Fordham v. Fordham

• Citation: 76 S.E.2d 299,223 S.C. 401
• Decision Date: 01 June 1953
• Docket Number: No. 16748,16748
• Parties: FORDHAM v. FORDHAM.
• Court: United States State Supreme Court of South Carolina

Page 299

76 S.E.2d 299

223 S.C. 401

FORDHAM v. FORDHAM.

No. 16748.

Supreme Court of South Carolina.

June 1, 1953.

Stoney & Crosland, Charleston, for appellant.

Charles H. Gibbs, Charleston, for respondent.

STUKES, Justice.

This appeal turns upon the solution of the problem which is concisely stated in respondent's brief as follows:

'The Act under which the Domestic Relations Court of Charleston County is established (Section 15-1101 et seq., 1952 Code: Section 256-1, 1942 Code) is applicable only to counties containing a city with a population of 70,000. The appellant's first objection is based on the ground that the provisions of the Domestic Relations Court Act relating to service upon and jurisdiction of a defaulting father or husband (Section 15-1233, 1952 Code; Section 256-46, 1942 Code) constitute a special law in a situation where the general venue statute (Section 10-303, 1952 Code; Section 422, 1942 Code) has already been made applicable.'

Appellant's attack is that 1952 Code Sec. 15-1233(2), which provides that the court shall have jurisdiction over a defaulting husband and father, quoting, '* * * if, at the time of the filing of the petition for support * * * he is not residing or domiciled in the county but is found therein at such time and the petitioner is so residing or domiciled at such time,' is invalid for contravention of Art. III, Sec. 34, subdivision 9, of the Constitution of 1895 forbidding special laws where a general law can be made applicable. It is seen that the quoted provision substitutes residence of the petitioner for the residence of the respondent or defendant which is requisite under the general law.

The constitutional question is properly raised under the facts of the case which follow. Appellant has resided in Berkeley County for many years where he maintained a home for his wife and several children. He and his wife quarreled on Labor Day 1951, which was September 3. This proceeding against him was by summons and petition, filed September 19, 1951, in which it was alleged that appellant ordered and drove petitioner from their Berkeley County home on Labor Day which, as said, was the preceding September 3rd. Petitioner took the children with her into Charleston County and seeks in this proceeding to enforce the support of them. Upon service of process upon him while temporarily in Charleston County, appellant appeared specially to contest the jurisdiction of the court upon several grounds, including that stated above which we think controls the controversy. It is added in fairness to appellant that, by stipulation of counsel, it appears of record that he has contributed during the pendency of this proceeding the total amount of $1365 for the support of the children. Decisions which struck down special enactments of some similarity to that involved in this case may be found in the footnotes at pp. 158-160, Vol. 7, Code of 1952. See particularly, State v. Ferri, 111 S.C. 219, 97 S.E. 512; Gillespie v. Pickens County, 197 S.C. 217, 14 S.E.2d 900, and Owens v. Smith, 216 S.C. 382, 58 S.E.2d 332. Parallel is also found in Gaud v. Walker, 214 S.C. 451, 53 S.E.2d 316, where the attempted delegation by special enactment of the police power to the governing board of Charleston County was held unconstitutional.

Inferior courts, such as that of original jurisdiction here, may be created by general or special enactments, Constitution of 1895, Art. V, Sec. 1, but that is a far cry from the inclusion therein of alterations of the general laws which govern venue. The right of a resident to be sued in his own county has long been held to be a valuable one. 18 South Carolina Digest Venue, k21, page 485. Conceivably, under the decisions of the lower courts in this case, he could be sued in any number of counties other than that of his residence.

The constitutional question which we have found it necessary to decide and reluctantly, as always, sustain, thereby invalidating the subsection of the Code which has been attacked, is very like that presented and similarly decided in State v. Columbia Ry., Gas & Electric Co., 129 S.C. 455, 124 S.E. 758. That case involved the venue of an action by the State, authorized by a special act which provided that the suit might be brought in any county and it was instituted in a county other than that of the defendant. It was held, as here, that the special venue provision was invalid because unconstitutional.

To sustain the decision under appeal respondent relies upon City of Columbia v. Smith, 105 S.C. 348, 89 S.E. 1028, but that case was quite different and was only concerned with...