No. 84-537 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

STATE OF MONTANA, 

Plaintiff and Appellant, 

PAT WAYNE AUSTIN, and 

WAYNE R. CROSS, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Twelfth Judicial District, 

In and for the County of Hill, 

The Honorable Chan Ettien, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Ronald W. Smith, County Attorney, Havre, Montana 

Ed Corrigan argued, Deputy County Attorney, Havre 

For Respondents: 

Morrison, Barron & Young; Robert D. Morrison argued, 

Havre, Montana 

Submitted: June 17, 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 motorized 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 complaints 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 separate 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 requirements 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, pasture, woodland, forest or prairie wherein wildlife or domestic 1-ivestock may 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 imprisoned 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 legislative 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 excepts landowners, lessees, or agents, thus allowing an arbitrary 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 interpretation. 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 construction 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 purpose 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 conviction 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. -- It is unlawful 

for anyone to take, capture, shoot, 

kill, - or atFemptto - - take, capture, 

shoot, -- or kill any game animal or game 

-- bird from any self-propelled or-drawn 

vehicle or on or from any public-highway 

in the state of Montana or & --- the aid or 

with the use of ---- any set gun, jacklight 

- or other artificial light, trap, snare, 

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.) 

"General restrictions. -- It is unlawful 

- for anyone to take, capture, shoot, 

kill, - or attempt - to - take, capture, 

shoot, -- or kill any game animal or game 

--4 

bird from anv self -propelled or-drawn 

vehicle or on or fro; an) publichighway 

in the state of Montana or Q --- the aid or 

with ---- the use of any set gun, jacklight 

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 convic1 be punished as provided 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 

~rovision of this title. anv other state 

law pertaininq --- to fish and game, or -- the 

orders or rules of the commission or -. - - . __ - 

de~artment is. unless a different Duniskment is expressly provided by lawA for 

the violation, g~iity - of - a misdemeanor 

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 enacted 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 wildlife. 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 animals 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 purpose of 5 87-3-122, MCA, ceases to be solely the prohibition 

of hunting game animals with a spotlight. Unless the classification 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 legitimate 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 charges. A statute conceived originally for exemptions and exceptions to other offenses under the fish and game title is a 
nullity as reenacted in 1975 as an offense provision prohibiting "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: