The opinion
Judge Eagles
dissenting.
The majority opinion states that this is not a forfeiture case. I disagree and respectfully dissent.
Article IX, section 7 of the North Carolina Constitution provides that:
All moneys, stocks, bonds, and other property belonging to a county school fund, and the clear proceeds of all penalties and forfeitures and of all fines collected in the several counties for any breach of the penal laws of the State, shall belong to and remain in the several counties, and shall be faithfully appropriated and used exclusively for maintaining free public schools.
N.C. Const. Art. IX, § 7. Our Supreme Court has recognized the mandatory nature of this provision, holding that when penalties or fines are recovered by a public authority “the disposition of such recovered fines or penalties comes within the constitutional provi *550 sion under consideration, and [the funds] may not be turned awry from the prescribed constitutional course.” Shore v. Edmisten, Atty. General, 290 N.C. 628, 636 , 227 S.E.2d 553, 560 (1976) (quoting State ex rel. Rodes v. Warner, 197 Mo. 650, 664 , 94 S.W. 962, 966 (1906)). The same analysis must apply to monies collected by way of forfeiture. Accordingly, funds collected by way of forfeiture may “not be diverted awry from the prescribed constitutional course.” Id.
The question then is whether the Department of Revenue (“DOR”) or the District Attorney in this case may, by action or omission to act, defeat the mandate of Article IX, section 7. The majority opinion focuses on the fact that the money in question in this case was initially seized as evidence. Characterizing the money as potential evidence only, the majority asserts that G.S. 15-11.1(a) is disposi-tive in that it specifically authorizes the District Attorney to “release any property seized pursuant to his lawful authority if he determines that such property is no longer useful or necessary as evidence in a criminal trial and he is presented with satisfactory evidence of ownership.” G.S. 15-11.1(a) (1994). Following the majority’s view, the District Attorney, in heeding the DOR’s demand, could almost always circumvent forfeiture and effectively allocate the funds other than to the county school fund as is required by Article IX, section 7.
The majority’s holding impermissibly elevates G.S. 15-11.1 (dealing with seizure and disposition of evidence generally) to a status greater than G.S. 90-112 which focuses on drug-related forfeitures. Under the majority opinion, when money or property is initially seized as evidence, the forfeiture provision could be utilized only in situations in which the District Attorney retains control of the money as evidence until judgment is entered by the court. This interpretation would artificially limit the application of Article IX, section 7 and of G.S. 90-112 to evidence that was actually necessary for trial and actually held by the District Attorney until judgement: Any monies not held as evidence for trial could be garnished by the DOR or released pursuant to G.S. 15-11.1 upon application of any party “entitled to possession.” While I do not dispute that the DOR properly assessed the tax in this case and was accordingly entitled, as against defendant, to possession of the seized funds, I do not believe that the assessment and possession by the DOR ends the inquiry with regard to forfeiture and ultimate disposition of the seized funds.
Rather, I believe that the DOR properly can be characterized in this case as a “law-enforcement agency having custody of money . . . .” *551 G.S. 90-112(dl) (1989). As such, the DOR would lawfully retain custody of the seized funds pending the ultimate disposition of the case as to forfeiture or pending the outcome of any challenge by defendant to the DOR’s assessment.
The majority here would allow the DOR to retain the seized funds, despite their being subject to court-ordered forfeiture and ultimately forfeited, because the funds were initially seized as evidence. Presumably, the majority might hold differently if the funds were seized initially pursuant to the forfeiture statute itself. I find this distinction untenable. The initial seizure is most often made by law enforcement officers in the field. Law enforcement officers should be concerned primarily with collecting and safeguarding all necessary evidence, rather than making on-site legal determinations as to whether particular property or money is subject to forfeiture pursuant to G.S. 90-112, as well subject to seizure as evidence of a crime. A constitutional mandate should not be defeated by virtue of a technical characterization made by the seizing officer or by the District Attorney.
The only characterization that is pertinent is whether, having satisfied the requirements of G.S. 90-112(a), the funds “shall be subject to forfeiture . . . .” G.S. 90-112(a) (1989). It is irrelevant under which authority the law enforcement officer initially seized the money. G.S. 90-112(b) merely provides additional authority to seize money or property subject to forfeiture that might not otherwise be subject to seizure under other statutes. The language of G.S. 90-112 clearly does not contemplate that the statute’s application would be limited to situations where the initial seizure was made pursuant to G.S. 90-112(b). In fact, G.S. 90-112(c) specifically covers “property taken or detained under this section . . . .” G.S. 90-112(c) (1989) (emphasis added). The “or detained” language would not be necessary if the General Assembly had not intended G.S. 90-112 to apply to money or property initially seized under other authority but later recognized to fall within the purview of G.S. 90-112(a).
If the funds in question are found to be within the purview of G.S. 90-112(a) and are accordingly ordered forfeited, then G.S. 90-112(dl) and Article IX, section 7 of the Constitution are controlling. G.S. 90-112(dl) states that “the law-enforcement agency having custody of money that is forfeited pursuant to this section shall pay it to the treasurer or proper officer authorized to receive fines and forfeitures to be used for the school fund of the county in which the money was *552 seized.” G.S. 90-112(d1) (1989). This language when read in light of the constitutional mandate is controlling. These funds “may not be turned awry from the prescribed constitutional course.” Shore, 290 N.C. at 636 , 227 S.E.2d at 560 (1976) (quoting State ex rel. Rodes v. Warner, 197 Mo. 650, 664 , 94 S.W. 962, 966 (1906)).