Thompson v. Hofmann

Brailsford, Justice:

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 statute1 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;”

*318The 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The long-arm statute was originally enacted in 1966 as a floor amendment to the South Carolina Uniform Commercial Code, placed in Article 2 and styled “Further Remedies.”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:

No. 1343

“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 *319service 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, Key No. 48(l)-(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 relates to form only and lacks sufficient substaiffce 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 *320that 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.

Lewis and Bussey, JJ., concur. Moss, C. J., and Littlejohn, J., dissent.

Sections 10.2-801 through 10.2-809, 1962 Code of Laws (Supp. 1973); Act No. 1065, 54 Stat. 4027 (1966), reenacted, Act. No. 1343, 57 Stat. 2518 (1972). This is in large part the Uniform Interstate and International Procedure Act.

The respondent here concedes the unconstitutionality of the 1966 Act, making a decision by this Court unnecessary.