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, ; 

i i 

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 

1 
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 ORDERED that: 

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