Matter of Williams

No. 85-228
I N THE SUPREME COURT O F THE STATE O F MONTANA
1985
I N THE MATTER O F ALBERT DEE WILLIAMS
f o r r e t u r n of P r o p e r t y .
APPEAL FROM: D i s t r i c t C o u r t of t h e E i g h t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of G a l l a t i n ,
T h e H o n o r a b l e T h o m a s O l s o n , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For Appellant:
A l b e r t D. Williams, pro se, B o z e m a n , Montana
F o r R.espondent :
W i l l i a m Schreiber, C i t y A t t o r n e y , Belgrade, Montana
S u b m i t t e d on B r i e f s : A u g . 15, 1 9 8 5
Decided: December 5, 1985
Filed: DEC - j 1985
Clerk . . ..
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Appellant, Albert D. Williams, appeals pro se from the
order of the District Court, Eighteenth Judicial District,
County of Gallatin denying his motion for summary judgment
and remanding the matter to the city court in Belgrade,
Montana, with instructions to return one Black and Decker
circular saw, Model 3051 to R. 3 Spomer.
. We affirm.
Williams is a pawnbroker and is the owner of a business
known as Al's Pawn Shop located in Bozeman, Montana. On June
26, 1984, Leland Ward sold a Rlack and Decker circular saw
and other items to Williams at his place of business for
$56.00. Ward had apparently stolen the saw from his
employer, R. J. Spomer. Thereafter, Spomer discovered the
saw in Al's Pawn Shop and proceeded to swear out an affidavit
before 0 W. Branson, city judge, Belgrade, Montana, that he
.
believed his stolen property was located at Al's Pawn Shop.
Pursuant to Spomer's affidavit, Judge Branson issued a search
warrant authorizing the seizure of the saw at Al's Pawn Shop.
On August 30, 1984, the saw was seized by authority of the
search warrant by a member of the Belgrade Police Department.
After the seizure of the saw a criminal misdemeanor
theft action was initiated against Ward and the saw was held
as evidence for Ward's prosecution.
On November 30, 1984, Williams filed an application for
the return of the seized property in the city court pursuant
to S 46-5-304, MCA, claimj-ng the saw should be returned to
him due to Spomer's failure to post bond within 48 hours of
the seizure as required by S 5 31-1-405 and 31-1-406, MCA.
Pursuant to 46-5-304, MCA, Judge Branson gave notice of
William's application t o Spomer as a person who may have an
.
interest in the property.
A hearing was held on February 11, 1985, on William's
application for return of the saw. Both Spomer and Williams
appeared pro se. After hearing the parties' evidence, the
city court determined that Spomer was the true owner of the
saw and ordered the saw be returned to him. From this
judgment Williams appealed to the District Court wherein he
filed a motion for summary judgment. Williams' motion for
summary judgment a.gain claimed that the pa.wnbroker statutes
controlled the disposition of the seized property in this
case and that he was entitled to summary judgment and the
return of the saw due to Spomer's failure to file a bond
within 48 hours as required hy S 31-1-405, MCA. In its order
denying Willi.aml motion for summary judgment, the District
s
Court determined that the pawnbroker statutes upon which
William's relied are not applicable when property is seized
and held as evidence for a criminal prosecution. Rather, the
District Court determined that S 46-5-304, MCA, which the
city judge applied, was the controlling statute governing the
return of seized property held for a criminal prosecution.
Williams appeals from the order of the District Court.
Williams raises seven issues on appeal which can be
consolida.ted into one issue of statutory construction.
Whether the civil pawnbroker statutes, S 31-1-401, et seq.
MCA, or the criminal procedure, return of property statute, 5
46-5-304, MCA, applies to this matter.
The pertinent portions of the pawnbroker statutes
provide:
Whenever any person makes oath before a magistrate
that any property belonging to him has been taken
by theft or otherwise without his consent and that
he has reason to believe or suspect and does
suspect that such property ha.s been pledged with
any pawnbroker or junk dealer, such magistrate, if
satisfied, must issue his warrant to sea.rch for the
property so taken and, if found, to seize and bring
the same before him.
Section 31-1.-403, MCA; and
Upon any property seized by virtue of such warrant
being brought before the magistrate who issued the
same, he must cause such property to be delivered
to the person so claiming to be the owner thereof,
on whose application the warrant was issued, on his
executing a bond as hereinafter directed; and if
such bond be not executed within 48 hours, the
magistrate must cause the property to be delivered
to the person from whose possession it was taken.
Section 31-1-405, MCA.
The criminal. procedure return of property statute
provides :
(1) Any person claiming the right to possession of
property seized as evidence may apply to the judge
to whom it has been delivered for its return. The
judge shall give such notice as he deems adequate
to the county attorney and all persons who have or
may have an interest in the property and shall hold
a hearing to hear all claims to its true ownership.
(2) If the right to possession is proved to the
judge's satisfaction, he shall order the property
other than contraband returned if:
(a) the property is not needed as evidence or, if
needed, satisfactory arrangements can be made for
its return for subsequent use as evidence; or
(b) all proceedings in which it might be required
have been completed.
Section 46-5-304, MCA.
The above statutes being in conflict in this case, it is
William's contention that the pawnbroker statutes are the
particular and specific provisions governing this case and
therefore they should be considered as paramount to the
general return of property statute. In support of his
contention, Williams cites this Court to S 1-2-102, MCA,
which provides:
In the construction of a statute, the intention of
the legislature is to be pursued if possible.
When a general and particular provision a-re
inconsistent, the latter is paramount to the
former, so a particular intent will control a
general one that is inconsistent with it.
In construing apparently conflicting statutes, this
Court has stated that where one statute deals with a subject
in general and comprehensive terms, and another deals with a
part of the same subject in a more minute and definite way,
the latter will prevail over the former to the extent of any
necessary repugnancy between them. City of Billings v. Smith
(1971), 158 Mont. 197, 211, 490 P.2d 221, 229. Further, the
principle of statutory construction that a specific law
controls over the general applies only where the specific
statute conflicts with the general statute and then only to
the extent of the repugnancy. Montana Assoc. of Tobacco and
Candy Distributors v. State Board of Equalization (1970), 156
Mont. 108, 113, 476 P.2d 775, 777-78. Clearly there is a
conflict in these statutes on the facts of this case. For
that reason we agree with Williams that 1-2-102, MCA,
controls the disposition of this case. We, however, are of
the opinion that § 1-2-102, MCA, requires us to hold that §
46-5-304, MCA, is the particular and specific statute and the
pawnbroker statutes the general. This is true for a number
of reasons: 1) the saw was seized as evidence for a
criminal prosecution; 2) $ 46-5-304, MCA, appears in the
criminal procedure portion of the code; and 3) $ 46-5-304,
MCA, plainly states that it applies when a person claims the
right to possession of property seized as evidence in a
criminal matter.
We therefore hold that the procedure set forth in §
46-5-304, MCA, applies to a pawnbroker seeking the return of
seized property when the property was seized and held as
evidence for an underlying criminal prosecution rather than §
31-1-405, MCA. We are of the opinion that the pawnbroker
statutes control the situation where a private citizen
discovers his property at a pawnbrolcer's shop and no criminal
prosecution grows out of the incident. We affirm the
District Court.
&.
Justice
We Concur:
Chief Justice