No. 84-537 INTHE 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: DistrictCourt of the Twelfth Judicial District, In and forthe 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: 

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## 2985Mr. 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 regulationmaking illegal spotlighting froma motorized vehicle while in possession of weapons. We affirm the order dismissing the charges,but for reasons different from those givenby the courtbelow. 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 PatWayne Austin and Wayne R. Cross. The compl-aintschargedviolations of 5 87-3-122, MCA, "[printed form] in that defendant did knowingly,purposely or negligently [handwrittenpart] shine spotlight with weapons in vehicle." The complaint in separate portion from the chargenoted receipt of a Ruger .270,a .22 rifle,and a spotlight,but the receiptwasnot signed or acknowledged by the parties. Defendants decided not to contest the matter in Justice Court in order to make an immediate appeal to DistrictCourt 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 "otherimplement." The Stateraises the following issue on appeal: Is § 87-3-122, MCA, unconstitutionally vague and overbroad in failing to expressly require a culpable mentalstate 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: "87-3-122. 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, forestorprairie whereinwildlife or domestic 1-ivestockmay be or may be reasonably expected to be while having in his possession or their possession orunder control a firearmor other implementwhereby 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 theiragents,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 onor 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 forany termnot to exceed 6months,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 afirearm 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 languageemployed and the apparent purpose subserved. Shannon v. Keller (1980), 188 Mont. 224, 612P.2d 1293. The languageof 5 87-3-122 clearly makes it an offense to shine a spotlight on a field where wild or domestic animalsmay 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,wewill 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 legislativepurpose is not clear. "Ourduty in interpreting

a statute is togive effect to the objects of the statute,to construe it so as to promote justice, and to give such construction to the statute aswill 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 AccidentBoard (1957),132Mont. 77, 314 P.2d 866. The object of the statuteappears tobe 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 legislativepurpose 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 correctlyprohibits 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 anypublic-highway in the state ofMontana 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. (Emphasisadded.) "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 

## -- bird from anv self -propelled or-drawn --4 vehicle or on or fro; an) publichighway in the state ofMontana or Q

### --- the aid or with 

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

The penalty provision for the same part provides for a misdemea.noroffense: "Penalty. Any person violating 

### any 

### - of

--provisions 

### -- of this part shall be amisdemeanor and upon convic1 be punished as provided by law." section 87-3-505,MCA.

(Emphasisadded.)Furthermore,any violation underTitle 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 lawpertaininq to fish and game, or the 

## --- -- orders or rules of the commission or

-. 

### - 

## -

. __ 

### - de~artmentis. unless a different Duniskment is expresslyprovided by lawAfor 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 shallbe subject to forfeitureofhis licenseand privilege to hunt, fish, or trap within this state for aperiod of not less than 24 months from the date of conviction." Section 87-1-102,MCA. (Emphasisadded.) 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 itspurposewas not to delineateany offensesbut rather to enumerate current nonoffenses at each time of enactment,

aswell as conditions upon exceptions or exemptions toenacted 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 alicense), 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 enactmentmentioned 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 animalswith 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 orderdismissing the charges. A statuteconceived originally for exemptionsand exceptions to other offenses under the fish and game title is anullity as reenacted in 1975 as an offense provision prohibiting "spotlighting" in general while allowing exceptions which would permit arbitrary and irrational enforcement by law enforcementofficers. 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: