State v. Thayer, 78-046

• Citation: 395 A.2d 500,118 N.H. 819
• Decision Date: 30 November 1978
• Docket Number: No. 78-046,78-046
• Parties: The STATE of New Hampshire v. William A. THAYER.
• Court: Supreme Court of New Hampshire

Page 500

395 A.2d 500

118 N.H. 819

The STATE of New Hampshire v. William A. THAYER.

No. 78-046.

Supreme Court of New Hampshire.

Nov. 30, 1978.

Edward F. Smith, Concord, and Robert L. Hermann, Jr., Hooksett, for New Hampshire Dept. of Employment Sec.

McLane, Graf, Greene, Raulerson & Middleton P.A., Manchester (Charles A. DeGrandpre, Manchester, orally), for defendant.

LAMPRON, Chief Justice.

This case follows the defendant's convictions under RSA 282:14 F for knowingly failing, as a corporate officer, to pay the unemployment compensation contributions, RSA 282:6, and late filing fees, and interest charges, RSA 282:12-A, B, for the Tops N' Bottoms Corporation. After trial the Peterborough District Court (Brighton, J.) found the defendant guilty on both complaints. On one complaint, the department recommended that the defendant be imprisoned for 90 days in the house of correction, the sentence to be suspended upon the defendant's making restitution of the entire amount of the unpaid tax, interest and penalties in the total amount of $1,669.91. With regard to the other, the department recommended a fine of $500, $300 to be suspended.

Sentencing was delayed pending the outcome of this court's decision on the following questions of law which were reserved and transferred:

1. Is it unconstitutional to impose criminal penalties, including imprisonment, for the failure of an officer or agent of an employer to pay unemployment compensation contributions owed by the employer to the State under RSA ch. 282?

2. Can the District Court, following a finding of guilty, order a conditional discharge as set forth by RSA 651:1 VI, (sic) on condition that restitution or reparation of contributions due to the State of New Hampshire for an amount in excess of the $1,000 limit set out by RSA 651:2 VI (a) (sic) for a fine in a misdemeanor case?

We hold that restitution or reparation of contributions in any amount cannot be ordered as part of a conditional discharge under RSA 651:2 VI in this case.

"The purpose of the (New Hampshire Unemployment Compensation Act) is to insure in limited measure against unemployment of individuals regularly attached to the labor market which is not occasioned with their consent or by their fault." Wellman v. Riley, 95 N.H. 507, 510, 67 A.2d 428, 429 (1949). An unemployed worker may apply for benefits to the unemployment compensation board, and, if found eligible, the money is drawn from the unemployment compensation fund. RSA 282:5; RSA 282:8. Under the act each employer is obliged to make "contributions" to the New Hampshire Department of Employment Security. RSA 282:6 A. The department, in turn, places these contributions into the unemployment compensation fund. RSA 282:8. An employer, officer or agent of an employing unit who knowingly fails or refuses to make this contribution is subject to criminal prosecution. RSA 282:14 F.

Defendant challenges the constitutionality of the misdemeanor penalty provision of the above section. In particular, he argues that imprisoning him for the failure to pay this contribution is tantamount to imprisoning him for nonpayment of a civil debt. Our task therefore, is to decide whether the legislature has the power to declare nonpayment of this contribution a criminal offense punishable by imprisonment.

"The supreme legislative power, vested in the senate and the house of representatives by the second article of the constitution, includes the power of taxation . . . ." Morrison v. Manchester, 58 N.H. 538, 549 (1879). This power is nothing more than the power to assess members of the community for the public expense. N.H.Const., pt. I, art. 12; Morrison v. Manchester, supra. There is no dispute that relief of the unemployed is a public expense for which the legislature may expend tax revenues. See Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 515-18, 57 S.Ct. 868, 81 L.Ed. 1245 (1937).

Although the employer's obligation has been labelled a "contribution," the name which the legislature may give to a money payment is not controlling. See Carmichael v. Southern Coal & Coke Co., 301 U.S. at 508, 57 S.Ct. 868, 81 L.Ed. 1245. This contribution is an involuntary exaction levied against an employer for the public expense. N.H.Const., pt. I, art. 12; Morrison v. Manchester, supra. It is a tax. The legislative power to levy this tax also embraces the authority to ensure the accumulation of sufficient revenues for the successful operation of the unemployment compensation system. This includes the power to penalize behavior that jeopardizes the financial soundness of that system. See Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418 (1942); Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917 (1938); Ocean Steam Navigation Co. v. Stranahan, 214 U.S. 320, 339, 29 S.Ct. 671, 53 L.Ed. 1013 (1909). Such penalties have been enacted by the legislature. RSA 282:14 A, F.

The legislature can make a knowing failure to pay this tax a crime and impose imprisonment for failure to comply with this law. N.H.Const. pt. II, art. 5. See State v. Farrow, 118 N.H. ---, 386 A.2d 808, 814 (1978). "Such provision does not impose imprisonment for debt, but for the wilful violation of the law. It becomes a criminal act because one who is able to do so wilfully and intentionally refuses to comply with the laws of his sovereign." Cincinnati v. DeGolyer, 25 Ohio St.2d 101, 105, 267 N.E.2d 282, 284-85 (1971). See generally Annot., 48 A.L.R.3d 1324 (1973). Therefore we hold that the legislature had the power to enact RSA 282:14 F.

Defendant next argues that RSA 282:14 F does not require the State to show that the defendant had the ability to pay the tax before he could be found guilty, and thereby imposes a cruel and unusual punishment. Defendant's brief was submitted before our decision in State v. Adelson, 118 N.H. ---, 389 A.2d 1382 (1978). Adelson requires that the State prove as an element of RSA 282:14 F that the person charged had the authority to make the payment for the corporation, and "that the corporation possessed sufficient funds to enable it to meet the statutory obligation." Id. at ---, 389 A.2d at 1384. We hold that RSA 282:14 F does not subject a violator to cruel and unusual punishment, because the ability to pay is a necessary element of the crime and must be proved by the State. Id.

After defendant's conviction, the State recommended a fine of $500, on one complaint, $300 to be suspended, and 90 days of imprisonment, upon the second complaint, to be suspended upon restitution of the amount of the unpaid tax, interest and penalties in the amount of $1,669.91. The defendant excepts to restitution as a condition of his sentence.

The State claims that a sentence imposing restitution as a condition of defendant's probation is authorized by RSA ch. 651. In support, the State cites RSA 651:1 I, which reads: "The provisions of this chapter govern the sentencing for every offense, whether defined within or outside the code. . . .", and RSA 651:2 VI, which permits the court to impose restitution or reparation as a condition of one's sentence. The defendant concedes that the sentencing court has the authority to order a conditional release pursuant to RSA ch. 651, but argues that any condition imposed must be consistent with the scheme of enforcement set forth in the special penalty provisions of the Unemployment Compensation Act.

The language of RSA 651:1 I appears to be controlling; all criminal offenders are subject to RSA ch. 651 sentences, which include restitution. Nonetheless, "(t)he intention of the legislature is to be determined from the language of the statute as a whole and not from the use of a particular word or phrase." State v. Burroughs, 113 N.H. 21, 25, 300 A.2d 315, 317 (1973). It is necessary, therefore, to review the entire scheme of special enforcement penalties set forth in the Unemployment Compensation Act to determine whether a court may order a corporate official to pay the corporate tax as a condition of his sentence for violating RSA 282:14 F.

A failure to contribute to the unemployment fund, like a fraudulent receipt of unemployment benefits, threatens the very foundations of the unemployment compensation system. To ensure the vitality of the system, the legislature has enacted both civil and criminal remedies. RSA 282:12; RSA 282:14. The criminal sanctions are found in RSA 282:14, which lists offenses by both the claimant and the contributor. RSA 282:14 A makes it a misdemeanor for a "claimant" wilfully to make a false statement or representation or knowingly to fail to disclose a material fact to obtain any benefit or other payment under the unemployment compensation statute. In addition to the criminal charge, a "cl...