                                                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
