Pullano v. City of Bluefield

Decision Date20 March 1986
Docket NumberNo. 16698,16698
CourtWest Virginia Supreme Court
Parties, 27 Wage & Hour Cas. (BNA) 1103 Joseph M. PULLANO, et al., etc. v. CITY OF BLUEFIELD, W. Va., a Municipal Corporation.

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)." Syllabus Point 2, State ex rel. Underwood v. Silverstein, 167 W.Va. 121, 278 S.E.2d 886 (1981).

4. Under W.Va.Code, 8-14-2a, and W.Va.Code, 8-15-10a, police officers and firefighters must be paid one and one-half times their regular rate of pay when they are required to work on a legal holiday or when such holiday falls on their regular scheduled day off, provided that they are not accorded equal time off.

5. "The Legislature, when it enacts legislation, is presumed to know its prior enactments." Syllabus Point 12, Vest v. Cobb, 138 W.Va. 660, 76 S.E.2d 885 (1953).

6. Where a firefighter works overtime under W.Va.Code, 21-5C-3(a), and such overtime work is performed on a legal holiday under W.Va.Code, 8-15-10a, he is entitled to two times his regular rate of pay for the overtime hours worked.

7. "Our wage and hour law found in W.Va.Code, 21-5C-1, et seq., is modeled to some extent on the federal minimum wage law contained in the Fair Labor Standards Act, 29 U.S.C. § 201, et seq." Syllabus Point 1, Local 313, International Association of Firefighters v. City of Morgantown, 174 W.Va. 122, 323 S.E.2d 604 (1984).

Stanley M. Hostler, James F. Wallington, Hostler & Segal, Charleston, for appellants.

J.W. Feuchtenberger, Bluefield, for appellee.

MILLER, Chief Justice:

This case involves the statutory rights of municipal police officers and firefighters 1 to holiday pay under W.Va.Code, 8-14-2a, and W.Va.Code, 8-15-10a. 2 We are also On April 30, 1980, Joseph Pullano, a police officer, and Martin Fivars, a firefighter, filed a declaratory judgment action in the Circuit Court of Mercer County on behalf of themselves and all other police officers and firefighters employed by the city of Bluefield. In this action, the following general questions were raised:

presented with a question concerning the calculation of overtime pay for firefighters.

1. Are municipalities required to recognize as legal holidays the days recommended by a governor in memoranda to all State spending units as nonworking days for State employees in calculating holiday pay for their police officers under W.Va.Code, 8-14-2a, and their firefighters under W.Va.Code, 8-15-10a?

2. Is holiday pay under W.Va.Code, 8-14-2a, and W.Va.Code, 8-15-10a, to be paid in addition to the regular or overtime pay also earned on that holiday?

3. Did the city of Bluefield correctly calculate overtime pay for its firefighters?

The circuit court held that the nonworking days for State employees recommended by the governor in various executive memoranda did not constitute legal holidays under W.Va.Code, 2-2-1 (1980). Consequently, the city was not required to give holiday pay for these days to its police officers and firefighters. Furthermore, the circuit court generally approved of the city's methods for calculating holiday and overtime pay. The police officers and firefighters challenge the circuit court's rulings as being inconsistent with the applicable statutes. The relevant facts and rulings of the circuit court will be discussed in more detail under each heading.

I. LEGAL HOLIDAYS

It is apparent that by enacting W.Va.Code, 8-14-2a, and W.Va.Code, 8-15-10a, 3 the legislature intended to accord equal time off or additional compensation to a municipal police officer or firefighter who either worked on a legal holiday or did not work on a legal holiday because it fell on his regular scheduled day off. 4 The two statutes are almost identical, except for the fact that W.Va.Code, 8-14-2a, is applicable to "any municipal police officer" while W.Va.Code, 8-15-10a, is applicable to "any member of a paid fire department." The threshold question is what legal holidays trigger these additional benefits. To answer this question, we must examine W.Va.Code, 2-2-1, our legal holiday statute, because both the police officers' and firefighters' holiday pay statutes specifically refer to this statute as initiating the right to holiday pay. 5

W.Va.Code, 2-2-1, after enumerating certain specified days as legal holidays, goes on to provide as additional legal holidays "all days which may be appointed or recommended by the governor of this state, or the president of the United States, as days of thanksgiving, or for the general cessation of business." It is this language over which the legal holiday issue is fought in this case.

The appellants argue the circuit court erred in ruling that the days recommended by the governor as nonworking days for State employees are not included in calculating holiday pay under these two statutes. In their stipulation of facts in the circuit court, the parties identified the specific days recommended by then Governor John D. Rockefeller, IV, as days for which State employees were allowed off. Essentially, these days were the Governor's and President's inauguration days, Martin Luther King Day, Good Friday, the day after Thanksgiving, and one-half day on the day before Christmas and New Year's Day.

The language of W.Va.Code, 2-2-1, is clear that once the governor of this State or the president of the United States designates a day for thanksgiving or for the general cessation of business, such a day becomes a legal holiday to the same degree that the statutorily enumerated days are legal holidays under W.Va.Code, 2-2-1.

The dispute in the present case is how does a governor exercise this authority to appoint or recommend legal holidays. The city argues that the various memoranda issued by the governor are directed only to State spending units and that there is no language indicating that the governor intended to declare a legal holiday for all employees who work in this State. Furthermore, the city points out that the memoranda do not use the term "legal holiday" nor is there any reference to W.Va.Code, 2-2-1, which forms the basis for a governor's right to declare a legal holiday.

We have not had occasion to consider the question of what procedure a governor must follow in appointing or recommending a legal holiday under the general provisions of W.Va.Code, 2-2-1, thereby creating a legal holiday in addition to those specifically identified in this statute.

Legal holidays are generally created either by legislative enactments or by gubernatorial or presidential proclamations authorized by general legislation. See generally 73 Am.Jur.2d Sundays and Holidays § 5 (1974); 40 C.J.S. Holidays § 2 (1944). Of course, there are holidays other than legal holidays, since the term "holiday," as one court stated, "has reference to a day set apart for worship, for reverence to the memory of a great leader and benefactor of humanity, to rejoice over some great national or historical event, or rekindle the flame of an ideal." Vidal v. Backs, 218 Cal. 99, 105, 21 P.2d 952, 955 (1933).

Most of the cases we have decided involving legal holidays have focused on the effect a legal holiday has in computing a time period in which a certain legal act must be completed. W.Va.Code, 2-2-1 through -3, provide that when the last day on which a legal act must be performed falls on a Saturday, Sunday, or legal holiday, the period of time will be extended to the next ensuing day that is not a Saturday, Sunday, or legal holiday. See, e.g., Crawford v. Erwin, 171 W.Va. 7, 297 S.E.2d 206 (1982) (per curiam); Dixon v. Dixon, 73 W.Va. 7, 79 S.E. 1016 (1913); Logan v. Ballard, 61 W.Va. 526, 57 S.E. 143 (1907). Under common law, Sunday has traditionally been treated as a nonjudicial day. See State ex rel. Varney v. Ellis, 149 W.Va. 522, 142 S.E.2d 63 (1965). Even though Sunday is a nonjudicial day, it is not defined as a legal holiday under W.Va.Code, 2-2-1. 6

A majority of states have general legal holiday statutes similar to W.Va.Code, 2-2-1, listing specific holidays and granting the governor of that state the authority to recommend additional legal holidays. In the few cases which involve a governor's authority to recommend a legal holiday, there is very little discussion on the issue of what procedure a governor must follow to create a legal holiday. See, e.g., Anselmo v. James, 449 F.Supp. 922 (D.Mass.1978); Reed v. Herren, 423 So.2d 139 (Ala.1982); Los Angeles City Employees Union Local 347 v. City of El Monte, 220 Cal.Rptr. 411 (1985); Mandel v. Hodges, 54 Cal.App.3d 596, 127 Cal.Rptr. 244, 90 A.L.R.3d 728 (1976); Farrell v. Bendix Corp., 232 So.2d 419 (Fla.Dist.Ct.App.1970); Brown v. Bernard, 374 So.2d 127 (La.Ct.App.1979).

In City of El Monte, the governor of California in an executive order had declared the third Monday in January as a day in honor of the achievements of Dr. Martin Luther King, Jr. In his executive order, the governor made specific reference to California's general legal holiday statute, which empowers the governor to create legal holidays. A municipal employee's union sued the city of El Monte for holiday pay it claimed was due as a result of this additional legal holiday created by the governor.

The California appellate court held in favor of the union. The court's holding was largely...

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