No. 13788
I N T E SUPREME C U T O T E STATE O M N A A
H O R F H F OTN
1977
T E STATE O MONTANA,
H F
P l a i n t i f f and A p p e l l a n t ,
MARVIN MOORE,
Defendant and Respondent.
Appeal from: D i s t r i c t Court o f t h e E i g h t h J u d i c i a l D i s t r i c t ,
Honorable J o e l G. Roth, J u d g e p r e s i d i n g .
Counsel o f Record:
For Appellant:
Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
J a m e s T i l l o t s o n , A s s i s t a n t Attorney General,
a r g u e d , H e l e n a , Montana
J. F r e d Bourdeau, County A t t o r n e y , G r e a t F a l l s ,
Montana
C a r r o l l Blend, Deputy County A t t o r n e y , a r g u e d ,
G r e a t F a l l s , Montana
F o r Respondent:
Howard F. S t r a u s e a r g u e d , Great F a l l s , Montana
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Submitted: September 1 2 , 1977
~ecided: D t T 1$j 5977
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Filed:
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Clerk
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
The question in this case is whether a defendant accused
of deception in causing Cascade County to execute warrants in
excess of $150 for welfare assistance can be prosecuted for the
felony of deceptive practices or whether prosecution is limited
to the misdemeanor charge of welfare fraud. The district court
dismissed the felony charge. We reverse.
The substance of the accusation underlying the felony
charge is that the defendant orally stated and subsequently signed
a welfare form declaring he was receiving no Veteran's Adminis-
tration benefits when in fact he was; that as a result of defen-
dant's statements Cascade County issued welfare warrants for de-
fendant's rent in the amount of $682 and for groceries in the
amount of $125; and by reason thereof defendant is guilty of the
crime of deceptive practices, a felony.
The direct information filed in the district court charged
defendant with the crime of deceptive practices, a felony, com-
mitted in Cascade County on July 2, 1975 in that defendant did
"purposely and knowingly cause the County of Cascade, by decep-
tion to execute documents by which pecuniary obligations were
incurred, namely warrants for rent and groceries. The value
of the obligations incurred was in excess of $150.00, in viola-
tion of Section 94-6-307(1)(a), R.C.M. 1947 as amended."
Defendant moved to dismiss the information on the grounds
that he was charged under the wrong statute. Following hearing,
the district court dismissed the case. The state appeals.
The focus of this appeal is whether defendant is sub-
ject to prosecution for the felony of deceptive practices under
Mgntana's Criminal Code or whether prosecution is limited to the
misdemeanor charge of welfare fraud under our W f a r e -.
.
The two statutes involved provide in pertinent part:
"94-6-307. Deceptive practices. (1) A person
commits the offense of deceptive practices when
he purposely or knowingly:
"(a) causes another, by deception * * *, to execute
a document * * * by which a pecuniary obligation is
incurred * * *
"(2) A person convicted of the offense of deceptive
practices shall be fined not to exceed five hundred
dollars ($500) or be imprisoned in the county jail
for any term not to exceed six (6) months or both.
If the deceptive practices are part of a common
scheme or the value of any property * * * obtained
* * * exceeds one hundred fifty dollars ($150) then
the offender shall be imprisoned in the state prison
for any term not to exceed ten (10) years."
This statute is a part of the Montana Criminal Code
(Title 94); is classified as a felony where the amount of property
obtained or attempted to be obtained exceeds $150; and is punish-
able by a maximum sentence of 10 years in prison.
"71-226. Fraudulent acts. Whoever knowingly
obtains * * * by means of willfully false state-
ments or representation * * * public assistance
to which he is not entitled, [or] assistance
greater than that to which he is justly entitled;
* * * with the intent to defeat the purposes of
this act shall be guilty of a misdemeanor. In
assessing the penalty the court shall take into
consideration, among other factors, the amount of
money fraudulently received."
This statute is a part of the Welfare Code (Title 71); is
classified as a misdemeanor; and is punishable by a fine of from
$25 to $1,000 to which may be added a county jail sentence not
exceeding 60 days. Section 71-231.3, R.C.M. 1947.
The gist of the State's contention is that the existence
of a specific statute in the Welfare Code encompassing the
alleged crime does not preclude prosecution for the alleged crime
under the general Criminal Code provided the facts support a
charge under either statute.
The core of defendant's argument, on the other hand, is
that where the legislature enacts a comprehensive body of law
dealing with a particular subject (welfare), such law controls
to the exclusion of a more general statute in the Criminal
Code (deceptive practices) particularly where, as here, the
classification of the offense and the penalties on convic-
tion are inconsistent, incompatible and repugnant.
In our view, resolution of these opposing contentions
turns on legislative intent. Specifically, did the legislature
intend to make the welfare fraud statute (section 71-226) the
exclusive remedy for cases falling within its provisions or did
the legislature intend to provide an alternative remedy under
the Criminal Code (section 94-6-307(1)(a)) ?
It is conceded that there is no language in either
legislative act specifically expressing legislative intent on
this subject. We must therefore attempt to determine legislative
intent by resort to rules of statutory construction.
Defendant urges application of the rule that the specific
statute controls to the exclusion of the general, citing a number
of cases so holding in criminal prosecutions in other jurisdic-
94 ,
tions, principally State v. Becker, 39 Wash.2d/234 P.2d 897 (old
age assistance fraud); People v. Silk, 138 C.A.2d 899, 291 P.2d
1013 (welfare fraud); People v. Gilbert, 82 Cal.Rptr. 724, 462 P.2d
580 (ADC fraud). Cases to the contrary can be cited with equal
effect: State v. Dumont, 3 0r.App. 189, 471 P.2d 847 (unlawful
use of a credit card); People v. Licauor, 23 Misc.2d 75, 200
N.Y.S.2d 582 (unemployment insurance fraud); State v. Drake, 79
N.J.Super. 458, 191 A.2d 802 (unemployment compensation fraud);
People v. Gulisano, 57 Misc.2d 243, 292 N.Y.S.2d 545 (labor bene-
fits fraud). None of these cases are particularly persuasive
concerning whether the rule should be applied in Montana under
the circumstances of the instant case due to differences in the
statutes involved, legislative history of the enactments, related
statutes, and comprehensiveness of the subject matter.
As additional support for the rule that the specific
statute controls to the exclusion of a more general statute,
defendant cites Montana civil cases so holding, principally
McAlear v. Unemployment Compensation Commission, 145 Mont. 458,
405 P.2d 219; Martel Construction v. Gleason Equipment, Inc.,
166 Mont. 479, 534 P.2d 883; Fickes v. Missoula County, 155 Mont.
258, 470 P.2d 287; and Monarch Lbr. Co. v. Haggerd, 139 14ont.
103, 360 P.2d 794. As there is a specific statute in the
Civil . Code that when a general and a particular provision of
a statute are inconsistent, the latter is controlling (section 93-
401-16, R.C.M. 1947) the decision in these civil cases is under-
standable. However, these civil cases are not controlling for
reasons hereafter noted.
This Court has previously declined to apply this rule
of statutory construction to criminal prosecutions where defen-
dant's conduct violated both misdemeanor and felony statutes.
State v. Lagerquist, 152 Mont. 21, 30, 31, 445 P.2d 910; State
v. Evans, 153 Mont. 303, 306, 456 P.2d 842. Lagerquist and Evans
impliedly, although not expressly, overruled the earlier case of
State v. Holt, 121 Mont. 459, 194 P.2d 651, holding that where
the penalty provisions of a later misdemeanor statute were in-
consistent and irreconcilable with an earlier felony statute,
the prior felony statute was repealed by implication. For clarif-
ication, we now expressly overrule this holding in - on the
Holt
authority of Lagerquist and Evans.
Defendant points out and we recognize that Laqerquist
and Evans are not identical to the instant case in that they do
not involve a comprehensive body of law on a particular subject
vis-a-vis a more general criminal statute. Nonetheless we find
them similar and persuasive as this distinction does not compel
a different result for reasons discussed later in this opinion.
In Lagerquist the criminal conduct was falsifying weight
slips on hay sold to defendant. Three statutes were applicable:
(1) a misdemeanor statute prohibiting misrepresentation in the
quantity or weight of a commodity sold (section 90-620, R.C.M.
1947); (2) a misdemeanor statute requiring the seller to give
the purchaser full weight on all sales of hay and other commodi-
ties usually sold by the ton (section 94-1904, R.C.M. 1947); and
(3) a felony statute covering obtaining money or property by
false pretenses (section 94-1805, R.C.M. 1947). As in any case
involving felony and misdemeanor statutes, the penalty under the
misdemeanor statutes was inconsistent and irreconcilable with the
more severe penalty under the felony statute. In affirming the
conviction of the defendant under the felony statute, this Court
held there was no conflict between the felony and misdemeanor
statutes as they set forth separate and distinct crimes.
Lagerquist expressed its rationale and the applicable
rule of statutory construction in this language:
"The appellant argues that because his acts
violated more than one criminal statute the more
specific statute controls. This argument is
premised upon the contention that the misdemeanor
and felony statutes are in conflict. We find
this contention erroneous in view of previous
rulings. The statutes set forth separate and
distinct crimes. This Court in State v. Marchindo
[citation omitted] quoted from a Massachusetts
case holding: 'A single act may be an offense
against two statutes; and if each statute requires
proof of an additional fact which the other does
not, an acquittal or conviction under either
statute does not exempt the defendant from prose-
cution and punishment under the other.'
"Here the charge [under the felony statute] * * *
required numerous facts not required under either
of the misdemeanor statutes necessitating different
proof. The fact that the legislature provides a
course of action by more than one statute allows
the state to choose either applicable law, and
where different proof is required for each offense,
a single act or transaction may violate more than
one criminal statute. This problem was answered
by the Supreme Court of New Jersey in State v. Fary
[citation omitted]. There in a similar fact
situation, the court said: 'By leaving both
statutes on the books * * * the Legislature
clearly intended that the two offenses should
remain, one as an indictable crime and the
other as a disorderly persons offense. * * *
The fact that there is an area in which two
statutes overlap and prohibit the same act, as
in this case, does not mean that the defendant
can only be prosecuted under the statute provid-
ing for the lesser penalty.'
"It is a cardinal principle of construction that
repeals by implication are not favored. When there
are two acts upon the same subject, the rule is
to give effect to both if possible. The intention
of the legislature to repeal must be clear and
manifest. Reading the statutes in question here
we find no such intention on the part of the
legislature." State v. Lagerquist, 152 at 30,31.
Evans reached the same result in a felony prosecution
under the same statute where defendant cashed checks with improper
signatures as against the contention that defendant could only be
prosecuted for the misdemeanor of uttering fraudulent checks be-
low a specified amount. After quoting from Lagerquist, we stated:
"This Court has no intention of changing the
position stated in the above cited case." State v.
Evans, 153 at 306.
Here, although there is an overlap in the two statutes,
they set forth separate and distinct crimes. The gist of the
felony statute is causing execution of pecuniary documents by
deception, while the thrust of the misdemeanor statute is receiving
welfare assistance by willfully false statements. The alleged
criminal conduct violates both statutes, but different proof is
required under each. The misdemeanor statute requires proof of
receipt of public assistance or an attempt therefor, while the
felony statute does not; conversely the felony statute requires
proof of execution of a document while the misdemeanor statute
does not. Thus the two statutes cover separate and distinct crimes.
Under such circumstances Lagerquist and Evans permit the state to
prosecute under either applicable statute absent a clear and
manifest legislative intent to the contrary.
Defendant urges us to find such clear and manifest in-
tention on the part of the legislature in the different classi-
fications of the two crimes and the lesser range of penalties for
welfare fraud in the misdemeanor statute. We find no such legis-
lative intent here for the reasons expressed in Lagerquist and
Evans.
Finally defendant contends that the comprehensive nature
of the Welfare Code indicates a legislative intent to preempt
therein the entire field of welfare fraud to the exclusion of
applicable statutes found in the Criminal Code, thus distinguish-
ing Lagerquist and Evans. We are not persuaded by this argument.
We note that the misdemeanor statute in question covers only one
species of welfare fraud, viz., receiving public assistance by
willfully false statements. Other kinds of welfare fraud are
not encompassed by the Welfare Code, for example, embezzlement of
welfare funds or forgery of welfare warrants. Did the legis-
lature intend to allow these crimes to go unpunished by pre-
empting the entire field of criminal prosecution in welfare mat-
ters to the exclusion of applicable statutes in the Criminal
Code? We perceive no rational basis for finding such legislative
intent to preempt by enactment of the Welfare Code.
For the foregoing reasons we hold that the misdemeanor
statute and felony statute are to be construed in pari materia
giving effect to both. We decline to give sole effect to the
misdemeanor statute to the exclusion of the felony statute for
reasons heretofore expressed.
We have considered the peripheral arguments advanced by
defendant in support of his contentions. We find them without
merit and unnecessary to discuss in detail in this opinion as
they would neither change the rationale nor the result in this
case.
The order dismissing the felony charge is reversed and
the case remanded to the district court for further proceed-
ings.
Justice
Chief Justice Paul G. Hatfield, deeming himself disqualified,
did not participate in this decision.