State Ex Rel. McLeod v. McInnis

Gregory, Justice

(dissenting):

I respectfully dissent. In my view no justiciable controversy was presented, therefore, I would dismiss this action.

An action brought pursuant to the Uniform Declaratory Judgments Act, South Carolina Code Ann. §§ 15-53-10 through 15-53-140 (1976) must involve an actual, justiciable controversy. South Carolina Electric & Gas Company v. South Carolina Public Service Authority, 215 S. C. 193, 54 S. E. (2d) 777 (1949). “A justiciable controversy is a real and substantial controversy which is ripe and appropriate for judicial determination, as distinguished from this dispute of a contingent, hypothetical or abstract character. Notios Corp. v. Hanvey, 256 S. C. 275,182 S. E. (2d) 55 (1971).” Orrv. Clyburn, S. C. 290 S. E. (2d) 804, 807 (1982).

Here, the Attorney General is asking this Court to decide a constitutional question regarding certain legislation in advance of any real need to do so. Nowhere in his complaint is there an allegation of fact which indicates any problem presently associated with the implementation of this legislation.

While it has been held that the declaratory judgment statute should be liberally construed to accomplish its intended purpose of affording a speedy and inexpensive method of deciding legal disputes and of settling legal rights and relationships without awaiting a violation of the rights or a disturbance of the relationships, Williams Furniture Corporation v. Southern Coatings & Chemical Co., 216 S. C. 1, 56 S. E. (2d) 576, it is uniformly held that the Declaratory Judgments Act does not require the *319Court to give a purely advisory opinion as to the issues sought to be raised. City of Columbia v. Sanders, 231 S. C. 61, 97 S. E. (2d) 210.

Powers v. McNair, 255 S. C. 150, 177 S. E. (2d) 551, 553 (1970).

Upon review of the record, briefs, and arguments of counsel, I find no justiciable controversy between the parties. Thus, I would dismiss this action as it seeks merely an advisory opinion. Biter v. South Carolina Employment Security Commission, 276 S. C. 493, 280 S. E. (2d) 60 (1981); Booth v. Grissom, 265 S. C. 190, 217 S. E. (2d) 223 (1975); O’Shields v. McLeod, 257 S. C. 477,186 S. E. (2d) 408 (1972). The Declaratory Judgments Act is not properly invoked for an advisory opinion for later use by the Attorney General if the Executive Branch or the Legislative Branch reach the occasion which might demand it. Orr v. Clyburn, supra.

I would dismiss.

Joseph R. Moss, Acting Associate Justice, concurs.