On Rehearing.
Bruce, J.It has been urged for the first time on the petition for a rehearing that the statute (§ 9205, Rev. Codes 1905) under which the defendant was tried and convicted is unconstitutional. The act provides that upon conviction “such officer shall be punished by imprisonment in the penitentiary for a term of not less than one year nor more than twenty-one years, according to the magnitude of the embezzlement, and also to pay a fine equal to double the amount of money or other property so embezzled as aforesaid; which fine shall operate as a judgment at law on all the estate of the party so convicted and sentenced, and shall be enforced by execution or other process for the use of the state, county, precinct, district, town, city, or school district whose moneys or securities have been so embezzled.” It is contended that the provision “shall be enforced by execution or other process for the use of the state, county, precinct, district, town, city, or school district whose moneys or securities have been so embezzled” is in violation of § 154 of the Constitution of North Dakota, which provides that “the interest or income of this (land grant) fund, together with the net proceeds of all fines for violation of state laws, and all other sums which shall be provided by law, shall be faithfully used and applied each year for the use of the common schools of the state.”
If the point raised were one of ordinary practice, we would not now consider it, as it should have been raised both upon the trial in *84the district court and upon the original hearing upon appeal. Since, however, it is a constitutional objection and is directed to the whole proceeding, we have given it due consideration, as we believe that it can never be the policy of the law that one shall be punished under an unconstitutional act, even though the objection is not seasonably made.
It has been argued by the state that the money judgment provided for in § 9205 is in the nature of a reimbursement to the municipality which is defrauded, and that there is nothing in the Constitution which prohibits such recovery, even though in a criminal action. There is much support for this proposition to be found in the cases of Coffey v. Harlan County, 204 U. S. 659, 51 L. ed. 666, 27 Sup. Ct. Rep. 305, and Whitney v. State, 53 Neb. 287, 73 N. W. 696. In these cases (which construe statutes almost identical with the one under consideration before us) the courts hold that the fine is a part of the punishment, and that it is immaterial whether it is called a penalty or a civil judgment, or whether restitution of the money embezzled has been made, or not. There is too, in Nebraska, as here, a constitutional provision providing that fines shall be for the benefit of the school fund. See Constitution of Nebraska, article 8, § 5. “As a part of the consequences of a conviction of the crime of embezzlement of a public ofiicer,” says Mr. Justice Moody, in Coffey v. Harlan County, supra, “the law of Nebraska provides that a fine double the amount embezzled shall be inflicted, which shall operate as a judgment against the estate of the convict. It is not of the slightest importance whether this fine is called a penalty, a punishment, or a civil judgment. Whatever it is called, it comes to the convict as the result of his crime. The amount of the judgment is fixed by the amount of the embezzlement, and not by the amount remaining due on account of the embezzlement, and the only question left open to the accused is the fact and amount of the embezzlement. It is provided that the judgznent shall issue for double that amount, entirely irrespective of the question whether restitution has beezr made in whole or in part. . . . The law itself was justified by the plenary power of the state, and neither it nor its administration in this case discloses any violation of a right secured by the Constitution of the Hnited States.”
It is to be noticed, however, that neither on the appeal to .the Su*85preme Court of tbe United States, nor apparently in tbe Nebraska court itself, was the point raised that the state Constitution required tbe proceeds of fines to be paid into tbe scbool funds, and tbe only point relied on seems to have been that tbe fine or penalty was imposed, irrespective of wbetber tbe money embezzled bad been returned or not, and was therefore bardly due process of law. Tbougb tbe cases, therefore, are conclusive upon tbe proposition that a provision is not unconstitutional which in tbe case of embezzlement exacts a fine double tbe amount of money or property embezzled, and this wbetber tbe money or property has been returned or not, they are not conclusive upon tbe proposition as to wbetber such a statute is valid where tbe Constitution provides that the proceeds of fines shall be put into tbe scbool funds, and tbe statute requires tbe recovery to be for tbe benefit of the municipality or party injured.
Although we are of tbe opinion that it is within tbe province of the legislature to impose a fine double tbe amount of tbe money embezzled, irrespective of whether it has been returned or not, we are nevertheless of the opinion that that part of tbe act under consideration is invalid which provides that tbe money collected shall be “for the use of tbe state, county, precinct, district, town, city or school district whose moneys or securities have been so embezzled. Waiving tbe question as to whether compensation for an injured individual or municipality can be recovered as a part of tbe judgment in a criminal action against tbe offender, we are quite sure that tbe recovery provided for under § 9205 is in tbe nature of a fine, and is not to be looked upon as compensation for the party injured. In tbe first place tbe word “fine” is used; in'tbe second place, tbe fine is double tbe amount of tbe embezzlement, and is irrespective of whether tbe money has been returned or not. In tbe third place tbe officer is under bonds, and the state, county, or municipality is abundantly protected. In the fourth place, any person aiding or abetting in tbe act might also be indicted and punished as a principal, and in such a contingency tbe state, county or municipality would recover not merely twice, but many times tbe amount of money embezzled, and this irrespective of whether it has been returned or not. It is clear to us, therefore, that tbe punishment of- tbe offender, and not tbe compensation of tbe injured state or mu*86nicipality, was the primary purpose and intention of the act. Such being the case, the recovery was a fine. Atchison, T. & S. F. R. Co. v. State, 22 Kan. 17.
Being a fine, the clause which diverted the money from the school fund was invalid, for even if we concede with the state of Wisconsin (State v. De Lano, 80 Wis. 259, 49 N. W. 808; Contra; Ex parte McMahon, 26 Nev. 243, 66 Pac. 294; Atchison, T. & S. F. R. Co. v. State, 22 Kan. 17; School Directors v. Asheville, 137 N. C. 503, 50 S. E. 279) that the word “proceeds,” which is generally used in the acts which are construed, merely applies to the balance left after the cost of collection is paid, and that, under certain reward and qui tam statutes, compensation to the informer or prosecuting attorney may be looked upon as a cost of collection, the rule could hardly apply where the whole recovery goes to the injured state or municipality, and irrespective of the services rendered. Dutton v. Fowler, 27 Wis. 427; School Directors v. Asheville, 137 N. C. 503, 50 S. E. 279; State v. Parkins, 67 W. Va. 385, 61 S. E. 337; Lynch v. The Economy, 27 Wis. 69.
We have, therefore, a case in which a fine is rightfully imposed, but in which the legislature, after properly defining the crime and providing a punishment therefore, has, in a subsequent clause of the act, provided for a use of the money in a manner which is forbidden by § 154 of the Constitution. The question for consideration is whether such subsequent clause invalidates the whole act.
We think that the whole provision for the fine, providing, as it does, that the money shall be for the use of the state or municipality injured, instead of the general school fund, is invalid. There is, it is true, much to be said in favor of the proposition that that part only should be nullified which provides for the diversion from the school fund after the fine has been collected, and that not only the provision for the imprisonment, but the provision for the fine, should be allowed to stand, and that all the court is required to do is to strike out the clause which provides that said fine shall be “for the use of the state, county, precinct, district, town, city, or school district whose moneys or securities have been embezzled.” This, of course, would leave the fine to be collected and disbursed as the Constitution provides. See *87Lynch v. The Economy, supra; Harrod v. Latham Mercantile & Commercial Co. 77 Kan. 466, 95 Pac. 1; St. Louis, I. M. & S. R. Co. v. State, 55 Ark. 200, 17 S. W. 806; Pennsylvania Co. v. State, 142 Ind. 428, 41 N. E. 437.
Although we are prepared to say and to hold, however, that the legislature would have imposed a term of imprisonment at least for the period provided for in the act, irrespective of the provision for the fine, we are not prepared to say or to hold that the fine would have been as great if the legislature had realized that the proceeds must go to the general school fund, and not to the state or municipality injured. Having this doubt, we hardly can hold the provision for the fine to be valid. That the legislature, however, would have provided for a term of imprisonment .and for a term as long as that provided for, irrespective of the validity or invalidity of the provision for the fine, we have no doubt. Such being the case, and'the act, after the provision for the fine is eliminated, being complete and comprehensive in itself, we sustain the act as a whole, after eliminating therefrom the provision for the fine.
The District Court is directed to modify its judgment to the extent of striking therefrom the requirement for the payment of the fine. In all other respects the judgment of the District Court is affirmed and as so modified will be sustained.
Spalding and Eisk. We concur in the above, but adhere to the dissent to the original opinion.