Thompson v. Hofmann
| Citation | 210 S.E.2d 461,263 S.C. 314 |
| Decision Date | 04 December 1974 |
| Docket Number | No. 19918,19918 |
| Court | United States State Supreme Court of South Carolina |
| Parties | Dorothy M. THOMPSON, Respondent, v. Carol HOFMANN, Appellant. |
John H. Williams of Williams & Johnson, Aiken, for appellant.
Rodney A. Peeples of Blatt, Fales, Peeples, Bedingfield & Loadholt, Barnwell, and Ronald L. Motley, Greenwood, for respondent.
This is an action for alienation of affection brought by Dorothy M. Thompson, the respondent, against Carol Hofmann, the appellant. The appellant is a resident of New Jersey, and was served under Section 10.2--806(1)(c), as reenacted in 1972, the so-called long-arm statute 1 which provides for out-of-state service on non-residents in specified cases, including Section 10.2--803(1)(c), which provides:
'(1) A court may exercise personal jurisdiction over a person who acts directly or by an agent as to a cause of action arising from the person's
'(c) commission of a tortious act in whole or in part in this State;'
The defendant appeared specially to challenge the court's jurisdiction. She contends that the above-quoted section violates Article III, Section 17 of the Constitution of this State, which provides that 'every act or resolution having the force of law shall relate to but one subject, and that shall be expressed in the title.' She also contends that if the section as reenacted in 1972 is declared valid, it cannot affect the service of process in this case without having an impermissibly retrospective effect. The defendant appeals from the lower court's order holding the service valid.
The long-arm statute was originally enacted in 1966 as a floor amendment to the South Carolina Uniform Commercial Code, placed in Article 2 and styled 'Further Remedies.' A number of out-of-state defendants successfully challenged its constitutionality under Article III, Section 17, quoted above, in the trial courts of this State and in the Federal courts. 2 In reaction to this, the General Assembly in 1972 reenacted the long-arm provisions under the following title:
'An Act to reenact Part 8 of Article 2 of Act 1065 of 1966, relating to the Uniform Commercial Code, so as to make the provisions of Part 8 which relates to certain definitions, personal jurisdiction based upon enduring relationship, personal jurisdiction based upon conduct, provision for service outside the State and to state that other bases of jurisdiction shall be unaffected, to establish a manner and proof of service, to establish individuals eligible to make service, to establish individuals to be served and to provide that other provisions shall remain unaffected.'
The appellant's contention is that the 1972 Act relates to two subjects in violation of Article III, Section 17, because it purports to reenact part of the Uniform Commercial Code and yet provide for jurisdiction and out-of-state service in certain actions not germane to commercial transactions.
This contention cannot be sustained. In cases too numerous to mention, this Court has declared in the strongest terms that every presumption will be indulged in favor of constitutionality of a legislative enactment, which will be declared unconstitutional only when its invalidity appears so clearly as to leave no room for reasonable doubt as to its conflict with the Constitution. 6 West's South Carolina Digest, Constitutional Law, k48(1)--(8) (1974 Supp.). It is also axiomatic that a statute will, if possible, be construed in a manner conforming to constitutional limitations. Ibid.
Act No. 1343 of 1972, while purporting to reenact Part 8 of Article 2 of Act 1065 of 1966 (Uniform Commercial Code), is a complete remedial statute of substantial benefit. Its homogeneous terms relate to but one subject which is expressed in its title in more detail than is required. But for the reference therein to the 1966 Act (UCC), there would be no semblance of a ground for an Article III, Section 17 challenge to its constitutionality. This reference adds nothing to the substantive provisions of the legislation. If necessary to sustain its constitutionality, which we do not concede, the references in the 1972 Act to the reenactment of Part 8, Article 2 of the 1966 Act should be disregarded as surplusage. This would leave the statute complete in itself and of identical meaning and effect as that enacted, thereby effectuating the legislative will rather than frustrating it. In short, the constitutional challenge to the 1972 Act relate to form only and lacks sufficient substance to justify our striking it down as unconstitutional.
The appellant's second argument is that even if the 1972 reenactment is valid, it cannot sustain service of process on her, because the cause of action sued upon arose in 1969, prior to the reenactment. However, the great weight of authority from other jurisdictions holds that long-arm statutes similar to that involved here, as distinguished from 'implied consent' statutes, such as that involved in Johnson v. Baldwin, 214 S.C. 545, 53 S.E.2d 785 (1949), apply in actions commenced after the passage of the statute regardless of when the cause of action may have arisen. Annot., 19 A.L.R. (3d) 138, Sec. 4, p. 146 (1968); 62 Am.Jur. (2d), Process, Sec. 80 (1972). This rule, which we adopt, is applicable to this case.
Affirmed.
I am not in accord with the majority opinion in this case and feel compelled to dissent.
Dorothy M. Thompson, the respondent herein, instituted this action against Carol Hofmann, the appellant herein, for damages allegedly sustained by her as a result of the alienation of the affections of her husband by the appellant. It appears from the complaint that the appellant is a resident and citizen of the State of New Jersey.
The service of the Summons and Complaint was made upon the appellant under Code Section 10.2--806(1)(c), which provides as follows:
'(1) When the law of this State authorizes service outside this State, the service, when reasonably calculated to give actual notice, may be made:
'(c) by any form of mail addressed to the person to be served and requiring a signed receipt;'.
Section 10.2--804 provides that when the exercise of personal jurisdiction is authorized by this section, service may be made outside the State.
The respondent claims jurisdiction of the appellant under Section 10.2--803(1) (c) which provides:
'(1) A court may exercise personal jurisdiction over a person who acts directly or by an agent as to a cause of action arising from the person's
(c) commission of a tortious act in whole or in part in this State;'.
The respondent alleged the commission by the appellant of certain tortious acts, in part, in this State, resulting in the alienation of the affections of her husband. The respondent contends that the court has jurisdiction of the appellant under the 'long-arm statute' provisions of the South Carolina Uniform Commercial Code, Sections 10.2--801 through 10.2--809, as re-enacted by Act No. 1343, approved June 2, 1972, 57 Stats. at page 2518.
The appellant appeared specially, pursuant to Section 10--648 of the Code, and moved to quash the purported service upon her and to dismiss the action for lack of jurisdiction. She asserts specifically that Section 10.2--803(1)(c) violates Article III, Section 17, of the 1895 Constitution of this State, which provides 'every act or resolution having the force of law shall relate to but one subject, and that shall be expressed in the title', because the service procedure permitted refers only to commercial transactions and not to tort actions unrelated thereto.
The motion to dismiss was heard by the Honorable J. B. Ness, presiding judge, who by his order held the service valid and denied the appellant's motion. Due notice of intention to appeal was given.
The South Carolina Uniform Commercial Code was enacted into law on May 5, 1966, 54 Stats. at page 4027, now codified as Sections 10.1--101 through 10.10--103; and under the following official title:
'An Act
'To be known as the Uniform Commercial Code, Relating to Certain Commercial Transactions in or regarding Personal Property and Contracts and other Documents concerning them, including Sales, Commercial Paper, Bank Deposits and Collections, Letters of Credit, Bulk Transfers, Warehouse Receipts, Bills of Lading, other Documents of Title, Investment Securities, and Secured Transactions, including certain Sales of Accounts, Chattel Paper, and Contract Rights; Providing for Public Notice to Third Parties in Certain Circumstances; Regulating Procedure, Evidence and Damages in Certain Court Actions Involving such Transactions, Contracts or Documents; to Make Uniform the Law with Respect Thereto; and Repealing Inconsistent Legislation.'
The title of the Act makes no mention of tort claims for personal injuries. A comparison of the South Carolina Uniform Commercial Code, with the 'Uniform Commercial Code' adopted by many states and drafted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws, shows that Sections 10.2--801 through 10.2--809 of our Code, which are listed under the heading 'Further Remedies', do not appear in the official Uniform Commercial Code. These sections which permit the South Carolina Courts to exercise personal jurisdiction over nonresident defendants in connection with certain tort claims, and providing the method of service of process, were added by our General Assembly, and no notice thereof was given in the title of the Act. This is the very evil that the framers of our Constitution were attempting to avoid by Article III, Section 17 thereof.
Admittedly, the General Assembly was attempting to adopt the nationally recognized Uniform Commercial Code relating to commercial transactions. However the General Assembly passed a version thereof which included provisions for jurisdiction and...
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