IN THE SUPREME COURT-OF THE STATE OF MONTANA
No. 92-371
GREGG A. MOSELY
Applicant, OPINION
v. ;
LAKE COUNTY, JUSTICE COURT, LAKE ; J# 12 Jg$$
COUNTY, MONTANA, CHARLES 0. WHITSON,
JUSTICE OF THE PEACE, ii
;
Respondent.
This matter came before us on application by Gregg A. Mosely
for a writ of supervisory control. Mosely raised numerous issues
regarding the proceedings in which he was involved in the Justice
Court of Lake County, Montana, including whether the Justice Court
exceeded its jurisdiction. By Order dated November 12, 1992, we
denominated Mosely's application as one for a writ of certiorari,
granted the writ, and provided the parties an opportunity to brief
the jurisdictional issues. Because we decide this case on
jurisdictional grounds alone, we set forth neither the other issues
raised by Mosely nor the facts upon which those issues are argued.
Mosely was charged in the Justice Court, Lake County, Montana,
with intentionally introducing fish into Lake Mary Ronan. A person
convicted of this offense is "guilty of a misdemeanor punishable by
a fine of not less than $500 and may be fined up to the amount
necessary to eliminate or mitigate the effects of the violation. .
. . II Section 87-5-721(2), MCA.
The Justice Court ultimately accepted Mosely's plea of guilty
to the charge, fined him $515, suspended his fishing privileges and
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ordered "restitution to be paid." The record reflects that the
"restitution" amount was intended to be the dollar amount necessary
to eliminate or mitigate the effects of the violation, as
authorized by g 87-5-721(2), MCA. Mosely paid the fine and
subsequently received from the Lake County Attorney's Office a
statement for "present restitution amount regarding costs
associated with" his offense: the stated restitution amount "to
date" was $1,547.62.
Initially, it is clear that the Justice Court was not
authorized to impose "restitution" for a violation of 5 87-5-
721(2), MCA. Restitution can be required only when a sentence is
deferred or suspended. See §§ 46-18-241 and 46-18-201, MCA. The
Justice Court neither suspended execution, nor deferred imposition,
of sentence here. It is equally clear, however, that § 87-5-
721(2), MCA, authorizes a sentencing court to impose a fine in the
amount necessary to mitigate the effects of the violation. On this
basis, the State argues that the ordered *'restitutionVV properly can
be deemed a "fine" of the mitigation amount as authorized by 3 87-
5-721(2), MCA, under these circumstances. Even if accepted, this
argument does not change the outcome here, as discussed below.
The jurisdiction of the justices' courts over criminal
offenses is set forth in 5 3-10-303, MCA. For the most part, the
jurisdictional grants contained therein are general in nature: for
example, the justices' courts have exclusive jurisdiction over
misdemeanors punishable by a fine not exceeding $500, and
concurrent jurisdiction with the district courts over misdemeanors
punishable by a fine exceeding $500. Sections 3-10-303(l) and 3-
2
lo-303(3), MCA. Notwithstanding these general jurisdictional
grants, however, the legislature set forth a specific grant of
jurisdiction to the justices' courts with regard to fish and game
violations: justices' courts have jurisdiction "of all violations
of fish and game statutes punishable by a fine of not more than
$1,000 or imprisonment for not more than 6 months, or both."
Section 3-lo-303(2), MCA.
The statute which Mosely was charged with violating, § 87-5-
721, MCA, is inarguably a fish and game statute. As amended by the
legislature in 1991, a violation of the statute is a misdemeanor
punishable by a fine "up to the amount necessary to eliminate or
mitigate the effects of the violation." &I. In other words, the
legislature set no limit whatsoever on the fine which could be
imposed as punishment for violating the statute.
We determine first a matter conceded by the State: namely,
that the specific jurisdictional grant over violations of fish and
game statutes contained in § 3-lo-303(2), MCA, controls over the
general grant of concurrent jurisdiction over misdemeanors
punishable by a fine exceeding $500 contained in § 3-lo-303(3),
MCA. Where, as here, a general provision and a particular
provision are inconsistent, the particular intention controls.
Section l-2-102, MCA.
Next, we address the extent of the justices' courts'
jurisdiction over the offense with which Mosely was charged. The
State urges us to conclude that only the amount of the "fine"
exceeding $1,000 was in excess of the court's jurisdiction.
However, the plain language of the specific jurisdictional grant
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mandates our conclusion that the Justice Court did not have any
jurisdiction whatsoever over the offense charged.
Section 3-lo-303(2), MCA, grants the justices' courts
jurisdiction over "violations of fish and game statutes punishable
& a fine of not more than $1,000. . . .I' (Emphasis added.) As
discussed above, a violation of § 87-5-721(2), MCA, is punishable
by an open-ended, potentially limitless fine equalling the costs of
eliminating or mitigating the effects of the violation. A
violation of the statute is "punishable by" a fine of more than
$1,000. Thus, the violation is not within the jurisdictional grant
to the justices' courts' contained in § 3-lo-303(2), MCA. The
jurisdictional statute simply does not say, as the State urges,
that jurisdiction depends on the punishment "imposed." For that
reason, we need not address potential difficulties with a statute
granting jurisdiction on the basis of a sentence ultimately
imposed.
We note that this result is almost certainly the product of
inadvertence by the 1991 Montana legislature. It appears that when
the legislature amended § 87-5-721, MCA, to provide for an enhanced
fine to cover mitigation costs in 1991, it may have inadvertently
failed to make a corresponding amendment to the justices' courts'
jurisdiction over violations of fish and game statutes. The fact
remains, however, that the legislature used plain words in both the
jurisdictional statute and § 87-5-721, MCA, and those words leave
no room for interpretation or a search for legislative intent by
this Court. Our role is to ascertain what is contained in the
statute, not to insert what has been omitted or omit what has been
4
inserted. Section l-2-101, MCA.
IT IS ORDEREDthat:
1. The conviction and sentence in this matter be and the same
are hereby vacated: and
2. This matter is remanded to the Justice Court, Lake County,
Montana, with directions to dismiss the charge of violating 5 87-5-
721, MCA, heretofore filed against Gregg A. Mosely.
The Clerk is directed to mail a true copy of this Opinion and
Order to Douglas J. Wold, Esq., to the Office of the Attorney
General of the State of Montana, and to the Honorable Charles 0.
Whitson, Justice of the Peace, Lake County, Montana.
DATED this /&zay
__ of January,
5
Chief Justice J. A. Turnage concurring in part and dissenting in
part:
I agree with the majority statement that the 1991 legislature
in amending § 87-5-721, MCA, inadvertently failed to consider an
amendment to § 3-10-303, MCA, and that the legislature may want to
address the problem presented in this case.
I do not agree with the majority, however, that the case
should be dismissed. The Justice Court fine of $515 is within the
statutory sentencing jurisdiction granted justice courts and can be
supported under the provisions of 5 3-10-303, MCA. Section 87-5-
721, MCA, is the section that the legislature may want to address
concerning the misdemeanor penalty, specifically the provision that
a fine "necessary to eliminate or mitigate the effects of the
violation" may be imposed. If the legislature deems some form of
penalty is required to eliminate or mitigate effects of violations
in such matters, they may want to consider recourse to a civil
action as being appropriate.
I would affirm that portion of the Justice Court's sentence
imposing the $515 fine and strike the remaining portion of the
sentence.
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January 12, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Douglas J. Wold
Wold Law Firm
P.O. Box 1212
Polson, MT 59860
Hon. Marc Racicot, Attorney General
Paul D. Johnson, Assistant
Justice Bldg.
Helena, MT 59620
Lake County Attorney
Lake County Courthouse
Polson, MT 59860
Hon. Charles 0. Whitson
Justice of the Peace
Lake County Justice Court
Polson, MT 59860
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA