Robinson v. City of Bluefield

234 W.Va. 209

764 S.E.2d 740

Estella ROBINSON, Defendant Below, Petitioner

v.CITY OF BLUEFIELD, Plaintiff Below, Respondent.

No. 13–0936.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 16, 2014.

Decided Oct. 2, 2014.

Oct. 31, 2014.

Nov. 14, 2014.

Gerald R. Linkous, Esq., Mercer County Public Defender Corp., Princeton, West Virginia, for the Petitioner.

Brian K. Cochran, Esq., Brewster, Morhous, Cameron, Caruth, Moore, Kersey, & Stafford PLLC, Bluefield, West Virginia, for the Respondent.

Opinion

Justice KETCHUM :

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.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.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 § 4–49.³ 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...