Hall v. McBride

| S.C. | Feb 15, 1906

Lead Opinion

February 15, 1906. The opinion of the Court was delivered by This is an appeal from an order of reference to take testimony.

The facts are stated in the order, which, together with the exceptions, will be set out in the report of the case. The case of Ins. Association v. Berry, 53 S.C. 129" court="S.C." date_filed="1898-09-06" href="https://app.midpage.ai/document/farmers-mutual-ins-assn-of-edgefield-v-berry-6679424?utm_source=webapp" opinion_id="6679424">53 S.C. 129, 31 S.E., 53" court="S.C." date_filed="1898-09-06" href="https://app.midpage.ai/document/farmers-mutual-ins-assn-of-edgefield-v-berry-6679424?utm_source=webapp" opinion_id="6679424">31 S.E., 53, shows conclusively that such order is not appealable.

It is the judgment of this Court, that the appeal be dismissed.

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Concurrence Opinion

I concur in dismissing the appeal. In an ordinary case, when the defendant admits the material allegations of the complaint and consents to the relief demanded, I think it would be error of law for the Circuit Court to put the parties to the expense of a reference, but no Court is bound to decree an act of the General Assembly unconstitutional and adjudge the rights of the parties accordingly, merely because the plaintiff has alleged and the defendant has admitted the unconstitutionality of the statute. Because of the public interest involved, it is a well recognized duty of courts not to declare a statute unconstitutional if the facts fairly admit of any other legal solution of the issues.

It was, therefore, within the discretion of the Circuit Court to order a reference to take the testimony, for it may appear from the facts that the question of the constitutionality of the statutes referred to in the complaint and answer is not necessarily involved in the decision of the case.