Hunter v. Nunnamaker

Stacy, C. J. The appeal poses the question whether Kathleen Hunter Nunnamaker is entitled to share in the distribution of the net proceeds of the estate of Eugenia E. Hunter. The trial court answered in the negative. We are inclined to a different interpretation of the record. On the hearing, the appellant offered a certified copy of her adoption by the deceased and her late husband in the City of Columbia, Richland *386 County, South Carolina, on 23 December, 1904. She had been a ward in the Methodist “Epworth Orphanage of the South Carolina Conference,” a charitable organization chartered by Act of Assembly in that State and authorized to grant adoptions. 1 Am. Jur. 633. Nothing else appearing, this would seem, prima facie at least, to make her an heir-at-law of the deceased. 1 R.C.L. 598. While no specific reason is assigned for holding the appellant’s adoption illegal, it may be accepted as was stated on the argument, that the trial court regarded the legislative grant of adoptive powers to the Epworth Orphanage violative of the South Carolina Constitution, and hence the exercise of such authority by the Orphanage was a nullity. Evidently, the trial court, in reaching this conclusion, did not have before it the cases of Epworth Orphanage v. Wilson and Same v. Manning, 185 S.C. 243, 193 S.E. 644, where it was held by the Supreme Court of South Carolina that the statute incorporating this Orphanage could not be declared unconstitutional in the absence of a showing that the General Assembly in passing the statute did not .comply with the pertinent constitutional requirement that it should have a concurrent resolution adopted by a two-thirds vote of each House authorizing the introduction of the bill. And no such showing is sought to be made here. Indeed, the constitutionality of the act incorporating the Epworth Orphanage and granting it powers of adoption was not before the court for determination. The courts do not declare Acts of Assembly unconstitutional even when clearly so, except in eases properly calling for the determina-tion of their validity. S. v. Lueders, 214 N.C. 558, 200 S.E. 22. In the first place, they are presumed to be constitutional, and it is only in the exercise of judicial power, properly invoked, that the court’s are authorized to render harmless or set at naught any Act of Assembly. Wood v. Braswell, 192 N.C. 588, 135 S.E. 529; Moore v. Bell, 191 N.C. 305, 131 S.E. 724. The petitioner disavows any assault upon the legality of appellant’s adoption. In respect of this question, which the parties have refrained from raising by plea or otherwise, he stands mute and rightly so, perhaps, for it may be doubted whether he would be permitted to interpose such a challenge in the circumstances of the ease. Cribbs v. Floyd, 188 S.C. 443, 199 S.E. 677; 1 Am. Jur. 676. Error and remanded.