Both parties filed exceptions, which were overruled — the report confirmed — and judgment rendered accordingly in favor (690) of plaintiff for $407.90, from which judgment both sides appealed.
The facts and exceptions appear in the opinions. The plaintiff board of education of Vance County alleges that defendant town of Henderson has collected, and now has in its treasury, a large amount of money collected from fines and penalties belonging to the public school fund of said county, which defendant refuses to account for and pay over to plaintiff. *Page 440
The defendant answers and denies that it owes plaintiff anything — denies that it has collected any fines and penalties that belong to the plaintiff — pleads the statute of limitations, and also pleads an act of the Legislature (Laws 1899, ch. 28), in bar of plaintiff's right to maintain this action.
A reference was had, an account taken and reported, finding $407.90 in favor of plaintiff. This account and report are excepted to by both parties; and the amount reported may be changed, upon considering these exceptions, if it be found that plaintiff is entitled to recover anything. But whether the amount found by the referee by correct or not, the evidence taken by the referee shows that defendant had collected a large amount of fines and penalties, for which it had not (691) accounted to plaintiff, upon the ground (as defendant alleges) that it is not liable to plaintiff for any part thereof.
To our minds there is a clear distinction between a fine and a penalty. A "fine" is the sentence pronounced by the court for a violation of the criminal law of the State; while a "penalty" is the amount recovered — the penalty prescribed for a violation of the statute law of the State or the ordinance of a town. This penalty is recovered in a civil action of debt. Commissioners v. Harris, 52 N.C. 281; State v. Earnhart,107 N.C. 789. A municipal corporation has the right, by means of its corporate legislation, commonly called town ordinances, to create offenses, and fix penalties for the violation of its ordinances, and may enforce these penalties by civil action; but it has no right to create criminal offenses. And this being so, it was found to be almost impossible to administer and enforce a proper police government in towns and cities by means of penalties alone. It therefore became necessary to make the violation of town ordinances a misdemeanor — a criminal offense — which was done by section 3820 of The Code, and to invest mayors with the criminal jurisdiction of justices of the peace, which was done by section 3818 of The Code. This being so, in order that the mayor may have jurisdiction, the town legislature (the board of aldermen) pass ordinances or by-laws for the government of towns and fix penalties for their violation, not to exceed a fine of $50 or imprisonment for a term not exceeding thirty days. And while the town or city government has no right to make criminal law, the Legislature has made the violation of such ordinance a criminal offense, and has given to mayors jurisdiction to try such offenses. S. v. Higgs, post, 1014.
While such violations of town ordinances are criminal offenses, they are made so by a general act of the Legislature, 3820 of The (692) Code; and while the mayors of cities and towns have jurisdiction under section 3818 of The Code, any justice of the peace also has jurisdiction of such offenses. S. v. Wood, 94 N.C. 855; S. v. Higgs, *Page 441 supra. But whether the criminal offenses created by the violation of town ordinances (under section 3820 of The Code), are tried before the mayor, or before a justice of the peace, they are State prosecutions, in the name of the State, or for violations of the criminal law of the State, and at the expense of the State (S. v. Higgs, supra), and the city can not be charged with the costs of such prosecutions.
Article IX, sec. 5, of the Constitution, among other things, provides:
"Also the clear proceeds of all penalties and forfeitures, and of all fines collected in the several counties for any breach of the penal or military laws of the State; . . . shall belong to and remain in the several counties, and shall be faithfully appropriated for establishing and maintaining free public schools in the several countries of the State."
It must therefore follow that all the fines the defendant has collected upon prosecutions for violations of the criminal laws of the State, whether for violations of its ordinances made criminal by section 3820, of The Code, or by other criminal statutes, such fines belong to the common school fund of the county. It is thus appropriated by the Constitution, and it can not be diverted or withheld from this fund without violating the Constitution. This is not so with regard to "penalties" which the defendant may have sued for and collected out of offenders violating its ordinances. These are not penalties collected for the violation of a law of the State, but of a town ordinance. But wherever there was a fine imposed in a State prosecution for a misdemeanor under section 3820 of the Code, it belongs to the school fund, and, as we have said, must go to that fund.
But it is contended by defendant that is so, it is protected by the act of 1899, ch. 128. This is an act to amend section (693) 3806 of The Code, by making it read that "said fines and penalties shall be paid into the treasuries of said towns for municipal purposes"; and section 2, of said act, provides, "That no action shall be brought or maintained against any town for the recovery of any fines and penalties heretofore collected, and this act shall apply to existing actions."
The provisions of the first section of this act that "said fines and penalties shall be paid into the treasury of said town for municipal purposes," is so palpably in conflict with Article IX, sec. 5, of the Constitution, which says that all moneys so collected "shall belong to and remain in the several counties, and shall be faithfully appropriated for establishing and maintaining free public schools in the several counties of the State," that we feel unwilling to discuss its unconstitutionality. We can not think it needs more than a comparison of the provisions of the statute with the provisions of the Constitution to show the repugnancy of the statute to the provisions of the Constitution. *Page 442
The second section of the act of 1899: "That no action shall be brought or maintained against any town for the recovery of any fine or penalty heretofore collected, and this act shall apply to existing actions" — is equally unconstitutional, though it may not be so palpable as that of the first section.
It will be seen that the act of 1899 does not undertake to "abolish" the school board of education. It is probable that it could not have done so, as the common schools are creatures of the Constitution, and while its machinery — its agency — may be changed and regulated by legislation, it can not be abolished by legislation. It does not undertake to take from this board the general right to sue and be sued, but to prohibit it from suing for this money.
So we have this condition: The defendant has (we will say) (694) $407.90 of plaintiff's money. This, we will say, is admitted, but defendant says it will not pay it to the plaintiff, and the argument of the defendant is that the Legislature says to the defendant, "hold on to plaintiff's money, you need it more than the poor common school children do, and we (the Legislature) will not let the plaintiff sue you." Can it be that the Legislature can in this indirect way destroy the plaintiff's constitutional right? The defendant having received money that belongs to the plaintiff, the law presumes that it received it for the plaintiff upon an implied contract, and is liable to be sued for it upon this implied contract, in what would have been an action of indebitatusassumpsit before The Code. Robertson v. Dunn, 87 N.C. 191; Hauser v.McGinnis, 108 N.C. 631; Draughan v. Bunting, 31 N.C. 10. To say that to prohibit the plaintiff from suing the defendant for what it owes the plaintiff is not to impair the obligation of a contract and not in violation of the Constitution, would be to close our minds to all reason, and to disregard all precedent.
It has been frequently held by this Court that a general act staying for a period of time a plaintiff's right to collect his debts, was a violation of both the State and Federal Constitution. Jones v. Crittenden, 4 N.C. 55;Barnes v. Barnes, 53 N.C. 366. If such general legislation as that is in violation of both State and Federal Constitutions, how can it be that an act which perpetually enjoins the plaintiff from suing the defendant for a debt — money of plaintiff it has collected — can be constitutional?
It was said that this Court has held that penalties recovered by parties suing for them might be given to the party suing, and Sutton v. Phillips,116 N.C. 502, and many other cases before and since that decision, to the same effect, are cited. Those cases are to our minds (695) distinguishable from this. Besides, the fact that they were put upon the ground of public good — to protect the public from flagrant *Page 443 violations of the law, such as public carriers, and that while these were inducements for making the decisions, we admit that even these reasons would not have justified the court in violating the Constitution.
The Constitution provides that the "clear proceeds of all penalties" shall go to the school fund. It was held that there were no "proceeds" until there was a suit and a recovery; and if it took all the penalty to enforce the collection, there were no "clear proceeds" left to go into the school fund. This may not be very satisfactory reasoning to some, as we know it was not in Sutton v. Phillips, supra, where both the Chief Justiceand Justice Avery dissented. But it was held to be the law in that case as it had been in other cases before and since. But in this case there is no ground for such reasoning. Here the money has been collected from fines imposed for the violation of the criminal law of the State, upon prosecutions by the State, and at the cost of the State. This to our minds makes a clear distinction between this case and Sutton v. Phillips, supra,Carter v. R. R., ante, 437, and other cases where an individual was induced to incur the expense, and take the risk of paying costs by being allowed whatever he might recover in such actions. Here there was no one individual to sue for a penalty; no one taking upon himself the expense of prosecuting an action, and the risk of costs. This money was all collected at the cost and expense of the State.
But whether the distinction we have attempted to draw between this case and Sutton v. Phillips and that line of cases, is sustained or not, does not materially affect the case at bar. Those cases were actions for penalties where the "clear proceeds" are given to the school fund, and this is an action for fines collected. Mark the difference in (696) the language of the Constitution: with regard to penalties, it says, the "clear proceeds"; while it says "all fines collected in any county" shall belong to the common school fund, and there is no ground for deducting anything from it.
We do not think that the statute of limitations interferes with the plaintiff's right to recover.
We do not go into a discussion of the exceptions to the account further than to say that it does not appear to be unfavorable to the defendant. And as the judgment seems to have been based upon correct principles of law, the same is affirmed.
This opinion disposes of the substantial exceptions in the plaintiff's appeal.
Affirmed. Cited: Davison v. Land Co., post, 709; Board of Education v. Henderson,127 N.C. 8; Directors v. Asheville, 128 N.C. 251; Bearden v. Fullam,129 N.C. 479; School Directors v. Asheville, 137 N.C. 507; S. v.Maultsby, 139 N.C. 585. *Page 447
(701) (701)