No. 13262 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1976 

JOHN S. FORSYTHE, 

Petitioner and Respondent, 

ALICE WEhWOLZ , Justice of the Peace 

in Department #1, In and For the County 

of Rosebud, 

Respondent and Appellant. 

Appeal from: District Court of the Sixteenth Judicial District, 

Honorable A. B. Martin, Judge presiding. 

Counsel of Record: 

For Appellant : 

William F. Meisburger argued, Forsyth, Montana 

For Respondent : 

John S. Forsythe argued, Forsyth, Montana 

Submitted: September 8, 1976 

Decided: OCT -5 1976 

3% 1jG i; -5 \Jr0 

Filed : 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

This is an appeal by Alice Wenholz, Justice of the Peace 

in Department No. 1, in and for the County of Rosebud, from 

an order of the district court requiring her to reinstate a 

judgment and penalty previously imposed in a criminal misdemeanor 

case. 

The case arises from an action brought in the justice 

court entitled "State of Montana v. Stanley Brian Johnson". 

Mr. Johnson was found guilty of driving while intoxicated by 

jury verdict in the justice court, Department No. 1, County 

of Rosebud. After trial, Johnson filed a motion for a new 

trial, pursuant to section 95-2101, R.C.M. 1947. The justice 

of the peace, appellant here, took the motion under advisement, 

ruled in favor of Johnson and dismissed the charge against 

him. The dismissal was granted under the authority of section 

95-2101(c) (3), which states: 

"(c) Alternative Authority of the Court on Hearing 

Motion for New Trial. On hearing the motion for a new 

trial, if justified by the law and the weight of the 

evidence, the court may: 

"3. Modify or change the verdict or finding by finding 

the defendant guilty of a lesser degree of the crime 

charged, finding the defendant guilty of a lesser included 

crime or finding the defendant not guilty." 

Thereafter, Rosebud County Attorney John S. Forsythe, 

respondent here, filed a "Petition for Writ of Mandate and Writ 

of Supervisory Control" in the district court, seeking, inter alia, 

reinstatement of the justice court jury's guilty verdict in the 

case of State v. Stanley Brian Johnson. Forsythe alleged the 
defendant Johnson's exclusive remedy for alleged errors 

in the justice court trial was an appeal for a trial de novo 

in the district court pursuant to the terms of section 95-2009, 

R.C.M. 1947. 

The district court limited its review to the question 

of whether section 95-2101 applies to justice of the peace 

courts, and ruled that it does not. On January 5, 1976, the 

judgment and penalty of the justice court in the case of State 

v. Stanley Brian Johnson were ordered reinstated. Wenholz 

appeals. 

The issue on appeal is whether a justice of the peace 

court has the jurisdiction to dismiss an action under the 

new trial provisions of section 95-2101, R.C.M. 1947. 

Appellant advances two principal arguments to sustain her 

position: (1) that the word "court" in section 95-2101 includes 

justice of the peace courts; and (2), that if a section 95-2009, 

R.C.M. 1947, appeal is the exclusive remedy for a new trial in 

justice of the peace courts, then a serious inequity to justice 

court defendants arises. 

Section 95-2101 refers four times to the "court". Nothing 

on the face of the statute indicates which courts are within 

its scope. In the Code of Criminal Procedure, Title 95, R.C.M. 

1947, "court" is defined as "a place where justice is judicially 

administered and includes a judge thereof ." Section 95-205. 

A "judge" is defined as "a person who is invested by law with 

the power to perform judicial functions and includes court, 

justice of the peace or police magistrate when a particular context 

so requires." Section 95-206. (Emphasis supplied.) With 

respect to appellant's first argument, the task is to determine 
whether the particular context of section 95-2101 requires 

that "court" be read to include justices of the peace. 

Initially, we note this Court in State v. Bush, 164 Mont. 81, 

518 P.2d 1406, stated: 

"* * * since the code [of criminal procedure] was 

adopted as one comprehensive piece of legislation 

it should be considered in its entirety to determine 

the effect of any one section." 

The district court was correct in excluding justices 

of the peace from the purview of section 95-2101 because the 

particular context of that section in Montana's Code of 

Criminal Procedure clearly requires a different meaning than 

that propounded by the appellant. Section 95-201, R.C.M. 1947. 

Chapter 20, Title.95, R.C.M. 1947 "Justice and Police Court 

Proceedings", was accompanied by a Criminal Law Commission 

Comment which states in part: 

"This Chapter includes only those sections which 

are peculiar or apply exclusively to justice and 

police courts. * * *I1 

In Chapter 20, the only post-trial relief afforded is an 

appeal to the district court for a trial de novo. Section 

95-2009, R.C.M. 1947. 

It would be anomalous to expressly provide for a trial 

anew in the district court under section 95-2009 and at the 

same time infer the right to a trial anew in the justice court 

under section 95-2101. This inconsistency is demonstrated by 

the fact that under section 95-2009(b) the defendant is given 

ten days to file notice of appeal, while under section 95-2101 

(b) (2) the defendant is given thirty days to file a motion for 

a new trial. Surely a defendant in justice court could not 

allow his appeal time to lapse and still be afforded the remedy 

of a new trial in the same court. 
In City of Billings v. Smith, 158 Mont. 197, 212, 490 P. 

2d 221, this Court stated: 

"Where statutes relate to the same general subject 

they should be so construed together, where there is 

no inconsistency between them, so as to give effect 

to both where possible. * * * All acts relating to the 

same subject, or having the same general purpose as the 

statute being construed, should be read in connection 

with such statute. * * * Statutes passed at the same 

time, and relating to the same general subject are to 

be construed together and both given effect if possible. * * **'I 

Under these principles of statutory construction, we decline 

to construe section 95-2101 in the manner urged by appellant. 

The district court properly held that section 95-2009 is 

a justice court defendant's exclusive remedy for a new trial. 

Appellant's second attack is that the exclusive remedy 

of appeal pursuant to section 95-2101 is inequitable to justice 

court defendants. In particular, it is alleged that there was 

extensive prosecutorial misconduct in the justice court trial 

and defendant Johnson should not be compelled to bear the 

expense of a trial de novo in district court to correct the 

errors of the prosecution. It is further alleged that denial 

of defendant's access to the new trial procedure of section 

95-2101 is a denial of equal justice to justice court defendants 

vis-a-vis district court defendants. No authority is cited 

for these propositions, and we reject them. 

Any defendant convicted in justice court has the full benefit 

of a new trial in district court. Compare: Bailey v. State, 

163 Mont. 380, 383, 517 P.2d 708, where the appeal procedure of 

section 95-2009, R.C.M. 1947, was described as "a plain, speedy 

and adequate remedy at law." Appellant's arguments regarding 

additional costs and personal involvement in a district court 

trial de novo are not persuasive. 
The order of the district court of January 5, 1976, is 

a£ firmed. 

We concur: /' , 

i \ 

/ ef Justice.