May 20, 1915. The opinion of the Court was delivered by
MR. JUSTICE HYDRICK.
The question presented by this appeal is foreclosed by the decision of this Court in the case of Varnville Furniture Co. v. Railway, 98 S.C. 63, 79 S.E. 700.
Appellant asked leave to amend its exception by adding thereto a ground which was not taken in the Courts below. If the exception had been taken in due time, this Court would not have considered the additional ground upon which the constitutionality of the statute is sought to be assailed, because it is well settled by numerous decisions that this Court will not consider any point raised by an exception, unless it appears in the record that it was presented to, or considered by, the Court below.
Judgment affirmed. Let the remittitur be stayed for 30 days to enable appellant to apply for a writ of error.
Thereafter, during the period the remittitur was stayed, a petition for rehearing was filed, and the decision of the United States Supreme Court in Charleston Western Carolina Ry. Co. v. Varnville Furniture Co., 237 U.S. 597, 35 Sup. Ct. 715, 100 S.C. 229a, was filed.
The petition for rehearing being considered, the Court filed the following order, July 8, 1915:
PER CURIAM.
Upon consideration of the within petition, it is ordered that the judgment of this Court heretofore filed affirming the judgment of the Circuit Court be modified, and that the judgment of the Circuit Court be reversed, unless the plaintiff shall, within 20 days after notice of the filing of the remittitur herein, remit so much of the judgment as includes the penalty recovered, and, upon such remittitur being entered, that the judgment of the Circuit Court be affirmed.