No. 85-228 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

IN THE MATTER OF ALBERT DEE WILLIAMS 

for return of Property. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Albert D. Williams, pro se, Bozeman, Montana 

For R.espondent : 

William Schreiber, City Attorney, Belgrade, Montana 

Submitted on Briefs: Aug. 15, 1985 

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 S5 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 s motion for summary judgment, the District 

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