Cauble v. City of Asheville

Justice EXUM

dissenting.

For the reasons stated in my dissenting opinion in Cauble v. City of Asheville, 301 N.C. 340 , 271 S.E. 2d 258 (1980), I continue to believe that the parking penalties voluntarily paid by motorists who violate the city’s parking ordinances are neither penalties nor fines collected “for any breach of the penal laws of the state” under Article IX, Section 7 of the North Carolina Constitution.

*607 Contrary to the majority’s earlier reading of it in 301 N.C. at 343-45 , 271 S.E. 2d at 259-61 , I think Board of Education v. Henderson, 126 N.C. 689 , 36 S.E. 158 (1900), supports my view of the matter. The Court there held that monies the city collected for violating its ordinances were “not penalties collected for the violation of a law of the state, but of a town ordinance,” even though violations of town ordinances were made criminal offenses by section 3820 of the Code, the predecessor to N.C. Gen. Stat. § 14-4 . 126 N.C. at 692 , 36 S.E. at 159 . (Emphasis original.) Relying on Board of Education v. Henderson, an expert in the field of local government finance has written:

Article IX, § 7, of the State Constitution directs that ‘the clear proceeds of all penalties and forfeitures and all fines collected in the several counties for any breach of the penal laws of the state’ (emphasis added) remain in the county of collection, to be used for maintaining the public school system. A fine, of course, is imposed by a court when a person has been convicted of violating a state law. An example of a forfeiture occurs when a person free on bail does not appear in court; the bail is forfeited.

Penalties create some confusion. A penalty is recoverable in a civil action; the unit brings the action much as an individual might sue to recover a debt. A penalty therefore differs from a fine, which results from a criminal action. Several state statutes provide for their enforcement by suit for a penalty; for example, G.S. 143-215.114 permits enforcement of the air pollution control statutes in this manner. It is the ‘clear proceeds’ of penalties recovered in these actions to which the school fund is entitled. Confusion occasionally arises, however, because the statutes authorize cities (G.S. 160A-175) and counties (G.S. 153A-123) to enforce their ordinances by ‘penalties. ’ The most common use of this power is with parking ordinances. This type of penalty need not, despite its label, be remitted to the schools. It is assessed to enforce local ordinances, while the Constitution intends penalties that enforce the penal laws of the state.

D. Lawrence, Local Government Finance in North Carolina 57 (Institute of Government 1977) (emphasis supplied).

*608 A holding of the Supreme Court of Michigan in Delta County v. City of Gladstone, 305 Mich. 50 , 8 N.W. 2d 908 (1943), also bolsters my view. The issue in that case was whether certain fines received by the city as a result of prosecutions for violations of city ordinances for various offenses, such as “drunk and disorderly,” “reckless driving,” “disorderly” and “drunk,” were fines collected “for any breach of the penal laws,” as those terms were used in the Michigan Constitution. The cases in which the fines were imposed were also punishable, but had not been punished or prosecuted, under state statutes. The Court held that such fines were not collected for any breach of the penal laws of the state since they were collected “under ordinances enacted by the city, a creature of the sovereignty, and were not the direct result of the exercise of sovereign or state legislative power.” 305 Mich, at 54 , 8 N.W. 2d at 909 .

I would hold that none of the parking fines collected are properly allocable to the Buncombe County School Fund.

Justice MEYER

joins in this dissenting opinion.