To the same general effect is Vernier's "American Family Laws", volume 1, section 33 (1931). Also, Koegel, in his treatise "Commonlaw marriage," published in 1922, sets forth, at page 134 thereof, a copy of a marriage agreement prepared by the Office of the Judge Advocate General of the Army. While this author states that a number of marriages entered into between soldiers abroad and girls of the United States were held valid, he gives no citations to decisions of the courts holding such marriages valid.

In the case of Great Northern Ry. Co. v. Johnson (Circuit Court of Appeals, 8th Circuit, October 28, 1918), 254 F. 683, 685, there is quoted a written contract of marriage sent from Minnesota, where the man was residing, to a woman residing and employed in Missouri. The woman testified that upon receipt of the duplicate papers, which had been signed by the man, she signed them and returned one to the The decision holding this was a valid marriage is in part as follows:

man.

In fact, so far as the matter of present intention of the parties is concerned, it may be doubted whether there was any room for submission to the jury. The contract was written, and its expressions are not only unambiguous, but are emphatic as to that point. The agreement is:

From this date henceforth to be husband and wife, and from this date henceforth to conduct ourselves toward each other as husband and wife.

In approaching the proposition that the parties must be together or within the same jurisdiction, it is to be noted that this matter of marriage is for the states, except in the District of Columbia and the territories (Davis v. Pryor [8th Cir.] 112 Fed. 274, 50 C. C. A. 579; 26 Cyc. 829, and citations in notes 12 and 13 thereto), and is to be determined by the law of the state where it was contracted or celebrated (26 Cyc. 829, and citations in note 14 thereto). So far as the law on the point here involved has been defined by the adjudications of the Missouri courts, it will be followed, irrespective of the view which might be taken by this court, if the question were open. A careful examination of the above-cited Missouri cases, and of many others from that state, convinces that in that state the marriage contract possesses the elements of an ordinary contract and none others. That contract establishes a very important status, but the contract itself is in no respect peculiar. Mutual assent to the present institution of the status is all sufficient. No other act, such as cohabitation (Davis v. Stouffer, 132 Mo. App. 555, 112 S. W. 282), is necessary to complete the institution of the status where the mutual assent contemplates a marriage in praesenti. Why should the physical presence of the parties be essential to the legality of this contract, any more than of any other? It is not for us to devise means of making common-law marriages difficult. It is our duty to recognize the law as it exists. Nor is there any reason why the parties should be within the same jurisdiction. The existence and validity of the contract must be determined by the law of the place where it is legally regarded as made. Here, however, there is no point in the suggestion, for both of the states involved approve common-law marriages.

The judgment is affirmed.

In the present case, by a stipulation in the marriage contract between Josephine M. Serraino and Joseph Vaccaro, Jr., the parties thereto agreed that the validity of the contract and all the rights, powers and duties of the parties thereunder are to be governed by the laws of the State of Pennsylvania, "where both of the parties hereto are presently domiciled."

Generally, the validity of a contract is governed by the law of the place where it was made or entered into. In the case of Great Northern Ry. Co. v. Johnson, supra, the place where it was entered into was fixed as Missouri, the place from which the acceptance was mailed. In the present case, Josephine M. Serraino acknowledged the agreement December 3, 1943, and apparently mailed the contract to her fiance who acknowledged it, "in foreign service", December 31, 1943. Whatever the effect in a contract of marriage of the recognized exceptions to the rule that a contract is governed by the law of the place where it was made in cases where the parties clearly appear to have contracted with reference to the law of another jurisdiction or where the contract is to be performed in another jurisdiction, it is to be noted that both of the parties to the present contract are said to be domiciled in the State of Pennsylvania.

Schouler, in his treatise on marriage (6th edition) volume 2, section 1261, note 36, states that "Invading armies carry the matrimonial law of their domicile with them" (citing authorities) and that—as quoted hereinbefore from section 1212 of said treatise "the Adjutant General, on December 21, 1918, advised the military authorities that they might assist soldiers in contracting marriages with women at home, advising them, however, of the dangers of this course, that the validity of such marriages would depend on the law of their domicile, and that the legality of such marriages was in this country a matter of grave uncertainty." [Italics supplied.]

In regard to the law governing the validity of contracts of "Marriages of Citizens or Residents Abroad or outside State," it is stated in 35 Am. Jur., sec. 173, as follows:

Under certain circumstances the lex domicilii governs the validity of contracts of marriages, as, for instance, where the marriage is performed by or under the auspices of the diplomatic representative of the country of which the parties are citizens; or on board a man-of-war in a foreign port, or in the case of the marriage of a soldier within the lines of the Army while serving abroad; or where the marriage because of legal or religious difficulties could not be performed in accordance with the local law; or in the case of a marriage celebrated in a country or place where there is no law applicable to the case.

And, with regard to the law governing marriage by mail, Koegel, in his treatise "Common Law Marriage" referred to hereinbefore, states, at page 137, as follows:

Ordinarily, a promise made by mail or telegraph "speaks" to use the language of Mr. Justice Lindley "in the place where it is received. While therefore the place of mailing a letter may impose a liability this must be subject also to the legislative power of the place of receipt, to the extent of affecting the nature of the offer and the instrumentalities both of offer and of receipt." But in the case of American soldiers, as was noted in Law notes [Law Notes for March, 1919] there is a doubt whether the members of the army of occupation can be said to be in any sense subject to German law or whether any act of theirs which is sanctioned by military law by the laws of the United States can be invalid because of conflict with the local regulations of Germany. However, many of the "contracts" were sent to the Expenditionary Forces where the man signed it, and then returned it to the United States for signature by the bride.

The general rule as to the law governing these marriages is well stated by Wharton, Conflict of Laws, Vol. I, 369, 3rd. Ed. as follows:

"Consensual marriages abroad, by domiciled citizens of states holding such marriages to be valid, will not be invalidated because the forms prescribed in the state of celebration were not adopted, supposing (1) it was impossible to use such forms, or (2) they were repugnant to the religious convictions of the parties or (3) they were not imposed on foreigners by the state prescribing them." In view of the foregoing, it would appear that the validity of the contract of marriage in the present case is to be determined by the laws of the State of Pennsylvania and the decisions of the courts of that State.

Common-law marriages are valid in Pennsylvania. Commonwealth v. Bockes, 103 Pa. Super. 378, 157 A. 214; Stump v. Stump, 111 Pa. Super. 541, 170 A. 393; Fitzpatrick v. Miller, 129 Pa. Super. 324, 196 A. 83. In Meister v. Moore, 96 U. S. 76, it was held that a marriage valid at common law is valid notwithstanding the statutes of the State where it is contracted prescribed directions respecting its formation and solemnization, unless they contain express words of nullity; and it has been stated that "no statute [of the State of Pennsylvania] makes a ceremonial marriage essential." Martindale-Hubbell Law Digests, 1944, Pennsylvania Law Digest, subheading "Marriage."

In 1845 the Court of Quarter Sessions of Philadelphia County considered the validity of marriage by civil contract in The Guardians of the Poor v. Samuel Nathans, 2 Brewster 149, 152. The opinion of the court is in part as follows:

It seems to be clearly settled in the United States that marriage is but a civil contract, and it is not necessary that a clergyman or magistrate should be present to give validity to the marriage; and if the marriage is made per verba de praesenti, and remains without cohabitation, or if made per verba de futuro, and is followed by consummation, it amounts to a valid marriage, which the parties (being competent as to age and consent) cannot dissolve, and is equally binding as if made in facie ecclesiae (See 2 Kent, 87; Jewell v. Jewell, 1 Howard, 231; Fenton v. Reed, 4 Johns. 52; Taylor's Case, 9 Paige, 611.) The question has been fully considered by the Supreme Court of this State, and held to be the law here, that marriage is a civil contract, which may be completed by any words in the present time without regard to form;

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The above legal principle was restated by the Pennsylvania Supreme Court in Richard v. Brehm, 73 Pa. St. 140, 144, in part as follows:

Marriage is a civil contract jure gentium, to the validity of which the consent of parties, able to contract, is all that is required by natural or public law. If the contract is made per verba de praesenti though it is not consummated by cohabitation, or if it be made per verba de futuro, and be followed by consummation, it amounts to a valid marriage in the absence of all civil regulations to the contrary; 2 Greenl. Evid., § 460. Marriage is a civil contract which may be completed by any words in the present time, without regard to form: Hanz v. Sealy, 6 Bonn. 406. The fact of marriage then may be proved and established by competent and satisfactory evidence. *

In Murphy v. Ramsey, 114 U. S. 15, it was stated, at page 42, "Cohabitation is but one of the many incidents to the marriage relation. It is not essential to it."; and in Balanti v. Stineman Coal & Coke Co., Superior Court of Pennsylvania, June 29, 1938, 200 A. 236, it was said, at page 237:

Marriage, in our law, is a civil contract, and does not require any particular form of solemnization before officers of church or state, but is entered into by words in the present tense, uttered with a view and for the purpose of establishing the relation of husband and wife; and if the testimony of the surviving party shows that there was no marriage, all the evidence on the subject of cohabitation and reputation is of no importance.

Also, in re Craig's Estate, 273 Pa. 530, 117 A. 221, it was stated, at page 222, that marriage is a civil contract and as a contract it must be evidenced by words in the present tense, uttered with a view to establish the relation of husband and wife, and should be proved by the signatures of the parties, if in writing, or by witnesses who were present when the contract was made; but, if such evidence is not available, the marriage may be established by proof of reputation and cohabitation, declarations and conduct of the parties, and such other circumstances as usually accompany the marriage relation. See, also, In re McGrath's Estate, Supreme Court of Pennsylvania, June 29, 1935, 179 A. 599. Accordingly, in view of the foregoing, it will be considered that by their voluntary agreement Josephine M. Serraino and Joseph Vaccaro, Jr., entered into a valid marriage contract and are husband and wife. Hence, payment on the voucher, returned herewith, is authorized, if otherwise correct.

(B-42120)

PAY-ADDITIONAL-SEA AND FOREIGN SHORE DUTY-OFFICERS' RIGHTS AS AFFECTED BY SUSPENSION FROM DUTY

While, generally, an officer of the armed forces is entitled to the pay attached to his office unless it is forfeited by law, even though during a particular period he does not actually perform military service, additional pay authorized for the performance of particular duties is not payable when the officer is suspended or otherwise removed from the performance of such duties by reason of an offense of which he subsequently is convicted. The increase in pay authorized for commissioned officers by section 2 of the Pay Readjustment Act of 1942 "for any period of service while on duty in any place beyond the continental limits of the United States or in Alaska" does not attach solely to the officer's office; and, to determine the officer's rights under the statute, it is necessary to consider not only whether during the period involved he was outside the continental limits of the United States but, also, whether he was on duty.

The period during which a Navy officer outside the continental limits of the United States is removed from duty, under arrest or awaiting action of a general court martial, by reason of an offense in connection with which he subsequently is convicted does not constitute a period of service "while on duty in any place beyond the continental limits of the United States or in Alaska," within the meaning of section 2 of the Pay Readjustment Act of 1942, so as to entitle the officer to the increase in pay authorized by said section for such periods of service.

Assistant Comptroller General Yates to the Secretary of the Navy, June 26, 1944: There has been considered your letter of May 18, 1944, requesting decision whether an officer of the Navy who is outside the continental limits of the United States is entitled, during a period he is suspended from duty, under arrest or awaiting action of a general court martial, to have his base pay increased by 10 per centum pursuant to the pro

visions of section 2 of the act of June 16, 1942, 56 Stat. 360. The said section 2 provides:

SEC. 2. The base pay of any enlisted man, warrant officer, or nurse (female) in the military or naval forces of the United States shall be increased by 20 per centum and the base pay of any commissioned officer of any of the services mentioned in the title of this Act shall be increased by 10 per centum for any period of service while on sea duty as such duty may be defined by the head of the Department concerned, or duty in any place beyond the continental limits of the United States or in Alaska, which increases in pay shall be in addition to pay and allowances otherwise authorized: Provided, That the per centum increases herein authorized shall be included in computing increases in pay for aviation and submarine duty: Provided further, That this section shall be effective from December 7, 1941, and shall cease to be in effect twelve months after the termination of the present war is proclaimed by the President.

It has been held that an officer of the armed forces is entitled to the pay attached to his office unless it is forfeited by law even though during a particular period he does not actually perform military service (13 Op. Atty. Gen. 103; Walsh v. United States, 43 C. Cls. 225); but with respect to additional pay authorized for the performance of particular duties, the rule is well established that when an officer is suspended or otherwise removed from the performance of such duty by reason of an offense of which he subsequently is convicted, payment of the additional pay is not authorized. Decision dated November 16, 1914, 71 MS. Comp. Dec. 655; 24 Comp. Dec. 351; 2 Comp. Gen. 622; cf. 25 Comp. Dec. 514; 1 Comp. Gen. 563. While the cited decisions relating to payment of increased pay for sea and foreign duty considered statutes in effect prior to the current provisions authorizing an increase in pay for such service, insofar as the question now presented is concerned, the statutes are substantially the same. See the act of June 30, 1902, 32 Stat. 507, 512, and the act of May 13, 1908, 35 Stat. 127, 128, as amended.

The increase in pay for foreign service authorized by the abovequoted provision of the act of June 16, 1942, is "for any period of service while on * * * duty in any place beyond the continental limits of the United States or in Alaska." The said increase does not attach solely to the office of an officer of the Navy but is authorized only for duty performed beyond the continental limits of the United States. To determine an officer's rights under the statute it is necessary to consider not only whether during the period involved he was outside the continental limits of the United States but, also, whether he was on duty. See Farenholt v. United States, 42 C. Cls. 114.

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Where a suspension from duty results by reason of an offense in connection with which an officer subsequently is convicted, the period during which he is removed from duty does not constitute a period of service "while on duty in any place beyond the continental limits of the United States or in Alaska" within the meaning of section 2 of the act of June 16, 1942. Your question is answered accordingly. Cf. 25 Comp. Dec. 514.