(dissenting).
It is with reluctance that I find myself unable to concur in the majority opinion herein and feel conscientiously compelled to state my dissenting views thereabout. With only minor exceptions the facts are rather fully set forth in the majority opinion. I shall add thereto only the following facts.
It was stipulated, by the parties that the decision of this court in the instant case shall control and be binding in the case of Sally W. Lloyd against the respondents, the issues in that case being the same as in the instant case. It appears from the record that the appellant and the said Sally W. Lloyd were the only two Seventh Day Adventists in the *305Spartanburg area who were unemployed at the time of the hearing.
From World War II until June 5, 1959 work on Saturdays at Spartan Mills was optional with all employees. When appellant was notified on June 5, 1959 that commencing June 6, 1959 she would be required to work on Saturday, she acquainted her employer with her religious beliefs and declined to report to work on Saturday. There is no question as to her conscientious adherence to the teaching of her church that the Sabbath day begins at sundown on Friday and ends at sundown on Saturday, during which time Seventh Day Adventists do not perform work or labor of any kind. Thereafter, she continued to work for six weeks on the same, identical schedule that she had been working prior to the notice, and then was separated by the employer because of her refusal to work on Saturday. There is nothing in the record to indicate that she had been other than an exemplary employee for thirty-five years and the evidence is that she had never even been reprimanded for any misconduct. Prior to her separation from employment, the employer used a substitute for appellant when and as needed on Saturdays.
Appellant’s claim for unemployment compensation benefits was filed on July 29, 1959, and up until the time of the hearing before the claims examiner, she had not been able to find other work, although she had applied for work at three other textile plants in the Spartanburg area, but had been unable to find employment since these plants, like most but not all other textile plants in the area, were at the time operating six days a week, including Saturdays. It appears that a new employee of a textile plant generally is required to work on either the second or third shift, either of which would require work beyond sundown on Friday, and, therefore, it is difficult, if not impossible, for appellant to obtain new shift work, even in a textile plant operating on a five day week, which would not conflict with her Sabbath.
*306■ However,- the record shows that the appellant was available for the very same work which she had been doing for many years prior to her discharge, and that she was able, willing and available for work in the textile industry or for any other available, suitable work which did not require her to violate her Sabbath. The fact, supported by the record, is that Seventh Day Adventists, including the appellant, are available for work in the labor market generally in the Spartanburg area. The record shows that there are approximately one hundred fifty Seventh Day Adventists in that area and that all of them, with the exception of the appellant and Sally Lloyd were, at the time of the hearing, gainfully employed but not working on their Sabbath.
Although the exceptions are several in number, there are only two exceptions which I deem necessary for this court to decide, they being as follows':
1. Was the appellant able and available for work within the contemplation of the South Carolina Unemployment Compensation Law?
2. Was the appellant discharged for misconduct connected with her work within the contemplation of the South Carolina Unemployment Compensation Law ?
The answers to both of these questions involve the construction to be placed upon various sections of the South Carolina Unemployment Compensation Law, the pertinent provisions of which are set forth in the majority opinion and will not be repeated here.
This court recognized that the statutory law under consideration is to be liberally construed in order to effect its beneficent purpose. Stone Manufacturing Co. v. South Carolina Employment Security Commission, 219 S. C. 239, 64 S. E. (2d) 644. The precise questions here involved have not been passed upon by this court. However, for several reasons, little difficulty is involved in arriving at what I deem to be the correct answer to the first question. The instant case is clearly distinguishable from that line of cases wherein an *307employee is held to be ineligible because the employee has quit work for purely personal reasons totally unrelated to the employment. The appellant here did not quit her employment of long standing and made no change in connection therewith which resulted in her discharge. She was faithfully discharging her duties, just as she had for thirty-five years in compliance with what had been the established practice of her employer for some fourteen years, and in keeping with her established, sincere and conscientious religious belief. The employer, on the other hand, made the decision to stop the practice of using a substitute, when needed, for the appellant on Saturdays, and forced her to thereafter either work in violation of her Sabbath or be discharged.
- In the cited personal convenience case of Judson Mills v. South Carolina Unemployment Compensation Commission, 204 S. C. 37, 28 S. E. (2d) 535, the opinion of then Circuit Judge Oxner, adopted by this court, contains the following statement:
“I am constrained, therefore, to conclude that in order to be entitled to benefits under the act the unemployed individual must be able to and available for the work which he or she has been doing.” (Emphasis added.)
The opinion in that case quoted with approval from the opinion in Brown-Brockmeyer Co. v. Board of Review, etc., 70 Ohio App. 370, 45 N. E. (2d) 152, 155, the following language:
“In our judgment subdivision 1 is applicable and determinative under the facts of the instant case. This means capable and available, for the work she had been doing.”
Here the appellant was admittedly able to do and available for the work which she had been doing for many years, but which work the employer decided to change to a schedule which conflicted with her Sabbath.
Even if the foregoing- be not a sufficient answer to the first question, it must, be borne in mind that the. provisions *308of Secs. 68-113 and 68-114, being in pari materia, have to be construed together. Sec. 68-113 prescribes basic conditions which have to be met in order to qualify for benefits, while Sec. 68-114 enumerates a series of disqualifications; together they provide the overall formula governing the right to benefits. To make a claimant eligible only in the event he is willing to accept work without any limitation whatsoever, but to disqualify him under Sec. 68-114 only in the event he should refuse to accept “suitable work” would fix it so that the disqualification would be meaningless since a person willing to take only “suitable work” would always be ineligible in the first instance by virtue of Sec. 68-113.
There is a presumption against inconsistency and where there are two or more statutes on the same subject, in the absence of an express repealing clause, they are to be harmonized and every part allowed significance, if it can be done by any fair and reasonable interpretation. Locke v. Dill, 131 S. C. 1, 126 S. E. 747; First Presbyterian Church of York v. York Depository, 203 S. C. 410, 27 S. E. (2d) 573. I, therefore, conclude that the words “available for work” and “able to work and is available for work” as used in the statute mean “able to work and is available for suitable work” in the same sense as the words “suitable work” are used in Sec. 68-114.
Section 68-114(3) (a) expressly commands the Commission to consider the degree of risk involved to one’s morals in determining whether or not work is suitable for a particular individual.
It is urged by respondents that when the legislature made the provision about “risks to morals” it had in mind only work the character of which would be morally objectionable to any employee regardless of the moral or religious beliefs of the particular employee. This contention is answered by the specific provisions of Sec. 68-114(3) (a) which uses the words “suitable for an individual, the Commission shall consider the degree of risk involved to his * * * morals.” *309(Emphasis added). This clearly shows that the legislature intended that the Commission should take into consideration the moral risk involved to the particular claimant, rather than applying the test of what might or might not be morally objectionable to claimants collectively or to the public in general. It might not be amiss to point out that there is far from a unanimity of opinion on moral issues and that it would be exceedingly difficult, if not impossible, to say in all instances just what would or would not offend the morals of the public in general. It may very well be that the legislature had these fundamental facts in mind when it adopted the specific language of the statute making the risks to the morals of the individual claimant the test.
The respondents further urge that the statute in its entirety must, of course, be construed in the light of the evil which it sought to remedy, and in the light of conditions obtaining at the time of its enactment.' They contend that the factual situation here does not bring this case within the evils sought to be remedied by the enactment of the statute, it being shown that one of the principal objectives of the statute was to “provide more stable employment.” They argue that claimant’s separation from her employment did not result from the failure of industry to provide stable employment.
. Here, the claimant enjoyed stable employment provided by industry, one employer, for a period of thirty-five years, and moreover, stable employment which did not conflict with her religious beliefs. The appellant, in 1959, made no change in her religious faith which led to her discharge, nor did she attach any new condition to her stable employment of many years duration. The decision, the change, was made by the employer when it elected to no longer put a substitute in appellant’s place on Saturdays, as it had done in the past. The only change or decision made by anyone at or near the time of appellant’s separation from her employment was made by the employer and not by the employee. The employer simply elected not to continue to provide the *310particular employee the stable employment which had been provided for years.
Moreover, the general language of the declaration of policy contained in Section 68-36 is in the nature of a preamble to the specific provisions of the Act and the specific language of Sec. 68-114 is a very definite limitation on the provisions in the preamble. Johnson v. Pratt, 200 S. C. 315, 20 S. E. (2d) 865.
The precise issues involved in this appeal have not previously been before this court. However, the question of whether or not a Seventh Day Adventist is to be deprived of unemployment compensation benefits because of refusal to work on Saturday.has been before the Supreme Courts of Michigan, Ohio and North Carolina, all of whom have decided the issue favorably to the contention of the appellant here. No appellate court decision to the contrary has come to my attention.
It is stated in appellant’s brief and not challenged by the respondents here that the vast majority of State Commissions which have considered the problem under discussion have decided in favor of claimants such as the appellant here. Reference is made in the brief of appellant to a publication of the Labor Department of the Federal Government entitled Benefits Series Service, Unemployment Insurance, available at the office of the South Carolina Unemployment Security Commission, according to which Service the States of Arizona, California, Colorado, Connecticut, Idaho, Illinois, Kansas, Maryland, Michigan, New York, Pennsylvania, Tennessee, Virginia, Washington and the District of Columbia have held administratively that persons who refuse to work on their Sabbath were not ineligible for benefits.
While none of these authorities is binding upon us, they strongly persuade me to the view that we should not lightly adopt or adhere to the position taken by the respondents here.'
*311The North Carolina case of In Re Miller, 243 N. C. 509, 91 S. E. (2d) 241, is more nearly in point with the instant case than any other. That case arose in Rowan County, North Carolina, approximately one hundred miles from Spartanburg. Rowan County has a large textile industry and there was a finding of fact that 95% of the job openings in the textile plants of the area would require work in violation of the Seventh Day Adventist Sabbath. The claimant was a Seventh Day Adventist and was discharged by Cannon Mills because she would not work on her Sabbath, and she was denied benefits on the theory that she was not “available for work”. The North Carolina statute is substantially identical with the South Carolina statute. On the facts and statute law almost identical with those in the present case, the North Carolina court had the following to say:
“We do not undertake to formulate an all-embracing rule for determining in every case what constitutes being ‘available for suitable work’ within the meaning of G. S. § 96-13. The phrase is not susceptible of precise definition that will fit all fact situations. Necessarily, what constitutes availability for work within the meaning of the statute depends largely on the facts and circumstances of each case. However, we embrace the view that work which requires one to violate his moral standards is not ordinarily suitable work within the meaning of the statute. And necessarily the precepts of a religious belief to which one conscientiously and in good faith adheres is an essential part of one’s moral standards. Therefore, where, as here, a person embraces a religious faith, the tenets and practices of which impel her to treat as her true Sabbath the period from sundown Friday until sundown Saturday, and to refrain from all secular work during this period, it would offend the moral conscience of such person to require her to engage in secular work during such period.
“We conclude that to have forced the claimant to work on her Sabbath would have been contrary to the intent and purpose of the statute, G. S. § 96-13. The claimant, by re*312fusing to consider employment during her Sabbath, did not render herself unavailable for work within the meaning of the statute.”
The Supreme Court of Michigan, independently of the morals provision in its statute, which incidentally is substantially identical with that of South Carolina, held Seventh Day Adventists to be entitled to benefits in the case of Swenson v. Michigan Employment Security Commission, 340 Mich. 430, 65 N. W. (2d) 709. In that case it was contended that certain claimants were not entitled to benefits because they stated in their applications for benefits that they could not work from sundown on Friday to sundown on Saturday because they were Seventh Day Adventists. The Supreme Court of Michigan, sustaining the lower court in reversing the Commission and holding these claimants entitled to benefits, said:
“The law is designed to apply to all situations within its contemplation, and the commission’s attitude, if upheld, would completely exclude thousands of citizens of this State from the benefits of the act. That could never have been the intent of the legislature; nor should we so construe the act as to accomplish that result.”
The Supreme Court quoted with approval the following from the trial judge in that case:
“ ‘To exclude such persons would be arbitrary discrimination when there is no sound foundation, in fact, for the distinction, and the purposes of and theory of the act are not thereby served. Seventh Day Adventists, as a matter of fact, ■ do not remove themselves from the labor market by stopping work on sundown Friday and not resuming work until sundown Saturday, as is apparent from the reason that employers do hire them.’ ”
While admittedly Seventh Day Adventists are no doubt more numerous in the State of Michigan than they are in the State of South Carolina, and there are before us in the record no figures as to the total number thereof in this State, *313it does clearly appear that there are approximately one hundred fifty of them in the Spartanburg area alone, all of whom are gainfully employed, other than the individuals concerned with this appeal. In addition to Seventh Day Adventists, there are, of course, many other citizens who conscientiously celebrate Saturday -as the true Sabbath and it cannot be said that the legislature in the passage of the Unemployment Compensation Law had any intent or purpose to discriminate against these persons. Just as was the case in Michigan, these persons have not removed themselves from the labor market as is apparent in that, virtually all of them are employed.
In the Ohio case of Tary v. Board of Review, etc., 161 Ohio St. 251, 119 N. E. (2d) 56, the claimant was employed until termination on November 11, 1949, and at no time during her period of employment was she required to' work on Saturday. She applied for unemployment benefits and received benefits until she was referred for employment which would have required her to work half a day on Saturday. She refused to accept such employment because of her being a Seventh Day Adventist. The Supreme Court held her entitled to benefits and pointed out the fact that the General Assembly of Ohio by a 1949 amendment had adopted a statutory provision, R. C. § 4141.29, almost identical with the provisions of our Sec. 68-114(3) (a), dealing with risk to the morals of the individual. In that decision the court distinguished its earlier decision in Kut v. Albers Super Markets, Inc., 146 Ohio St. 522, 66 N. E. (2d) 643, decided prior to the 1949 amendment, and one of the principal authorities relied on by the respondents here.
All of the above cited cases are, in my judgment, extremely well reasoned, logical decisions and of strong persuasive force with us.
The majority opinion seeks to distinguish these cases, but in my humble opinion, they are not truly distinguisha*314ble, bearing in mind that the various sections of our law, being in pari materia, have to be construed together. • The North Carolina case is, on the facts and the law, identical with the instant case..
The recent case of Texas Employment Commission et al. v. Hays, Tex. Civ. App., 353 S. W. (2d) 924, did not involve a religious or moral issue, but strongly supports the position of the appellant here independently of the moral issue. In that case a high school student was available for employment on a very limited schedule but was available for work in suitable part time employment under the same part time employment conditions under which he had previously acquired his right to unemployment benefits. The court held that he was entitled to benefits. The holding there is entirely in keeping with the test of availability as laid down by this court in the Judson Mills case, the test being whether the .claimant was available for the same work which he had been doing.
The respondents here cite no case in point from this or any other jurisdiction which sustains their position, but would urge this court to disregard the great weight of authority in other jurisdictions and adopt, without precedent, a different rule in South Carolina. They rely principally upon the cases of Stone Manufacturing Co. v. South Carolina Employment Security Commission, supra, and Judson Mills v. South Carolina Unemployment Compensation Commission, supra, and the Ohio case of Kut v. Albers Super Markets, Inc., supra. In addition, the majority opinion cites Hartsville Cotton Mill v. South Carolina Employment Security Commission, 224 S. C. 407, 79 S. E. (2d) 381.
The South Carolina cases are clearly distinguishable. They involved situations where women claimants had voluntarily quit the work which they had been doing for laudable but entirely personal, family reasons, unconnected with any religious belief, and in neither instance were they still available for the same work which they had been doing. *315Here, appellant has been constantly available for the very same work which she had been doing for a long time before she was discharged and was, and is, still, available for any other work, her only limitation being that she would not work on her Sabbath. The appellant here is not unemployed as a result of any decision on her part which removed her either from her previous employment or the labor-market generally.
In the Kut case the claimant was an Orthodox Jew who had been employed five days a week and was transferred to a position which required him to work on his Sabbath, to which he objected.' His employer then offered to return him to his former position which required no work on his Sabbath and Kut declined, thus voluntarily making himself un-' available for the same work he had been doing all along, and it was on this básis that the Supreme Court of Ohio was unanimous in 'denyihg him the right to benefits. At the time of th t, Kut .case, Ohio did not have the equivalent of our Section 68-114(3) - (a) in its statutory law, which fact is specifically pointed out in Tary v. Board of Review, supra.
The language quoted in the majority opinion from the Kut case, supra, is, in my humble view, obiter dictum and was clearly so regarded by two members of the Ohio Supreme Court, it being totally unnecessary in that case to go any further than the simple basis upon which the Supreme Court was unanimous in denying Kut the right to benefits.
The cases of Unemployment Compensation Commission v. Tomko et al., 192 Va. 463, 65 S. E. (2d) 524; Unemployment Compensation Commission of Virginia v. Dan River Mills, Inc., 197 Va. 816, 91 S. E. (2d) 642; Sweeney v. Unemployment Compensation Board of Review, 177 Pa. Super. 243, 110 A. (2d) 843; Hess Bros. v. Unemployment Compensation Board of Review, 174 Pa. Super. 115, 100 A. (2d) 120; Gatewood v. Iowa Iron & Metal Company, 251 Iowa 639, 102 N. W. (2d) 146, and Sun Shipbuilding. *316& Dry Dock Co. v. Unemployment Compensation Board of Review, 358 Pa. 224, 56 A. (2d) 254, are all clearly distinguishable from the instant case, and, in my humble opinion, are simply not in point of the facts.
I shall not attempt to review the factual situations in each of said cases here, but do wish to point out that the case of Sun Shipbuilding & Dry Dock Co. v. Unemployment Compensation Board of Review, supra, involved no issue of an employee quitting because habits of his fellow employees were distasteful to him, because the work offended his religious or moral principles, etc., and any language thereabout in the opinion of the Pennsylvania court is pure obiter dictum. The facts of that case were simply that the claimant had quit his job solely because he wanted to go into business for himself, in which he failed, and the court simply held that he had forfeited his status as an employee by said action and was, therefore, not entitled to benefits.
With respect to the second question,, what has heretofore been said largely disposes of the same. The respondents contend that appellant was discharged for misconduct connected with her work. The evidence shows that she was discharged solely because she would not work on her Sabbath. Since appellant was available for work within the contemplation of the statute, she was not disqualified because she refused to accept work which was unsuitable within the purview of the statute. Therefore, her refusal to perform such work at the direction of her employer was not misconduct connected with her work within the contemplation of the South Carolina Unemployment Compensation Law.
In addition to the foregoing questions, the appellant contends that the ruling of the Commission and the lower court violated the right of claimant to religious freedom and equal protection of the laws guaranteed by the first and fourteenth amendments to the Constitution of the United States and Aricle I, Sections 4 and 5 of the South Carolina Constitution of 1895.
*317The majority opinion disposes of these questions by saying that our Unemployment Compensation Act places no restrictions upon the appellant’s freedom of religion and by relying upon the obiter dictum language in the per curiam opinion from Kut v. Albers Super Markets, supra. This disposition of the constitutional questions does not, to my mind, squarely meet the issues. The appellant does not contend that the Act in itself in any sense is unconstitutional, but does contend that the construction placed thereon by the Commission, the lower court and the majority opinion, is in violation of her constitutional rights to both religious freedom and equal protection of the laws. It is worthy of note that in addition to two members of the Ohio Supreme Court, the United States Supreme Court regarded the language in the per curiam opinion in the Kut case dealing with the constitutional issues as nothing more than obiter dictum The United States Supreme Court refused to consider the constitutional questions in the Kut case solely on the ground that the State court’s decision was based on a non-federal ground adequate to support it, the non-federal ground being that Kut was denied benefits because he refused to return to his former employment where no violation of his Sabbath was involved. 329 U. S. 669, 67 S. Ct. 86, 91 L. Ed. 590.
In my view, this case would be correctly disposed of by reversing the order of the lower court to the end that the cause might be remanded to the South Carolina Employment Security Commission with direction that an award be made to the claimant in accord with the views hereinabove expressed. If we so disposed of the case, there would be no constitutional questions involved. In view, however, of the decision of the majority, the constitutional questions are, of course, still present. I shall not here discuss at length or attempt to decide these constitutional questions but do feel that they are serious enough to require very full consideration before deciding to affirm the judgment of the lower court.