dissenting.
Perceiving what I believe to be a fundamental flaw in the reasoning of the majority, I must respectfully dissent.
Under Article IX, § 7 of the North Carolina Constitution, “the clear proceeds of all penalties and forfeitures and of all fines collected in the several counties/or any breach of the penal laws of the State, shall belong to ... the several counties, and shall be ... used exclusively for maintaining free public schools.” (Emphasis supplied.) The City of Asheville has an ordinance no. 376, which prohibits overtime parking. Under this ordinance a motorist who parks overtime in violation of it must pay a penalty of $1.00.
The question in this case is whether the $1.00 penalty collectedly the City of Asheville from motorists who violate parking ordinance no. 376 constitutes a penalty, or fine,1 collected for the breach of a state penal law. I submit that it does not.
The majority reasons: Violation of any city ordinance also constitutes a violation of a state penal law, to wit, G.S. 14-4, which by its terms makes the violation of a local ordinance a misdemeanor punishable by a fine of not more than $50.00 or imprisonment for not more than 30 days. A motorist who violates Asheville’s parking ordinance no. 376 ipso facto violates the statute. Therefore the $1.00 collected by Asheville from a motorist who violates its parking ordinance is a fine collected for the breach of G.S. 14-4, a state penal law.
I agree with the majority’s major and minor premises, but I cannot agree that the conclusion drawn by the majority flows *347logically from them. A person who may have in fact violated G.S. 14-4 pays no fine pursuant to that statute until he has been duly prosecuted and adjudged guilty of its violation both in fact and in law. I would hold that the $1.00, denominated in the ordinance itself as the penalty for its violation, constitutes a penalty collected for violation of the ordinance only. Although the motorist may have also violated G.S. 14-4 in fact, he has not violated it in law because he has neither been prosecuted for, pled guilty to, nor found guilty of its violation.
I disagree with the majority’s statement, which seems to be the nub of its argument, that the method by which the $1.00 is collected is irrelevant. Money collected pursuant to a city ordinance is not necessarily money collected pursuant to a state statute even though both the ordinance and the statute may have been violated by the same act of the motorist. I agree with the majority’s statement that a “fine” is a “sum of money exacted of a person guilty of a misdemeanor or a crime.” The cases cited by the majority in support of this statement, State v. Addington, 143 N.C. 683, 686, 57 S.E. 398, 399 (1907); State v. Rumfelt, 241 N.C. 375, 85 S.E. 2d 398 (1955), were referring, of course, to a person who had been duly adjudged guilty in fact and in law.2 The statement is not authority for the proposition that a person can be required to pay, or in fact pays, a fine for violating a state penal statute in the absence of due prosecution and judicial determination that the person is in fact and in law guilty of the violation.
There has been no such determination in this case. Ashe-ville has not yet invoked G.S. 14-4. So far the city has invoked only its ordinance. The $1.00 penalty thus far paid by motorists is a penalty for violating that ordinance. By paying it the motorist admits having violated the ordinance in fact and in law3 in order to avoid being prosecuted under, and perhaps being found *348guilty of violating, G.S. 14-4, in which event he would be subject not only to imprisonment but also to a fine assessed pursuant to that statute considerably larger than the $1.00 penalty provided for in the ordinance. Such a fine, if paid, would belong to the county’s school fund. The $1.00 penalty, I submit, does not.
Justice Britt joins in this dissent.The majority correctly concludes that the label attached to the monies paid, i.e., “fine” or “penalty,” makes no substantive difference. Indeed, State v. Addington, 143 N.C. 683, 685, 57 S.E. 398 (1907), relied on by the majority for a definition of “fine,” points out that the word does not “always mean a pecuniary punishment ... inflicted by a court in the exercise of criminal jurisdiction. It has other meanings, and may include a forfeiture, or a penalty recoverable by civil action.” What does make a difference is whether the monies are collected pursuant to the city ordinance itself, a state penal law, or both. The majority concludes both. In this I believe it has erred.
Addington held that a proceeding by which defendant was determined to be the father of an illegitimate child was civil, not criminal; therefore defendant could not be fined or imprisoned, but could be required to pay an “allowance” to the child’s mother. Rumfelt dealt with a defendant who had been found guilty by a jury of violating G.S. 20-162 which prohibits, among other things, parking within twenty-five feet from an intersection.
He makes no such admission with regard to G.S. 14-4.