Lanier v. Town of Greenville , 174 N.C. 311 ( 1917 )

Allen, J.

The defendant does not allege that there was any corruption or intentional misconduct in the drawing of the jury, or that anything was done prejudicial to the development of its defense. On the contrary, the defendant announced its readiness for trial, and, so far as the record shows, the trial was had before an impartial jury, satisfactory to the defendant. We may, then, deal with the legal questions raised by the challenge to the array, uninfluenced by other considerations, and they involve a construction of section 1963 of the Re-visal, which reads as follows:

“If the commissioners for any cause fail to draw a jury for any term of the Superior Court, regular or special, the sheriff of the county and the clerk of the commissioners, in the presence of and assisted by two justices of the peace of the county, shall draw such jury in the manner above described; and if a special term shall continue for more than two weeks, then for the weeks exceeding the two, a jury or juries may be drawn as in this section, provided.”

The challenge of the defendant is on two grounds: (1) That the jury was drawn within less than twenty days of the‘term of court. (2) That the sheriff of the county was not present in person at the drawing, and was represented by his deputy.

It is to be observed, in the first place, that the section under which this jury was drawn does not require the duty to be performed twenty days before a term of court, and that there is no limitation as to time in the section.

A preceding section (section 1959) does'require the commissioners to draw a jury “at least twenty days before each regular or special term of the Superior Court,” and in that and succeeding sections the manner of performing the duty is minutely prescribed, and it further appears in the section above quoted (1963) that the clerk, sheriff, and justices “shall draw such jury in the manner above described.”

Note that the section does not say “at the time and in the manner above prescribed,” and for the reason that the commissioners had all of the time up to twenty days before court within which to draw a jury, and it was only upon their failure that the clerk and other officers had the power to act, which of necessity must be within the twenty days.

If, however, the time for the- performance of the duty was fixed by statute, we would not consider it material on this record, as no rights have been prejudiced, and would follow the rule in Moore v. Guano Co., 130 N. C., 235, where the Court says: “The action of the commissioners, as to time and place of drawing the jury or revising the jury list is concerned, the statute is considered directory; and while it is their duty to do these things at the time and place the law directs them to be done, still if they are not done when and where they should be, but are properly done at another time and place, they will not be treated as irregularities. This is because the law directs the commissioners to peiform these duties and to prevent delay in the administration of justice such acts are held to be directory, and where no injustice appears to have been done by such irregularity, the Court will, it seems, not make such irregularity a cause for discharging the panel.”

The second objection to the jury presents greater difficulty, and its correct determination depends on whether “sheriff of the county,” as used in the section, refers to the office or to the man holding the office, and if it refers to the office, whether the duty to be performed is one properly belonging to a deputy. If the sections of the Revisal referring to the duties of sheriff are examined (and there are many of them) it will be found that deputy sheriffs are mentioned in only two or three. The direction is almost invariably that “the sheriff shall,” etc., and as said in 35 Cyc., 1489, “The statutes frequently use the word ‘sheriff’ as a generic term, including not only the sheriff proper, but also deputy sheriffs.” It is also generally recognized that the ministerial duties of the sheriff may be performed by the deputy, who acts for the sheriff and in his name.

Again quoting from 35 Cyc., 1516: “While the judicial functions of a sheriff cannot be delegated to another, the ministerial duties of the office may be performed by a dejiuty sheriff, or under-sheriff, who, however, performs the duties delegated to him, not in his own name or right, but as the representative of the sheriff, although he is recognized as a public officer. There are two kinds of deputies well known in practice: (1) A general deputy, or under-sheriff, who, by virtue of his appointment, has authority to execute all the ordinary duties of the sheriff, and who executes process without special power from the sheriff; and (2) a special deputy, who is an officer pro hac vice to execute a particular writ in some certain action and who acts under a specific and not a general appointment of authority.

“Deputy sheriffs are of two kinds: (a) A general deputy, or under-sheriff, who, by virtue of 'his appointment, has authority to execute all the ordinary duties of the office of sheriff (Com. Dig. tit. ‘Miscount,’ 542, B. 1) ; one who executes process without special authority from the sheriff, and may even delegate authority in the name of the sheriff, or its execution, to a special deputy. (b) A special deputy, who is an officer pro hac vice to execute a particular writ on some certain occasion, but' acts under a specific and not a general appointment and authority. Allen v. Smith, 12 N. J. Law (7 Halst.), 159, 162.

“The deputy is an officer coeval in point of antiquity with the sheriff. The creation of deputies arises from an impossibility of the sheriff’s performing all the duties of his office in person. The powers of the deputy have consequently been ascertained at an early date. The general criterion by which to test his authority is declared in the case of Levett v. Farrar, Oro. Eliz., 294, in which the Court said that if a writ be directed to the sheriff by the name of his office, and not by a particular name, and doth not expressly command him to execute it in person, the under-sheriff may execute it. Tillotson v. Cheetham (N. Y.), 2 Johns., 63, 70.” 3 Words and Phrases, 2009.

If the deputy cannot at least perform ministerial duties for the sheriff, wily have one ? Of what use is the deputy if the sheriff must always be present in the execution of every duty?

Deputies, known as under-sheriffs, are appointed because the duties of the sheriff are more than one man can perform, and these duties frequently require action at different places at the same time, and the transaction of public business would be greatly impeded if their acts, in proper cases, were regarded as invalid and without authority of law.

The duties to be performed in the present case, while important, were simple, requiring no exercise of judgment, and consisted in standing by with three other officers and seeing a boy under 10 years of age take a scroll from one jury box and place it in another. The officers had no power to pass upon the competency of those drawn, and it does not appear that any name drawn from the. first box was disqualified, or that this name was not placed on the list drawn for the term. In our opinion, the duty was ministerial, and one the deputy could perform.

Counsel for the defendant have presented respectable authority supporting the principle embraced in his prayer for instruction and in opposition to the instruction given by his Honor, but we have adhered to the rule, in line with the weight of authority, that in the assessment of damages for land taken for a public improvement, the measure of damages is the difference in value before and after the taking, less the special benefits, and that increased value to the land enjoyed in common with others affected by the improvement is not a special benefit.

The question was considered at the last term in Campbell v. Comrs. of Davie Co., 173 N. C., 500, in which, after laying down the rule that special benefits are those not common to others, Clark, C. J., says: “This is the rule laid down in Bauman v. Ross, 167 U. S., 548 (17 Sup. Ct., 966; 42 L. Ed., 270), in an exhaustive opinion, and the same rule has been applied in this State. Asheville v. Johnston, 71 N. C., 398; R. R. v. Wicker, 74 N. C., 220; R. R. v. Land Co., 133 N. C., 266 (45 S. E., 589); Bost v. Cabarrus, 152 N. C., 531 (67 S. E., 1006) ; R. R. v. Armfield, 167 N. C., 464 (83 S. E., 809); also 2 Lewis on Em. Dom., 1187, par. 691.”

We are less inclined to change the rule since it was held in Miller v. Asheville, N. C., 112 N. C., 768, that it was within the power of the General Assembly to provide by statute that the damages should be reduced “not merely by the benefits special to the plaintiff, but by all the benefits accruing to him, either special or in common with others” (Campbell v. Comrs.), and the legislative body has declined to act.

We have examined the other exceptions, and find none justifying a new trial.

No error.