State v. West

• Decision Date: 13 June 1977
• Docket Number: No. 38,38
• Citation: 235 S.E.2d 150,293 N.C. 18
• Parties: STATE of North Carolina v. B. C. WEST, Jr.
• Court: North Carolina Supreme Court

Page 150

235 S.E.2d 150

293 N.C. 18

STATE of North Carolina v. B. C. WEST, Jr.

No. 38.

Supreme Court of North Carolina.

June 13, 1977.

Leroy, Wells, Shaw, Hornthal, Riley & Shearin, P. A., by Dewey W. Wells, Elizabeth City, for defendant-appellant.

Kirkland & Ellis by William D. North, Chicago, Ill., for American Library Ass'n, amicus curiae.

Corinne A. Houpt, Asst. University Counsel, Durham, amicus curiae.

Henry Bartholomew Cox, Fort Washington, Md., amicus curiae.

LAKE, Justice.

The fact that William Hooper, who signed the bills of indictment which are the subjects of this lawsuit, subsequently also signed the Declaration of Independence gives to these documents the greater part of their present intrinsic value, but that circumstance has no bearing upon the principles of law which must govern our decision. The record shows that, at the present time, other bills of indictment, filed in the Superior Court of Justice for the Salisbury District at about the same time, have remained in the custody of county or State officials and are now held by the Division of Archives and History. If the subject of this lawsuit were one of those documents, signed by a King's Counsel, whose name and professional prominence are now somewhat obscure in the mists of our Colonial history, the governing legal principles would be the same as those to which we must turn for guidance in this action.

Although the defendant, in his answer, pleaded the three year statute of limitations in bar of the right of the State to recover, he does not, on this appeal, rely upon that statute. In this he is well advised. First, nothing in the record indicates when the documents were taken from the possession of the State and so the record does not show when the State's cause of action for their recovery arose. Second, the statute so pleaded by the defendant does not apply to this action by the State.

Notwithstanding the provisions of G.S. 1-30, which states, "The limitations prescribed by law apply to civil actions brought in the name of the State, or for its benefit, in the same manner as to actions by or for the benefit of private parties", this Court said in Raleigh v. Bank, 223 N.C. 286, 26 S.E.2d 573 (1943), "It has been uniformly held that no statute of limitations runs against the State, unless it is expressly named therein." In that case, the Court held that a civil action to foreclose a street assessment lien was barred by the ten year statute of limitations for the reason that the legislative intent to make such suit subject to such limitation "sufficiently appears." The three dissenting justices took issue with the majority on the latter point. They expressly said:

"The majority opinion contains these pronouncements: (1) The policy of the State as established over the years is expressed in the maxim nullum tempus occurrit regi, which 'is still regarded as the expression of a sound principle of government.' (2) It has been uniformly held that 'no statute of limitations runs against the State unless it is expressly named therein.' (3) The Act of 1929, Chapter 331 (the statute deemed by the majority to impose a limitation upon the bringing of such action), is 'lacking in that degree of precision ordinarily to be found in restrictive statutes.' With these premises, we are all in accord."

As the majority, speaking through Justice Devin, later Chief Justice, said in Raleigh v. Bank, supra, whether there ought to be a statute of limitations applicable to suits by the State is a matter for the Legislature, not the courts.

Likewise, the relative merits of private collectors of and speculators in documents relating to the history of the State, as compared to archivists employed by the State, in the matter of preserving such documents and making them available to the public for respectful inspection and scholarly research is not determinative of the present appeal. That is also a matter for consideration of the Legislature in determining the State's policy concerning the collection and preservation of such papers. Our concern in the determination of this appeal is solely with the determination of the property right of the State in the two documents here in question. We are not here concerned with the collection and retention of documents private in origin.

By Chapter I of the Acts of the Colonial Assembly of North Carolina in its 1766-1767 Session, the State was divided into six districts (Wilmington, Newbern, Edenton, Halifax, Hillsborough and Salisbury) for each of which the act provided for the establishment of "a Court for the trial of causes, civil and criminal * * * by the name of the Superior Court of Justice." The act provided that each such court "shall have, use, exercise, and enjoy, the same powers and authorities, rights, privileges, and preheminencies (sic), as are had, used, exercised, and enjoyed, by the Chief Justice or any of his Majesty's Justices of the Courts of Westminster in England." The act further authorized the Chief Justice to appoint "experienced and discreet Clerks of the Superior Courts; who shall, each of them, give bond * * * to our Sovereign Lord the King, his heirs and successors * * * for the safekeeping of the records and faithful discharge of his duty in office." The act further provided, "(T)hat for the more entire and better preservation of the records of causes, when any cause is finally determined, the clerk shall enter all the proceedings therein, and other matters relating thereto, in a book, well bound, so that an entire and perfect record may be made thereof." It also provided, "(T)hat all causes * * * indictments and presentments whatsoever, that are, or shall be depending in any of the late Superior Courts of Justice within this Colony * * * and not fully determined, shall be transferred and put on the dockets of the respective Superior Courts hereby established."

It is apparent that the Colonial Assembly recognized the importance of maintaining records of court proceedings, civil and criminal, and of collecting and preserving in a public office documents relating thereto. Obviously, the bills of indictment charging criminal offenses upon which the Colonial subjects of the King were to be tried in his Court were among the papers so designed to be collected and preserved. When a bill of indictment, prepared by the King's Counsel, was filed in the office of the clerk of such court, the paper was no longer the private property of the draftsman but became part of the records of the King's Court and, therefore, property of the King. Its subsequent retention or disposition was subject to his direction and control. Nothing else appearing, the inherent powers of his Court would include the power to order the return to its possession of a bill of indictment removed from the clerk's office without authority. Such removal could not terminate the King's title to the document, nor would his right to recover its possession be barred by the passage of time, however great, for the common law of England clearly accepted the maxim, nullum tempus occurrit regi.

A change of sovereignty transfers but does not alter the right of the former sovereign to his official, as distinguished from his personal, property. Thus, in 48 C.J.S., International Law, § 15, it is said: "A state which is formed out of, or which absorbs, another, succeeds to the latter's international rights and obligations. Property of the old state passes to the new one, and the former's debts are generally assumed by the latter." Thus, " Sovereignty survives changes in governments and in forms of government." 45 Am.Jur.2d, International Law, § 40. As Justice Sutherland, speaking for the Court in United States v. Curtiss-Wright Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936), said: "Rulers come and go; governments end and forms of government change; but sovereignty survives. A political society cannot endure without a supreme will somewhere. Sovereignty is never held in suspense."

Officially, the War of the American Revolution ended with the signing of the Treaty of Paris on 3 September 1783 providing: "His Britannic Majesty acknowledges the said United States, viz. * * * North Carolina * * * to be free, sovereign and independent states; that he treats with them as such, and for himself, his heirs and successors, relinquishes all claims to the government, property and territorial rights of the same, and every part thereof." The treaty further provided: "His Britannic Majesty shall * * * also order and cause all archives, records, deeds and papers belonging to any of the said states, or their citizens, which in the course of the war may have fallen into the hands of his officers, to be forthwith restored, and delivered to the proper states and persons to whom they belong." The right of the State to the bills of indictment here in question does not arise from that provision of the treaty for there is nothing to indicate that these bills of indictment, "in the course of the war," fell into the hands of an officer of the King. This provision of the treaty, however, indicates clearly the intent of the King to relinquish any claim which he otherwise might have to records, such as indictments and other portions of official court records.

The defendant and the amici curiae referred in their briefs to an alleged state of "anarchy" prevailing during the War of the Revolution. Nothing in the record indicates that any disorder or unrest in the Salisbury District disturbed the records of the Superior Court of Justice therein. In any event: "Internal disorder, rebellion, or continuing civil war does not affect the existence of a nation, although foreign relations may be interrupted thereby. Even when anarchy exists for a considerable period of time, the nation continues to subsist; and so will its existence continue until its sovereignty is completely extinguished by the final dissolution of the social tie, or by some other cause which puts...