Bearden v. Fullam.

MontgomeRY, J. This is an action in mandamus, brought before his Honor in Chambers by the plaintiffs, the first three of whom constitute the County Board of Education of Buncombe County, and the last-named the Treasured of the County School Fund of that county, to compel the defendant, who is the city Chief of Police of Asheville, to pay over to the Treasurer of the County School Fund the fines which he, by law, is required to collect, arising from judgments and sentences rendered and imposed in an Inferior Criminal Court in Asheville, known as the Police Justice’s Court, instead of to the Treasurer of the city of Asheville, to whom he has been accustomed to pay the same. The defendant did not answer, but entered a demurrer, specifying three grounds therefor, the second one of which it is useless to consider be *478 cause that ground was removed by an amendment to tbe complaint. Tbe first ground was “that this Court is without jurisdiction, it appearing from tbe plaintiff’s complaint tbat plaintiffs are seeking to enforce a money demand in Ibis action; and, second, “tbat it appears from said complaint that plaintiff’s cause of action, if any exists,’ is against tbe city of Asheville or tbe Board of Aldermen thereof, and not against this defendant.” We think there is no merit in tbe first specification; this is a proceeding not to litigate a matter to obtain a judgment for money, not to ascertain tbe defendant’s liability on an issue of whether be is indebted to tbe plaintiffs or not, but to compel a public officer to deposit public funds in bis bands in tbe proper depository. It is not a money demand in tbe sense in which tbat word is used in tbe statute (section G23 of Tbe Code). No demand was made on tbe defendant for misapplication of tbe funds in bis bands before tbe suit was brought, and tbe judgment prayed for is not for any specific amount, but only a demand tbat tbe defendant pay to tbe person by law entitled to it, tbe moneys which be receives in tbe nature of fines arising from judgments of tbe Police Justice’s Court. We think, however, tbat tbe last ground of demurrer must be sustained. Tbe defendant is a mere agent of tbe city government for tbe collection of these fines, and by express requirement of law has to make a report of such collections periodically, on oath, to tbe City Clerk, and to pay over tbe same to tbe City Treasurer. Tbe city authorities are entrusted with tbe pow<m to •supervise bis action in these matters, to see tbat bo makes proper reports and settlements; and for failure on bis part to make them, they can relieve him of his office, and they, tbe facts being admitted by tbe answer, tbe city authorises, are tbe ones really responsible for tbe present condition of .things which have brought about this lawsuit. The plaintiffs have no power vested in them by law to take action *479 against the defendant for any failure on his part to discharge his duties in reference to the matters complained of. We can not let this case pass off without an unqualified ex' pression of our disapproval of the conduct of those who have caused this litigation by their refusal to turn these fines over to the proper fund. We are met with an open, defiance of two most solemn decisions of this Court on the matter which is the subject of this litigation. In the case of Board of Education v. Henderson, 126 N. C., 689, we decided that all fines for violation of the criminal laws of the State, whether the fines were for violations of town ordinances made misdemeanors by section 3820 of The Code, or other criminal statutes, were appropriated by Article IX., sec. 5, of the Constitution for establishing and maintaining free public schools in the several counties. And that case was reviewed and approved in School Directors v. City of Asheville, 128 N. C., 249, and yet, in the face of these two decisions, it is sought to raise this question again. We are surprised at the continual violation of the law and the persistent refusal of the authorities of the city of Asheville to conform their actions to the decisions of this Court on the matter before us; and we would be untrue to ourselves if we did not express in unmistakable terms our disapprobation of their conduct. Their course is a dangerous example, and an incentive to others to defy the rulings of the Supreme Court of the State, and it manifests as well an indifference to public education which ought not to characterize the ruling authorities of ane of the largest and most progressive cities of the State. The demurrer must be sustained on the last ground. "But we are justified in suggesting to the plaintiffs that they might make a demand on the Treasurer of the city and the Beard of Aldermen that they pay over these fines to the plabitiff E. W. Patton, Treasurer of the County School Eund of Bun combe County, and that, if they still refuse to pay over as *480 demanded, an action be brought against them for that purpose. And, if it is thought by the plaintiffs that the citv authorities, pending the litigation, will use the money ('lues paid in by the Chief of Police) for general city purposes, that they be enjoined from so doing. Also, it is suggested that the money paid into the city treasury by the Chief of Police since the decision made by this Court in Board of Education v. Henderson, and which has been paid out by the City Treasurer for other purposes than for the Public School Eund of Buncombe County, has been paid out unlawfully and knowingly so by that officer. No Error.