The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-04-25
SCHOOL FUND SUIT
Action to Recover $50, 900
From Asheville.
Brought Under Section Of the Constitution Re.
curing Fines Paid into School
Fund.

A case was argued in the supreme
court yesterday involving about 100000
1t comes up from Buncombe county on
a demurrer and is a civil action to re-
cover for the use of the free schools of
Buncombe county, the fines. forfeitures
and penalties for violation of State laws
and city ordinances, collected by the au-
thorities of Asheville
1t was argued by Locke Craig and j.
d. Murphy for the school directors and
Bourne Parker for the city of Ashe-
Vile.
This suit. is based on Article TX, sec
ton 81 of the constitution, which provides
that "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
shall belong to and remain in the sew
eral counties, and shall be faithfully ap-
propriated for establishing and maintain
ing free public schools in the several
counties of this State"
The fines, penalties and forfeitures col
lected in Asheville have been paid into the
city treasury and disposed of in man
ner other than that thus prescribed by the
constitution. These, it is alleged by the
school board, now amount to some 5000
The city of Asheville denies that 1T
owes the school board anything, pleads
the statute of limitation and demurs TO
the claim on the ground that the nnes
and penalties sued for have been duly
appropriated by law to the support ana
maintenance of. the defendant, the City OF
Asheville, and are not the clear proceeds
OF fines and penalties within the purVleW
and meaning of Article *, section .,
OF the constitution. And this was the
point in the argument yesterday
A case similar to this came up from
the town of Henderson year or more
ago and was decided in favor OF the
school board d26 N. c., $500.
In the Henderson case the facts were
practically the same as in the Asheville
case, and it is on that decision that the
school board in Buncombe county now
relies.
In the Henderson case decision, "a
fine" is defined as the sentence pro-
nounced by the court for violation OF
the criminal law of the State, and "a
penalty is defined as 1.-The amount pre-
scribed for violation of the statute law
of the State or the ordinance OF town,
and is recoverable in civil action OF
debt In this decision, also, the court
held:
THE Constitution, Article TX, section
5, appropriates all fines for violation OF
the criminal laws of the State for estab-
fishing and maintaining free public schools
in thesseveralr counties-whether the fines
are for violation of town ordinances, made
misdemeanors by section $3.50 of The
81 xfr1tir tnS
such fines are collected through the mayor
of a town, by virtue of his authority as
Justice of the peace, they are to be
accounted for to the board of education
1t is otherwise as to penalties imposed
for violation of town ordinances, Whlci
are to be sued for.
It is contended by the city of Ashe
Vile however. that there are some ma
teriaI differences in the two cases. Ant
then. it is argued that during this periot
from 1895 up to the presently many town.
and cities of the State in many instance!
have issued their bonds for public i'm
proyements. These were inaugurated ant
accomplished mainly for the benefit o
the people at large. The bond-issuint
towns and cities and the municipal bono
investors who have taken their bonds
during the period mentioned have beer
led by the above decisions to believe
that fines, forfeitures and penalties col
lected and recovered for violations o
municipal laws and ordinances constituted
a distinct and important source of MUM
cipal revenue. 1t is added:
This is particularly so as respects thu
city of Asheville. The statutes constitut
ing its charter and referred to in thu
pleadings in this action show that prac
tically all of the bonded Indebtedness ha'
been incurred during the period named
and that this bonded indebtedness nov
amounts to nearly eight hundred thous
and dollars. 1t is a well known fact il
the western part of the State that Ashe
vile has always promptly paid off eacl
semi annual installment of interest al
it accrued, but always with difficulty
1T is now proposed by plaintiffs to stril
Asheville entirely of this source OF reve
nue., which has amounted on an averag
for the past five years to about $500
annually. If this suit succeeds, tn
result is not hard to guess, and the PEG
pie of this city, as we'll as those who hav
trusted to her credit and resources, vii
become the hapless but innocent victim
of this unnecessary turn of fortune.