State v. Maultsby. , 139 N.C. 583 ( 1905 )

Under the provisions of the Constitution, Article IX, sec. 5, the "clear proceeds of all penalties and forfeitures of all fines" are, with other sources of revenue named in said section, appropriated to the school fund. "Penalties" are recoverable by civil action and from time immemorial accrue to the State only when the act creating them so directs. The above section is in the article on "Education," and was not intended as a restriction upon the immemorial legislative power to authorize qui tam actions for penalties (and if so intended it would have been placed in Article II of the Constitution on the "Legislative Department"), but is merely a provision that the net proceeds of such penalties as accrue to the State shall be devoted to the public schools. This has been fully discussed and settled. Katzenstein v. R. R.,84 N.C. 688; Hodge v. R. R., 108 N.C. 30-32; Sutton v. Phillips,116 N.C. 502, and cases there cited and reaffirmed in Goodwin v. FertilizerCo., 119 N.C. 122; Carter v. R. R., 126 N.C. 445; Board of Educationv. Henderson, ib., 695; School Directors v. Asheville,137 N.C. 508. (585)

While it is true that it is competent for the Legislature to give penalties, which must be sued for, either wholly or in part to whomsoever shall sue for the same, and only the clear proceeds of such as accrue to the State go to the school fund, it is otherwise as to "fines." From their very nature, being punishment for violation of the criminal law, they are imposed in favor of the State and belonging to the State, the General Assembly cannot appropriate the clear proceeds of fines to any other purpose than the school fund. By "clear proceeds" is meant the total sum less only the sheriff's fees for collection, when the fine and costs are collected in full. This also has been fully discussed and settled. Board ofEducation v. Henderson, 126 N.C. 689; School Directors v. Asheville,137 N.C. 508. The distinction is that section 5, Article IX, is an appropriation of certain existing sources of revenue, and penalties accrue to the State only when so prescribed, but fines belong to the State in all cases. Hence the Legislature in the act here in question (Laws 1903, chap. 125), under which the judge imposed a fine of $100 for selling whiskey contrary to its provisions, exceeded its powers in section 9 thereof, in providing that the informant "shall receive one-half of the fine imposed." A penalty is always for a sum certain (Commissionersv. Harris, 52 N.C. 281; S. v. Crenshaw, 94 N.C. 877), and is recoverable in a civil action by the party entitled. Middleton v. R. R.,95 N.C. 167; Burrell v. Hughes, 116 N.C. 437. A fine is discretionary within the limits prescribed and is paid to the State.

In refusing the petition of the informant for one-half of said fine, there was

No error.

(586)