The opinion
Faircloth, C. J.,
concurring in result: I fully concur in the conclusion in this case, but I can not assent to the argument which attempts to distinguish Sutton v. Phillips, 116 N. C., 502 , from the present case. With entire respect, it appeal’s to me that the argument is unsound and illogical, and I think the principle now and here decided necessarily overrules the decision in Sutton v. Phillips.
The question depends on the meaning of Art. IX, sec. 5, of the Constitution — “All moneys, stocks, bonds, and other property belonging to a county school fund; also the net proceeds from the sale of estrays; 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; and all moneys which shall b© paid by persons as an equivalent for exemption from military duty, shall belong to and remain in the several counties, and shall be *697 faithfully appropriated, for establishing and maintaining free public schools in the several counties of this State.”
Now it is held that the Legislature can not divert the fines from the school fund and give them to the defendant or anyone else, as it attempted to do in the Act of 1899, chap. 128, because the Constitution appropriates fines to the public schools, and yet it was held in Sutton v. Phillips, supra, that the Legislature, under a different statute, could divert the penalties mentioned in said Art. IX from the school fund and give them to a common informer, a municipal corporation or any other at its pleasure.! Is that a reasonable and legal construction of sec. 5, Art. IX ? Look at the language itself and the context of the several parts — “also the clear proceeds of all penalties and forfeitures, and of all fines collected,” etc. Is not the natural rendering of those words this ? Also the clear proceeds of all penalties and the clear proceeds of forfeitures, and the clear proceeds of all fines collected, etc. If this is not the way of it, what is the use of the word “of” immediately before “all fines,” and what duty does “of” perform? We must hold that every word in the Constitution lias a meaning and proper position. If this is the proper construction of the language, then the whole-theory of Sutton v. Phillips falls to the ground, according to the decision in the case now before us.
But it is said that penalties are collected in “civil actions” and that fines are imposed and collected in “criminal actions,” also that in the case of penalties there are no “proceeds” until there is a suit and a recovery. Certainly, and so there are no fines until there is a suit or some judgment of the Court. I think the authors of the Constitution would be loath to consider this a serious argument, but rather an effort to reconcile Sutton v. Phillips and the present decision.
The Constitution does not attempt to prescribe the ways and *698 methods nor the agencies for collecting penalties, fines, etc. The Legislature unquestionably regulates the procedure, as-ín‘other matters, and may select proper agents; but the net moneys in every instance mentioned in Art. IX, sec. 5, are appropriated to the school fund.
Prior to 1868, the entire subject was- under legislative control, but the Constitution of 1868 established a school system and appropriated the fund for its support, and the question now is whether the Legislature can divert a¡ portion of the fund and give it to common informers, municipal corporations or any other; that is, does the Constitution or the Legislature control ? “The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the Legislature shall please to alter it. If’ the former -part of the alternative be true, then a legislative-act contrary to the Constitution is no law; if the latter part, be true, then written Constitutions are absurd attempts, on the part of the people, to limit a power in its own nature-illimitable. * * * If an Act of the Legislature, repugnant to the Constitution, is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect?' Or, in other words, though it be no law, does it constitute- a-rule as operative as if it ware a law ?” These are the words of Marshall, C. J., in Marbury v. Madison, 1 Cranch, 69 .
It is urged that Sutton v. Phillips has been followed in-several other cases. That is true, and that only shows a continuous list of errors. Repetition will never correct an error. I know of but one way to correct an error, and that is to cut it up by the roots, especially the tap-root, and let it go. A familiar instance of heroic treatment will be found in Spruill v. Leary, 35 N. C. (13 Ired.), 225, 408. There the Court fell into an error, and the Court unanimously at the *699 first opportunity corrected it, by cutting it out, root and branch. Myers v. Craig, 44 N. C. (Busbee Law), 169.
I expressed my views in Sutton v. Phillips, supra, p. 511 , and nothing but the importance of common schools induces me to write again. The revenues provided in. Art. IX, sec. 5, are not inconsiderable, and the withdrawal from that source will reduce the school term, already below the constitutional requirement. I think every blow at common school education is a strike at the principle of civilized and free government.