of such a consequence, since § 38-175c (a) (1) expressly provides that an insurer “shall not be required to provide [uninsured motorist] coverage with limits in excess of the bodily injury coverage of such policy issued to such named insured.”

In construing the phrase in § 38-175c (b) (2), “insurance policies applicable at the time of the accident,” to refer only to the amount of liability insurance available to satisfy the defendant’s claim for damages, the trial court overlooked the fact that in ordinary parlance an insurance policy would be “applicable” if it covered any portion of a tortfeasor’s liability rather than all of it. If there had been no claimants other than the defendant, “the sum of the limits of liability under” the policy issued by the plaintiff and that issued by the Chubb Insurance Company would equal $140,000, because both policies were applicable to the accident. They did not become inapplicable simply because the sum of their liability limits was less than was necessary to satisfy all of the claims arising out of the accident.

II

Having determined that the Bamford car was not underinsured within the definition of an “underinsured motor vehicle” in both the statute and the policy, we consider the policy provision reducing uninsured motorist limits by liability payments only to determine whether the policy can be construed to afford greater coverage than the statute requires. We find no incongruity between these provisions and the definition of an “underinsured motor vehicle” in § 38-175c (b) (2) that would alter the conclusion we reached in part I, supra, that the defendant must be denied access to her uninsured motorist coverage because its limit is less than the liability limits of the tortfeasor. In fact, the set-off provisions of the policy appear to have been designed to achieve the same result where the uninsured motorist coverage does not exceed the liability limit of the policy.

The insurance policy issued by the plaintiff contains a provision that the $80,000 limit of its liability for uninsured motorist coverage “shall be reduced by all sums . . . [p]aid because of the bodily injury by or on behalf of persons . . . who may be legally responsible. This includes all sums paid under Part A [the $100,000 limit of liability coverage] . . . .” The policy also provides that “[a]ny payment under this [uninsured motorists] coverage will reduce any amount that person is entitled to recover under Part A [liability coverage].” The plaintiff insurer has already paid the $100,000 liability limit to the defendant and three other passengers in behalf of Bamford, the driver of the car, whose negligence caused their injuries. The plaintiff maintains that, by virtue of this payment and the policy provisions quoted, the uninsured motorist coverage of $80,000 that its policy otherwise would make available to the defendant has been reduced to nothing.

The trial court noted that the “effect of the above provision[s] would be to reduce uninsured/underinsured motorist coverage to zero as to an insured who has recovered under the liability coverage of the same policy in an amount equal to or in excess of the uninsured motorist coverage limit.” Relying on that portion of the policy that provides that “[a]ny payment under this [uninsured motorist] coverage will reduce any amount that person is entitled to recover [for the same damages] under Part A” (emphasis added) the trial court ruled, however, that “read as a whole, the limitations on overall coverages available refer to payments to the particular insured, not to an aggregation of payments to all insured persons.” The trial court concluded that “[w]ere the limitations to be read as the plaintiff now suggests, an insured who was one of several injured parties and who had received no payments under liability coverage could be denied payments under uninsured motorist coverage if the liability limit had been exhausted in payment to others. Read as a whole, the limitations do not provide for such a result.”

Pursuant to General Statutes § 38-175a, the insurance commissioner has adopted a regulation, § 38-175a-6 (d) (3) of the Regulations of Connecticut State Agencies, stating that “the policy may provide for the reduction of limits [under uninsured motorist coverage] to the extent that damages have been (1) paid by or on behalf of any person responsible for the injury . . . or (3) paid under the policy in settlement of a liability claim.” This regulation does not specifically address whether the “reduction of limits” by virtue of payments made in settlement of a liability claim refers to the total paid to all victims of the accident or only to the amount paid to each victim.

The policy provision reducing uninsured motorist limits by payments made in behalf of the tortfeasor, specifically including “all sums” paid under the liability portion of the policy, expressly contemplates that the entire $100,000 paid in behalf of Bamford is to be subtracted from the defendant’s uninsured motorist limit of $80,000. “[A]ll sums paid under Part A [liability coverage]” must be construed to refer to payments made to other victims as well as the $21,000 paid to the defendant. (Emphasis added.)

The defendant does not claim that the policy provision is inconsistent with the regulation nor did the trial court perceive any such conflict. The court, however, read the provision that “[a]ny payment under this [uninsured motorist] coverage will reduce any amount that person is entitled to recover [for the same damages] under Part A [liability coverage]” to imply that the provisions reducing uninsured motorist limits for “all sums” paid under the liability coverage refer only to payments made to the particular insured claimant.

We are not persuaded that the unambiguous provision that “all sums” paid by virtue of the liability coverage of the policy shall reduce its uninsured motorist limits can be deemed to have been amended by the provision relating to a different matter, i.e., the reduction of liability limits by payments under uninsured motorist coverage, to which the regulation concerning the reduction of the uninsured motorist limits does not pertain. Whatever may be the reason for referring to “that person” in the latter provision, it cannot reasonably be construed to create an ambiguity in the former. Since the provision reducing uninsured motorist limits by sums paid as liability insurance is clear and is not affected by the provision reducing liability limits by amounts paid as uninsured motorist insurance, the court had no occasion to apply the principle that ambiguities in a policy should be resolved in favor of an insured. Avis Rent A Car System, Inc. v. Liberty Mutual Ins. Co., 203 Conn. 667, 672, 526 A.2d 522 (1987).

There is error, the judgment is set aside and the case is remanded to the trial court with direction to render judgment in favor of the plaintiff setting aside the arbitration award.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 38-175c. uninsured motorist coverage. (a) (1) Every such policy shall provide insurance, herein called uninsured motorist coverage, in accordance with such regulations, with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles and insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages, because of bodily injury, including death resulting therefrom, provided each insurer licensed to write automobile liability insurance in this state shall provide such uninsured motorists coverage with limits requested by the named insured upon payment of the appropriate premium, but such insurer shall not be required to provide such coverage with limits in excess of the limits of the bodily injury coverage of such policy issued to such named insured. No insurer shall be required to provide uninsured motorist coverage to (A) a named insured or relatives residing in his household when occupying, or struck as a pedestrian by, an uninsured or underinsured motor vehicle or a motorcycle that is owned by the named insured, or (B) to any insured occupying an uninsured or underinsured motor vehicle or motorcycle that is owned by such insured. Every such policy issued on or after October 1, 1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding. With respect to any claim submitted to arbitration on or after October 1,1983, the arbitration proceedings shall be conducted by a single arbitrator if the amount in demand is forty thousand dollars or less or by a panel of three arbitrators if the amount in demand is more than forty thousand dollars.”

       The policy issued by the plaintiff provides that it “will pay damages which a covered person is legally entitled to recover, from the owner or operator of an uninsured motor vehicle because of bodily injury: (1) Sustained by a covered person; and (2) Caused by an accident.” The policy provides that “covered person” includes the insured or any family member and “[a]ny other person occupying [the insured’s] covered auto.”

       Nationwide Insurance Company has not appealed from the judgment.

       General Statutes § 38-175c (b) (2) provides: “For the purposes of this section, an ‘underinsured motor vehicle’ means a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subdivision (1) of this subsection.”

       General Statutes § 38-175c (b) (1) provides: “An insurance company shall be obligated to make payment to its insured up to the limits of the policy’s uninsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured’s uninsured motorist coverage, exceed the limits of the insured’s uninsured motorist coverage.”

       The policy issued by the plaintiff provided for uninsured motorist coverage of $40,000 for each of two vehicles and also stated that “[t]he maximum limit of our liability for Uninsured Motorists Coverage ... is the sum of the Uninsured Motorists Coverage limits shown in the Declarations applicable to each vehicle.” Thus, the policy expressly provides for “stacking” of the limits on both vehicles. See Nationwide Ins. Co. v. Gode, 187 Conn. 386, 446 A.2d 1059 (1982).

       The definition of an “uninsured motor vehicle” in the policy issued by the plaintiff includes an underinsured vehicle by virtue of language essentially similar to the definition of “underinsured motor vehicle” in General Statutes § 38-175c (b) (2): “a land motor vehicle or trailer of any type . . . (2) For which the sum of the limits of liability under all bodily injury bonds or policies applicable at the time of the accident is less than the sum of the limits of liability for Uninsured Motorists Coverage applicable to each vehicle insured for this coverage under this policy.” Because it is not claimed that the policy definition is significantly different from the statutory definition, we need not consider it further. The policy provision would require discussion only in the event that the defendant contended that it afforded greater protection than the statute, a claim she has not asserted. See Allstate Ins. Co. v. Ferrante, 201 Conn. 478, 483, 518 A.2d 373 (1986).

       Several states have statutes that expressly define an underinsured motor vehicle as one whose liability limits have been reduced by multiple claims to an amount less than the uninsured motorist coverage of the insured’s policy. Colo. Rev. Stat. § 10-4-609 (4) (b) (1989); Tex. Ins. Code Ann. art. 5.06-1 (2) (b) (Vernon 1989); Va. Code Ann. § 38.2-2206B. (1989); W. Va. Code § 33-6-31 (b) (ii) (1989).

       The court also concluded that, because the plaintiff had not proved what portion of the $21,000 payment to the defendant it had provided under the liability portion of the policy, no reduction in the limit of uninsured motorist coverage available to the defendant could be allowed. In her trial brief, however, the defendant had expressly admitted the facts as stated in the application to vacate the award, which included an allegation that she had received $21,000 from the liability portion of the plaintiff’s policy. The plaintiff was not obliged to prove a fact that was judicially admitted. Jones Destruction, Inc. v. Upjohn, 161 Conn. 191,199, 286 A.2d 308 (1971). The defendant has conceded error in the failure of the court to realize that the $21,000 payment had been made wholly by the plaintiff.

       The defendant has not challenged the validity of the regulation. One commentator has indicated that the set-off of underinsured motorist benefits by the amount paid by the tortfeasor’s liability carrier is authorized by the following provision of General Statutes § 38-175c (b) (1): “[I]n no event shall the total amount of recovery from all policies, including any amount recovered under the insured’s uninsured motorist coverage, exceed the limits of the insured’s uninsured motorist coverage.” R. T. Phillips, No Fault and Uninsured Motorist Automobile Insurance (D. Slavin ed. 1984) § 30.50 [2],


source: Caselaw Access Project

author: Arthur H. Healey, J.

license: Public Domain

text:
    David Singh v. Seoranie Singh
    (13698)
    Healey, Shea, Glass, Covello and Hull, Js.

      Argued November 2, 1989
    decision released February 6, 1990

      John Antkowiak, certified legal intern, with whom was Keith W. Acker, for the appellants.

      Heather J. Wilson, assistant attorney general, with whom were Jane S. Scholl, associate attorney general, and, on the brief, ClarineNardiRiddle, attorney general, for the state of Connecticut as amicus curiae.
   Arthur H. Healey, J.

This is an appeal from the trial court’s denial of the plaintiffs and the defendant’s motion to open the 1984 judgment of annulment of their 1983 marriage in Connecticut. We transferred this case from the Appellate Court to this court pursuant to Practice Book § 4023. We find no error.

The factual background that generates the issue to be decided is the following. The parties, David Singh (husband) and Seoranie Singh (wife), were married on January 13,1983, in Hartford. In their complaint, seeking an annulment, they alleged that their 1983 marriage was entered into “upon the mistaken belief by both parties that they were not related,” but “they [had only] recently discovered that they are uncle and niece.” There were no issue of this marriage. In 1984, the court, Hon. Simon Cohen, state trial referee, rendered judgment of annulment declaring the marriage null and void after finding, inter alia, that “[t]he marriage was entered into upon the mistaken belief by both parties that they were legally qualified to marry,” but that “[both parties] have recently discovered that they are uncle and niece.”

Thereafter, in November, 1988, both parties filed a motion to open the judgment. That motion alleged that, although the judgment found that they were uncle and niece and, therefore, not legally qualified to marry, in fact, since the wife’s mother is the husband’s half sister, the wife is the husband’s half niece and not his niece. The parties also maintained that they sought the annulment only because of the advice of counsel that their marriage was, “without question,” incestuous and void under our statutory scheme. See General Statutes §§ 46b-21, 53a-191. In view of the fact that our statute concerning kindred who may not marry does not mention “half nieces” or “half uncles” and no Connecticut decision extends the scope of the law’s prohibition to relatives of the half blood, the parties claimed that the marriage “might well be deemed lawful and valid.” They further alleged that they were remarried in August, 1988, in California where, citing People v. Baker, 69 Cal. 2d 44, 442 P.2d 675, 69 Cal. Rptr. 595 (1968), they assert that the California Supreme Court has determined that marriages between uncles and nieces of the half blood are not proscribed by that state’s incest statute.* *

The trial court, Kline, J., denied the motion to open the judgment of annulment. In doing so, it found that the wife was the daughter of her husband’s half sister and that this half sister and the husband were descended from a common mother but different fathers. It noted that while there were some Connecticut cases implicating the statute, there were no Connecticut cases specifically addressing the question whether persons of the half blood fall within the statutorily prohibited degrees of whole blood relationships. Further, the trial court not only said that a number of cases in other jurisdictions indicated that marriage or sexual intercourse between an uncle and niece of the half blood could be incestuous, but also opined that the texts seemed to be uniform that both at common law and by statute prohibited degrees of relationship by blood included persons of the half blood as well as of the whole blood. The court also stated that these authorities uniformly held that there is no distinction between the whole blood and half blood in computing the degrees within which marriages are prohibited as incestuous. The trial court also concluded that not only consanguinity but also the degree of the relationship between the parties was a basis for prohibiting certain marriages. Because § 46b-21 prohibits marriages between stepparents and stepchildren, the court inferred that it was not the actual blood relationship that appeared to concern the legislature but rather the degree or distance of the relationship between the parties indicating a legislative intent to prevent not only marriages of the whole blood but also those of the half blood. The trial court accordingly denied the motion to open and set aside the judgment of annulment. This appeal followed.

The issue to be decided is whether a marriage between persons related to one another as half uncle and half niece is incestuous under our statutory scheme and, therefore, void. See General Statutes §§ 46b-21, 53a-191. The parties maintain that such a marriage is not incestuous under our statutory law. The attorney general, who appeared as an amicus curiae, argued to the contrary. The determination of this question involves the interrelation and judicial interpretation of two statutes, §§ 46b-21 and 53a-191. This case, unlike State v. Skinner, 132 Conn. 163, 43 A.2d 76 (1945), or State v. Moore, 158 Conn. 461, 262 A.2d 166 (1969), to which counsel have referred, does not come before us on appeal from a conviction of the crime of incest. These cases, however, are instructive on the issue to be resolved in this case.

Historically, marriage between certain relatives “has been disfavored by all nations during all ages.” F. Keezer, Marriage and Divorce (3d Ed. 1923) § 170; 1 C. Vernier, American Family Laws (1931) § 37; 1 H. Clark, Law of Domestic Relations in the United States (2d Ed. 1987) § 2.9; see Gould v. Gould, 78 Conn. 242, 244, 61 A. 604 (1905). Although incest was punished by the ecclesiastical courts in England, it was not an indictable offense at common law and punishment was left entirely to the ecclesiastical courts. See Peoples. Baker, supra; Cecil v. Commonwealth, 140 Ky. 717, 719, 131 S.W. 781 (1910); State v. Jarvis, 20 Or. 437, 439, 26 P. 302 (1891); 4 Blackstone Com. 4. “The ecclesiastical courts followed the interdiction of Levitical law which prohibited marriages between persons more closely related than fourth cousins unless a dispensation was procured from the Church of Rome; no distinction was made between persons related by affinity or consanguinity.” People v. Baker, supra, 49; see Butler v. Gastrill, Gilbert’s Rep. 156, 156-57, 25 Eng. Rep. 110 (1721); State v. Tucker, 174 Ind. 715, 718-19, 93 N.E. 3 (1910). In 1540, during the reign of Henry VIII, a statute was passed regulating the degrees of relationship within which marriage was illegal. See 32 Henry 8, c. 38. That statute limited the prohibitions against marriage to relatives closer than first cousins, and although the ecclesiastical courts approved of the statute, the courts continued to make no distinction between relatives by consanguinity or affinity. People v. Baker, supra; Butler v. Gastrill, supra; The Queen v. St. Giles in the Fields, 11 Q.B. 173, 116 Eng. Rep. 441 (1847). “Consanguinity” is a blood relationship. It is the connection or relation of persons descended from the same stock or common ancestor. Black’s Law Dictionary (5th Ed.). It is distinguished from “affinity” which, in turn, is the connection existing in consequence of a marriage between each of the married persons and the kindred of the other spouse. Id.; see Lavieri v. Commissioner of Revenue Services, 184 Conn. 380, 383, 439 A.2d 1012 (1981).

The initial departure of the American jurisdictions from the English law was to declare incest a crime. The crime of incest is purely statutory, and most states have a statute making it a crime. The statutes delineating incestuous relationships departed from the ecclesiastical law in two respects. The majority of states extended the criminal prohibitions to first cousins and beyond while other states imposed criminal penalties only where the relationship was that of consanguinity. People v. Baker, supra; F. Keezer, supra, §§ 171 and 172, pp. 220-22. As will be seen, Connecticut’s incest statute followed the former course. While these statutes may vary in detail, they generally define incest as marriage or sexual intercourse between persons too closely related in consanguinity or affinity to be entitled to marry legally. See 72 A.L.R.2d 706.

In Connecticut, incest has been a crime since the incest statute was enacted in 1702 as part of “An Act to prevent Incestuous Marriages.” General Statutes (1702-1733), p. 74; see Catalano v. Catalano, 148 Conn. 288, 290, 170 A.2d 726 (1961); Gould v. Gould, supra, 246. The 1702 act prohibited marriages between persons within certain degrees of kinship including that of uncle and niece. Catalano v. Catalano, supra; Gould v. Gould, supra. In the 1875 revision, the language describing the degree of relationship, now appearing in § 46b-21, was adopted. General Statutes (1875 Rev.) § 1; Catalano v. Catalano, supra. There has been no substantive change in the language since that time.* ***** Thus, since 1702, our incest statute has interdicted marriage between persons related by either consanguinity or affinity.

Initially, the parties claim that the trial court erred by adhering to a line of cases dating from the interpretations of the incest statute during the reign of Henry VIII citing to the English statute of 32 Henry 8, c. 38. They concede that “[d]espite notable changes in sexual mores and in the very conditions which underlie the incest taboo itself, which have intervened since the time of Henry VIII, most Courts considering [the] question have been satisfied to mechanically reproduce the precedents of several hundred years ago.” They, nevertheless, urge “a more modern approach to the construction of our incest statute” and maintain that they “rely upon a line of cases placing more emphasis on the rights of criminal defendants, and the importance of preserving bona fide marriages against the undue extension of statutory categories.” They claim that there are several compelling reasons for the statutory construction that they urge: (1) the plain language of § 46b-21 favors the construction allowing uncle-niece marriages between relatives of the half blood; (2) undue judicial extension of the prohibitions contained in § 46b-21 may lead to unfair prosecutions for the crime of incest under § 53a-191; (3) an unwarranted extension of the incest prohibition to include uncles and nieces of the half blood is inconsistent with proper respect for the preservation of bona fide marriages; and (4) since the prohibition of “uncle-niece marriages, especially those between relatives of half blood, are not the object of universal condemnation, the Court will not be at odds with ‘natural law’ if it adopts the construction [advocated] by [the parties].” We are not persuaded by any of these claims.

It is clear that § 46b-21 does not contain any language that expressly distinguishes between relatives of the whole blood and the half blood. It is also clear that although § 46b-21 is a civil statute, its interrelationship with § 53a-191, the criminal statute prohibiting incest, is such that both statutes may fairly be said to be in pari materia and so § 46b-21 is to be construed in this case in harmony with the law of which it forms a part. See Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 575, 522 A.2d 763 (1987); State v. Millette, 112 N.H. 458, 465, 299 A.2d 150 (1972); 82 C.J.S., Statutes § 362 (1953). The infusion into § 53a-191 of the degrees of relationship set out in § 46b-21 as the predicate for the commission of the crime of incest invokes the rule of strict construction that is applied to criminal statutes. The United States Supreme Court has said: “That criminal statutes are to be construed strictly is a proposition which calls for the citation of no authority. But this does not mean that every criminal statute must be given the narrowest possible meaning in complete disregard of the purpose of the legislature.” United States v. Bramblett, 348 U.S. 503, 509-10, 75 S. Ct. 504, 99 L. Ed. 594 (1955). The same court also said: “No rule of construction, however, requires that a penal statute be strained and distorted in order to exclude conduct clearly intended to be within its scope — nor does any rule require that the act be given the ‘narrowest meaning.’ It is sufficient if the words are given their fair meaning in accord with the evident intent of (the legislature].” United States v. Raynor, 302 U.S. 540, 552, 58 S. Ct. 353, 82 L. Ed. 413 (1937). We have said: “Strict construction does not mean that a statute must be read in isolation. ‘ “In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result.” ’ . . . ‘“The rule of strict construction does not require that the narrowest technical meaning be given to the words employed in a criminal statute in disregard of their context and in frustration of the obvious legislative intent.” ’ ” (Citations omitted.) In re Luis R., 204 Conn. 630, 635, 528 A.2d 1146 (1987). Such authority demonstrates that the rule of strict construction of penal statutes is not without limitation; the doctrine of strict construction is only one of the aids which is to be used in the construction of penal statutes. See 3 J. Sutherland, Statutory Construction (4th Ed. 1986) § 59.06. Other aids include such things as the statutory language itself, legislative history where available, the furthering of the policy and purposes fairly apparent from the statute which include the mischief sought to be proscribed and related statutes.

In our analysis, it is proper to explore further the state of the law as it was at the time that our incest statute was enacted in 1702. The fundamental case explicating the ecclesiastical law as it was deemed at the time was Butler v. Gastrill, supra. That case, which was decided in 1722, said: “And when we consider who are prohibited to marry by the Levitical Law, we must not only consider the mere Words of the Law itself, but what, from a just and fair Interpretation, may be deduced from it.” Id., 158. On the basis of early English cases discussing the prohibition of marriage within certain degrees, Halsbury said: “In reference to the prohibited degrees, relationship by the half blood is a bar to marriage equally with relationship by the whole blood.” 16 Halsbury’s Laws of England p. 284. Another noted text writer wrote: “The relationship by half blood is the same in [the consanguinity cases] as by whole blood; so that, for example, it is incestuous for a man to marry the daughter of his brother of the half blood, or the daughter of his half-sister.” 1 J. Bishop, Marriage, Divorce and Separation § 748. It is fair to assume that, when the incest statute was enacted in 1702, the framers were aware of and adopted the interpretation of the ecclesiastical law as it then existed in England, thus treating the relation of the half blood like that of the whole blood. See Commonwealth v. Ashey, 248 Mass. 259, 42 N.E. 788 (1924); 1 J. Schouler, Marriage, Divorce, Separation and Domestic Relations (6th Ed.) § 756.

There has been no substantive change since that time in our incest statute insofar as the degree of consanguinity within which marriage is proscribed. That is not without significance. Indeed, implicating the issue before us, in 1961, we said: “It has been the declared public policy of this state continuously since 1702 to prohibit marriages of uncle and niece and declare them void.” Catalano v. Catalano, supra, 290. Our decisional law under the incest statute has been sparse. In Catalano, we held invalid a marriage between an uncle and a niece under our statutory scheme although the marriage was valid in Italy where it was performed. In that case, we noted that the “generally accepted rule” was that a marriage valid where the ceremony was performed was valid everywhere. Id., 291. We pointed out, however, that there were certain exceptions to the rule, including one which regarded as invalid incestuous marriages between persons so closely related that their marriage was contrary to the strong public policy of the domicil. Id. In that context, we said: “That exception may be expressed in the terms of a statute or by necessary implication.” Id.

Besides Catalano, two other cases merit discussion. In State v. Skinner, 132 Conn. 163, 43 A.2d 76 (1945), we held that the relationship of brother and half sister was comprehended within the degrees of relationship forbidding marriage under the incest statute. In that case, we rejected the defendant brother’s claim that the relationship of half sister did not come within the statutory prohibition. Id., 165. In doing so, we pointed out that the defendant “admitted in his brief that all the cases which [his counsel] have found are to the contrary and that public policy would indicate that relationship of the half blood should be included in the prohibition of the incest statute.” Id. After referring to several cases from other jurisdictions that directly held that “brother” includes a brother of the half blood and that “sister” includes a sister of the half blood, we said: “In view of the purpose of the statute ... its language, and the. soundness of the decisions we have cited, we hold that the word sister, as used in the statute, applies to and includes a half sister.” Id.

In State v. Moore, 158 Conn. 461, 464, 262 A.2d 166 (1969), the defendant had been found guilty of incest where the parties involved were the defendant and the nineteen year old daughter of the defendant’s brother-in-law, that is, the daughter of the defendant’s wife’s brother. In reversing the incest conviction in Moore, we observed that the trial court “extended the meaning of § 46-1 (now § 46b-21) beyond its fair import.” Id., 465. In doing so, we referred to Skinner, pointing out that the relationship in that case contained the element of consanguinity and we also noted that that element appeared in all the relationships enumerated in § 46-1 (now § 46b-21) except the relationship of stepmother or stepdaughter and stepfather or stepson. Id., 466. Moore then goes on to say: “The question at once arises as to why, in its enumeration of relationships which do not include the element of consanguinity, the General Assembly saw fit to include only those of stepparent or a stepchild. In the application of the criminal law, it would be an unwarranted extension and presumption to assume that by specifying those relationships the legislature has intended to include others which lack the element of consanguinity. Had the legislative intent been to include what, in this case, would commonly be called a relationship of niece-in-law and uncle-in-law, it would have been a simple matter to say.” Id. Therefore, the Moore court opined that, absent such a declaration, the trial court’s construction “amounted to an unwarranted extension of its expressed meaning and intent.” Id.

The parties stress that Moore is very supportive of their position. We do not agree for several reasons. First, the fact pattern in Moore was different from that in both Skinner and Catalano, as in the latter two cases, unlike Moore, a blood relationship was involved. Second, in Moore, we referred to Skinner, noting that, in Skinner, we not only pointed out that the relationship .in that case “is embraced within the meaning of the statute” but also that in that relationship there was the element of consanguinity. State v. Moore, supra. In Moore, the element of consanguinity was absent but that of affinity was present. Moreover, in Moore, we did not qualify our holding in Skinner but acknowledged its viability. Finally, in Moore, we were not called upon to decide whether the statute proscribed marriage between two persons where each was a relative of the half blood although Skinner, fairly read, was a step in that direction.

Nor do we overlook, in reaching our conclusion, those cases that the parties urge us to rely upon in reaching “a more modern approach” to the construction of our incest statute. This approach, they claim, is one which places more emphasis on the rights of criminal defendants as well as “preserving bona fide marriages against the undue extension of statutory categories.” They cite the following cases: People v. Baker, supra; People v. Womack, 167 Cal. App. 2d 130, 334 P.2d 309 (1959); and State v. Bartley, 304 Mo. 58, 263 S.W. 95 (1924).

The parties place the greatest stress on People v. Baker, supra. A close reading of that case demonstrates that it is clearly inapposite. That case was an incest prosecution against Baker who had had sexual relations with his niece who was related to him by the half blood; that is, her mother was the defendant’s half sister. The trial court found him guilty of incest. His principal claim on appeal was that the prohibition in California Penal Code § 285 against fornication by an uncle and his niece did not apply where they were related by the half blood. That statute provided in part: “Persons being within the degrees of consanguinity within which marriages are declared by law to be incestuous and void . . . who commit fornication . . . with each other . . . are punishable by imprisonment . . . .’’California Civil Code § 59 provided: “Marriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half as well as the whole blood, and between uncles and nieces or aunts and nephews, are incestuous, and void from the beginning, whether the relationship is legitimate or illegitimate.” (Emphasis added.) The Baker court reversed the conviction. In doing so, it reasoned that the phrase “of the half as well as the whole blood” obviously referred to brothers and sisters and could not be interpreted also to modify “uncles and nieces” under established tenets of statutory construction. Moreover, by including relationships between brothers and sisters of the half blood and not so specifying as to more distant relatives, the Baker court reasoned that the legislature evinced the intention to exclude such persons from the statutory prohibition. People v. Baker, supra. In recognizing that various state statutes differ, it acknowledged that the more common type of statute extended the prohibition to uncles and nieces of the half blood even where half blood relationships were not mentioned. The manifest dissimilarity of the California statute in Baker from our statutes affords little support for the claims of the parties in this case. Indeed, Baker itself expressly points this up when, after stating that incest is governed by specific statutes in the various states, it says that “the relevant decisions must be considered in the context of the statutory scheme peculiar to the particular state.” Id., 47. We agree.

The Baker court addressed the earlier case of People v. Womack, supra. Womack posed the question whether an admitted act of sexual intercourse between the defendant Womack and the fourteen year old daughter of his half sister was incestuous under the same statutory scheme that existed in Baker. The California Court of Appeals had affirmed Womack’s conviction of incest. In doing so, it construed the statutory scheme to include the defendant and the victim within those degrees of relationship between whom sexual intercourse was prohibited. In its decision, it observed that “[b]y definition, an uncle is a brother of one’s father or mother, and no distinction is made between the whole and the half blood according to common and ordinary usage.” People v. Womack, supra, 131. Baker not only referred to Womack but expressly “disapproved” of it as “being inconsistent with fundamental canons of construction of criminal statutes.” Therefore, Womack hardly supports the parties in the case before us. Rather significantly, however, the Baker court explicitly did say: “Undeniably, the great weight of authority is in accord with the result reached in Womack. (Note, 72 A.L.R. 2d 706)” and conceded that those decisions which represented the weight of authority were consonant with the English ecclesiastical law declaring a marriage between an uncle and niece of the half blood incestuous. People v. Baker, supra, 47.

Finally, the parties refer us to State v. Bartley, supra, but that Missouri incest decision hardly buttresses their claim. The defendant Bartley, who had been convicted in the trial court, was a half brother of the mother of the young woman with whom he had had sexual intercourse, the relationship being that of uncle and niece of the half blood. The Missouri statute defining incest provided in part: “Persons within the following degrees of consanguinity, to wit: Parents and children, including grandparents and grandchildren of every degree, brothers and sisters of the half as well as of the whole blood, uncles and nieces, aunts and nephews, who shall intermarry, or who shall commit adultery or fornication . . . shall be adjudged guilty of incest. . . . ” (Emphasis added.) Id., 61. In reversing the conviction, the Missouri Supreme Court adopted a strict construction of the statute against the state saying, inter alia, that “[n]o one is to be made subject to such statutes by implication” and “[wjhere one class of persons is designated as subject to its penalties, all others not mentioned are exonerated.” Id., 63. That case effectively held: “When the Legislature mentioned brothers and sisters of the half blood it necessarily excluded all other relationships of the half blood.” Id. Again, as in Baker and Womack, Bartley involved a statutory scheme quite dissimilar from ours. Each involves statutes that expressly provide for certain relationships of the half blood; ours does not.

In addition, the parties suggest that holding marriages between uncles and nieces of the half blood valid will place more emphasis on the rights of criminal defendants and the importance of preserving bona fide marriages against the undue extension of statutory categories. At the outset, we should point out that in this appeal there are no claims that the statutory scheme involved is unconstitutional. Moreover, this appeal does not come to us as a criminal matter. We are, therefore, disinclined to give any opinion, without any factual predicate, what effect upholding the parties’ “more emphasis on the rights of criminal defendants” claim; because to do so would amount to an advisory opinion. Also, on that branch of their claim, we point out here, as we did in Lomas & Nettleton Co. v. Waterbury, 122 Conn. 228, 234, 188 A. 433 (1936), that “[l]aw suits are not determined by a consideration of philosophy in the abstract, but by the application of legal principles to the facts of a particular case.”

Connecticut has its statutory scheme in place to implement its policy of delineating the relationships between persons under our jurisdiction who may properly enter into marriage. It has been for many years and still remains the declared public policy of the state. See Catalano v. Catalano, supra. The degrees of relationship within which marriages are prohibited are not, from what we have already said, words of art. Fairly read, the prohibition against intermarriage of those related by consanguinity can be understood to extend to those of the half blood as well as of the whole blood. In Skinner, which predated the case before us by a generation, we held that the words “brother” and “sister” included those of the half blood. “According to the common meaning of the word [‘uncle’], it includes the half-brother of the [mother] and there is no distinction between the whole and half blood.” 90 C.J.S. 1025. We believe that the same can be said of the term “niece,” that is, that it comprehends the half blood as well as the whole blood. In doing so, we accord to each word its common meaning without frustrating legislative intent but rather enhancing it. Other courts have had no difficulty concluding that their statutes, although silent on the half blood matter, comprehend that relationship in “uncle-niece” incest cases. See, e.g., State v. Lamb, 209 Iowa 132, 227 N.W. 830 (1929); Commonwealth v. Ashey, supra, 260. In giving a statute its full meaning where that construction is in harmony with the context and policy of the statute, “there is no canon against using common sense in construing laws as saying what they obviously mean.” Roschen v. Ward, 279 U.S. 337, 339, 49 S. Ct. 336, 73 L. Ed. 722 (1929); Don-nelly v. United States, 276 U.S. 505, 48 S. Ct. 400, 72 L. Ed. 676 (1928). We will attempt no encompassing definition of a “bona fide marriage” in the incest context. The parties have advanced none. We submit, however, that, given the common meaning of uncle and niece, as we have discussed it, what would constitute a “bona fide marriage” in the incest context should be decided on a case-by-case basis against the background of authority we have set out above. Therefore, contrary to the parties’ claim, our interpretation of the statutory scheme does not constitute an “unwarranted extension” of the incest prohibition that “is inconsistent with proper respect for the preservation of bona fide marriages.”

In conclusion, a marriage between persons related to one another as half uncle and half niece is void under General Statutes §§ 46b-21 and 53a-191 as incestuous.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 46b-21 provides: “(Formerly See. 46-1.) kindred WHO MAY NOT MARRY. No man may marry his mother, grandmother, daughter, granddaughter, sister, aunt, niece, stepmother or stepdaughter, and no woman may marry her father, grandfather, son, grandson, brother, uncle, nephew, stepfather or stepson. Any marriage within these degrees is void.”

       General Statutes § 53a-191 provides: “incest: class d felony, (a) A person is guilty of incest when such person marries a person whom such person knows to be related to such person within any of the degrees of kindred specified in section 46b-21.
      “(b) Incest is a class D felony.”

       Despite this second marriage, the parties went on to contend in their motion to open that they would still face a “painful two year separation” unless the annulment judgment was opened. The reasons they advanced to support this latter claim of the two year delay was, they claim, due to certain amendments in November, 1986, to the Immigration and Nationality Act. The wife was a citizen of Guyana when she remarried her husband. She had been cited by the immigration authorities for exclusion as an “overstay” and was therefore precluded from applying for an “adjustment status” to permanent residency based on that marriage. Consequently, she will have to return to Guyana and cannot initiate an “adjustment status” application until she has completed two years of residence outside the United States. They emphasize in their motion that “their relationship has nothing in common with so-called ‘green card marriages.’ ”
      A “green card” is a document which evidences an alien’s permanent residence status in the United States. See United States v. Carpentier, 689 F.2d 21, 23 n.5 (2d Cir. 1982).

       In this context, the trial court specifically referred to State v. Skinner, 132 Conn. 163, 43 A.2d 76 (1945), Catalano v. Catalano, 148 Conn. 288, 170 A.2d 726 (1961), and State v. Moore, 158 Conn. 461, 262 A.2d 166 (1969). It also referred to an opinion of the attorney general concerning the validity of a marriage between an uncle and his half niece under General Statutes (1930 Rev.) § 51-48, the precursor of the present statute, General Statutes § 46b-21. See 19 Opin. Atty. Gen. 281 (1935).

       Counsel have also stressed our decision in Catalano v. Catalano, 148 Conn. 288, 170 A.2d 726 (1961), which was an appeal from a probate decree, that required our interpretation of three statutes, i.e., the precursors of General Statutes §§ 46b-21 and 53a-191, as well as General Statutes § 46-6 (“when marriages in foreign countries are valid,” now General Statutes § 46b-28).

       “The Acts and Laws of His Majesty’s Colony of Connecticut in New England, Revision of 1702” contains: “An Act to prevent Incestuous Marriages” and provides in part: “That no man shall marry any woman within the degrees hereafter named in this Act, That is to say, No man shall marry his Grandfathers Wife, Wives Grandmother, Fathers Sister, Mothers Sister, Fathers Brothers Wife, Mothers Brothers Wife, Wives Fathers Sister, Wives Mothers Sister, Fathers Wife, Wives Mother; Daughter, Wives Daughter, Sons Wife, Sister, Brothers Wife, Wives Sister, Sons Daughter, Daughters Daughter, Sons Sons Wife, Daughters Sons Wife, Wives Sons Daughter, Wives Daughters Daughter, Brothers Daughter, Sisters Daughter, Brothers Sons Wife, Sisters Sons Wife, Wives Brothers Daughter, Wives Sisters Daughter; and if any man shall hereafter marry, or have carnal copulation with any woman, who is within the degrees before recited in this Act, every such Marriage shall be, and is hereby declared to be null and void; and all Children that shall hereafter be born of such Incestuous Marriage or Copulation, shall be for ever disabled to Inherit by Descent, or by being generally named in any Deed or Will, by Father or Mother.” (Spelling as in original.)

       The legislature, however, has had the statute before it in recent years. In 1978, it changed the third word of General Statutes § 46b-21 from “shall” to “may” after the words “No man” as well as after the words “no woman.” Public Acts 1978, No. 78-230, § 3. At the same time, it amended the second sentence to provide: “Any marriage within these degrees is void” instead of “and, if any man or woman marries within the degrees aforesaid, said marriage shall be void.”

       Henry VIII (1491-1547) reigned as King of England from 1509 to 1547.

       Here, the parties refer us to three cases: People v. Baker, 69 Cal. 2d 44, 442 P.2d 675, 69 Cal. Rptr. 595 (1968); People v. Womack, 167 Cal. App. 2d 130, 334 P.2d 309 (1959); and State v. Bartley, 304 Mo. 58, 263 S.W. 95 (1924). Bach of these cases is inapposite as we point out later in this opinion.

       “A fair interpretation” of the statute of 32 Hen. 8, c. 38 has been said to forbid marriage outside the Levitical degrees. 1 J. Bishop, Marriage, Divorce and Separation (1891) § 737; see 1 J. Schouler, Husband and Wife (1882) § 15. The Levitical degrees are those degrees of kindred between a man and a woman which bar their marriage to each other as those degrees are set forth in the eighteenth chapter of Leviticus. Black’s Law Dictionary (5th Ed.); Ballentine’s Law Dictionary (1969).

       Long ago, albeit in a different context (the construction of a statute as to who would take in the event of a “lapsed” devise or legacy under a will) the only issue was whether the word “brother” or “sister” as used in that statute included half brothers. Seery v. Fitzpatrick, 79 Conn. 562, 65 A. 964 (1907). In Seery, we said: “In England it has long been settled that whenever the word ‘brother’ or ‘sister’ is used in a statute without limitation [as in the statute in Seery], it includes half-brothers or half-sisters respectively.” Id., 563.

       General Statutes § 53-223, at the time of State v. Moore, 158 Conn. 461, 262 A.2d 166 (1969), provided: “Every man and woman who marry or carnally know each other, being within any of the degrees of kindred specified in section 46-1, shall be imprisoned in the State Prison not more than 10 years.”

       California Penal Code § 285, which was enacted in 1872 and amended only in 1921, provided at the time of People v. Baker, 69 Cal. 2d 44, 442 P.2d 675, 69 Cal. Rptr. 595 (1968), as follows: “Persons being within the degrees of consanguinity within which marriages are declared by law to be incestuous and void, who intermarry with each other, or who commit fornication or adultery with each other, are punishable by imprisonment in the state prison not less than one year nor more than fifty years.”

       As to that, the court in People v. Baker, 69 Cal. 2d 44, 47, 442 P.2d 675, 69 Cal. Rptr. 595 (1968), said: “More commonly, the statute condemns various relationships without specifying the ‘wholeness’ of the blood as to any of them. In all reported decisions construing such a statute, the courts have extended its bans to uncles and nieces of the half blood by reasoning that ‘uncle’ in ordinary usage of the word includes a person of the half blood, and/or that under other statutes, relatives of the half blood are given the same legal status as those of the whole blood. . . . Either rationale is inapposite where the statute, as is true of Civil Code section 59, specifically deals with some half blood relations and not with others.” (Citations omitted.)

       The fact that the General Assembly has expressly provided in 1987 that “[relatives of the half blood shall take the same share under [General Statutes § 45-276, entitled ‘Distribution when there are no children or representatives of them’] is not in conflict with this conclusion. The 1987 statute, Public Acts 1987, No. 87-239, entitled “An Act Concerning Discrimination Between Relatives of the Whole and Half Blood,” was enacted for a limited purpose. It did purport to affect the affairs of relatives in only a limited manner — to prevent discrimination between relatives of whole and half blood under our inheritance law where there are no children or representatives of them. That purpose does not implicate the issue we decide on this appeal.


author: Peters, C. J.

text:
    William Hennessey v. City of Bridgeport et al.
    (13799)
    Peters, C. J., Healey, Shea, Callahan, Glass, Covello and Hull, Js.
    Argued December 5, 1989
    decision released February 13, 1990

      George P. D’Amico, with whom, on the brief, was Harold L. Rosnick, for the appellant (plaintiff).

      Barbara Brazzell-Massaro, associate city attorney, with whom, on the brief, was John H. Barton, associate city attorney, for the appellees (defendants).
   Peters, C. J.

The dispositive issue in this appeal is whether a city may dismiss a municipal officer who was appointed for a fixed term of office, before the expiration of that term, solely on the basis of severe deterioration in the city’s financial condition. The plaintiff, William Hennessey, instituted this action against the city of Bridgeport and its former mayor, Thomas W. Bucci (mayor), seeking, inter alia, a writ of mandamus ordering the defendants to restore him to the position of administrator for humane affairs. Following a hearing, the trial court denied the plaintiff’s mandamus request. The plaintiff appealed to the Appellate Court, and we transferred the case to ourselves pursuant to Practice Book § 4023. We find no error.

The trial court found the following facts, which are undisputed. In accordance with § 51.5 of the Bridgeport charter, the plaintiff was appointed administrator for humane affairs on January 8, 1986, for a four year term of office. On February 19,1988, well before the expiration of the plaintiff’s term of office, the mayor verbally notified the plaintiff of his dismissal due to the city’s financial crisis. The mayor also dismissed twenty-eight other city employees at the same time. No hearings were held either before or after any of the layoffs, and the defendants acknowledge that there were no performance or disciplinary reasons for the dismissals. The city was in severe financial distress at the time of the dismissals, and this condition was the sole reason for the city’s action. Indeed, Bridgeport’s financial condition was so troubled that the General Assembly enacted special legislation establishing a financial review board to oversee the city’s operation and authorizing a special bond issue to finance the city’s deficit. Spec. Acts 1988, No. 88-80.

“The mayor shall appoint an administrator for humane affairs for a term of four years, beginning January 1, 1962. The administrator of humane affairs shall also be the director of public health and registrar of vital statistics for the city of Bridgeport.”

Nine months after his dismissal, the plaintiff instituted this action seeking both damages and a writ of mandamus for reinstatement to his former position. In the trial on the mandamus action, the trial court ruled against the plaintiff for two reasons. First, the court concluded that the mayor’s implied authority to dismiss city personnel for financial reasons superseded the plaintiff’s right to serve his full four year term as administrator for humane affairs. Second, the trial court found that the plaintiff’s nine month delay in pursuing his claim for mandamus was sufficiently unexplained, inequitable, and prejudicial to sustain the defense of laches. Although the plaintiff’s appeal challenges both of these trial court rulings, we do not address the applicability of the doctrine of laches to this case because we conclude that the plaintiff has failed to establish his entitlement to a writ of mandamus.

Mandamus, a cause of action with deep roots in the American legal tradition, is the proper remedy for reinstatement of a public officer who, despite a clear legal right to remain in office, has been wrongfully ousted from that position. State ex rel. Comstock v. Hempstead, 83 Conn. 554, 556, 78 A. 442 (1910); Thompson v. Troup, 74 Conn. 121, 124, 49 A. 907 (1901); see also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 168-73 (1803). It bears emphasis, however, that “[t]he writ of mandamus is an extraordinary remedy to be applied only under exceptional conditions, and is not to be extended beyond its well-established limits.” Lahiff v. St. Joseph’s Total Abstinence Society, 76 Conn. 648, 651, 57 A. 692 (1904); McAllister v. Nichols, 193 Conn. 168,171, 474 A.2d 792 (1984). Furthermore, “[mjandamus neither gives nor defines rights which one does not already have. It enforces, it commands, performance of a duty. It acts at the instance of one having a complete and immediate legal right; it cannot and it does not act upon a doubtful or a contested right . . . State ex rel. Comstock v. Hempstead, supra, 561; McAllister v. Nichols, supra, 171-72.

A party seeking a writ of mandamus must establish: “(1) that the plaintiff has a clear legal right to the performance of a duty by the defendant; (2) that the defendant has no discretion with respect to performance of that duty; and (3) that the plaintiff has no adequate remedy at law.” Vartuli v. Sotire, 192 Conn. 353, 365, 472 A.2d 336 (1984); Harlow v. Planning & Zoning Commission, 194 Conn. 187, 196, 479 A.2d 808 (1984). Even satisfaction of this demanding test does not, however, automatically compel issuance of the requested writ of mandamus. Hackett v. New Britain, 2 Conn. App. 225, 229, 477 A.2d 148, cert. denied, 194 Conn. 805, 482 A.2d 710 (1984). In deciding the propriety of a writ of mandamus, the trial court exercises discretion rooted in the principles of equity. Sullivan v. Morgan, 155 Conn. 630, 635, 236 A.2d 906 (1967). In the exercise of that discretion, special caution is warranted “where the use of public funds is involved and a burden may be unlawfully placed on the taxpayers . . . Id.

In this case, the plaintiff principally challenges the trial court’s conclusion that because the defendants’ duty to the plaintiff included some element of discretion the second part of the mandamus test has not been met. The plaintiff maintains that the defendants had a nondiscretionary duty to appoint an administrator for humane affairs for a four year term, and lacked any power to remove him from office before the expiration of that term, unless they could demonstrate, after giving the plaintiff notice and a hearing, that there was just cause for his removal. The trial court’s error, according to the plaintiff, lies in its misconstruction of § 24 (a) of the Bridgeport charter 6as affording the mayor the authority to order layoffs for fiscal reasons. That section, the plaintiff contends, merely permits the mayor to make recommendations, presumably to the city council, concerning measures to improve the city’s financial condition, but does not allow the mayor unilaterally to implement policies to that end. Like the trial court, we acknowledge that the plaintiff’s appointment for a four year term would ordinarily entitle him to serve the entire term unless removed for cause, but hold that the mayor’s responsibility to manage the city’s finances affords him the implied power to dismiss city personnel for serious fiscal reasons.

As the plaintiff correctly notes, a “city can do no act . . . unless it is authorized to do so by its charter.” Lacava v. Carfi, 140 Conn. 517, 520, 101 A.2d 795 (1953); Perretta v. New Britain, 185 Conn. 88, 92, 440 A.2d 823 (1981); State ex rel. Southey v. Lashar, 71 Conn. 540, 545-46, 42 A. 636 (1899). The city’s powers are thus limited to those that the charter expressly grants and to those that, by implication, are necessary to the exercise of the powers expressly granted. See Simons v. Canty, 195 Conn. 524, 530, 488 A.2d 1267 (1985); Perretta v. New Britain, supra, 101. Section 51.5 of the Bridgeport charter provides that “[t]he mayor shall appoint an administrator for humane affairs for a term of four years,” and § 31 provides that “[a]ll officers of the town and city shall hold their respective offices during the terms for which they shall be chosen . . . except in case of their prior death, resignation, or removal from office.” The charter thus imposes upon the mayor the duty of making an appointment for the position of administrator for humane affairs. Furthermore, since the appointment is for a fixed term of office, the person appointed to that position ordinarily has the right to serve the full four year term unless removed for cause. State ex rel. Raslavsky v. Bonvouloir, 167 Conn. 357, 362, 355 A.2d 275 (1974).

At the same time, the mayor has the duty to promote the financial well being of the city. Section 24 (a) of the charter designates the mayor as the chief executive officer of the city, and provides that “[i]t shall also be the duty of the mayor to recommend the adoption of . . . measures connected with ... its government and finances . . . While the plaintiff is correct that § 24 (a) expressly authorizes the mayor only to make recommendations, that provision does make it clear that the mayor is charged with oversight responsibility for the city’s finances. See Lombardi v. Bridgeport, 194 Conn. 601, 611-12, 483 A.2d 1092 (1984).

We have previously held that the power to lay off municipal employees when a city’s financial condition so warrants is necessarily implied from the city’s authority over its finances. Id., 605-606, 610-11; Perretta v. New Britain, supra, 102-103. As we stated in Perretta, “ [wjhen the city determines that its welfare and the proper management of its financial resources require reduced expenditures, it has discretion to husband those resources by laying off city employees whose performance it judges expendable.” Perretta v. New Britain, supra, 102; see also 4 E. McQuillin, Municipal Corporations (3d Ed. 1979) § 12.246.

The dispositive question before us, therefore, is whether this case is distinguishable from Lombardi and Perretta. The plaintiff proffers two reasons why these precedents are not controlling. First, he contends that different rules apply to ordinary city employees than to a municipal officer who has a charter created position for a fixed term of office. Second, he argues that the Bridgeport city charter, in contradistinction to the charters at issue in Lombardi and Perretta, limits the mayor’s authority to lay off city employees. We find neither of these distinctions persuasive.

The plaintiff’s position as a municipal officer is not dispositive with regard to his dismissal at the mayor’s discretion in extraordinary financial circumstances. Although his term of office removed the plaintiff from the status of an at-will employee, the plaintiffs in Lombardi and Perretta had similar job security, because they were nonprobationary employees protected by the civil service provisions in the charters of Bridgeport and New Britain, respectively. Lombardi v. Bridgeport, supra, 605; Perretta v. New Britain, supra, 89-90. The plaintiff’s fixed term of office is not of overriding significance since that term was subject to termination for just cause. A similar qualification to job security limited the tenure of the civil service employees in Lombardi v. Bridgeport, supra, and Perretta v. New Britain, supra, 93-94. The plaintiff has pointed to no other practical consequences attendant to his position as a municipal officer that should, as a matter of policy, insulate him from the fiscal realities of the city in which he works.

The Bridgeport charter does not support the plaintiff’s alternate argument, that the mayor lacks the authority to terminate his position. In Perretta, we held that a city has the implied power to lay off city employees only in the absence of a charter provision limiting that power. Id., 103. Both Lombardi and Perretta recognized the fundamental difference in charter provisions between those that regulate a dismissal for performance related reasons and those that limit layoffs for fiscal reasons. Lombardi v. Bridgeport, supra, 610-11; Perretta v. New Britain, supra, 102. While dismissals for performance must comply with the procedural requirements of notice and hearing and the substantive requirement of just cause, fiscally motivated layoffs are exempt from those rules unless some charter provision expressly imposes such constraints on fiscal layoffs. Section 51.5 of the Bridgeport charter, which establishes the four year term of office, is entirely silent on the subject of layoffs for fiscal reasons. As we stated in Perretta, where the charter says nothing about layoffs for fiscal reasons, “a city’s mayor, as its chief executive officer, has the authority to order layoffs of city employees for the purpose of implementing a properly promulgated municipal budget that mandates fiscal stringency.” Perretta v. New Britain, supra, 103.

Since the mayor has the discretion to remove the plaintiff under circumstances of financial stringency, we conclude, as did the trial court, that the second part of the mandamus test, that the defendants have ho discretion in the matter, is not satisfied. We therefore conclude that the plaintiff has failed to prove that he is entitled to a writ of mandamus.

• There is no error.

In this opinion the other justices concurred.

       The complaint also stated five additional counts alleging several other causes of action and seeking various forms of relief. This appeal concerns only the plaintiffs request for a writ of mandamus in count one of the complaint, which the trial court considered in advance of the remaining allegations.

       Section 51.5 of the charter of Bridgeport provides in pertinent part: “administrator.

       Although the plaintiffs brief states that the purported justification for his dismissal was pretextual, he conceded at oral argument that he is not, for purposes of this mandamus action, disputing that the city’s financial crisis was the sole reason for his dismissal.

       The plaintiff characterizes the trial court’s decision as declaring that the first two parts of the mandamus test were met but then deviating from the three part test to justify its refusal to grant the writ. The memorandum of decision, in which the trial court quotes Lombardi v. Bridgeport, 194 Conn. 601, 611-12, 485 A.2d 1092 (1984), reveals, however, that the court found only the first part of the test satisfied, and concluded, after a rather lengthy analysis of several factors relevant to the second part, that “ ‘ “[wjhen the city determines that its welfare and the proper management of its financial resources require reduced expenditures, it has discretion to husband those resources by laying off city employees whose performance it judges expendable.” ’ ” (Emphasis added.) It is thus clear that the trial court found that mandamus was not appropriate because the plaintiff could not demonstrate that the defendants had no discretion in the matter.

       Section 24 (a) of the charter of Bridgeport provides in pertinent part: “powers and duties of the mayor.
      “(a) The mayor of the city shall be the chief executive officer thereof, and it shall be his duty to be vigilant and active in causing the laws to be executed and enforced within the city .... It shall also be the duty of the mayor to recommend the adoption of all such measures connected with the policing, security, health, cleanliness, and ornament of the city, and the improvements of its government and finances as he shall deem expedient . . . .”

       The plaintiff also argues that a writ of mandamus should issue even if the charter affords the defendants the authority to lay off municipal officers for fiscal reasons on the ground that the mayor abused his executive discretion in choosing to dismiss the plaintiff. The plaintiff emphasizes the fact that there were “hundreds of low-level, non-charter employees” within the department of humane affairs who were, as he puts it, “more expendable.” It is ironic to have this argument propounded by the administrator for humane affairs; it is, in any case, totally without merit. Fundamentally, the plaintiff’s reference to “executive discretion” precludes resort to mandamus, since that remedy is available only when the defendant’s duty is nondiscretionary. Vartuli v. Sotire, 192 Conn. 353, 365, 472 A.2d 336 (1984).