No. 13788 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

THE STATE OF MONTANA, 

Plaintiff and Appellant, 

MARVIN MOORE, 

Defendant and Respondent. 

Appeal from: District Court of the Eighth Judicial District, 

Honorable Joel G. Roth, Judge presiding. 

Counsel of Record: 

For Appellant: 

Mike Greely, Attorney General, Helena, Montana 

James Tillotson, Assistant Attorney General, 

argued, Helena, Montana 

J. Fred Bourdeau, County Attorney, Great Falls, 

Montana 

Carroll Blend, Deputy County Attorney, argued, 

Great Falls, Montana 

For Respondent: 

Howard F. Strause argued, Great Falls, Montana 

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Submitted: September 12, 1977 

~ecided: DtT 1 $j 5977 

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Filed: - 

t;jr?' : ' =;v 

V 1 

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 Administration benefits when in fact he was; that as a result of defendant's statements Cascade County issued welfare warrants for defendant'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, committed in Cascade County on July 2, 1975 in that defendant did 

"purposely and knowingly cause the County of Cascade, by deception 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 violation 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 subject 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 Wfare -.. 

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 punishable by a maximum sentence of 10 years in prison. 

"71-226. Fraudulent acts. Whoever knowingly 

obtains * * * by means of willfully false statements 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 conviction 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 jurisdic94 , 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 benefits 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 understandable. 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 defendant'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 inconsistent and irreconcilable with an earlier felony statute, 

the prior felony statute was repealed by implication. For clarification, we now expressly overrule this holding in - Holt on the 

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 commodities 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 prosecution 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 providing 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 below 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 intention on the part of the legislature in the different classifications of the two crimes and the lesser range of penalties for 

welfare fraud in the misdemeanor statute. We find no such legislative 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 distinguishing 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 legislature intend to allow these crimes to go unpunished by preempting the entire field of criminal prosecution in welfare matters 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 proceedings. 

Justice 

Chief Justice Paul G. Hatfield, deeming himself disqualified, 

did not participate in this decision.