concurring in the result.
I concur in the result reached. I believe, however, that in the absence of any express statutory authorization for proceeding as a pauper when appealing to district court from an adverse ruling by a magistrate, we must hold that the trial court was not permitted to consider defendant’s petition “to sue as” a pauper.
N.C. Gen. Stat. 1-110 provides that a court “may authorize a person to sue as a pauper . . . .” (Emphasis supplied.) This language is clear and unambiguous and therefore must be construed as written. See State v. Wiggins, 272 N.C. 147, 153-54, 158 S.E. 2d 37, 42-43 (1967), cert. denied, 390 U.S. 1028, 88 S.Ct. 1418, 20 L.Ed. 2d 285 (1968). It cannot be construed to permit a trial judge or clerk to authorize an appeal as a pauper to district court from an adverse judgment rendered in magistrate’s court.
N.C. Gen. Stat. 1-288 provides for appeals as a pauper from superior or district court to the Appellate Division. Like N.C. Gen. Stat. 1-110, N.C. Gen. Stat. 1-288 requires submission of an affidavit of indigency. Unlike N.C. Gen. Stat. 1-110, however, N.C. Gen. Stat. 1-288 also requires that “[t]he affidavit must be accompanied by a written statement from a practicing attorney . . . that he has examined the . . . case, and is of the opinion that the decision of the Court ... is contrary to law.” As with N.C. Gen. Stat. 1-110, N.C. Gen. Stat. 1-288 cannot be construed to permit an appeal in this instance.
For whatever reasons, our legislature has failed to enact statutory provisions similar to those in N.C. Gen. Stat. 1-288 for appeals to district court from an adverse ruling rendered in magistrate’s court. Further, N.C. Gen. Stat. 1-288 greatly circumscribes the availability of pauper status for appeals to this Court by requiring a written assertion by an attorney that there has been an error of law. Before reaching the question of whether the court properly exercised its discretion, we would first have to resolve 1) whether persons in defendant’s situation may ever proceed as paupers when appealing to district court from magistrate’s court, and 2) if they can, whether the availability of pauper status for such appeals should be limited in a manner similar to the requirements of N.C. Gen. Stat. 1-288 or otherwise. These are policy questions for the legislature.
*254I thus would not reach the question of whether the court abused its discretion by not allowing petitioner to appeal as a pauper. If that question should be reached, in my view it is impossible to ascertain from this record whether the court in fact exercised its discretion or whether it ruled as a matter of law, based on petitioner’s ownership of her home, that she could not appeal. Accordingly, if the court had discretion to allow the appeal, and I do not believe it did, I would remand for findings establishing that it in fact exercised its discretion.
The constitutionality of this state of the law was not raised and considered in the trial court, and we thus should not pass upon it here. Powe v. Odell, 312 N.C. 410, 416, 322 S.E. 2d 762, 765 (1984); White v. Pate, 308 N.C. 759, 765, 304 S.E. 2d 199, 203 (1983); Brice v. Moore, 30 N.C. App. 365, 368, 226 S.E. 2d 882, 884 (1976).