No. 13788 INTHE SUPREME COURT OF THE STATE OF MONTANA 1977

THE STATE OF MONTANA, Plaintiff and Appellant,

MARVIN MOORE, Defendant and Respondent.

Appeal from: DistrictCourt 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, GreatFalls,

Montana Carroll Blend, Deputy County Attorney, argued,

GreatFalls, Montana

For Respondent: Howard F. Strause argued, Great Falls, Montana

-- - Submitted: September 12, 1977 ~ecided: 

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### 1 ClerkMr. Justice Frank I. Haswell delivered the Opinion of the Court.

The question in this case iswhether 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 themisdemeanor charge ofwelfare fraud. The district court dismissed the felony charge. We reverse. The substanceof 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 facthe was; that as a result of defendant's statements Cascade County issuedwelfare 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

"purposelyand knowingly cause the County of Cascade, by deception to execute documentsby which pecuniary obligationswere incurred,namely warrants for rent and groceries. The value of the obligations incurredwas in excess of $150.00, in violation of Section 94-6-307(1)(a), R.C.M. 1947 as amended." Defendantmoved to dismiss the informationon 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 orwhether prosecution is limited to the misdemeanor charge ofwelfare fraud under our Wfare

# -.. The two statutes involved provide in pertinentpart:"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

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"(2)A person convictedof 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

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## * * * exceeds one hundred fifty dollars ($150)then the offender shall be imprisoned in the stateprison 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 felonywhere the amount of property obtained or attempted to be obtained exceeds $150; and is punishable by a maximum sentence of 10years inprison. "71-226. Fraudulent acts. Whoever knowingly obtains

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## * * 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 shallbe 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 (Title71); is classified as amisdemeanor; and ispunishable by a fine of from $25 to $1,000 to which may be added a county jail sentence not exceeding 60days. 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 legislatureenacts a comprehensivebody of law dealing with a particular subject (welfare), such law controlsto the exclusion of a more general statute in the Criminal Code (deceptivepractices) particularlywhere, as here, the classificationof the offense and the penalties on conviction are inconsistent, incompatibleand repugnant. In our view, resolution of these opposing contentions turns on legislative intent. Specifically,did the legislature intend to make the welfare fraud statute (section71-226) the exclusive remedy for cases fallingwithin 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 isno language in either legislativeact specifically expressing legislative intent on this subject. We must therefore attempt to determine legislative intentby resort to rules of statutory construction. Defendant urges applicationof the rule that the specific statute controls to the exclusion of the general, citing a number of cases so holding in criminalprosecutions 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: Statev. 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 (unemploymentinsurance fraud); State v. Drake, 79 N.J.Super. 458, 191A.2d 802 (unemploymentcompensation 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 inMontana under the circumstancesof the instant case due to differences in the statutes involved, legislativehistory of the enactments, related statutes,and comprehensivenessof the subjectmatter.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. UnemploymentCompensation Commission, 145Mont. 458, 405 P.2d 219;Martel Constructionv. Gleason Equipment, Inc., 166Mont. 479, 534 P.2d 883;Fickes

### v. Missoula County, 155Mont. 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

reasonshereafter noted. This Court has previously declined to apply this rule of statutory construction to criminal prosecutions where defendant's conductviolated both misdemeanor and felony statutes. State v. Lagerquist, 152Mont. 21, 30, 31, 445 P.2d 910; State

v. Evans, 153Mont. 303, 306, 456 P.2d 842. Lagerquist and Evans impliedly, althoughnot expressly, overruled the earlier case of Statev. Holt, 121Mont. 459, 194 P.2d 651,holding that where the penalty provisions of a latermisdemeanor statutewere inconsistent and irreconcilable with an earlier felony statute, the prior felony statutewas 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 comprehensivebody of law on a particular subject vis-a-vis a more general criminal statute. Nonethelesswe 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 falsifyingweight slips on hay sold to defendant. Three statutes were applicable:



### (1)amisdemeanor statuteprohibiting misrepresentation in the quantity or weight of a commodity sold (section 90-620,R.C.M. 1947); (2) amisdemeanor statute requiring the seller to give the purchaser fullweight on all sales of hay and other commodities usually sold by the ton (section94-1904,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 irreconcilablewith the more severe penalty under the felony statute. In affirming the convictionof the defendant under the felony statute, this Court held there was no conflictbetween 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: "Theappellant argues that because his acts violated more than one criminal statute themore specific statute controls. This argument is premised upon the contention that themisdemeanor 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

[citationomitted] quoted from a Massachusetts case holding: 'A single actmay 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 fromprosecution and punishment under the other.' "Herethe charge [underthe felony statute] 

## * * * required numerous facts not required under either of themisdemeanor statutes necessitating different proof. The fact that the legislatureprovides 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 transactionmay violate more than one criminal statute. This problemwas answered by the Supreme Court of New Jersey in State 

### v. Fary

[citationomitted]. There in a similar factsituation, the court said: 'By leaving both statuteson the books 

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## * * 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 inwhich 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 cardinalprinciple 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 felonyprosecution under the same statute where defendant cashed checkswith improper signatures as against the contention that defendant could only be prosecuted for themisdemeanor of uttering fraudulent checks below a specified amount. After quoting from Lagerquist,we stated: "ThisCourt 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 separateand 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 assistanceby willfully false statements. The alleged criminal conduct violates both statutes,but different proof is required under each. Themisdemeanor statute requiresproof of receipt of public assistanceor an attempt therefor, while the felony statute does not; conversely the felony statute requires proof of execution of a document while themisdemeanor statute does not. Thus the two statutes cover separateand 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.Defendanturges us to find such clear and manifest intention on the part of the legislature in the different classificationsof the two crimes and the lesser range ofpenalties for welfare fraud in the misdemeanor statute. We find no such legislative intenthere for the reasons expressed in Lagerquist and Evans. Finally defendant contends that the comprehensive nature of the Welfare Code indicatesa legislative intent to preempt therein the entire field ofwelfare fraud to the exclusion of applicable statutes found in the Criminal Code, thus distinguishing Lagerquistand 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 assistanceby willfully false statements. Other kinds of welfare fraud are not encompassed by the Welfare Code, for example, embezzlementof welfare funds or forgery of welfarewarrants. Did the legislature intend to allow these crimes to go unpunished by preempting the entire field of criminal prosecution inwelfare matters to the exclusion of applicable statutes in the Criminal Code? We perceive no rational basis for finding such legislative intent to preempt by enactmentof the Welfare Code. For the foregoing reasonswe 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 theperipheral 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.