#### STATE v. MAULTSBY.

(Filed October 17, 1905).

Penalties — Fines—Olear Proceeds — Division of Fine with Informant — Constitutional Law.

1. The Legislature bas power 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 under the provisions of Art. IX, sec. 5, of the Constitution.

2. Pines, from their very nature, being punishment for violation of the criminal law, are imposed in favor of the State and belonging to the State, the Legislature cannot appropriate their clear proceeds to any other purpose than the school fund.

3. By “clear proceeds” is meant the total sum less only the sheriff’s fees for collection, when the fine and costs are not collected in full.

*584The provision in chapter 125, Laws 1903, that the informant “shall receive one-half of the fine imposed” is unconstitutional and there was no error in refusing the petition of the informant for one-lialf of a fine imposed for selling liquor contrary to its provisions. ' If*.

This is a petition in tbe action of State v. W. S. ■Maultsby, by one John Evylin, for one-balf of a fine imposed upon tbe defendant Maultsby upon bis conviction for retailing spirituous liquors in violation of tbe Cumberland County prohibition law, beard by Judge G. S. Ferguson, at tbe March Term, 1905, of tbe Superior Court of CUMBERLAND County. Erom a refusal of tbe petition, tbe informant, Evylin, appealed.

Robert D. Gilmer, Attorney-General, for the State.

N. A. Sinclair and R. H. Bye for tbe informant.

Clabk, C. J.

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

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 not collected in full. This also has been fully discussed and settled. Board of Education 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 (Commissioners v. Harris, 52 N. C., 281; State v. Crenshaw, 94 N. C., 877), and is recoverable in a civil action by the party entitled. Middleton v. Railroad, 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.