(dissenting) :
I respectfully dissent and would affirm the lower court. In my view the order of Judge George F. Coleman properly disposes of all of the issues submitted to this Court, and I am of the view that his order should be printed as our directive. Inasmuch as a majority of the Court takes a contrary view and reverse that order, I will not direct that it be printed in its entirety, but will quote that part of the order which deals with the due process issue used as a basis for the reversal. It follows:
ORDER OF JUDGE COLEMAN
The plaintiff states that the Act is unconstitutional as being in violation of Article 1, Section 3 of the South Carolina Constitution:
“The privileges and immunities of citizens of this State and of the United States under this Constitution shall not be abridged, nor shall any person be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.”
In the case of Mary E. Carter v. Hartenstein, supra, the Court of Arkansas said:
*234“Further, a vital distinction, nonetheless, exists between owners or suppliers and those engaged in the professions and occupations of design and building. This is not arbitrary or unreasonable. It is a legitimate and practical exercise of the legislative function.”
In the case of Rosenberg v. Town of North Bergen, et al., 61 N. J. 190, 293 A. (2d) 662 (1972) in holding the State statute constitutional, the Court stated:
“Thus plaintiff’s alleged cause of action did not arise until she fell and sustained injury. Of course this was many years after the ten-year period fixed by the statute had expired. She claims that the statute, in its application to her, amounts to a deprivation of due process, since, as she expresses it, the statute bars her cause of action before it has arisen. This formulation suggests a misconception of the effect of the statute. It does not bar a cause of action; its effect, rather, is to prevent what might otherwise be a cause of action, from ever arising. Thus injury occurring more than ten years after the negligent act allegedly responsible for the harm, forms no basis for recovery. The injured party literally has no cause of action. The harm that has been done is damnum absque injuria — a wrong for which the law affords no redress. The function of the statute is thus rather to define substantive rights than to alter or modify a remedy. The Legislature is entirely at liberty to create new rights or abolish old ones as long as no vested right is disturbed.”
In the case of Josephs v. Burns, 260 Or. 493, 491 P. (2d) 203 (Or. 1971) held a like statute constitutional. It is interesting to note that the Oregon statute had a ten-year limit. The Court said:
“Plaintiffs contend that a statute which purports to extinguish a remedy before the legally protected right becomes actionable is unconstitutional because it contravenes Article I, Section 10, of the Oregon Constitution, which provides *235that ‘every man shall have remedy by due course of law for injury done him in his person, property, or reputation.’
“Assuming that the effect of ORS 12.115(1) is to abolish causes of action in tort where the damage does not result within ten years after the negligent acts or commissions complained of, we see nothing unconstitutional in so doing. In Noonan v. City of Portland, 161 Or. 213, 249, 88 P. (2d) 808 (1939), we stated that Article I, Section 10, did not inhibit the legislature from altering common law rights against municipalities, and said:
“ '* * * In Silver v. Silver, 280 U. S. 117, 50 S. Ct. 57, 74 L. Ed. 221, * * *, the court said that it was unnecessary to “elaborate the rule that the Constitution does not forbid the creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object.” We held to similar effect in sustaining the validity of a statute which is attacked under Art. 1, § 10, Oregon Constitution, was not intended to give anyone a vested right in the law either statutory or common; nor was it intended to render the law static * * *.’
“It has always been considered a proper function of legislatures to limit the availability of causes of action by the use of statutes of limitation so long as it is done for the purpose of protecting a recognized public interest. It is in the interest of the public that there be a definite end to the possibility of future litigation resulting from past actions. It is a permissible constitutional legislative function to balance the possibility of outlawing legitimate claims against the public need that at some definite time there be an end to potential litigation.”
Beginning with the case of Yakima Fruit & Cold Storage Co. v. Central Heating & Plumbing Co., 81 Wash. (2d) 528, 503 P. (2d) 108, decided by the Supreme Court of Washington en banc in 1972, the Court said:
“The third issue raised on appeal is whether RCW 4.16.300 et seq. is constitutional.
*236“Appellants contend that the statute is special class legislation forbidden by the Washington Constitution, Article 1, Section 12. On the same basis, appellants allege that the statute in question violates the United States Constitution, amendment 14, section 1, which forbids states to pass any laws denying equal protection to any of their citizens.
“Since 1961, more than twenty states have enacted similar statutes relative to actions arising out of defects in improvements to real property. One of these states is the neighboring state of Oregon, which has just recently held its similar statute is constitutional. Josephs v. Burns, 260 Or. 493, 93 Or. Adv. Sh. 1340, 491 P. (2d) 203 (1971).
“The case of Skinner v. Anderson, 28 Ill. (2d) 455, 231 N. E. (2d) 588 (1967), declared the Illinois statute unconstitutional as being special legislation in favor of only architects and contractors. The same cannot be said of RCW 4.16.300 et seq. because the scope of the Washington provision is not limited as to vocation. The subject statute bars actions against any person having constructed, altered or repaired any improvement upon real property.”
In the recent case of Freezer Storage, Inc. v. Armstrong Cork. Co., 341 A. (2d) 184 (Pa. 1975), holding a like statute constitutional, the Court said:
“ ‘So long as there is no omission of a remedy for the enforcement of a right for which a remedy existed when the right accrued, a want of due process is in no way involved.’ Agostin v. Pittsburgh Steel Foundry Corp., 354 Pa. 543, 549, 47 A. (2d) 680, 683 (1946). As a general principle ‘(i)t is not within the power of the legislature, under the guise of a limitation provision, to cut off an existing remedy entirely, since this would amount to a denial of justice, and, manifestly, an existing right of action cannot be taken away by legislation which shortens the period of limitation to a time that has already run.’ 51 Am. Jur. 2d, Limitation of Actions, 528, at 613, quoted in, Saylor v. Hall, 497 S. W. (2d) 218, 225 (Ky. 1973). “Our analysis must necessarily *237begin with the question of whether the 1965 Act removed an existing remedy or whether it removed the underlying right itself. The distinction is subtle, yet important. In Pennsylvania there is authority, albeit less than definitive, for the proposition that the legislature may abolish a cause of action theretofore existing. If the 1965 Act abolished a cause of action before it accrued then no violation of due process is involved. No ‘omission of a remedy for the enforcement of a right for which a remedy existed when the right accrued . . . ,’ Agostin v. Pittsburgh Steel Foundry Corp., supra, 354 Pa. at 549, 47 A. (2d) at 683, has occurred.
“The Supreme Court of Oregon in Josephs v. Burns, 260 Or. 493, 491 P. (2d) 203 (1971) in upholding a similar statute of ultimate repose against a like due process attack held that ‘(a)ssuming that the effect of (the statute) is to abolish causes of action in tort where the damage does not result within ten years after the negligent acts or omissions complained of, we see nothing unconstitutional in so doing.’ Id. at 503, 491 P. (2d) at 207. Quoting from an earlier Oregon case, the court stated that the due process clause of the Oregon Constitution ‘was not intended to give anyone a vested right in the law either statutory or common; nor was it intended to render the law static . . . .’ Id., quoting, Noonan v. City of Portland, 161 Or. 213, 248, 88 P. (2d) 808, 822 (1939). The Oregon Court further noted:
‘“(i)t has always been considered a proper function of legislatures to limit the availability of causes of action by the use of statutes of limitation so long as it is done for the purpose of protecting a recognized public interest.’ ”
Id. at 503, 491 P. (2d) at 207-08.
“The Supreme Court of New Jersey addressed itself to the due process argument in Rosenberg v. Town of North Bergen, 61 N. J. 190, 293 A. (2d) 662 (1972). Distinguishing the New Jersey statute from the typical statute of limitation, the court noted that
*238“(t)he time within which suit may be brought under this statute is entirely unrelated to the accrual of any cause of action * * *
“ ‘It does not bar a cause of action; its effect, rather, is to prevent what might otherwise be a cause of action, from ever arising. Thus injury occurring more than ten years after the negligent act allegedly responsible for the harm, forms no basis for recovery. The injured party literally has no cause of action. The harm that has been done is damnum absque injuria — a wrong for which the law affords no redress. The function of the statute is thus rather to define substantive rights than to alter or modify a remedy. The Legislature is entirely at liberty to create new rights or abolish old ones as long as no vested right is disturbed.’ Id. at 199, 293 A. (2d) at 666-67 (emphasis original)”.
I feel that this particular statute involved exercises the legislative requirements and does not contravene the constitution as far as the constitutionality of the Act is concerned, and therefore I grant the defendant Truluck’s motion for summary judgment.