          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                               September 2014 Term
                                _______________                          FILED
                                                                    October 2, 2014
                                                                      released at 3:00 p.m.
                                   No. 13-0936                      RORY L. PERRY II, CLERK
                                                                  SUPREME COURT OF APPEALS
                                 _______________                       OF WEST VIRGINIA



                             ESTELLA ROBINSON,
                            Defendant Below, Petitioner

                                         v.

                              CITY OF BLUEFIELD,
                            Plaintiff Below, Respondent

      ____________________________________________________________

                   Appeal from the Circuit Court of Mercer County
                      The Honorable William J. Sadler, Judge
                          Civil Action No. 13-M-AP-7-WS

                          REVERSED AND REMANDED

      ____________________________________________________________

                           Submitted: September 16, 2014
                              Filed: October 2, 2014

Gerald R. Linkous, Esq.                       Brian K. Cochran, Esq.
Mercer County Public Defender Corp.           Brewster, Morhous, Cameron, Caruth,
Princeton, West Virginia                      Moore, Kersey, & Stafford PLLC
Counsel for the Petitioner                    Bluefield, West Virginia
                                              Counsel for the Respondent



JUSTICE KETCHUM delivered the Opinion of the Court.
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.
                              SYLLABUS BY THE COURT


              1.     “When 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).



              2.     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.
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.



                                             1
              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.




       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
                                                                          (continued . . .)

                                            2
             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




the municipal court hearings. Ms. Robinson eventually obtained a report from an expert
who stated that Major could be rehabilitated.



                                            3
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




       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.



                                             4
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,

                                              5
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



      3
        The West Virginia Constitution states that municipalities, cities and towns “shall
have jurisdiction to enforce municipal ordinances.” Art. VIII § 11.



                                             6
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.


                                               7
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,


                                              8
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.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


       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.



                                             9
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. See W.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


                                            10
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


                                             11
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.5 Applying this




       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
                                                                         (continued . . .)

                                            12
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.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.




“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.
       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.”).




                                             13
