No. 84-537
I N T E SUPREME COURT O THE STATE O M N A A
H F F OTN
1985
STATE O MONTANA,
F
P l a i n t i f f and A p p e l l a n t ,
PAT W Y E AUSTIN, and
AN
W Y E R. CROSS,
AN
D e f e n d a n t s and R e s p o n d e n t s .
APPEAL FROM: D i s t r i c t Court of t h e Twelfth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f H i l l ,
The H o n o r a b l e Chan E t t i e n , J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
Hon. 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
Ronald W. S m i t h , County A t t o r n e y , Havre, Montana
Ed C o r r i g a n a r g u e d , Deputy County A t t o r n e y , Havre
For Respondents:
M o r r i s o n , B a r r o n & Young; R o b e r t D. Morrison argued,
Havre, Montana
Submitted: J u n e 1 7 , 1985
Decided: August 5 , 1985
Filed: fiu s 5 ." 2985
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
The State appeals an order entered in the Twelfth
Judicial District, Hill County, dismissing the charges
against defendants for violating 5 87-3-122, MCA, fish and
wildlife regulation making illegal spotlighting from a motor-
ized vehicle while in possession of weapons. We affirm the
order dismissing the charges, but for reasons different from
those given by the court below.
On November 3, 1983, at 6:25 p.m., Officer Gary Benson
of the Department of Fish, Wildlife and Parks issued com-
plaints with notices to appear in Justice Court to Pat Wayne
Austin and Wayne R. Cross. The compl-aints charged violations
of 5 87-3-122, MCA, "[printed form] in that defendant did
knowingly, purposely or negligently [handwritten part] shine
spotlight with weapons in vehicle." The complaint in sepa-
rate portion from the charge noted receipt of a Ruger .270, a
.22 rifle, and a spotlight, but the receipt was not signed or
acknowledged by the parties. Defendants decided not to
contest the matter in Justice Court in order to make an
immediate appeal to District Court where they filed a motion
to dismiss the charges.
The District Court, in granting the motion to dismiss,
concluded that S 87-3-122, MCA, was invalid for failure to
require a criminal mental state without meeting the require-
ments of an absolute liability offense. Furthermore, the
court found the statute void on its face for vagueness and
overbreadth for failure to clarify the meaning of the term
"other implement."
The State raises the following issue on appeal:
Is § 87-3-122, MCA, unconstitutionally vague and
overbroad in failing to expressly require a culpable mental
state and failing to define "other implement" whereby wild.-
life or domestic animal could be killed by aid of artificial
light?
To the above issue, respondent also asks: Does the
statute fail to indicate a legislative purpose to impose
absolute liability for the conduct described?
The text of the statute follows:
"87-3-1 22. Spotlighting unlawful. (1)
It is unlawful for any person or one or
more of a group of persons together to
throw or cast the rays of a spotlight
having a luminance of greater than .75
candlepower attached to or cast from a
motorized vehicle into any field, pas-
ture, woodland, forest or prairie where-
in wildlife or domestic 1-ivestockmay be
or may be reasonably expected to be
while having in his possession or their
possession or under control a firearm or
other implement whereby any wildlife or
domestic animal could be killed by aid
of an artificial light.
" (2) (a) All officers authorized to
enforce the game and livestock laws of
the state of Montana and all landowners,
lessees, or their agents, while on their
own lands in connection with their
legitimate activities, and employees of
such landowners, lessees, and agents are
exempt from the provisions of this
section.
" (b) The provisions of this section do
not apply where the headlights of a
motor vehicle, operating and proceeding
in a normal manner on any highway or
roadway, cast a light upon such animal
on or adjacent to the highway or roadway
and there is no intent or attempt to
locate that animal.
" (3) A person convicted of violating
subsection (1) of this section shall be
fined not to exceed $500 or be impris-
oned in the county jail for any term not
to exceed 6 months, or both."
The State contends that this statute gives adequate
notice to ordinary persons of the conduct prohibited, i.e.,
the use of a spotlight with the intent to locate or hunt
domestic animals or wildlife while having in possession a
firearm or other implement capable of killing an animal.
Conceding that a mental state is required, the State asks
this Court to imply the culpable mental state in order to
further the legislative intent to prohibit hunting with a
spotlight.
This Court will not imply a mental state which would
arbitrarily make some persons guilty of an offense, while
excepting others committing the offense. To ascertain legis-
lative intent, we look first to the language employed and the
apparent purpose subserved. Shannon v. Keller (1980), 188
Mont. 224, 612 P.2d 1293. The language of 5 87-3-122 clearly
makes it an offense to shine a spotlight on a field where
wild or domestic animals may be found. while in possession of
a weapon of some kind capable of killing. The statute ex-
cepts landowners, lessees, or agents, thus allowing an arbi-
trary application of the statute and leading to
discriminatory enforcement. From the plain meaning of the
statute, we will go no further to find other means of inter-
pretation. State ex rel. Sol v. Bakker (~ont.1982), 649
P.2d 456, 39 St.Rep. 1471.
Although the meaning of the statute is plain, the
legislative purpose is not clear. "Our duty in interpreting
a statute is to give effect to the objects of the statute, to
construe it so as to promote justice, and to give such con-
struction to the statute as will preserve the constitutional
rights of the parties." Mackin v. State (Mont. 1980), 621
P.2d 477, 481, 37 St.Rep. 1998, 2002, citing Yurkovich v.
Industrial Accident Board (1957), 132 Mont. 77, 314 P.2d 866.
The object of the statute appears to be to create an absolute
liability offense of spotlighting with weapons in vehicle
with exceptions which deny equal protection and fail to
promote justice.
Under an absolute liability offense, a person may be
found guilty without having any of the mental states of
knowingly, purposely or negligently, provided that the fine
not exceed $500 and the statute indicate a legislative pur-
pose to impose absolute liability for the conduct. Section
45-2-104, MCA. Section 87-3-122, MCA, however, exceeds
absolute liability penalties in providing a misdemeanor
penalty of a possible fine of $500 and jail term of six
months. Thus, it defines a misdemeanor offense. Upon con-
viction a violator shall be punished as provided by law for
misdemeanor offenses. Sections 87-3-505 and 87-1-102, NCA.
We find the statute unworkable to hold the defendants
liable for the conduct charged. We have another statute
defining a misdemeanor offense which correctly prohibits the
alleged conduct and. provides the missing intent to hunt or
locate animals with the aid. of an artificial-light.
"General restrictions. - - unlawful
It is
for anyone to take, capture, shoot,
- to
kill, - a t F e m p t t o - capture,
or attempt - take,
to
shoot, - -
or kill any game animal or game
- - any self-propelled or-drawn
bird from anv self-propelled
- - 4
vehicle or on or from any public-highway
fro; a) publichighway
n
in the state of Montana or & - - -or
Q the aid
with the - of any set gun, jacklight
- - - use
- other artificial light, trap, snare,
or
or salt lick; nor may any such set gun,
jacklight or other artificial light,
trap, snare, salt lick, or other device
to entrap or entice game animals or game
birds be used, made or set." Section
87-3-101, MCA. (Emphasis added.)
The penalty provision for the same part provides for a
misdemea.nor offense:
"Penalty. Any person violating any - of
provisions - -
-
-
of this part shall be
a misdemeanor and upon convic-
1 be punished as pro-
vided by law." section 87-3-505, MCA.
(Emphasis added. )
Furthermore, any violation under Title 87, Fish and Wildlife,
is a misdemeanor offense punishable as such unless otherwise
expressly provided by law.
"Penalties. (1) A person violating any
~rovisionof this title. anv other state
law pertaininq - - - and game, - -
to fish or the
orders or rules - - .commission -
- .
of the _ _
or
de~artment is. unless a different Dun-
iskment is expressly provided by lawAfor
the violation, g~iity - - misdemeanor
of a
and shall be fined not less than $50 or
more than $500, imprisoned in the county
jail for not more than 6 months, or
both. In addition, the person shall be
subject to forfeiture of his license and
privilege to hunt, fish, or trap within
this state for a period of not less than
24 months from the date of conviction."
Section 87-1-102, MCA. (Emphasis added.)
Thus, we have an appropriate statute and clear legislative
purpose to create a misdemeanor, not a strict 1iabi.lity
offense.
The reason that 5 87-3-122, MCA, fails is inherent in
the statute. While S 87-3-101, MCA, on unlawful conduct for
hunters has remained relatively unchanged since enacted in
1921, $ 87-3-122, MCA, has undergone a myriad of changes.
From 1921 to 1975, § 87-3-122, MCA, was a convenient
catch-all provision for exceptions to and exemptions from
existing hunting and fishing provisions. Until amended in
1975 its purpose was not to delineate any offenses but rather
to enumerate current nonoffenses at each time of enactment,
as well as conditions upon exceptions or exemptions to enact-
ed offenses.
Following an amendment in 1975, $3 87-3-122, MCA, became
an offense statute with a penalty provided. Perhaps the
legislature considered this statute an appropriate locus for
"spotlighting" since one of its past exemptions permitted
hunting of predatory animals, pest birds, and some other
animals, including jackrabbits at anytime (without a
license), but made it illegal to hunt jackrabbits on private
land with artificial light without first obtaining written
permission of the landowner or agent. Section 26-215, RCM
(1947).
Until amended in 1975, no enactment mentioned domestic
animals; the statute covered only those fish, game, birds,
predatory animals and later predatory mammals under the
protection or authority of the department of fish and wild-
life. Under 5 87-1-201, MCA, the department has the power
and duty to "supervise all the wildlife, fish, game and
nongame birds, waterfowl, and the game and fur-bearing ani-
mals of the state" and to enforce all the laws of the state
related to preserving, protecting and propagating these game
animals, fish and birds.
In mentioning domestic livestock the legislative pur-
pose of 5 87-3-122, MCA, ceases to be solely the prohibition
of hunting game animals with a spotlight. Unless the classi-
fication touches on a fundamental right or is drawn upon an
inherently suspect distinction, the requirement for scrutiny
is that the statute be rationally related to a legitimate
state interest. Small v. McRae (Mont. 1982), 651 P.2d 982,
996, 39 St.Rep. 1896, 1913. Here, 5 87-3-122, MCA, is not
rationally related to the State interest involved, i.e., the
protection of its wildlife. This statute opens the door to
arbitrary exceptions for those exempted, i.e., land.owners,
lessees or their agents, who, while engaged in other legiti-
mate activities related to their domestic animals or real
property, may claim a defense to an actual violation of the
offense in § 87-3-122, MCA.
This Court will affirm the order dismissing the charg-
es. A statute conceived originally for exemptions and excep-
tions to other offenses under the fish and game title is a
nullity as reenacted in 1975 as an offense provision prohib-
iting "spotlighting" in general while allowing exceptions
which would permit arbitrary and irrational enforcement by
law enforcement officers.
We hold that S 87-3-122, MCA, as enacted is inadequate
to serve the legislative purpose of prohibiting the use of
artificial light ("spotlighting") with the intent to hunt for
animals.
Affirmed.
Chief Justice
We concur: