Coley v. State , 173 N.C. App. 481 ( 2005 )

McGEE, Judge.

This case challenges the constitutionality of Session Law 2001-424, under which the highest income tax rate was temporarily raised from 7.75 to 8.25 percent. 2001 N.C. Sess. Laws, ch. 424, § 34.18(a). The bill was signed into law on 26 September 2001, and the new tax rate became “effective for taxable years beginning on or after January 1, 2001[.]” Id. at § 34.18(b). Plaintiffs filed a class action suit against the State of North Carolina and Norris Tolson, North Carolina’s Secretary of Revenue, (collectively, defendants) on 25 April 2003, seeking a declaration that Session Law 2001-424 violated Article 1, Section 16 of the North Carolina Constitution (Section 16). Plaintiffs also sought refunds of individual income taxes paid on wages, earnings, and all other taxable income for 2001.

Defendants filed a motion to dismiss pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) on 24 June 2003. Plaintiffs filed a motion for judgment on the pleadings on 25 August 2003, and a motion for summary judgment on 5 January 2004. The trial court heard the matter on 16 January 2004. In an order filed 6 August 2004, nunc pro tunc 1 July 2004, the trial court denied plaintiffs’ motion for summary judgment and granted defendants’ motion to dismiss. Plaintiffs appeal.

I.

We note several violations of the North Carolina Rules of Appellate Procedure by plaintiffs: (1) plaintiffs’ brief lacks a Statement of the Facts in violation of N.C.R. App. P. 28(b)(5); (2) plaintiffs’ brief lacks a Statement of the Grounds for Appellate Review in violation of N.C.R. App. P. 28(b)(4); (3) the footnotes in plaintiffs’ brief and reply brief do not comply with the font requirements set out in N.C.R. App. P. 28(j)(l); and (4) plaintiffs failed to timely file an Appeal Information Statement in violation of N.C.R. App. P. 41(b)(2).

Plaintiffs’ noncompliance with the rules listed above is not substantive nor egregious enough to warrant dismissal of plaintiffs’ appeal. See, e.g., N.C. Farm Bureau Mut. Ins. Co. v. Allen, 146 N.C. App. 539, 542, 553 S.E.2d 420, 422 (2001). This Court may consider an appeal that violates the Rules of Appellate Procedure to “prevent manifest injustice.” N.C.R. App. P. 2. Plaintiffs have properly assigned error and have properly argued those assignments of error. Therefore, we invoke Rule 2 and address the merits of plaintiffs’ appeal. The decision by this Court not to dismiss the present case for minor rules violations does not lead us to “create an appeal for an appellant” or to examine any issues not raised by the appellant. Viar v. N.C. Dep’t of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005) (per curiam).

II.

Plaintiffs contend that the trial court erred in granting defendants’ motion to dismiss. Under N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2003), a motion to dismiss is proper when a complaint fails to state a claim upon which relief can be granted. Our Supreme Court has stated that a motion to dismiss should be granted when: “(1) the complaint on its face reveals that no law supports the plaintiff’s claim; (2) the complaint on its face reveals the absence of facts sufficient to make a good claim; or (3) the complaint discloses some fact that necessarily defeats the plaintiff’s claim.” Wood v. Guilford Cty., 355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002); see also Toomer v. Branch Banking & Tr. Co., 171 N.C. App. 58, 65, 614 S.E.2d 328, 334 (2005). Plaintiffs’ complaint alleges that Session Law 2001-424, by increasing the income tax rate for the highest tax bracket, is unconstitutional under Section 16, which prohibits the retrospective taxation of “sales, purchases, or other acts.” Because we determine that Section 16 does not apply to Session Law 2001-424, we find that the trial court properly granted defendants’ motion to dismiss.

A.

The history of Section 16 begins with our Supreme Court’s holding in State v. Bell, 61 N.C. 76 (1867) (per curiam). In Bell, a law had been ratified on 18 October 1865 authorizing a tax “on the amount of all purchases made in or out of the State, whether for cash or on a credit, by any merchant, etc., buying or selling goods, wares or merchandise[.]” Id. at 80. The tax was effective “during the twelve months next preceding the first of January, 1866.” Id. The defendant merchant refused to pay the tax on any purchases he made prior to 18 October 1865. Id. at 80-81. The defendant was tried and convicted for.a violation of the law. Id. at 81. On appeal, the defendant argued that the tax was an ex post facto law. Id. In the alternative, defendant argued that the tax was a retrospective law and therefore was against “the spirit, if not the letter, of the Constitution.” Id. at 82.

Our Supreme Court held that the tax was not an ex post facto law, since ex post facto laws only involve “matters of a criminal nature.” Id. at 81-82. The law at issue did not make the defendant’s actions criminal until he refused to abide by the tax, and therefore “in respect to such criminality [the law was] altogether prospective.” Id. at 82. The Court also held that the law was not unconstitutionally retrospective. Id. at 85-86. The Court noted that the State has a broad and “essential” power to tax, and stated that the Court could “see nothing to prevent the people from taxing themselves, either through a convention or a legislature, in respect to property owned or a business followed anterior to the passage of the [law imposing the tax].” Id. at 86.

In response to Bell, the following provision to the North Carolina Constitution was adopted at the 1868 North Carolina Constitutional Convention: “No law taxing retrospectively sales, purchases, or other acts previously done, ought to be passed.” N.C. Const, of 1868, art. I, § 32. The provision today reads: “No law. taxing retrospectively sales, purchases, or other acts previously done shall be enacted.” N.C. Const, art. I, § 16.

Our Supreme Court has only twice had the opportunity to interpret this provision of our State’s Constitution. In 1877, the Court struck down a tax that was enacted on 26 May 1876 and that levied a twenty-five cent tax on each one hundred dollars of merchandise purchased during the twelve months previous to 1 May 1876. Young v. Town of Henderson, 76 N.C. 420, 423-24 (1877). The Court recognized that the tax, as a retrospective tax on purchases, expressly violated the North Carolina Constitution. Id. at 424.

The Court later examined a tax levied by this State’s Unemployment Compensation Law, ch. 1, Public Laws 1936 (Extra Session), which was ratified on 16 December 1936. Unemployment Compensation Com. v. Trust Co., 215 N.C. 491, 499, 2 S.E.2d 592, 598 (1939). The Unemployment Compensation Law had as its purpose, in part, “to provide ‘for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own.’ ” Id. at 500, 2 S.E.2d at 598 (quoting Unemployment Compensation Law § 2). The law taxed employers who “had in [their] employ on or subsequent to 1 January, 1936, one or more individuals performing services for [them] within this State.” Id. at 500, 2 S.E.2d at 598; see also Unemployment Compensation Law § 19(e). If one of these employers had eight or more employees “ ‘in each of twenty different weeks within either the current or the preceding calendar year[,]’ ” the employer was subject to the tax. Unemployment Compensation Com., 215 N.C. at 500, 2 S.E.2d at 598 (quoting Unemployment Compensation Law § 19(f)). The Court noted that to be an employer subject to the tax,

it [was] not necessary that such employing unit should have had in its employ eight or more individuals in each of twenty different weeks of 1936. It [was] sufficient if it employed eight individuals in each of twenty different weeks within the preceding calendar year, if it continue [d] to be the employer of one or more persons during 1936. To determine the status of an [employer], in ascertaining whether it is liable for the tax, the [North Carolina Unemployment Commission] [wa]s empowered to examine [the employer’s] status . . . not only during 1936 but during 1935 as well.

Id. at 500, 2 S.E.2d at 598.

Our Supreme Court found that the tax violated the North Carolina Constitution. Id. at 501, 2 S.E.2d at 599. The Court found that a tax on employment or “upon the maintenance of the status of an employer” was a tax upon an act or acts. Id. at 501, 2 S.E.2d at 599. The Court also noted the irrelevancy of the employer’s status in 1935 and 1936 to the purpose of the tax:

[S]uch unemployment as occurred during the year 1936, for which the contributions were to be made, had already occurred. The unemployed could not, under the requirements of the statute, qualify to receive compensation for their involuntary1 unemployment during that year. In so far as 1936 is concerned, the contributions are required for a purpose impossible to be accomplished. The “burden which now so often falls with crushing force upon the unemployed worker and his family” had already been met by those involuntarily unemployed, and there was no possibility of relief under the act, even though contributions for that year [were] required.

Id. at 501, 2 S.E.2d at 598-99 (quoting Unemployment Compensation Law § 2).

It is under this framework that we examine the case before us.

B.

Plaintiffs argue that Session Law 2001-424 enacted a tax on wages and other income already earned, and thus is a retroactive tax in violation of Section 16. Defendants argue in their cross assignment of error that the trial court erred in finding that Section 16 applies to Session Law 2001-424. We find that the subject of defendants’ cross assignment of error is dispositive of this case.

The text of Section 16 reads, in relevant part: “No law taxing retrospectively sales, purchases, or other acts previously done shall be enacted.” N.C. Const, art. I, § 16. We must determine whether the increase of an income tax rate is included within the scope of Section 16. “ ‘Issues concerning the proper construction of the Constitution of North Carolina “are in the main governed by the same general principles which control in ascertaining the meaning of all written instruments.” ’ ” Stephenson v. Bartlett, 355 N.C. 354, 370, 562 S.E.2d 377, 389 (2002) (citations omitted). In addition,

Constitutional provisions should be construed in consonance with the objects and purposes in contemplation at the time of their adoption. To ascertain the intent of those by whom the language was used, we must consider the conditions as they then existed and the purpose sought to be accomplished. Inquiry should be directed to the old law, the mischief, and the remedy. The court should place itself as nearly as possible in the position of the men who framed the instrument.

A court should look to the history, general spirit of the times, and the prior and the then existing law in respect of the subject matter of the constitutional provision under consideration, to determine the extent and nature of the remedy sought to be provided.

Perry v. Stancil, 237 N.C. 442, 444, 75 S.E.2d 512, 514 (1953) (citations omitted); see also State v. Webb, 358 N.C. 92, 94, 591 S.E.2d 505, 509 (2004).

We begin by looking at the plain language of Section 16. Martin v. State of North Carolina, 330 N.C. 412, 416, 410 S.E.2d 474, 476 (1991). The plain language does not indicate in any way that the prohibition on retrospective taxes included a prohibition on a retrospective increase on an income tax rate. Therefore, the intent of the General Assembly, as evidenced by its choice of language, does not indicate that Section 16 applies to Session Law 2001-424.

Furthermore, the history surrounding the ratification of Section 16 does not demonstrate that the drafters intended to include income taxes within the scope of Section 16. Section 16 was enacted in response to State v. Bell, wherein the Court upheld a criminal conviction for the defendant-merchant’s failure to pay retrospective taxes on purchases. Bell, 61 N.C. at 89. The historical situation behind the drafting of Section 16 involved sales and purchases, as specifically mentioned in Section 16, and did not surround the situation of an increased income tax rate, or even income taxes at all.

We also find that the doctrine of ejusdem generis suggests that the application of Section 16 to Session Law 2001-424 is inappropriate.

“ ‘In the construction of statutes, the ejusdem generis rule is that where general words follow a designation of particular subjects or things, the meaning of the general words will ordinarily be presumed to be, and construed as, restricted by the particular designations and as including only things of the same kind, character and nature as those specifically enumerated.’ ”

Smith v. Smith, 314 N.C. 80, 87, 331 S.E.2d 682, 686-87 (1985) (citations omitted). Under ejusdem generis, only terms similar to “sales” and “purchases” can be included in the definition of the term “other acts.” As distinguished from a singular, distinct “sale” or “purchase,” taxation on income is a complicated procedure by which net income earned over the course of a fiscal year is taxed. Furthermore, at the time Session Law 2001-424 was enacted, individuals’ net income for the year 2001 had not yet been, and could not yet be, determined. As a result, we cannot find that an increase in an income tax rate is properly included within the term “act.”

Finally, we find this case to be distinguishable from Unemployment Compensation Com., where our Supreme Court found that the tax at issue was a tax upon an act or acts. 215 N.C. at 501, 2 S.E.2d at 599. In Unemployment Compensation Com., an entirely new tax was created. Id. at 499, 2 S.E.2d at 598. In addition, an employer could be taxed based on the employer’s status in the year prior to that during which the statute authorizing the tax was enacted. Id. at 500, 2 S.E.2d at 598. The futility of such legislation was noted by the Court: “In so far as 1936 is concerned, the contributions are required for a purpose impossible to be accomplished.... [T]here was no possibility of relief under the act, even though contributions for that year [were] required.” Id. at 501, 2 S.E.2d at 599.

In contrast, this case involves a new tax rate, not an entirely new tax. Moreover, the new tax rate began to apply only in the year in which the statute was enacted. At this point, neither an individual’s annual income nor tax liability under the statute had yet been determined. Furthermore, the increased tax rate was not ineffectual in light of any purpose of Session Law 2001-424. We find that although an employer’s status at a previous time may be correctly interpreted under Unemployment Compensation Com. to be within the definition of an “act,” the total amount of an individual’s income for a year which had not yet concluded cannot be similarly defined.

Because the increase in the income tax rate under Session Law 2001-424 is not a tax upon an act, we find that the statute is constitutional. The trial court properly granted the motion to dismiss. We therefore need not consider plaintiffs’ argument that the trial court erred by denying plaintiffs’ motion for summary judgment.

Affirmed.

Judge ELMORE concurs. Judge CALABRIA dissents with a separate opinion.