Civil action to recover certain emoluments or perquisites belonging to the office of auditor of Madison County.
In apt time the defendants entered a challenge to the array of the jury on the ground that the jury commission which drew the panel for the November Term, 1937, Madison Superior Court, was not a proper legal agency for drawing such panel, the said commission having been created by ch. 177, Public-Local Laws 1931. Overruled; exception.
The defendants denied the validity of plaintiff's election to the office of auditor; pleaded the two-year statute of limitations, C. S., 442, and controverted the amount of time and mileage set out in plaintiff's claim.
There was a directed verdict and judgment for plaintiff from which the defendants appeal, assigning errors. It follows from what is said in the case of Brigman v. Baley, ante, 119, that the challenge to the array should have been sustained. McIntosh, N.C. Prac. and Proc., 596. But this alone would not entitle the defendants to a venire de novo. S. v. Levy, 187 N.C. 581, 122 S.E. 386. Nonconstat that they may not have had a jury to their liking or that they were prejudiced thereby. Indeed, it appears from the record that no member of the original panel served on the jury in this case. It seems to have been composed of talesmen. Judgments are not to be disturbed for jury defect except upon proper showing of prejudice. S. v. Gosnell, 208 N.C. 401,181 S.E. 323.
Upon another ground, however, defendants are entitled to a new trial. His Honor inadvertently directed a verdict for the plaintiff in the face of the plea of the statute of limitations and the controverted evidence *Page 147 relative to the correctness of the amount of time and mileage set out in plaintiff's claim. It is true, the principal matter debated on the hearing was the legality of plaintiff's election as auditor, but this was not the whole case. There were issues of fact for the jury, as well as questions of law for the court, with the burden on the plaintiff throughout.
It is seldom that a verdict can properly be directed in favor of the party upon whom rests the burden of proof. Yarn Mills v. Armstrong,191 N.C. 125, 131 S.E. 416. Indeed, it is said in some of the cases that "a verdict can never be directed in favor of the party upon whom rests the burden of proof." Cox v. R. R., 123 N.C. 604, 31 S.E. 848; House v. R.R., 131 N.C. 103, 42 S.E. 553.
As plaintiff is suing for the emoluments or perquisites of a public office, he is not to recover on a quantum meruit. Borden v. Goldsboro,173 N.C. 661, 92 S.E. 694.
Speaking to the question in the Borden case, supra, Brown, J., delivering the opinion of the Court, said: "A public officer is not entitled to payment for duties imposed upon him by statute, in the absence of an express provision for such payment. 25 Cyc., 449. In 1 Dillon on Mun. Corp., 731, it is said: `There is no such implied obligation on the part of municipal corporations and no such relation between them and officers which they are required by law to elect as will oblige them to make compensation to such officers unless the right to it is expressly given by law, ordinance, or by contract. Officers of a municipal corporation are deemed to have accepted their office with knowledge of and with reference to the provisions of the charter or incorporating statute relating to the services which they may be called upon to render and the compensation provided therefor. Aside from these, or some proper by-law, there is no impliedassumpsit on the part of the corporation with respect to the services of its officers. In the absence of express contract, these determine and regulate the right of recovery and the amount.' Many cases are cited in the notes in support of the text."
With this disposition of the appeal, rulings upon the constitutional questions presented, or sought to be presented, are pretermitted. S. v.Ellis, 210 N.C. 166, 185 S.E. 663. It is not after the manner of appellate courts to pass upon constitutional questions, even when properly presented, if there be also present some other ground upon which the case may be made to turn. Newman v. Comrs., 208 N.C. 675, 182 S.E. 453; Woodv. Braswell, 192 N.C. 588, 135 S.E. 529. "It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case." Mr. Justice Peckham in Burton v.U.S., 196 U.S. 283. The rule is that if a case can be decided on either of two grounds, one involving a constitutional *Page 148 question, the other a question of lesser moment, the latter alone will be decided. Siler v. L. N. R. R., 213 U.S. 175; Light v. U.S.,220 U.S. 523; In re Parker, 209 N.C. 693, 184 S.E. 532.
For the error as indicated in directing the verdict the defendants are entitled to a new trial. It is so ordered.
New trial.