# Bailey v. State > Supreme Court of North Carolina · May 8, 1998 · 348 N.C. 130 URL: https://www.frixlaw.com/law-library/cases/9564620 ## Case - **Full name:** JAMES H. POU BAILEY, A. PILSTON GODWIN, HARRY L. UNDERWOOD, HENRY L. BRIDGES, ROSALIE T. ADAMS, JESSE M. ALMON, HELEN L. ANDREWS, WORTH B. SKEW, BILLY A. BAKER, PARKER N. BARE, ARTHUR C. BEAMAN AND GRACE G. BEAMAN, JOSEPH G. BINKLEY, ROBERT L. BLEVINS, ELLIE L. BOYLES, CHANCEL T. BROWN AND JOAN W. BROWN, ELIZABETH S. BUTLER, DOROTHY T. CARMICHAEL, JOHN CARRICKER, HAROLD D. COLEY, SR., ANNA L. COOPER, CHARLES C. COOPERAND BERTIE S. COOPER, T.J. DUNCAN AND ESTHER P. DUNCAN, DAN R. EMORY, MARTIN W. ERICSON, FRED W. GENTRY, IVEY B. GORDON AND IZORIA S. GORDON, LOUIS N. GOSSELIN, EARL T. GREEN, BOB HAMMONS, DARIUS B. HERRING, RAY F. HOLCOMB, TILLE M. HOLCOMB, KAY C. HURT, JOHN I. KIGER AND MARIE K. KIGER, CLARENCE T. LEINBACH, WALTER G. LEMING AND BARBARA C. LEMING, YATES LOWE, HARRIETTE B. McCORMICK, VIRGINIA H. MICKEY, WILLIAM F. MORGAN, HARRIETTA B. McCORMICK, EARL RAY PARKER, CALVIN C. PEARCE, MICHAEL PELECH, DIANE S. PEOPLES, MILDRED R. POINDEXTER, WINNIE D. POTTS, PATSY M. REYNOLDS, GLENN D. RUSSELL, BLANCHE S. SHIPP, CLYDE R. SHOOK, HAROLD E. SIMPSON, SONNIE B. SIMPSON, LENORA S. SMITH, FRANCES J. SNOW, CHARLES A. SPEED, JUSTUS M. TUCKER, WALTER P. UPRIGHT, RALPH B. WALKER AND MARTHA M. WALKER, JEAN A. WATSON, ROBERT I. WEATHERSBEE, RUBY WEBSTER, HARRY LEE WILLIAMS, DANIEL W. WILLIAMS, ELIZABETH H. WILSON, WILBUR G. WILSON, ERNEST B. WOOD, THOMAS S. WORSHAM, Individually for the Benefit and on Behalf of All Others Similarly Situated, Petitioner-Plaintiffs and W.K. AUBRY, JR., JAMES BRYAN BARRETT, NORMAN W. CASH, ROBERTA M. COOK, JOHN ED DAVIS, DANIEL M. DYSON, EDWIN C. GUY, SAMUEL L. HARMON, JOHN MARSHALL HARTLEY, DONALD ELLIOT HARTLE, MARTHA M. LAWING, DOUGLAS LAMAR MASON, DELMA DALTON RESPASS, JR., WILLIAM ELMER RIGGS, PAUL L. SALISBURY, JR., RICHARD A. SHARPE, NELSON LEROY SHEAROUSE, FRANCIS C. SIMMONS AND MARY E. SIMMONS, NED RAEFORD SMITH, G. VANCE SOLOMON AND EULALIA T. SOLOMON, THOMAS LASH TRANSOU AND WILBUR EUGENE YOUNG, Additional Petitioner-Plaintiffs v. STATE OF NORTH CAROLINA, THE NORTH CAROLINA DEPARTMENT OF REVENUE, JANICE FAULKNER, in Her Capacity as SECRETARY OF THE NORTH CAROLINA DEPARTMENT OF REVENUE, THE NORTH CAROLINA DEPARTMENT OF STATE TREASURER, HARLAN E. BOYLES, in His Capacity as TREASURER OF THE STATE OF NORTH CAROLINA, Respondent-Defendants - **Court:** Supreme Court of North Carolina - **Decided:** May 8, 1998 - **Citations:** 348 N.C. 130; 500 S.E.2d 54; 1998 N.C. LEXIS 214 - **Precedential status:** Published - **Opinion:** Concurring in part by Webb - **Judges:** Frye, Webb - **Cited by:** 90 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9564620 ## How later opinions describe it (automated extraction) - stating that the purpose of an administrative exhaustion requirement in a North Carolina taxation statute is "to put the State on notice that a tax, or a particular application thereof, is being challenged as improper so that the State might properly budget or plan for the pot… - holding that “the relationship between the Retirement Systems and employees vested in the system is contractual in nature, [and] the right to benefits exempt from state taxation is a term of such contract” - stating that pension benefits are "a deferred portion of the compensation earned for services rendered" - holding that "[n]otice for fiscal planning purposes is the touchstone" of the exhaustion requirement in a statute allowing taxpayers to sue to recover improperly collected taxes - holding that “[njotice for fiscal planning purposes is the touchstone” of the exhaustion requirement in a statute allowing taxpayers to sue to recover improperly collected taxes ## Opinion text *168 Justice Webb concurring in part and dissenting in part. I dissent from the portion of the majority opinion dealing with the protest requirements of N.C.G.S. § 105-267, which, when this action was filed, said: No court of this State shall entertain a suit of any kind brought for the purpose of preventing the collection of any tax imposed in this Subchapter. Whenever a person shall have a valid defense to the enforcement of the collection of a tax assessed or charged against him or his property, such person shall pay such tax to the proper officer, and such payment shall be without prejudice to any defense of rights he may have in the premises. At any time within 30 days after payment, the taxpayer may demand a refund of the tax paid in writing from the Secretary of Revenue and if the same shall not be refunded within 90 days thereafter, may sue the Secretary of Revenue in the courts of the State for the amount so demanded. Such suit may be brought in the Superior Court of Wake County, or in the county in which the taxpayer resides at any time within three years after the expiration of the 90-day period allowed for making the refund. If upon the trial it shall be determined that such a tax or any part thereof was levied or assessed for an illegal or unauthorized purpose, or was for any reason invalid or excessive, judgment shall be rendered therefor, with interest, and the same shall be collected as in other cases. The amount of taxes for which judgment shall be rendered in such action shall be refunded by the State; provided, nothing in this section shall be construed to conflict with or supersede the provisions of G.S. 105-241.2. N.C.G.S. § 105-267 (1989) (amended 1996). I do not see how the language of this section could be more clear that an action may not be brought to prevent the collection of certain taxes, including the taxes involved in this case. The section further clearly says that the only way to test the imposition of these taxes is to pay them to the proper officer and file a protest within thirty days of payment. In holding that a protest was not necessary in this case, I believe the majority has violated the first rule of statutory construction, which is that when the language of a statute is unambiguous and clear, there is no room for judicial construction, and a court must give the statute its plain and definite meaning. State ex rel. Utilities Comm’n v. Edmisten, 291 N.C. 451 , 232 S.E.2d 184 (1977). *169 The majority says that reaching the result in this case was complicated by Swanson v. North Carolina, 335 N.C. 674 , 441 S.E.2d 537 , cert, denied, 513 U.S. 1056 , 130 L. Ed. 2d 598 (1994), and Bailey v. North Carolina, 330 N.C. 227 , 412 S.E.2d 295 (1991), cert, denied, 504 U.S. 911 , 118 L. Ed. 2d 547 (1992). This complication is understandable in light of the fact that both the cases contain square holdings contrary to the result we have reached today. Bailey , of course, involves the very parties and issues involved in this case. The United States Supreme Court has said that our protest payment scheme is not unconstitutional. McKesson Corp. v. Division of Alcoholic Beverages & Tobacco, 496 U.S. 18 , 110 L. Ed. 2d 17 (1990). In order to avoid the plain meaning of the statute, the majority goes to great lengths to prove (1) that payments under protest are not voluntary, and (2) that the purpose of N.C.G.S. § 105-267 is to provide the State with information as to what revenues it will have for its fiscal needs. The majority says the State should have known what revenues might be available without the protests, and this made it unnecessary to follow section 105-267. I do not believe the involuntariness of the payments or the purpose behind the statute should be considered in this case. The meaning of the statute is clear. We should not go beyond the plain meaning. The General Assembly has determined that in order to contest the imposition of a tax, there must be a payment under protest. We should not repeal this action of the General Assembly. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9564620. Public record. Not legal advice.