Taylor v. McNeal
| Decision Date | 06 May 1975 |
| Docket Number | No. 35815,35815 |
| Parties | De Witt TAYLOR, Plaintiff-Appellant, v. Col. Theodore McNEAL et al., Defendants-Respondents. . Louis District, Division One |
| Court | Missouri Court of Appeals |
Fred Roth, Rothman & Roth, Clayton, for plaintiff-appellant.
Jack L. Koehr, City Counselor, John J. Morton, Asst. City Counselor, St. Louis, for defendants-respondents.
Plaintiff appeals from an order of the Circuit Court of the City of St. Louis denying replevin. The order leaves possession of two pistols and other personal property in the defendants as members of the Board of Police Commissioners and the Chief of Police of the City of St. Louis. As a record here, the parties submitted a stipulation of facts supplemented by exhibits, pleadings and testimony of two witnesses.
On February 10, 1973, officers of the St. Louis Police Department came to plaintiff's home at the request of a member of plaintiff's family who reported a disturbance. The record does not disclose the nature of the disturbance or which member of the family called. While at plaintiff's home the officers seized two pistols and ammunition clips from plaintiff's 'person' and 'from the inside of the residence' but there is no indication that plaintiff or any member of his household was arrested or charged with a crime. We conclude they were not. When plaintiff later requested return of the pistols, defendants refused until plaintiff obtained permits from the sheriff in accordance with § 564.630. 1
Plaintiff applied for permits but the sheriff refused unless he received written assurance or authority from defendants that they (defendants) had no objection to release of the pistols. Defendants in turn declined to provide such written authority on the ground that § 564.630(2) grants the sheriff sole discretion for issuance of the permits.
Caught in this administrative maze, plaintiff sought replevin in the Magistrate Court for return of his property. After judgment for plaintiff, defendants appealed to the Circuit Court where on trial de novo judgment was entered for defendants, and the reason assigned was the want of statutory permits from the sheriff.
Replevin is primarily a possessory action for personal property, the gist of which is plaintiff's right to immediate possession and defendants' wrongful detention of the property. Title may incidentally become involved in cases where ownership is actually tried, but not as here where the issue was neither pleaded nor adjudicated. Strothkamp v. St. John's Community Bank, Inc., 329 S.W.2d 718, 719 (Mo.1959).
Defendants do not deny plaintiff's claim of ownership nor attempt to justify the detention by asserting any possessory or property right of their own. The pistols in question are not contraband, In re 1969 Plymouth Road Runner, Black, 2-Door, 455 S.W.2d 466, 470--471(3) (Mo.1970), 2 and defendants make no claim that replevin does not lie because plaintiff's possession is unlawful, as in the case of certain alcoholic beverages, Windham v. Harmon, 50 Ga.App. 322, 178 S.E. 160 (1935), or gambling apparatus, Clark v. Holden, 191 Miss. 7, 2 So.2d 570 (1941). Under Art. I, § 23, Mo.Const. 1945, V.A.M.S., every citizen has the right to keep and bear arms in defense of his home, person and property, with the limitation that this section shall not justify the wearing of concealed arms. However, possession of concealable firearms in one's home is not unlawful in our state. See In re 1969 Plymouth Road Runner, supra.
Defendants have justified their refusal to return the pistols solely on the ground that § 564.630 prohibits them from delivering and plaintiff from receiving concealable firearms sans permits from the sheriff authorizing plaintiff to receive the weapons, and the Circuit Court rested its order on that single proposition. The court interpreted the statute as limiting its authority and stated it was 'prohibited by law' from ordering replevin.
We disagree and hold that § 564.630 does not apply to delivery and receipt of concealable firearms lawfully seized from or voluntarily relinquished by one in lawful possession to a peace officer properly in performance of his duty, nor their redelivery by the peace officer to such person after the lawful purpose of the seizure had been served. Mere seizure by the police, which involves only temporary custody, does not change title nor right of possession to the property seized.
Under these facts the personal property (two pistols and ammunition clips) is subject to proper order of the court; to otherwise construe this statute would produce absurd results which become apparent in the following situations.
Here the police seized the pistols from plaintiff who peacefully delivered or relinquished possession in his home; yet the officers made no effort to obtain permits from the sheriff nor deliver such permits to plaintiff before the seizure. Similarly, during the course of this proceeding, defendants delivered the pistols to the sheriff who received them without first acquiring permits from himself as sheriff. If plaintiff had delivered the pistols to his favorite gunsmith for repair, permits from the sheriff would not be contemplated. In such situations, it cannot reasonably be suggested the statute should or was intended to apply.
Examining other situations, we find examples of statutes in apparent conflict with a literal interpretation of § 564.630. In such cases, statutes should be harmonized if possible so they may stand together. Edwards v. St. Louis County, 429 S.W.2d 718, 721(2) (Mo. banc 1968); Flarsheim v. Twenty Five Thirty Two Broadway Corp., 432 S.W.2d 245, 251(3--5) (Mo.1968). For example, under H.C.S.S.C.S. Senate Bill No. 366, § 9, 3 when allegedly stolen property 'comes into the custody of an officer' and has not been returned to the person entitled to possession, it shall be delivered by such officer under 'order of court' to such person establishing his right to possession. This newly enacted statute contains no suggestion of permit requirements relating to transfer, delivery or receipt of property which might come into the custody of an officer under § 9.1 nor in relation to delivery of such property by order of court under § 9.1(1) et seq. Certainly if the property, referred to in the statute, coming into the possession of an officer is a handgun, that officer need not obtain a permit before receiving such property nor would the court in that situation be controlled by the provisions of § 564.630 when ordering the officer to return the gun to its rightful owner or such other person who is entitled to possession.
In each of these instances literal construction of ...
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