                        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,                                                                                                                           ii
                                                                                            ;
                       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

                                                                        3
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 ORDEREDthat:
        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.




                                                                             6
                                    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
