Darrell V. McGraw, Jr., Esq. H. Wyatt Hanna, III, Esq.
Attorney General
Hanna & Page
Stephen Stockton, Esq.
South Charleston, West Virginia
Senior Assistant Attorney General Attorney for the Appellee
Charleston, West Virginia
Attorneys for the Appellants
Walton S. Shepherd, III, Esq.
Sissonville, West Virginia
Attorney for Amicus Curiae,
Roger White
The Opinion of the Court was delivered PER CURIAM.
JUSTICE MCGRAW dissents and reserves the right to file a dissenting opinion.
1. “On appeal of an administrative order from a circuit court, this Court is bound by the statutory standards contained in W. Va. Code § 29A-5-4(a) and reviews questions of law presented de novo; findings of fact by the administrative officer are accorded deference unless the reviewing court believes the findings to be clearly wrong.” Syllabus point 1, Muscatell v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996).
2. “Interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review.” Syllabus point 1, Appalachian Power Co. v. State Tax Department of West Virginia, 195 W. Va. 573, 466 S.E.2d 424 (1995).
3. “Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.” Syllabus point 2, State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968).
4. “In the absence of any definition of the intended meaning of words or terms used in a legislative enactment, they will, in the interpretation of the act, be given their common, ordinary and accepted meaning in the connection in which they are used.” Syllabus point 1, Miners in General Group v. Hix, 123 W. Va. 637, 17 S.E.2d 810 (1941), overruled on other grounds by Lee-Norse Co. v. Rutledge, 170 W. Va. 162, 291 S.E.2d 477 (1982).
5. “Where a particular construction of a statute would result in an
absurdity, some other reasonable construction, which will not produce such absurdity, will
be made.” Syllabus point 2, Newhart v. Pennybacker, 120 W. Va. 774, 200 S.E. 350 (1938).
Per Curiam:
The appellants herein and respondents below, the West Virginia Racing
Commission and its constituent members [hereinafter collectively referred to as “the Racing
Commission”], appeal from an order entered March 26, 2003, by the Circuit Court of
Kanawha County. By the terms of that order, the circuit court found that the appellee
herein and petitioner below, Harvey Maupin, Jr. [hereinafter referred to as “Maupin”], was
entitled to collect monies from the West Virginia Greyhound Breeding Development Fund
[hereinafter referred to as “the Fund”], W. Va. Code § 19-23-10(d) (1995) (Repl. Vol.
2001) and W. Va. C.S.R. § 178-2-51 (2000), based upon his ownership of two greyhounds.
On appeal to this Court, the Racing Commission contends that the circuit court erred by
allowing Maupin, who allegedly co-owns the dogs in question with a non-West Virginia
resident, to participate in the Fund. Upon a review of the parties' arguments, the record
submitted for appellate consideration, and the pertinent authorities, we affirm the circuit
court's ruling.
On March 12, 2001, the West Virginia Racing Commission sent Maupin a letter informing him that because he and Brumage were listed as the dogs' co-owners, and because Brumage was not a West Virginia resident, the dogs would not be eligible to receive payments from the West Virginia Greyhound Breeding Development Fund. Maupin responded and asked that the Commission reconsider its decision insofar as Brumage was not a co-owner, but merely retained the option to repurchase the dogs. The Commission denied Maupin's request by letter dated August 12, 2001, finding that Brumage's option to repurchase constituted an equitable interest sufficient to cloak him with ownership status.
Upon Maupin's request, the Commission held a hearing in this matter on April 25, 2002. Maupin testified that he was the sole owner of the dogs, and submitted an affidavit from Brumage denying that he had any ownership interest in them, but that he did retain an option to repurchase the dogs. By order entered August 7, 2002, the Commission again found that Brumage's right to repurchase the dogs constituted a property interest, and, because Brumage was not a West Virginia resident, the dogs were not eligible for payments from the West Virginia Greyhound Breeding Development Fund.
Maupin then appealed the Commission's decision to the Circuit Court of Kanawha County pursuant to W. Va. Code § 19-23-17 (1969) (Repl. Vol. 2001). (See footnote 6) By order entered March 26, 2003, the circuit court determined that
[t]he West Virginia Racing Commission Greyhound Rules of Racing define “owner” as: “the person in whose name the greyhound is registered at the meeting in accordance with the rules and may be the sole owner, part owner or lessee.” 178 C.S.R. 2 § 2.[68]. A “meeting” is defined as “the total specified periods and dates each year during which an association is authorized by the Racing Commission to conduct racing and/or pari-mutual wagering.” 178 C.S.R. 2 § 2.58.
The court then concluded that “[t]he definition of 'owner' clearly does not include
individuals with an option to repurchase, right of first refusal, or other vague property
interests. Therefore, the Commission's determination that Brumage was an owner of the
dogs was a clear error of judgment.” Upon these findings, the circuit court declared
Maupin to be the sole owner of the dogs and to be entitled to payments from the West
Virginia Greyhound Breeding Development Fund. From this adverse ruling, the West
Virginia Racing Commission and its constituent members appeal to this Court.
[o]n appeal of an administrative order from a circuit court, this Court is bound by the statutory standards contained in W. Va. Code § 29A-5-4(a) (See footnote 7) and reviews questions of law presented de novo; findings of fact by the administrative officer are accorded deference unless the reviewing court believes the findings to be clearly wrong.
Syl. pt. 1, Muscatell v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996) (footnote added).
Furthermore, “[i]nterpreting a statute or an administrative rule or regulation presents a
purely legal question subject to de novo review.” Syl. pt. 1, Appalachian Power Co. v. State
Tax Dep't of West Virginia, 195 W. Va. 573, 466 S.E.2d 424 (1995). See also Syl. pt. 1,
Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995) (“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.”). Having established the parameters
of our review in this case, we proceed to consider the parties' arguments.
(See footnote 8)
In short, the Racing Commission contends that Maupin is not eligible to receive such monies. To support its position, the Racing Commission suggests that the governing law dictates that the greyhounds participating in the Fund be wholly or solely owned (See footnote 9) by a West Virginia resident or residents. Citing W. Va. C.S.R. § 178-2-51.3. Because the registration documents for “Holy Miloni” and “RC's In Sync” list their registered owners as “Daryl Brumage or Harvey O. Maupin, Jr.,” (See footnote 10) the Racing Commission claims that the dogs essentially are co-owned by one West Virginia resident, Maupin, (See footnote 11) and one non-West Virginia, Brumage. (See footnote 12) Thus, the Racing Commission continues, the dogs are not wholly or solely owned by a West Virginia resident or resident(s). By contrast, Maupin contends that the circuit court correctly determined that he is, as the registered owner of both dogs in question and by virtue of his West Virginia residency, entitled to participate in the Fund.
The West Virginia Greyhound Breeding Development Fund was established to promote the ownership and breeding of racing greyhounds by West Virginia residents in the State of West Virginia. W. Va. Code § 19-23-10(d) (1995) (Repl. Vol. 2001) sets forth the purpose of the Fund as follows:
The purpose of the fund is to promote better breeding and
racing of greyhounds in the state through awards and purses to
resident owners of accredited West Virginia whelped
greyhounds. In order to be eligible to receive an award or
purse through the fund, the owner of the accredited West
Virginia whelped greyhound must be a resident of this state.
(See footnote 13)
The moneys shall be expended by the racing commission for
purses for stake races, supplemental purse awards,
administration, promotion and educational programs involving
West Virginia whelped dogs, owned by residents of this state
under rules and regulations promulgated by the racing
commission.
(Footnote added). In order to achieve this purpose, the Fund provides monetary incentives
to those individuals owning or leasing West Virginia greyhounds. See generally W. Va.
Code § 19-23-10(d) (detailing method of calculating Fund disbursements). The specific
eligibility requirements for participating in the Fund are set forth in W. Va. C.S.R. § 178-2-51 (2000), which provides, in pertinent part, that
51.2. To qualify for purse money in a stake's race as
well as purse supplements and awards that are funded from the
West Virginia Greyhound Breeding Development Fund, the
owner or lessee of the greyhound shall be a member in good
standing of the West Virginia Greyhound Owners and Breeders
Association.
51.3. An Owner or lessees of the dam at the time of
breeding
(See footnote 14)
shall be a member in good standing of both the
National Greyhound Association and the West Virginia
Greyhound Owners and Breeders Association and have been a
bona fide resident of West Virginia for at least two (2) years
prior to the date the dam was bred. The litter shall be whelped
in the State of West Virginia and remain domiciled in West
Virginia at least until the puppies are six (6) months of age.
51.4. The owner or lessee shall file the appropriate
affidavit . . . with the Racing Commission affirming that the
owner or lessee of the dam at the time of breeding meets all of
the requirements in subsection 52.3 of this rule. The owner or
lessee further understands that if any West Virginia bred is
removed from West Virginia prior to six (6) months of age, it
is the owner's or lessee's responsibility to notify the Racing
Commission within ten (10) days of removal. Any greyhound
that is removed to a location outside of West Virginia prior to
the completion of six consecutive months of occupancy in
West Virginia starting from the date of whelping shall be
disqualified by the Racing Commission in participation in the
West Virginia Greyhound Breeding Development Fund.
51.5. The owner or lessee of any greyhound that was
littered before July 1, 1989, shall be given West Virginia bred
status if the Racing Commission affirms that the applicant
meets all the requirements in Subsection 51.3 of this rule with
the exception that the greyhound was littered and remained
domiciled in the State of West Virginia until it was three (3)
months of age.
W. Va. C.S.R. §§ 178-2-51.2 through -5 (footnote added). At issue in this proceeding is the
language of § 178-2-51.3, specifically that portion which requires the greyhound owner or
lessee to “have been a bona fide resident of West Virginia for at least two (2) years prior
to the date the dam was bred.”
When interpreting a statute or regulation, this Court looks to the precise language employed by the promulgating body. “Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.” Syl. pt. 2, State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968). However, “[i]n the absence of any definition of the intended meaning of words or terms used in a legislative enactment, they will, in the interpretation of the act, be given their common, ordinary and accepted meaning in the connection in which they are used.” Syl. pt. 1, Miners in General Group v. Hix, 123 W. Va. 637, 17 S.E.2d 810 (1941), overruled on other grounds by Lee-Norse Co. v. Rutledge, 170 W. Va. 162, 291 S.E.2d 477 (1982).
Here, we find the language of W. Va. C.S.R. § 178-2-51.3 to be plain and
capable of only one construction. The only term relevant to our resolution of this case that
is not defined by the companion regulations or authorizing statute is the first word of § 178-
2-51.3: “[a]n”. According to the linguistic definition of “an,” “an” is simply the form of the
indefinite article “a” that is used before words beginning with a vowel. See Webster's
Ninth New Collegiate Dictionary 43 (1983) (defining “a” as an “indefinite article” and
indicating that “[i]n speech and writing a is used before a consonant sound . . . . [and]
[b]efore a vowel sound an is usual”). See also id., at 81 (denoting “an” as an “indefinite
article” and referring to definition of “a” for further constructions of “an”). We previously
have observed that “[t]he indefinite article 'a' may some times mean one, where only one
is intended, or it may mean one of a number, depending upon the context.” Deutsch v.
Mortgage Secs. Co., 96 W. Va. 676, 681, 123 S.E. 793, 795 (1924) (citation omitted).
Accord Tracy v. Cottrell, 206 W. Va. 363, 379, 524 S.E.2d 879, 895 (1999) (interpreting “a”
as meaning “one” of “many”).
Typically, though, “an” is construed as making general, rather than specific, references to its words of modification. See, e.g., Brooks v. Zabka, 168 Colo. 265, 269, 450 P.2d 653, 655 (1969) (en banc) (recognizing “the indefinite or generalizing force of . . . 'an'” (citation omitted)); Stephan v. Pennsylvania Gen. Ins. Co., 224 Conn. 758, 764, 621 A.2d 258, 261 (1993) (observing that “the indefinite article[] . . . 'an' refer[s] to unlimited objects” (citation omitted)); State ex rel. Hurd v. Blomstrom, 72 S.D. 526, 530, 37 N.W.2d 247, 249 (1949) (“'An' is the indefinite article meaning 'any'.”). But see New York ex rel. Garrett v. Ogden, 40 N.Y.S. 827, 828 (1896) (“The original meaning of the word ['an'] was 'one'[.]”).
Given the plurality of the word “lessees” employed in W. Va. C.S.R. § 178-2-
51.3, and our efforts to construe the various parts of promulgations consistently with one
another, it is clear that the intended construction of the word “[o]wner” encompasses both
its singular and plural forms. “Where a particular construction of a statute would result in
an absurdity, some other reasonable construction, which will not produce such absurdity,
will be made.” Syl. pt. 2, Newhart v. Pennybacker, 120 W. Va. 774, 200 S.E. 350 (1938).
See also Syl. pt. 5, Fruehauf Corp. v. Huntington Moving & Storage Co., 159 W. Va. 14,
217 S.E.2d 907 (1975) (“Statutes which relate to the same persons or things, or to the same
class of persons or things, or statutes which have a common purpose will be regarded in
pari materia to assure recognition and implementation of the legislative intent.
Accordingly, a court should not limit its consideration to any single part, provision, section,
sentence, phrase or word, but rather review the act or statute in its entirety to ascertain
legislative intent properly.”). Such a construction is also consistent with the definition of
an “[o]wner” set forth in W. Va. C.S.R. § 178-2-2.68 (2000), which states that
“Owner” means the person in whose name the
greyhound is registered at the meeting in accordance with this
rule and an owner may be a sole owner, part owner, or lessee.
An interest in the winnings only of a greyhound does not
constitute part ownership.
(See footnote 15)
(Emphasis and footnote added). Thus, employing the commonly accepted meaning of “an,”
it is clear that § 178-2-51.3 permits any West Virginia owner or lessee to participate in the
Fund so long as the other eligibility requirements are also satisfied. In other words, while
the Racing Commission makes a sound public policy argument to limit participation in the
Fund to greyhounds who are wholly or solely owned by West Virginia residents, there
simply is no support for such a construction in the regulation, itself, or in its authorizing
statutory authority. See generally W. Va. Code § 19-23-10(d); W. Va. C.S.R. § 178-2-51.
Having ascertained the meaning of § 178-2-51.3, we must now determine
whether Maupin has, in fact, satisfied the criteria necessary to participate in the Fund. The
parties do not dispute that Maupin is “[a]n owner”
(See footnote 16)
of the dogs in question and that he has
“been a bona fide resident of West Virginia for at least two (2) years prior to the date the
dam was bred.” W. Va. C.S.R. § 178-2-51.3. Neither is it disputed that the dogs' litter
requirement, W. Va. C.S.R. §§ 178-2-51.3 to -4, or that Maupin has satisfied the remaining
associational eligibility requirements contained in §§ 178-2-51.2 to -3. Insofar as the
eligibility criteria do not require a dog to be wholly or solely owned by a West Virginia
resident in order to be eligible to participate in the Fund, we find that the inclusion of
Brumage's name on the dogs' registration documents
(See footnote 17)
does not prevent Maupin from
receiving the monies from the Fund to which the dogs are entitled. Moreover, to the extent
that “Holy Miloni's” registration documents have been changed to reflect Maupin as her
sole owner, we likewise find no impediment to Maupin's receipt of Fund monies
attributable to her. Accordingly, we affirm the decision rendered by the Circuit Court of
Kanawha County achieving this result.
Affirmed.
[a]ny person adversely
affected by a decision of the racing commission rendered after a hearing
held in accordance with the provisions of section sixteen [§ 19-23-16]
of this article shall be entitled to judicial review thereof. All of the
pertinent provisions of section four [§ 29A-5-4], article five,
chapter twenty-nine-a of this code shall apply to and govern such judicial
review with like effect as if the provisions of said section four were set
forth in this section . . . .
The judgment of the circuit court
shall be final unless reversed, vacated or modified on appeal to the supreme
court of appeals in accordance with the provisions of section one [§ 29A-6-1],
article six, chapter twenty-nine-a of this code.
See infra note 7.