Estella Robinson (“Ms.Robinson”) appeals from an order entered by the Circuit Court of Mercer County affirming a municipal court's order to kill her dog. The circuit court concluded that the municipal court had the authority and jurisdiction to order the destruction of her dog.
On appeal to this Court, Ms. Robinson argues that the circuit court erred when it concluded that the municipal court had the authority to order the destruction of her dog. After review, we agree with Ms. Robinson. We therefore reverse the circuit court's order affirming the municipal court's order to kill Ms. Robinson's dog.
I.FACTUAL AND PROCEDURAL BACKGROUND
On March 6, 2013, Bluefield Animal Control Officer Randall Thompson responded to a complaint about two dogs at Ms. Robinson's residence. The complaint stated that one dog was running at large and that a second dog had inadequate shelter. While investigating the complaint at Ms. Robinson's residence, Officer Thompson was attacked by one of Ms. Robinson's dogs, Major. Major was “tied-up” when Officer Thompson arrived at the residence. While Officer Thompson was talking to Ms. Robinson, Major broke free from the chain and bit Officer Thompson on both of his hands. Officer Thompson sought medical treatment following this incident.
The City of Bluefield subsequently brought charges against Ms. Robinson in its municipal court, charging her with having a dangerous animal in violation of Bluefield City Ordinance § 4–49. Ordinance § 4–49 states:
No person shall own, keep or harbor any dangerous animal known by him to be vicious, dangerous or in the habit of biting or attacking persons, whether or not such dog wears a tag or muzzle, and upon satisfactory proof that such animal is vicious, dangerous or in the habit of biting or attacking persons, municipal judge may order any police officer or the animal control officer to cause such animal to be killed. Vicious or dangerous animals are declared to be a public nuisance and a menace to the public safety.
In April 2013, Ms. Robinson pled guilty to violating Bluefield City Ordinance § 4–49. After the plea was entered, the municipal court ordered the dog to be killed. However, the municipal court stayed the order for thirty days to allow Ms. Robinson to (1) seek an expert opinion on whether the dog could be rehabilitated, and (2) to find a home for the dog outside of Bluefield. Ms. Robinson appeared before the municipal court on May 15, 2013, and informed the court that she found a home for the dog outside of Bluefield. However, she stated that she did not have an expert opinion that the dog could be rehabilitated.[FN 1] Following this hearing, the municipal court again ordered that the dog be killed.
Ms. Robinson appealed the municipal court's order to the circuit court. The circuit court conducted a hearing on July 24, 2013, on the sole issue of whether the municipal court had the authority and jurisdiction to order the destruction of a dog pursuant to Ordinance § 4–49. The circuit court concluded that under W.Va.Code § 8–12–5(26) [2008], the municipal court had the authority to order the destruction of Ms. Robinson's dog. The circuit court entered an order on July 31, 2013, affirming the municipal court's order. After entry of this order, Ms. Robinson filed the present appeal.
II. STANDARD OF REVIEW
The sole issue presented in this appeal is whether the circuit court erred when it determined that the municipal court had the authority to order the destruction of Ms. Robinson's dog. Our review of the circuit court's ruling is de novo.“Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.”Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).Accord Syllabus Point 1, Appalachian Power Co. v. State Tax Dep't of West Virginia, 195 W.Va. 573, 466 S.E.2d 424 (1995) ( “Interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review.”).
With the foregoing in mind, we consider the parties' arguments.
III. ANALYSIS
Before analyzing the parties' arguments, we emphasize that the sole issue before this Court on appeal is the legal question of whether a municipality may enact an ordinance vesting its municipal court with the authority to order the destruction of a dog found to be vicious, dangerous, or in the habit of biting or attacking persons. Whether Ms. Robinson's dog was “vicious, dangerous or in the habit of biting or attacking persons” is not before this Court.[FN 2]
Turning to the legal issues before us, we note that “[m]unicipalities are but political subdivisions of the state, created by the Legislature for purposes of governmental convenience, deriving not only some, but all, of their powers from the Legislature.”Booten v. Pinson, 77 W.Va. 412, 421, 89 S.E. 985, 989 (1915). This Court addressed the source and scope of municipal power and authority in Syllabus Point 1 of Brackman's Inc. v. City of Huntington, 126 W.Va. 21, 27 S.E.2d 71 (1943), stating:
A municipal corporation is a creature of the State, and can only perform such functions of government as may have been conferred by the Constitution, or delegated to it by the law-making authority of the State. It has no inherent powers, and only such implied powers as are necessary to carry into effect those expressly granted.
The Court reaffirmed this holding in Miller v. City of Morgantown, 158 W.Va. 104, 109, 208 S.E.2d 780, 783 (1974), stating, “A municipal corporation possesses only the power and authority given to it by the legislature.”See also, Syllabus Point 2, Hyre v. Brown, 102 W.Va. 505, 135 S.E. 656 (1926) ( “A municipal corporation possesses and can exercise only the following powers: (1) those granted in express words; (2) those necessarily or fairly implied in or incident to the powers expressly granted; (3) those essential to the accomplishment of the declared objects and purposes of the corporation-not simply convenient, but indispensable .”(Citation omitted.)).
This Court has held that when a municipal ordinance conflicts with a statute, the ordinance is void. Hence, “[w]hen a provision of a municipal ordinance is inconsistent or in conflict with a statute enacted by the Legislature the statute prevails and the municipal ordinance is of no force and effect.”Syllabus Point 1, Vector Co. v. Bd. of Zoning Appeals of Martinsburg, 155 W.Va. 362, 184 S.E.2d 301 (1971).Accord Syllabus Point 1, State ex rel. Wells v. City of Charleston, 92 W.Va. 611, 115 S.E. 576 (1922) (“When a municipal ordinance is opposed to the policy of the state in relation to the subject-matter thereof and in conflict with the statute of the state in relation thereto, the ordinance is void to the extent of its conflict with the statute and should not be enforced.”).
In the present case, the municipal court was acting pursuant to the authority granted to it by Ordinance § 4–49.[FN 3] The City of Bluefield asserts that Ordinance § 4–49 was enacted under the authority granted to municipalities in W.Va.Code § 8–12–5(26). This code section, entitled “General powers of every municipality and the governing body thereof” (emphasis added), states:
In addition to the powers and authority granted by: (i) The Constitution of this state; (ii) other provisions of this chapter; (iii) other general law; and (iv) any charter, and to the extent not inconsistent or in conflict with any of the foregoing except special legislative charters, every municipality and the governing body thereof shall have plenary power and authority therein by ordinance or resolution, as the case may require, and by appropriate action based thereon: ...
(26) To regulate or prohibit the keeping of animals or fowls and to provide for the impounding, sale or destruction of animals or fowls kept contrary to law or found running at large[.]
While W.Va.Code § 8–12–5(26) sets forth the general powers a municipality has to provide for the destruction of animals or fowls kept contrary to law or found running at large, the Legislature has enacted an entire, specific statutory scheme addressing the regulation of dogs in W.Va.Code § 19–20–1 et seq. W.Va.Code § 19–20–20 addresses the process to be followed when a dog is alleged to be “vicious, dangerous or in the habit of biting or attacking persons or other dogs or animals.”It specifically vests jurisdiction in circuit and magistrate courts. W .Va.Code § 19–20–20 states:
Except as provided in section twenty-one of this article, no person shall own, keep or harbor any dog known by him to be vicious, dangerous, or in the habit of biting or attacking other persons, whether or not such dog wears a tag or muzzle. Upon satisfactory proof before a circuit court or magistrate that such dog is vicious, dangerous, or in the habit of biting or attacking other persons or other dogs or animals, the judge may authorize the humane officer to cause such dog to be killed.
(Emphasis added.)
Ms. Robinson argues that under W.Va.Code § 19–20–20, the City of Bluefield was required to present satisfactory proof that her dog was “vicious, dangerous, or in the habit of biting or attacking other persons” before a circuit court or a magistrate. Because the City of Bluefield did not offer such proof before a circuit court or a magistrate, Ms. Robinson asserts that the circuit court erred by affirming the municipal court's order.
By contrast, the City of Bluefield argues that W.Va.Code § 19–20–20 should be read in conjunction with W.Va.Code § 8–12–5(26). The City of Bluefield asserts that both of these statutes permit an order killing a dog upon satisfactory proof that a dog is “vicious, dangerous, or in the habit of biting or attacking other persons.”According to the City of Bluefield, municipal courts possess this authority under W.Va.Code § 8–12–5(26), while circuit courts and magistrate courts possess this authority pursuant to W.Va.Code § 19–20–20.
Our resolution of this issue begins with a review of our rules of statutory construction. This Court has held that in deciding the meaning of a statutory provision, “[w]e look first to the statute's language. If the text, given its plain meaning, answers the interpretive question, the language must prevail and further inquiry is foreclosed.”Appalachian Power Co. v. State Tax Dep't of West Virginia, 195 W.Va. at 587, 466 S.E.2d at 438; see also Syllabus Point 2, Crockett v. Andrews, 153 W.Va. 714, 172 S.E.2d 384 (1970) (“Where the language of a statute is free from ambiguity, its plain meaning is to be accepted and applied without resort to interpretation.”); and Syllabus Point 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951) (“A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect.”).
After review, we agree with Ms. Robinson and find that under the plain language of W.Va.Code § 19–20–20, the City of Bluefield was required to set forth satisfactory proof that Ms. Robinson's dog was “vicious, dangerous, or in the habit of biting or attacking other persons” before a circuit court or a magistrate, not a municipal court.
Before a dog that is alleged to be vicious, dangerous, or in the habit of biting or attacking other persons may be destroyed by a municipality, it must provide “satisfactory proof before a circuit court or magistrate that such dog is vicious, dangerous, or in the habit of biting or attacking other persons.” (Emphasis added.) The Legislature specifically vested the authority to determine whether a dog is “vicious, dangerous, or in the habit of biting or attacking other persons” with two elected judicial officers—circuit court judges and magistrates.[FN 4] The Legislature did not vest municipal court judges—non-elected judicial officers—with the authority to order the destruction of a vicious or dangerous dog.
This Court has stated that “a statute which specifically provides that a thing is to be done in a particular manner normally implies that it shall not be done in any other manner.”Phillips v. Larry's Drive–In Pharmacy, Inc., 220 W.Va. 484, 492, 647 S.E.2d 920, 928 (2007).W.Va.Code § 19–20–20 confines the authority to order the destruction of a dog alleged to be “vicious, dangerous, or in the habit of biting or attacking other persons” to circuit courts and magistrates. Had the Legislature intended for courts other than circuit courts or magistrate courts, such as municipal courts, to possess the authority to order the destruction of a dog upon satisfactory proof that the dog was “vicious, dangerous, or in the habit of biting or attacking other persons,”W.Va.Code § 19–20–20 could have authorized “any court or magistrate” to make this determination. In fact, the Legislature expressly permitted “any court or magistrate” to decide other matters relating to the control and management of dogs in W.Va.Code 19–20–1 et seq. SeeW.Va.Code § 19–20–14 [1986] and W.Va.Code § 19–20–17 [1986]. By contrast, the Legislature specifically restricted the authority to order the destruction of a dog alleged to be “vicious, dangerous, or in the habit of biting or attacking other persons” to circuit courts and magistrates.
While acknowledging that municipal courts do not possess the authority to order the destruction of a dog found to be vicious or dangerous under W.Va.Code § 19–20–20, the City of Bluefield argues that it had the authority to enact Ordinance § 4–49 based on the general authority granted to municipalities in W.Va.Code § 8–12–5(26).W.Va.Code § 8–12–5(26) addresses the general power a municipality has to provide for the destruction of “animals or fowls” kept contrary to law or found running at large. This statute does not specifically discuss dogs, nor does it discuss the process to be followed when a dog is alleged to be “vicious, dangerous, or in the habit of biting or attacking other persons or other dogs or animals.”By contrast to the general power of a municipality to provide for the destruction of “animals or fowls” kept contrary to law or found running at large contained in W.Va.Code § 8–12–5(26), W.Va.Code § 19–20–20 sets forth the specific process to be followed when it is alleged that a dog is “vicious, dangerous, or in the habit of biting or attacking other persons or other dogs or animals.”
This Court has previously held, “The general rule of statutory construction requires that a specific statute be given precedence over a general statute relating to the same subject matter[.]” Syllabus Point 1, in part, UMWA by Trumka v. Kingdon, 174 W.Va. 330, 325 S.E.2d 120 (1984).Accord Tillis v. Wright, 217 W.Va. 722, 728, 619 S.E.2d 235, 241 (2005) (“[S]pecific statutory language generally takes precedence over more general statutory provisions.”); Bowers v. Wurzburg, 205 W.Va. 450, 462, 519 S.E.2d 148, 160 (1999) ( “Typically, when two statutes govern a particular scenario, one being specific and one being general, the specific provision prevails.”(Citations omitted)); Daily Gazette Co., Inc. v. Caryl, 181 W.Va. 42, 45, 380 S.E.2d 209, 212 (1989) (“The rules of statutory construction require that a specific statute will control over a general statute[.]” (Citations omitted)).
W.Va.Code § 8–12–5(26) and W.Va.Code § 19–20–20 address the same general subject matter—the regulation and management of animals. W.Va.Code § 19–20–20 addresses the regulation of a specific animal that is alleged to have behaved in a specific manner—a dog alleged to be “vicious, dangerous, or in the habit of biting or attacking other persons or other dogs or animals.”Conversely, W.Va.Code § 8–12–5(26) addresses “animals or fowls” that are “kept contrary to law or found running at large.”Unlike the specific direction provided in W.Va.Code § 19–20–20, W.Va.Code § 8–12–5(26) does not address (1) dogs that are alleged to be “vicious, dangerous, or in the habit of biting or attacking other persons or other dogs or animals,” or (2) courts that are authorized to determine whether a dog is “vicious, dangerous, or in the habit of biting or attacking other persons or other dogs or animals.”Under basic rules of statutory construction, it is clear that the Legislature intended for the specific statute (W.Va.Code § 19–20–20) to control over the general statute (W.Va.Code § 8–12–5(26)).
The present case presents the precise factual scenario contemplated by W.Va.Code § 19–20–20—Ms. Robinson's dog was allegedly “vicious, dangerous, or in the habit of biting or attacking other persons or other dogs or animals.”W.Va.Code § 8–12–5(26) provides no direction on the process to be followed when a dog is alleged to be “vicious, dangerous, or in the habit of biting or attacking other persons or other dogs or animals.”We therefore conclude that under our rules of statutory construction, the specific direction addressing allegedly vicious dogs contained in W.Va.Code § 19–20–20 prevails over the general direction regarding “animals or fowls” that are kept contrary to law or found running at large” contained in W.Va.Code § 8–12–5(26).
Based on the foregoing, we hold that before the destruction of a dog may be ordered under the authority of W.Va.Code § 19–20–20 [1981], satisfactory proof that the dog is “vicious, dangerous, or in the habit of biting or attacking other persons or other dogs or animals” must be presented before a circuit court or a magistrate.5Applying this holding to the present case, we find that Bluefield Ordinance § 4–49 is void to the extent that it allows a municipal court to order the destruction of a dog.[FN 6]
IV. CONCLUSION
The circuit court's July 31, 2013, order affirming the municipal court's order to kill Ms. Robinson's dog is reversed. This matter is remanded to the municipal court for entry of an order vacating its order to kill Ms. Robinson's dog.
Reversed and Remanded.
Justice BENJAMIN concurs and reserves the right to file a concurring Opinion.
Justice LOUGHRY dissents and reserves the right to file a dissenting Opinion.
Justice WORKMAN dissents and reserves the right to file a dissenting Opinion.
LOUGHRY, Justice, dissenting:
In complete disregard of the unfortunate truth that not all dogs are like the beloved Lassie, a vicious dog has been granted a pardon by the highest court of this State. Indeed, the majority of this Court has seemingly turned a blind eye to the fact that the dog in question [FN 1] broke free of its chain and engaged in a brutal and unprovoked attack upon an experienced humane officer,[FN 2] whose resultant injuries required surgery and a hospitalization that approximated five days.[FN 3]The majority also seems to disregard the fact that the dog's owner pled guilty to owning and keeping an animal known by her to be vicious, dangerous, and in the habit of biting persons in violation of Bluefield City Ordinance § 4–49. While I, too, love animals, and have fond memories of my childhood companion and faithful dog, “Bozo,” my affinity does not blind me to the sad reality that some dogs are dangerous and vicious, and inflict serious injuries, and even death, on innocent victims.[FN 4]
In order to address the threat posed by vicious dogs and protect the public health, safety, and general welfare of their citizens, numerous municipalities in West Virginia have enacted vicious dog ordinances, which are enforced in the municipal courts of those municipalities.[FN 5] See, e.g., Section 10–117 of the Code of Ordinances for the City of Charleston (providing for the euthanization of dangerous dogs under certain conditions); Section 507.11 of the City of Morgantown's Ordinances (providing for the destruction of vicious dogs under certain circumstances); Section 505.15 of the Codified Ordinances of the City of Martinsburg (providing for the lethal destruction of vicious dogs when certain conditions are met); Section 505.17 of the Code of Ordinances of the City of Parkersburg (providing that vicious dogs declared to be public nuisances may be summarily destroyed if found running at large and otherwise under certain circumstances); Section 508.11 of the Code of Ordinances for the City Wheeling (providing for destruction of vicious dogs after certain conditions are met); Section 507.99 of the City of Dunbar Code of Ordinances (providing that any vicious dog that attacks human being or another domestic animal may be ordered destroyed when in municipal court's judgment, such vicious dog represents continuing threat of serious harm to human beings or domestic animals); Section 507.18(i) of the Codified Ordinances of the City of Clarksburg (providing that City Manager or his/her designee may order destruction of dog it determines to be extremely dangerous to public health or safety, dog that has made extremely vicious attack upon individual, or dog declared dangerous whose owner is unable or unwilling to adequately restrain it). Importantly, many municipalities have had vicious dog ordinances for decades. As we explained nearly eighty years ago,
under modern law ... the obvious necessity of protecting the public from ... vicious, and otherwise dangerous dogs [means that dogs] must be held subject to ... very rigid regulation. Because of this, ordinances and statutes authorizing the summary destruction of dogs not kept in accordance with their terms have generally been upheld.
City of Buckhannon ex rel. Cockerill v. Reppert, 118 W.Va. 10, 10, 189 S.E. 585, 585 (1937) (Kenna, J., concurring).
Citizens are not without recourse should they disagree with a ruling of a municipal court, as seen here, where the petitioner appealed the municipal court's order following her counseled guilty plea. The petitioner challenged the municipal court's authority to order the destruction of her vicious dog and argued that West Virginia Code § 19–20–20,[FN 6] which allows counties to seek the destruction of vicious dogs in magistrate and circuit courts, conflicts with the Bluefield City Ordinance § 4–49, which gives its municipal court similar authority.
In addressing the petitioner's arguments, the circuit court thoroughly explained that Chapter 8 of the West Virginia Code governs municipal corporations, whereas Chapter 19 does not.[FN 7] The circuit court further explained that for a conflict to exist, as the petitioner argued, the Bluefield ordinance must either (1) permit or authorize that which the Constitution or general law forbids or prohibits, or (2) forbids or prohibits that which the Constitution or general law permits or authorizes.[FN 8] The circuit court soundly reasoned that neither of these circumstances exists because article VIII, section 11 of the West Virginia Constitution expressly directs that municipal courts created by the Legislature[Fn 9]“shall have jurisdiction to enforce municipal ordinances” and that West Virginia Code § 8–12–5(26) unequivocally authorizes municipalities “[t]o regulate or prohibit the keeping of animals or fowls and to provide for the impounding, sale or destruction of animals or fowls kept contrary to law or found running at large.”The circuit court further reasoned that because Bluefield City Ordinance § 4–49, West Virginia Code § 8–12–5(26), and West Virginia Code § 19–20–20 [FN 10] all provide for the regulation and destruction of vicious animals, there is “no conflict in substance or purpose.”
The discussion above indisputably demonstrates the authority of a municipality to establish a municipal court charged with enforcing the municipality's ordinances, which may provide for the impoundment and/or destruction of vicious and dangerous animals. Accordingly, I now turn to the majority's ill-advised and legally unsound conclusion that West Virginia Code § 19–20–20 [FN 11] somehow nullifies the long-standing constitutional and statutory authority of municipalities to address the humane destruction of vicious dogs through their ordinances enforced by their own courts within their own communities. The Legislature, having already addressed the issue of the destruction of animals in the context of municipalities, had no reason to include municipal courts in West Virginia Code § 19–20–20. Significantly, “[c]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there.”Martin v. Randolph Cnty. Bd. of Educ., 195 W.Va. 297, 312, 465 S.E.2d 399, 415 (1995) (citation omitted). Here, the majority finds that the grant of authority to municipalities to enact ordinances that provide for the destruction of “animals and fowl,” as found in West Virginia Code § 8–12–5(26), is trumped by West Virginia § 19–20–20 because the latter addresses “dogs” specifically rather than “animals” generally.[FN 12] Such reasoning is flawed. The Legislature undoubtedly employed the term “animals” to fulfill its intent of giving municipalities very broad authority to enact ordinances addressed to any manner of animals that might be found within a municipality, whether they be pot bellied pigs, cats, ferrets, or dogs. See Black's Law Dictionary 106 (10th ed.2014) (defining “animal” as “[a]ny living creature (besides plants) other than a human being.”). Obviously, dogs fall well within the definition of “animal.”
As such, it is clear that the Legislature intended to provide municipalities, as well as counties, with the ability to control dangerous and vicious animals, including dogs, within their purview. Rules of statutory construction do not require municipalities to yield to counties in this regard as each has a role in protecting the safety and well-being of the citizenry from dangerous and vicious animals.
Moreover, “[t]he Legislature, when it enacts legislation, is presumed to know of its prior enactments.”Syl. Pt. 12, Vest v. Cobb, 138 W.Va. 660, 76 S.E.2d 885 (1953). Although West Virginia Code § 8–12–5 was first enacted in 1868, the Legislature did not overlook or forget this statute when it enacted West Virginia Code § 19–20–20 in 1981. In fact, West Virginia Code § 8–12–5 was last amended this year—2014. And, the Legislature clearly recalled the statutory authority that it gave to municipalities in the area of animal control when it expressly provided in West Virginia Code § 19–20–6a (2007) that county commissions may contract with or reimburse a municipality for the “care, maintenance, control, or destruction of dogs and cats[,]” and when it gave counties and municipalities the permission to contract with one another in relation to the maintenance of a county dog pound and to jointly employ a dog warden in West Virginia Code § 19–20–8a (2007). Simply stated, had the Legislature intended to provide magistrates and circuit courts with exclusive jurisdiction to order the destruction of dangerous and vicious dogs, it could have done so by expressly stating that “sole and exclusive jurisdiction for the destruction of vicious dogs is vested in circuit courts and magistrates, notwithstanding any other statute to the contrary.”However, the Legislature did not provide for such exclusivity, and “[c]ourts are not free to read into the language what is not there, but rather should apply the statute as written.”State ex rel. Frazier v. Meadows, 193 W.Va. 20, 24, 454 S.E.2d 65, 69 (1994).
I am deeply concerned the majority's opinion will serve as a spring board for further diminishment of the authority and duty of municipal courts to enforce municipal ordinances. While the majority acknowledges the statutory authority of municipalities to enact ordinances, it cavalierly disallows the enforcement of such ordinances in municipal courts simply because a statute allows for counties to seek the destruction of vicious dogs in either magistrate or circuit court. Will the confusion created by the majority effectively sanction future and potentially fatal attacks by vicious dogs upon unsuspecting children as they walk to school within a city's limits ? Will an elderly couple be mauled by a vicious dog in their front yard as they rake leaves? Likewise, will the majority's ruling be relied upon in the future to strip municipal courts of their power to enforce other ordinances, such as those involving assault and battery and hate crimes, merely because there are statutes that also authorize the prosecution of such matters in either magistrate or circuit court?
For these reasons, I find that the circuit court appropriately upheld the authority of the City of Bluefield's municipal court to enforce Bluefield City Ordinance § 4–49 in this matter. And, based upon my concerns expressed herein, I respectfully dissent from the majority's decision in this case.
Footnotes
[FN 1] Ms. Robinson asserts that she and her counsel believed that the municipal court stated Major would not be destroyed if she either found a home for him outside of Bluefield or if an expert determined that Major could be rehabilitated to prevent further vicious behavior. The appendix-record does not contain a transcript or a recording from the municipal court hearings. Ms. Robinson eventually obtained a report from an expert who stated that Major could be rehabilitated.
[FN 2] During oral argument, counsel for the City of Bluefield discussed Officer Thompson's injuries. While we are mindful of these injuries and do not seek to minimize them, the only issue before this Court is the narrow, legal question concerning the scope of a municipal court's authority.
[FN 3] The West Virginia Constitution states that municipalities, cities and towns “shall have jurisdiction to enforce municipal ordinances.”Art. VIII § 11.
[FN 4] This Court described the process a circuit court or magistrate court should follow when presented with an allegedly vicious or dangerous dog pursuant to W.Va.Code § 19–20–20. In Durham v. Jenkins, 229 W.Va. 669, 674, 735 S.E.2d 266, 270 (2012), the Court stated:
For a magistrate or circuit court to obtain authority to order a dog killed, the magistrate or judge must first find, upon conducting a criminal proceeding, that a crime described in the first sentence of § 19–20–20 has been committed. This Court holds that the authority to order a dog killed pursuant to W.Va.Code § 19–20–20 (1981), stems solely from a criminal proceeding, and a private cause of action may not be brought for the destruction of a dog under this section.
[FN 5] This holding is limited to the narrow circumstance in which a municipal judge, pursuant to a municipal ordinance, orders the destruction of a dog that is alleged to be “vicious, dangerous, or in the habit of biting or attacking other persons.”This holding does not have any effect on any other statute setting forth the general rules and regulations governing the control and management of dogs.
[FN 6] A municipality may enact an ordinance prohibiting a person from owning, keeping or harboring a dog known to be vicious, dangerous or in the habit of biting or attacking persons, and may pursue charges against an owner of such a dog in municipal court. However, a municipality seeking an order to kill a vicious or dangerous dog must do so in circuit or magistrate court and follow the procedure this Court set forth in Durham v. Jenkins, 229 W.Va. 669, 674, 735 S.E.2d 266, 270 (2012) (“For a magistrate or circuit court to obtain authority to order a dog killed, the magistrate or judge must first find, upon conducting a criminal proceeding, that a crime described in the first sentence of § 19–20–20 has been committed. This Court holds that the authority to order a dog killed pursuant to W.Va.Code § 19–20–20 (1981), stems solely from a criminal proceeding, and a private cause of action may not be brought for the destruction of a dog under this section.”).
[FN 1] The dog is a pit bull terrier.
[FN 2] The humane officer was responding to the petitioner's residence in reference to a complaint that one dog was running loose, and another had inadequate shelter.
[FN 3] The necessity of surgical treatment and hospitalization was described by counsel during oral argument. I find the length of this hospitalization to be noteworthy particularly in light of the growing trend of “same-day” surgery centers, where patients are discharged the same day of their surgery, even when internal organs have been surgically excised. Consequently, it is clear to me that the dog in question inflicted very serious injuries upon the humane officer so as to require a hospitalization of that duration. That being said, the majority's statement that “[o]fficer Thompson sought medical treatment following this incident[ ]” callously diminishes the severity of this situation.
[FN 4] See Durham v. Jenkins, 229 W.Va. 669, 735 S.E.2d 266 (2012) (disallowing civil suit brought under criminal statute by parents seeking destruction of dog who attacked their young daughter causing extensive injuries to child's head, waist, thighs, and back and requiring hospitalization and surgical repair); State v. Molisee, 180 W.Va. 551, 378 S.E.2d 100 (1989) (reversing order to euthanize dog that injured child where dog's owner did not receive notice of trial date); Atkins v. Conley, 202 W.Va. 457, 504 S.E.2d 920 (1998) (reversing on evidentiary error jury verdict finding dog's owners liable to parents of two-year-old child, who incurred multiple injuries and permanent facial scarring inflicted by dog); Bowden v. Monroe Cnty. Com'n, 232 W.Va. 47, 750 S.E.2d 263 (2013) (setting aside dismissal of complaint brought by estate of victim who was maimed beyond recognition and ultimately died due to injuries sustained when he was attacked by several pit bulls while taking walk); State v. Moore, Nos. 11AP–1116, 11AP–1117, 2013 WL 3968166 (Ohio App. 10 Dist.2013)(Aug. 1, 2013) (affirming conviction on two counts of failure to confine vicious dog where appellant's pit bull mauled two different victims in separate incidents); State v. Collins, –––S.E.2d ––––, 2014 WL 4087597 (S.C.2014) (Aug. 20, 2014) (holding trial court's admission of pre-autopsy photographs of victim, 10–year–old boy who died after being severely mauled by dogs, was not abuse of discretion); King v. Foht, 2013 WL 5310436 (Tenn.Ct.App.2013) (reversing summary judgment granted in favor of owners of residential rental property in personal injury action brought on behalf of eight-year-old child attacked and injured by pit bull dog while she was walking along sidewalk); Sawh v. City of Lino Lakes, 823 N.W.2d 627 (Minn.2012) (finding substantial evidence supported city's finding that dog was unprovoked when it bit victim in third incident, so as to support city's order for destruction of dog under city ordinance); Tracey v. Solesky, 427 Md. 627, 50 A.3d 1075 (2012) (finding that harboring pit bull terrier was inherently dangerous activity for which landlord could be held strictly liable when tenant's pit bull crossed street, attacked, and seriously injured 10–year–old boy who was playing); Watson v. State, 337 S.W.3d 347 (Tex.App.2011) (affirming conviction for offense of attack by dog resulting in death where seven-year-old boy was mauled to death by dogs).
[FN 5] Many municipal judges in this State, including the long-time municipal judge in the City of Bluefield, are lawyers. And, where they are not, they must attend a course in the principles of law and procedure. SeeW.Va.Code § 8–10–2(c) (providing that “[a]ny person who assumes the duties of municipal court judge who has not been admitted to practice law in this state shall attend and complete the next available course of instruction in rudimentary principles of law and procedure.... The instruction must be performed by or with the services of an attorney licensed to practice law in this State for at least three years.”). Thereafter, municipal judges who are not lawyers must also attend a continuing education course annually. Id. In addition, municipal courts may hold jury trials, where warranted. SeeW.Va.Code § 8–10–2(d) (providing, in part, that “a defendant who has been charged with an offense for which a period of confinement in jail may be imposed is entitled to a trial by jury.”).
[FN 6] West Virginia Code § 19–20–20 (2007) provides that
[e]xcept as provided in section twenty-one of this article, no person shall own, keep or harbor any dog known by him to be vicious, dangerous, or in the habit of biting or attacking other persons, whether or not such dog wears a tag or muzzle. Upon satisfactory proof before a circuit court or magistrate that such dog is vicious, dangerous, or in the habit of biting or attacking other persons or other dogs or animals, the judge may authorize the humane officer to cause such dog to be killed.
[FN 7] In this regard, I note that Chapter 19 is entitled “Agriculture,” whereas Chapter 8 is entitled “Municipal Corporations.”
[FN 8] In its analysis, the circuit court relied upon West Virginia Code § 8–12–5 (2012 & Supp.2014), which grants municipalities the power and authority to enact ordinances, which do not conflict with other laws, as follows:
In addition to the powers and authority granted by: (i) The Constitution of this State; (ii) other provisions of this chapter; (iii) other general law; and (iv) any charter, and to the extent not inconsistent or in conflict with any of the foregoing except special legislative charters, every municipality and the governing body thereof shall have plenary power and authority therein by ordinance or resolution, as the case may require, and by appropriate action based thereon.
Id. (emphasis added). The circuit court also relied upon West Virginia Code § 8–1–2(9) (2012), which provides that,
“[i]nconsistent or in conflict with” shall mean that a charter or ordinance provision is repugnant to the Constitution of this State or to general law because such provision (i) permits or authorizes that which the Constitution or general law forbids or prohibits, or (ii) forbids or prohibits that which the Constitution or general law permits or authorizes[.]
[FN 9] The Legislature authorized municipalities to create municipal courts through its enactment of West Virginia Code § 8–10–2(a) (2012), which states in pertinent part, as follows:
Notwithstanding any charter provision to the contrary, any city may provide by charter provision and any municipality may provide by ordinance for the creation and maintenance of a municipal court, for the appointment or election of an officer to be known as municipal court judge ... and authorize the exercise by the court or judge of the jurisdiction and the judicial powers, authority and duties set forth in section one of this article and similar or related judicial powers, authority and duties enumerated in any applicable charter provisions, as set forth in the charter or ordinance.
[FN 10] In addition to this statute that allows for counties to address vicious dogs, I observe that West Virginia Code § 19–20–8(a) provides for the humane destruction of any unlicensed dog that has been impounded if not claimed by its owner within five days, regardless of whether it is vicious.
[FN 11] See supra note 6.