Can a West Virginia city give its fire marshals the power to make arrests, get warrants, and briefly detain suspects when they witness violations of the city fire code?

Plain-English summary

The City of Morgantown wanted to give its fire marshals limited law-enforcement powers: the ability to arrest people who violate certain provisions of the city's fire prevention code, to make warrantless arrests when the marshals personally witness those violations, to briefly detain suspects for investigation, and to apply for and execute warrants. The State Fire Commission had already approved Morgantown's more stringent local fire code under W. Va. Code § 29-3-5, but the issue had been answered differently across the state, so Chairman Sizemore asked the AG for a formal answer.

The AG said yes, the City has authority. The reasoning hinges on the word "plenary" in W. Va. Code § 8-15-1: "The governing body of every municipality shall have plenary power and authority to provide for the prevention and extinguishment of fires." The AG quoted Webster's: plenary means "complete in every respect; absolute; perfect; unqualified." Coupled with the Supreme Court of Appeals' acknowledgement in State v. Yocum that "general powers of the legislature, within constitutional limits, are almost plenary," the same word in a municipal-empowerment statute carries broad scope.

West Virginia is a Dillon Rule state. As a baseline, a municipality "has only the powers granted to it by the legislature," and "any reasonable doubt" must be resolved against finding municipal authority. But the AG concluded that the plenary grant in § 8-15-1 is itself the legislative grant, and is broad enough to authorize the limited law-enforcement powers Morgantown wanted to give its fire marshals. The list of specific powers in § 8-15-1 (regulating building construction, procuring engines, organizing volunteer companies, prescribing officer powers and duties) is preceded by "among other things," which under Davis Memorial Hospital v. W. Va. State Tax Commissioner is read as a word of enlargement, not limitation. And one of the enumerated powers, the ability to "prescribe the powers and duties" of "officers to have command of fire fighting," fairly includes the power to grant law-enforcement authority to those officers in service of fire prevention.

The AG was careful to limit the scope. The opinion only addresses the authority under § 8-15-1 itself, not the question of whether other constitutional or statutory provisions, such as Fourth Amendment search-and-seizure rules or specific statutes about police powers, might constrain how a fire marshal exercises this authority. Those issues remain open.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What is the Dillon Rule?
A: It is the rule that municipal corporations possess only the powers expressly granted by the state legislature, the powers necessarily or fairly implied from those grants, or the powers essential and indispensable to the corporation's stated purposes. West Virginia is a Dillon Rule state. The Supreme Court of Appeals has held that "if any reasonable doubt exists as to whether a municipal corporation has a power, the power must be denied." Calabrese v. City of Charleston.

Q: How does that square with "plenary" authority over fires?
A: The AG read § 8-15-1 as the express legislative grant the Dillon Rule looks for. "Plenary" is the word the Legislature chose to describe how complete and unqualified that authority is in the fire-prevention and fire-extinguishment area. So while a municipality has no inherent or default fire-related authority, the express grant in § 8-15-1 is so broadly worded that it covers a wide range of related implementing actions, including granting law-enforcement powers to fire marshals.

Q: Does this mean fire marshals are general-purpose police officers?
A: No. The AG's analysis is tied to the connection between the proposed law-enforcement powers and the goal of fire prevention and extinguishment. Morgantown's proposal limited the marshals' authority to specific violations of the city fire prevention code. The opinion does not authorize generic police powers; it authorizes fire-related police powers.

Q: What about other constitutional limits?
A: The AG explicitly did not address them. Fourth Amendment search-and-seizure rules, due process requirements for arrests and detentions, and any specific statutory rules about who may exercise arrest authority remain in play. A municipality enacting an ordinance under § 8-15-1 still has to comply with the state and federal constitutions and any other relevant statutes.

Q: Is the list of powers in § 8-15-1 exhaustive?
A: No. The list is preceded by "among other things," which under Supreme Court of Appeals interpretation is a "word of enlargement." Davis Memorial Hospital v. W. Va. State Tax Commissioner. The list is illustrative, not exhaustive.

Q: Does this opinion bind every municipality?
A: An AG opinion is persuasive, not binding. But the statutory analysis (the "plenary" grant in § 8-15-1, the "among other things" language, and the principle that municipalities can prescribe powers and duties of fire-fighting officers) applies generally and would be similarly persuasive in other West Virginia municipalities considering similar ordinances.

Background and statutory framework

W. Va. Code § 8-15-1 is the foundational fire-prevention statute for municipalities. It opens with "The governing body of every municipality shall have plenary power and authority to provide for the prevention and extinguishment of fires." The remainder of the section lists, "among other things," specific powers a city may exercise: regulating building construction, procuring engines and implements, organizing and equipping volunteer fire companies or paid fire departments, prescribing the powers and duties of those companies or departments and their officers, providing for the appointment of officers to command fire-fighting, prescribing those officers' powers and duties, imposing penalties for failure to obey lawful commands, and authorizing officers to direct the destruction of property to prevent the spread of fire.

The Supreme Court of Appeals has read § 8-15-1 as the basic grant of authority for municipal fire activity. Mabscott Volunteer Fire Dep't, Inc. v. Houck (1990); Parsons v. Charleston Firefighters Civil Serv. Comm'n (1993); Shepherdstown Volunteer Fire Dep't v. W. Va. Human Rights Comm'n (1983).

The Dillon Rule supplies the background limit on municipal authority. Calabrese v. City of Charleston (1999) and Cooper v. City of Charleston (2005) confirm that any reasonable doubt about municipal authority is resolved against the municipality. City of Huntington v. Bacon (1996) puts it bluntly: "The City derives all of its power as well as its existence from the legislature."

Two interpretive principles drive the AG's reading:

1. Plenary equals complete. State v. Yocum (2014) used the same word for the Legislature's general powers, calling them "almost plenary," and Webster's defines plenary as "complete in every respect; absolute; perfect; unqualified." The AG read § 8-15-1's "plenary power and authority" the same way: subject only to constitutional limits and other statutory provisions, but otherwise unlimited within the fire-prevention domain.

2. "Among other things" enlarges, not limits. Davis Memorial Hospital (2008) held that "the term 'includes' in a statute is to be dealt with as a word of enlargement and this is especially so where . . . such word is followed by 'but not limited to' the illustrations given." The AG transferred the same logic to "among other things." The list of enumerated powers in § 8-15-1 is illustrative; the Legislature signaled that other related powers fall within the plenary grant.

The opinion does not address, and explicitly leaves open, whether constitutional limits (Fourth Amendment) or other statutes (e.g., specific statutes governing police powers and arrest authority) might constrain the exercise of fire-marshal arrest powers in particular cases.

Citations and references

Statutes:
- W. Va. Code § 8-15-1 (municipal plenary authority over fires)
- W. Va. Code § 29-3-5 (State Fire Commission review of more stringent local codes)

Cases:
- Calabrese v. City of Charleston, 204 W. Va. 650, 515 S.E.2d 814 (1999) (Dillon Rule and reasonable-doubt principle)
- Cooper v. City of Charleston, 218 W. Va. 279, 624 S.E.2d 716 (2005) (no inherent municipal authority)
- City of Huntington v. Bacon, 196 W. Va. 457, 473 S.E.2d 743 (1996) (city derives power from legislature)
- State v. Yocum, 233 W. Va. 439, 759 S.E.2d 182 (2014) (legislative powers "almost plenary")
- Mabscott Volunteer Fire Dep't, Inc. v. Houck, 184 W. Va. 37, 399 S.E.2d 180 (1990)
- Parsons v. Charleston Firefighters Civil Serv. Comm'n, 190 W. Va. 500, 438 S.E.2d 843 (1993)
- Davis Memorial Hospital v. W. Va. State Tax Commissioner, 222 W. Va. 677, 671 S.E.2d 682 (2008) (statutory "includes" as word of enlargement)
- 47 W. Va. Op. Att'y Gen. 76 (1956) (earlier AG opinion on municipal fire-prevention authority)

Source

• Landing page: https://ago.wv.gov/media/18071/download?inline
• Original PDF: https://ago.wv.gov/media/18071/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
Patrick Morrisey, Attorney General
(304) 558-2021 / Fax (304) 558-0140

December 5, 2014

Mr. Carl Sizemore
Chairman
State Fire Commission
1207 Quarrier St., 2nd Floor
Charleston, WV 25301

Dear Chairman Sizemore:

You have asked for an Opinion of the Attorney General pertaining to whether a municipality may grant limited law enforcement powers to its fire marshals. This Opinion is being issued pursuant to West Virginia Code § 5-3-1, which provides that the Attorney General "shall give written opinions and advise upon questions of law, . . . whenever required to do so, in writing, by . . . any . . . state officer, board, or commission." To the extent this Opinion relies on facts, it is based solely upon the factual assertions set forth in your letter to the Attorney General's Office.

You explain that a question has arisen concerning the power of a municipality to authorize its fire marshals to effectuate arrests, obtain warrants, and exercise other limited law enforcement powers. This inquiry arises from the application of West Virginia Code § 29-3-5, which generally provides that "if a municipal or county fire ordinance or regulation of any agency thereof is more stringent or imposes a higher standard than is required by the State Fire Code, it must be presented for review and approval and sanctioned for use by the West Virginia State Fire Commission." According to your letter, the Morgantown Fire Department requested that the State Fire Commission ("Commission") review and approve the City of Morgantown's fire code, which you assert includes more stringent provisions than those provided by the State Fire Code. Although you note that the Commission has already approved the City's request, you state that the unique circumstances of the issue, including the fact that this question has been answered differently throughout the State, merit clarification from the Office of Attorney General.

Your letter raises the following legal question:

Whether a municipality may grant limited law enforcement authority, including the power to arrest, obtain warrants, and temporarily detain individuals for investigatory purposes, to the municipality's fire marshals.

In general, a municipality has "only the powers granted to it by the legislature, and any such power it possesses must be expressly granted or necessarily or fairly implied or essential and indispensable." Syl. Pt. 7, in part, Calabrese v. City of Charleston, 204 W. Va. 650, 515 S.E.2d 814 (1999) (quotations and citation omitted). Thus, a municipality does not possess "inherent power with regard to the exercise of the functions of [its] government." See Syl. Pt. 3, in part, Cooper v. City of Charleston, 218 W. Va. 279, 624 S.E.2d 716 (2005) (quotations and citations omitted). See City of Huntington v. Bacon, 196 W. Va. 457, 465, 473 S.E.2d 743, 751 (1996) ("The City derives all of its power as well as its existence from the legislature."). "If any reasonable doubt exists as to whether a municipal corporation has a power, the power must be denied." Syl. Pt. 7, in part, Calabrese, 204 W. Va. 650, 515 S.E.2d 814.

Relevant here, the Legislature has granted every municipality the "plenary power and authority to provide for the prevention and extinguishment of fires." W. Va. Code § 8-15-1. West Virginia Code § 8-15-1, entitled, "Power and authority of governing body with respect to fires," reads in full:

The governing body of every municipality shall have plenary power and authority to provide for the prevention and extinguishment of fires, and, for this purpose, it may, among other things, regulate how buildings shall be constructed, procure proper engines and implements, provide for the organization, equipment and government of volunteer fire companies or of a paid fire department, prescribe the powers and duties of such companies or department and of the several officers, provide for the appointment of officers to have command of fire fighting, prescribe what their powers and duties shall be, and impose on those who fail or refuse to obey any lawful command of such officers any penalty which the governing body is authorized by law to impose for the violation of an ordinance. It may give authority to any such officer or officers to direct the pulling down or destroying of any fence, house, building or other thing, if deemed necessary to prevent the spreading of a fire.

W. Va. Code § 8-15-1. As the Supreme Court of Appeals has said, "West Virginia Code § 8-15-1 (1990) establishes the authority necessary for a governing body to provide for the fighting of fires." Mabscott Volunteer Fire Dep't, Inc. v. Houck, 184 W. Va. 37, 39, 399 S.E.2d 180, 182 (1990); see also Parsons v. Charleston Firefighters Civil Serv. Comm'n, 190 W. Va. 500, 502, 438 S.E.2d 843, 845 (1993) ("The establishment, powers and duties of fire companies and fire departments are provided for in W. Va. Code, 8-15-1, et seq."); Shepherdstown Volunteer Fire Dep't v. State ex rel. State of W. Va. Human Rights Comm'n, 172 W. Va. 627, 634, 309 S.E.2d 342, 349 (1983) ("In West Virginia, volunteer fire departments are created and extensively regulated under our statutes.").

The issue raised by your letter is whether the governing body of the City of Morgantown (the "City") has the authority under West Virginia Code § 8-15-1 to grant fire marshals limited law enforcement powers. Specifically, the City would empower fire marshals and deputy fire marshals with the authority to "make arrests" of individuals charged with certain violations of the Morgantown City Fire Prevention Code, make warrantless arrests when the marshals themselves "witness . . . the perpetrations of these offenses," and to make "a limited detention of any persons suspected of the commission of these offenses for investigatory purposes." In addition, the City would permit fire marshals and deputy fire marshals to seek and execute warrants for offenders of certain provisions of the City Fire Prevention Code.

We conclude that the City possesses the authority under West Virginia Code § 8-15-1 to enact the proposed changes, for several reasons. To begin, the City has been granted "plenary power and authority to provide for the prevention and extinguishment of fires." W. Va. Code § 8-15-1 (emphasis added) (enacted 1969). "Plenary" means "complete in every respect; absolute; perfect; unqualified." Webster's Third New International Dictionary of the English Language 1739 (unabridged 1970). The use of the word "plenary" indicates that the legislative grant of authority to municipalities in the area of fire "prevention and extinguishment" is essentially unlimited, subject only to conflicting constitutional provisions and potentially other statutory provisions. Accord Syl. Pt. 1, in part, State v. Yocum, 233 W. Va. 439, 759 S.E.2d 182 (2014) ("The general powers of the legislature, within constitutional limits, are almost plenary.").

Furthermore, the law enforcement powers sought for fire marshals reasonably contribute to the "prevention and extinguishment of fires," as they are limited to specific violations of the City Fire Prevention Code. W. Va. Code § 8-15-1. "In the absence of any specific indication to the contrary," courts give "words used in a statute will . . . their common, ordinary and accepted meaning." Syl. Pt. 5, Shaffer v. Fort Henry Surgical Assocs., Inc., 215 W. Va. 453, 599 S.E.2d 876 (2004) (quotations and citations omitted). The word "prevention" means "the action of keeping from happening or rendering impossible an anticipated event or an intended act." 7 The Oxford English Dictionary 446 (2d. 1989). "Extinguishment" means "the quenching (of fire)." 5 The Oxford English Dictionary 605 (2d. 1989). It is more than reasonable to conclude that empowering fire marshals to make arrests relating to the violation of certain provisions of the City Fire Prevention Code, specifically, the provisions relating to malicious fires and obeying fire marshals, will help stop and put out fires.

You note in your letter that the statute enumerates a list of specific powers that come under a municipality's "plenary authority" to provide for "the prevention and extinguishment of fires," but that list does not affect this analysis. W. Va. Code § 8-15-1. One of the enumerated powers listed in the statute, the authority of a municipality to "prescribe" the "powers and duties" of the "officers to have command of fire fighting," may be fairly read to provide for the authority to grant limited law enforcement powers to such "officers." W. Va. Code § 8-15-1. Moreover, the list of specific powers in West Virginia Code § 8-15-1 is not exhaustive. The list is preceded by the phrase "among other things," see id., which indicates that the list is not limited by what is specifically enumerated in the statute. See W. Va. Code § 8-15-1; accord Davis Mem'l Hosp. v. W. Va. State Tax Comm'r, 222 W. Va. 677, 684, 671 S.E.2d 682, 689 (2008) ("[t]he term 'includes' in a statute is to be dealt with as a word of enlargement and this is especially so where . . . such word is followed by 'but not limited to' the illustrations given" (quotations omitted)). The list of enumerated powers is for illustration purposes and, by its varied nature, suggests that the Legislature intended to grant municipalities a broad scope of authority to fight fires.

Addressing the scope of a statutory predecessor to West Virginia Code § 8-15-1, West Virginia Attorney General John G. Fox explained: "It is well settled that a municipal corporation may enact ordinances affecting the manner in which the inhabitants of a municipality are protected from fires, and the manner in which fires upon arising may be extinguished. This is a valid exercise of the police power of a municipality." 47 W. Va. Op. Att'y Gen. 76 (1956).

In sum, we conclude that the City has authority under West Virginia Code § 8-15-1 to grant the contemplated law enforcement powers to its fire marshals. We do not address in this Opinion the effect, if any, of other statutory or constitutional provisions on the City's authority under West Virginia Code § 8-15-1.

Sincerely,

Patrick Morrisey
Attorney General

Elbert Lin
Solicitor General

J. Zak Ritchie
Assistant Attorney General