(concuring in result).
I concur in the decision that the judgment of the circuit court should be affirmed, but find myself completely unable to agree with the basis of the decision set forth in the majority opinion prepared by Mr. Justice Moss.
The circuit court held that the present action was (certainly in view of the status of the record when it was before the circuit court) an “action for separate support and maintenance”, which was entirely'different from “a divorce a mensa et thoro”, and affirmed the award of the trial court for periodic payments to the appellant wife, but reversed the award for a lump sum payment on the authority of the case of Matheson v. McCormac, 186 S. C. 93, 195 S. E. 122, wherein it was held that lump sum awards of alimony in actions for separate support and maintenance were not favored and in the absence of express statutory authority would not be awarded, except when consented to or under exceptional circumstances. Of course, a lump sum award was approved in the Matheson case, but here the circuit court held, in effect, that there was in this case neither any consent nor exceptional circumstances such as justified and supported the award in the Matheson case. I think the circuit judge, in arriving at his decision, correctly applied the law of South Carolina to the record before him and arrived at the correct result.
The basis of his decision being correct, the decision should be affirmed on the principles of law which the circuit judge correctly applied, and we need no other basis for affirmance.
*19The petition of the appellant alleged adultery on the part of the respondent, but did not ask for a divorce of any kind, and the trial court found that the charge of adultery had not been proved, but that the respondent had been guilty of conduct which under the law of this state would justify the appellant leaving the marital home and entitle her to separate support and maintenance.
The order of the trial court then proceeded to grant the appellant “a legal separation” and ordered the respondent to make periodic payments, as well as a lump sum payment, to the appellant, without characterizing such payments as either “alimony” or “separate support and maintenance.”
In the case of Machado v. Machado, 220 S. C. 90, 66 S. E. (2d) 629, it was said, “There is no statute in this state undertaking to fix the grounds for separate maintenance and support. This is left to the broad discretion of a court of equity”, and it was held that even in a divorce action wherein a divorce was denied separate support and maintenance would be decreed if the evidence showed that the complaining wife was entitled thereto. In the instant case, regardless of the nomenclature used, or omitted, the evidence and findings of fact by the trial court entitled the appellant to an award for “separate support and maintenance” and any proper order incident thereto, nothing more.
The appeal here is based primarily on the contention that the circuit judge was in error in holding this action to be simply an action for “separate support and maintenance”, it being contended that it is rather an action for a “divorce a mensa et thoro”, which appellant contends was recognized by our courts throughout the period when an absolute divorce was not allowed under our Constitution. Before proceeding to discuss this contention, it should be pointed out that the appellant here failed to prove before the trial court any ground which would have entitled her to a divorce a vinculo matrimonii by virtue of Article XVII, Section 3 of the Constitution as amended in 1949, and the statute law enacted *20pursuant to said constitutional amendment. This being the case, we are not here concerned with the question of whether, or under what circumstances, a divorce a mensa et thoro can be granted upon proof of facts which would entitle the complaining party to a divorce a vinculo matrimonii. In other words, the issues here involved are governed by the law of this state totally independent of the constitutional provision and the statute authorizing the granting of divorces a vinculo matrimonii.
To return to the primary contention of the appellant, it is, in my opinion, totally unsound and is based upon what seems to me to be a rather wide-spread erroneous impression to the effect that “divorces a mensa et thoro” were in fact traditionally recognized by our courts independently of any statutory or constitutional provision. This erroneous impression has risen, I think, probably from a somewhat indiscriminate and interchangeable use of the terms “divorce a mensa et thoro”, “separate support and maintenance”, and “legal separation”, without due regard for the real meaning of such terms. On more than one occasion, this erroneous impression has been contributed to by dicta in the opinions of this court. No case is cited by appellant in support of the contention that divorces a mensa et thoro were in fact recognized by our courts throughout our period of constitutional denial of an absolute divorce, and there are many decisions of this court to the contrary, as will hereinafter be pointed out.
The trial court here granted “a legal separation”. I have been unable to find in any law dictionary, opinion, or treatise any concrete or specific definition of the term “legal separation”. A reading of many cases had led me to the conclusion that the term is a generic one, without any specific definition, which is rather loosely applied to various situations where the husband and wife are living apart, at least temporarily, under some sanction of contract or law. The term is, hence, applied to even an absolute divorce, as well as to a situation where a wife is temporarily living apart *21from her husband and being supported under a decree of separate support and maintenance.
From early days, courts of equity in this state have, in proper cases, ordered separate support and maintenance, but whenever the issue has been squarely raised, have declared that no court in this state had the power to grant a divorce a mensa et thoro, which is defined in Black’s Law Dictionary, page 602, as follows:
“A divorce from table and bed, or from bed and board. A partial or qualified divorce by which the parties are separated and forbidden to live or cohabit together, without affecting the marriage.” (Emphasis added.)
“Separate maintenance proceedings are distinguished not only from a proceeding for an absolute divorce, but also from a proceeding for a divorce a mensa et thoro since an action for separate maintenance does not expressly or necessarily authorize the wife to live apart from her husband, while under a decree of limited divorce the refusal of the wife to cohabit with her husband is sanctioned and authorized.” 17 Am. Jur. 256, Section 4.
There are, I think, other definite distinctions between the two proceedings, but in any event, in an unbroken line of decisions from Jelineau v. Jelineau, 2 Desaus. Eq. 45 (1801), to Ex parte Jeter, 193 S. C. 278, 8 S. E. (2d) 490 (1940), the appellate courts of this state have consistently recognized a definite distinction between these proceedings, whenever and wherever such distinction was germane, and decreed separate support and maintenance in proper cases, but at the same time held that the court had no power or authority to grant a divorce a mensa et thoro.
In the Jelineau case, wherein separate support and maintenance was awarded to the wife, it was contended by the husband that separate maintenance could not be awarded in the absence of a divorce a mensa et thoro, citing certain English cases in support of that contention. The opinion says with respect to that contention:
*22“It may be very good law in that country because there ecclesiastical courts have competent jurisdiction to grant a divorce a mensa et thoro; but in this country, at least in this state, there is no such court. Those cases, therefore, are by no means applicable to our situation.”
In the case of Anonymous, 2 Desaus. Eq. 198 (1803), the court said:
“Such conduct of the husband, being proved, terminates in a decree in the ecclesiastical court for a divorce a mensa et thoro, and an allowance of alimony; or in this court a separate maintenance during the separation only; for this court has no right to decree a perpetual separation.”
In Taylor v. Taylor, 4 Desaus. Eq. 167 (1811), the court said that the facts there would authorize ecclesiastical courts pronouncing a divorce a mensa et thoro, but then said:
“Will this court proceed to pronounce a divorce between the parties and separate them forever? This court will pronounce no divorce; but after such repeated outrageous conduct on the part of the defendant, it will endeavor to provide for the security and maintenance of the wife, until both parties may be somewhat cooled, and she may return, with some kind of safety to her husband.”
The case of Rhame v. Rhame, 1 McCord. Eq. 197 (1826) reaffirmed the proposition that the courts of this state had the power to award alimony but not the power to grant divorces of any kind.
In Converse v. Converse, 9 Rich. Eq. 535 (1856), the court said:
“The ecclesiastical court of England has the power of decreeing a separation a mensa et thoro, but the court of equity has no such jurisdiction. A jurisdiction of this kind appertains to no court in South Carolina. Under the circumstances of this case, the court might go so far (if necessary) as to protect the wife from the cruelty of the husband.”
*23In Ex parte Jeter, 193 S. C. 278, 8 S. E. (2d) 490 (1940), the issue was whether the court had the power to modify a particular decree for separate support and maintenance on the basis of an alleged change of circumstances. In deciding the basic question the court said:
“The question, whether in those states permitting divorce there is a difference between divorce a mensa et thoro and a divorce a vinculo matrimonii as to the right of the Court to modify decrees fixing alimony, has no application in this State as divorce of neither kind is permitted and alimony is allowed upon legal separation.” (Emphasis added.)
Here the author of the opinion was, no doubt, using the generic term “legal separation” as meaning an action for separate support and maintenance.
As above pointed out, dicta in some of the opinions of this court have contributed to the erroneous impression arising from the interchangeable use of the terms “divorce a mensa et thoro” and “separate support and maintenance”, without any regard to the distinction between the terms.
Among these cases is McCreery v. Davis, 44 S. C. 195, 22 S. E. 178, 28 L. R. A. 655 (1895). In that opinion there is the following language:
“* * * we admit that there is no power in any court in South Carolina to grant any divorce other than a mensa et thoro.”
The point at issue, however, was whether this court was required to accord full faith and credit to a divorce a vinculo matrimonii granted in the State of Illinois, and the power of a South Carolina court to grant a divorce a mensa et thoro was not at issue or decided, rendering the statement pure dicta. It appears likely that the author of the opinion merely used the term “a mensa et thoro”, (as has often been done), meaning separate support and maintenance, without stopping to think of the distinction between the terms.
Appellant further contends that the enactment of Section 20-113.1 of the Code, which provides that in actions for *24divorce a mensa et thoro the principles controlling the allowance of alimony in actions for divorce a vinculo matrimonii shall govern, changed the rule in Matheson v. McCormac, supra. I do not think this argument is at all sound. There is a well established rule applicable to statutes on a wide variety of subjects that, aside from legislative declarations to the contrary, statutes in derogation of the common law are to be strictly construed and legislation creating a liability where no liability existed at common law, should be construed most favorably to the person or entity subjected to the liability, and against the claimant. 50 Am. Jur. 425, Statutes, Sec. 402. Smith v. Boyer, 119 S. C. 176, 112 S. E. 71, 41 A. L. R. 1466; Beaty v. Richardson, 56 S. C. 173, 34 S. E. 73, 46 L. R. A. 517; Columbia Real Estate & Trust Co. v. Royal Exchange Assurance, 132 S. C. 427, 128 S. E. 865. Under the facts of this case, no liability for a lump sum award of alimony existed either under the common law of England or the decisions of the courts of this state.
“It is a rule of construction that changes made by a revision of the statutes will not be construed as altering the law, unless it is clear that such was the intention.” Town of Forest Acres v. Seigler, 224 S. C. 166, 77 S. E. (2d) 900.
“The legislature in the enactment of a statute will not be presumed to intend to overturn long established principles, unless such intention is made clearly to appear by express declaration or by necessary implication. To the contrary, the legislature will be presumed not to intend to overturn the long established principles of law, and the statute will be so construed, unless an intention to do so plainly appears by express declaration or necessary or unmistakable implication, and the language employed admits of no other reasonable construction.” 50 Am. Jur. 333, Section 340.
Moreover, the language of the statute under discussion is not sufficient to create a cause of action which did not theretofore exist. In the case of Grant v. Grant, 12 S. C. 29, it was held that no remedy is complete without a definition of the cases to which it shall extend, and that a mere grant of *25judicial power even in the Constitution did not, without more, create a cause of action.
The circuit judge having correctly decided the issues, his order should be affirmed. I disagree, however, with the basis of the decision in Mr. Justice Moss’ opinion for two important reasons, as follows:
1. It assumes, I think incorrectly, that the action here is, as claimed by the appellant, one for a divorce a mensa et thoro, and at least by implication serves to perpetuate current erroneous impressions with respect to the law of this state insofar as divorce a mensa et thoro is concerned.
2. It bases the decision of this court on the construction of certain statutes, which in my view have absolutely no application .to the controversy here, and moreover, I think the construction arrived at is at least open to grave question, if not entirely incorrect.
With respect to the first point of disagreement, it seems to me that no useful purpose can be served by discussing the principles of law applicable to a cause of action which does not exist in this state, at least under the facts here proved. I fear that doing so, particularly in view of dicta in prior decisions, might contribute to the eventual recognition of a cause of action, created by judicial implication and dicta, which does not exist, either by virtue of the common law or any legislative enactment, in this state.
Prior to the English Divorce Act of 1857, divorces of any kind were within the cognizance of the ecclesiastical courts. The English law concerning divorces and causes of divorces, as it existed prior to the American Revolution, was the ecclesiastical law and not the common law. Divorces in the United States, both a vinculo matrimonii and a mensa et thoro, are creatures of statute, except, of course, in South Carolina where the subject of divorce has been governed by the Constitution as well as by statute. The ecclesiastical law of England with respect to divorce and causes of divorce has never been recognized as a part of our common law, *26except in Virginia and possibly one other jurisdiction, although legislatures in drafting statutes and courts have looked closely at the rules ■yvhich obtained in the ecclesiastical courts of England. See generally 17 Am. Jur. 256, 257, Divorce and Separation, Sections 5 and 6.
As will be seen by reference to 17 Am. Jur. 255, Divorce and Separation, Section 2, and 17A Am. Jur. 69, Divorce and Separation, Section 880, the statutes of the various states authorizing a limited divorce, also called a divorce a mensa et thoro, and the consequences thereof, vary from state to state. In some jurisdictions it is even held that a reconciliation and resumption of cohabitation have no effect upon the judgment and that if the parties desire a termination of the judgment, they should make a joint application to the court for an order of termination.
We have consistently left to the broad discretion of a court of equity the grounds upon which separate support and maintenance may be decreed, and properly so, because a decree of support and maintenance within the contemplation of law and equity is strictly temporary with the ever present hope that the parties will become reconciled, making such a decree no longer necessary or effective. The nature of a divorce a mensa et thoro being more drastic, and complete or final, we should not by judicial implication contribute to the recognition of such a cause of action in the absence of legislation setting forth the grounds therefor and the consequences thereof.
With respect to the second point of disagreement as to the basis of decision, since we are here concerned with neither a cause of action for a divorce a mensa et thoro, nor a divorce a vinculo matrimonii, I think it unnecessary, improper and unwise for us to attempt herein to construe Sections 20-113 and 20-113.1 of the Code, and decide, what is here the purely academic question, whether the court, in a case governed by either of those sections, may allow alimony partly by way of periodic payments and partly by way of a lump sum payment. ■ - •
*27In 50 Am. Jur. 198, Statutes, Section 219, we find the following:
“* * * in accordance with the general rule that the province of the court is to decide real controversies and not to discuss or give opinions on abstract propositions or moot questions, a court will not construe provisions of a statute other than those involved in the case before it.”
In 14 Am. Jur. 277, Courts, Section 49, we find the following :
“The province of a court is to decide real controversies, not to discuss or give opinions on abstract propositions or moot questions. * * * Claims based merely upon assumed potential invasions of rights are not enough to warrant judicial intervention, as the courts deal with cases upon the basis of facts disclosed, never with nonexistent or assumed circumstances.”
A long line of cases of this court collected in 3 West’s South Carolina Digest, Appeal and Error, § 843, support the foregoing general principles of law and the proposition that this court will not and should not pass upon matters not necessary to a decision.
They being inapplicable, I shall not myself undertake to construe these sections of the Code, except to say that there is a very grave question in my mind as to the correctness of the construction placed thereon in the majority opinion. This construction deals only with the meaning of the word “or”, contained in the last sentence of Section 20-113, and completely overlooks any effect of another portion of the same section which is:
“In every judgment of divorce from the bonds of matrimony in a suit by the wife the court shall make such orders touching the maintenance, alimony and suit money of the wife or any allowance to be made to her and, if any, the security, to be given for the same, as from the circumstances of the parties and the nature of the case may be fit, equitable and just.” (Emphasis added.)
*28The majority opinion is most persuasive of the statutory construction arrived at, and there is some persuasive authority, found in Flordia decisions, supporting that construction. The weight of persuasive authority from other jurisdictions, however, appears to me to be to the contrary. In any event, it seems to me that the majority opinion does not deal with and leaves unanswered a most vital question.
Did the legislature, by the use of the word “or” in the last sentence of Section 20-113, intend to delimit the broad power, with respect to alimony, given in the body of the statute and say that under no circumstances could the court decree alimony partly by way of periodic payments and partly by way of a lump sum payment? Was it intended that the court could never do so even though under the circumstances of the parties and the nature of the case such allowance was totally fit, equitable and just, and the only possible way that the court could do justice to both parties ? These questions, to my mind, are certainly vital enough and important enough to be left for decision in a case where the decision of such is germane.
Rrailsford, J., concurs.