Ables v. Mooney, No. 14328

CourtSupreme Court of West Virginia
Writing for the CourtMILLER; HARSHBARGER
Citation164 W.Va. 19,264 S.E.2d 424
Parties, 24 Wage & Hour Cas. (BNA) 487 G. A. ABLES et al. v. Harley F. MOONEY, Jr., Superintendent, West Virginia Department of Public Safety. E. N. HENRY v. Harley F. MOONEY, Jr., Superintendent, West Virginia Department of Public Safety. William David PLANTZ v. Harley F. MOONEY, Jr., Superintendent, West Virginia Department of Public Safety.
Decision Date09 October 1979
Docket NumberNo. 14328

Page 424

264 S.E.2d 424
164 W.Va. 19, 24 Wage & Hour Cas. (BNA) 487
G. A. ABLES et al.
v.
Harley F. MOONEY, Jr., Superintendent, West Virginia
Department of Public Safety.
E. N. HENRY
v.
Harley F. MOONEY, Jr., Superintendent, West Virginia
Department of Public Safety.
William David PLANTZ
v.
Harley F. MOONEY, Jr., Superintendent, West Virginia
Department of Public Safety.
No. 14328.
Supreme Court of Appeals of West Virginia.
Oct. 9, 1979.
Rehearing Denied Dec. 6, 1979.

Page 425

Syllabus by the Court

1. "State officers who, under the color of the authority of unconstitutional state legislation, are guilty of personal trespasses and wrongs, may be sued, although the Constitution of this State provides that the State shall never be made defendant in any suit at law or in equity; and suits may be maintained against such officers in their official capacity, to arrest or direct their official action, by injunction or mandamus, when said suits are authorized by law, and the act to be done or omitted is purely ministerial, in the performance or omission of which the plaintiff has a legal interest; but in other cases such suit cannot be maintained when such officer is only a nominal party, for such suit is then tantamount to a suit against the State." (Emphasis in original) Syllabus Point 3, Blue Jacket Consolidated Copper Co. v. Scherr, 50 W.Va. 533, 40 S.E. 514 (1901).

2. In certain instances a suit may be maintained against a State official in his individual capacity, notwithstanding the [164 W.Va. 20] constitutional immunity provision found in Article VI, Section 35 of the West Virginia Constitution, where the relief sought involves a prospective declaration of the parties' rights. However, where the relief sought involves an attempt to obtain a retroactive monetary recovery against the official based on his prior acts and which recovery is payable from State funds, the constitutional immunity provision bars such relief.

3. "In determining whether to extend full retroactivity, the following factors are to be considered: First, the nature of the substantive issue overruled must be determined. If the issue involves a traditionally settled area of law, such as contracts or property as distinguished from torts, and the new rule was not clearly foreshadowed, then retroactivity is less justified. Second, where the overruled decision deals with procedural law rather than substantive, retroactivity ordinarily will be more readily accorded. Third, common law decisions, when overruled, may result in the overruling decision being given retroactive effect, since the substantive issue usually has a narrower impact and is likely to involve fewer parties. Fourth, where, on the other hand, substantial public issues are involved, arising from statutory or constitutional interpretations that represent a clear departure from prior precedent, prospective application will ordinarily be favored. Fifth, the more radically the new decision departs from previous substantive law, the greater the need for limiting retroactivity. Finally, this Court will also look to the precedent of other courts which have determined the retroactive/prospective question in the same area of the law in their overruling decisions."

Page 426

Syllabus Point 5, Bradley v. Appalachian Power Company, W.Va., 256 S.E.2d 879 (1979).

4. Retroactivity is ordinarily denied to a decision which overrules the former construction of a statute where the new construction of the statute would permit prior monetary claims to be asserted.

[164 W.Va. 21] Chauncey H. Browning, Atty. Gen., Ellen F. Warder, Asst. Atty. Gen., Charleston, for plaintiff in error.

James M. Sprouse, Charleston, Riley & Yahn and Arch W. Riley, Wheeling, for defendant in error.

MILLER, Justice:

This civil appeal presents the question of whether the provision in the West Virginia Wage and Hour Law, W.Va.Code, 21-5C-8(d), 1 permitting a two-year back recovery for unpaid wages in a civil action brought by an employee against an employer who has failed to comply with that statute, should be applied to the petitioners in this case.

The specific question presented is whether this provision requires the payment of two years' back overtime wages where the employer based his refusal to pay the wages during that time on State ex rel. Giles v. Bonar, 155 W.Va. 421, 184 S.E.2d 639 (1971), which held that members of the Department of Public Safety were not covered under the Wage and Hour Law.

Petitioner G. A. Ables and numerous other named persons, all active or retired Troopers or Troopers First Class of the West Virginia Department of Public Safety (herein State Troopers), filed a mandamus action in the Kanawha County Circuit Court on July 1, 1977, against the Superintendent of the Department of Public Safety (herein Superintendent). 2 By this action, the State [164 W.Va. 22] Troopers sought to compel the Superintendent to pay them overtime compensation under W.Va.Code, 21-5C-8(d), for the two years preceding the commencement of the mandamus action.

The State Troopers premise their asserted right to back overtime compensation on the holding of this Court in State ex rel. Crosier v. Callaghan, W.Va., 236 S.E.2d 321 (1977). There, we held that conservation officers employed by the State Department of Natural Resources came within the coverage of the Wage and Hour Law and were eligible for overtime wages under W.Va.Code, 21-5C-1, et seq. This holding hinged on our overruling the prior decision of State ex rel. Giles v. Bonar, supra, "to the extent that Giles categorically denies wage and hour protections to any employee who is clothed with some official character or responsibility . . . ." (236 S.E.2d at 324).

Giles held that State Troopers were excluded from the ambit of the Wage and Hour Law because "police are public officers as distinguished from mere public employees." (155 W.Va. at 430, 184 S.E.2d at 644) In Crosier, we abandoned the "highly artificial distinction between 'public officers' and 'mere employees' " as being "without sound legal basis in wage and hour law." (236 S.E.2d at 326)

The Superintendent contends that the attempt to obtain the two years' back overtime pay is in reality a suit against the State and thus barred under Article VI,

Page 427

Section 35 of the West Virginia Constitution. 3 He also [164 W.Va. 23] asserts that State Troopers are, notwithstanding Crosier, outside the purview of the Wage and Hour Law, or, if they are covered by that statute, that he is not liable for two years' back wages because he had relied on our decision in Giles, which specifically excluded State Troopers from the coverage of the statute.

The Superintendent concedes that his reliance on Giles would end at the time we issued our overruling decision in Crosier on May 17, 1977. He argues that he could not have reasonably anticipated the result in Crosier and therefore is not liable for the two years of unpaid overtime wages. It is not disputed that, immediately upon the issuance of the Crosier decision, the Superintendent made Troopers and Troopers First Class eligible for overtime compensation under the Wage and Hour Law. The Circuit Court concluded that the Superintendent was liable for two years of unpaid overtime wages. For reasons set out below, we hold that he is not.

I

At the threshold, it is important to state those matters we find unnecessary to decide in this case.

As of July 1, 1978, the Legislature amended the wage provisions of the West Virginia Department of Public Safety Reorganization Act, W.Va.Code, 15-2-1, et seq., to exclude State Troopers from the coverage of the Wage and Hour Law and to place them under special "supplemental pay" provisions for overtime work. W.Va.Code, 15-2-5. This section as amended expressly provides that this exclusion is prospective only and has no effect on the present case. 4

[164 W.Va. 24] Because this amendatory legislation prospectively excludes State Troopers from the ambit of the Wage and Hour Law, the question of the coverage of the Troopers in the present case after July 1, 1978, is moot. See Fusari v. Steinberg, 419 U.S. 379, 95 S.Ct. 533, 42 L.Ed.2d 521 (1975). Moreover, since the Superintendent complied with the overtime provisions of the Wage and Hour Law from the date of Crosier, May 17, 1977, this suit does not involve any claim for violation of the Wage and Hour Law since that date.

Therefore, the only issue in this case is whether the two-year back pay requirement of W.Va.Code, 21-5C-8(d), applies retroactively from the date of Crosier. Since the Legislature, as of July 1, 1978, removed State Troopers from the provisions of the Wage and Hour Law, and from that date back to the date of Crosier the Superintendent complied with the Wage and Hour Law, we need not address the question of whether the State Troopers were, in fact, covered

Page 428

by the Wage and Hour Law prior to July 1, 1978.

In sum, we need only decide, assuming arguendo that the State Troopers were covered by the Wage and Hour Law prior to July 1, 1978, if they are entitled to the two-year back pay award under the particular facts of this case.

[164 W.Va. 25] II

The Superintendent urges that this mandamus constitutes a suit against the State and is therefore barred under the provisions of Article VI, Section 35 of the West Virginia Constitution. The State Troopers argue that it is a recognized principle of our law that a suit in mandamus will lie against a State official to compel him to discharge a nondiscretionary duty. State ex rel. Bache & Co. v. Gainer, 154 W.Va. 499, 177 S.E.2d 10 (1970); State ex rel. Clark v. Dadisman, 154 W.Va. 340, 175 S.E.2d 422 (1970); State ex rel. Judy v. Kiger, 153 W.Va. 764, 172 S.E.2d 579 (1970); State ex rel. Printing-Litho, Inc. v. Wilson, 147 W.Va. 415, 128 S.E.2d 449 (1962).

Without embarking on an extended discussion of the several aspects of our constitutional doctrine of sovereign immunity, 5 we can state that it has...

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19 practice notes
  • DePond v. Gainer, No. 16902
    • United States
    • Supreme Court of West Virginia
    • March 12, 1986
    ...Freight, Inc., 169 W.Va. 698, 289 S.E.2d 679 (1982); Bond v. City of Huntington, --- W.Va. ----, 276 S.E.2d 539 (1981); Ables v. Mooney, 164 W.Va. 19, 264 S.E.2d 424 (1979); Syllabus Point 5, Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 In summary, two cases bearing direc......
  • State v. Chase Securities, Inc., No. 20863
    • United States
    • Supreme Court of West Virginia
    • November 25, 1992
    ...178 W.Va. 291, 359 S.E.2d 124 (1987); Hesse v. State Soil Conservation Comm., 153 W.Va. 111, 168 S.E.2d 293 (1969). In Ables v. Mooney, 164 W.Va. 19, 264 S.E.2d 424 (1979), we recognized that Article VI, Section 35 of the Constitution does not prohibit actions against state officials, but h......
  • City of Fairmont v. Pitrolo Pontiac-Cadillac Co., PONTIAC-CADILLAC
    • United States
    • Supreme Court of West Virginia
    • July 18, 1983
    ...Motor Freight, Inc., 169 W.Va. 698, 289 S.E.2d 679 (1982); Bond v. City of Huntington, W.Va., 276 S.E.2d 539 (1981); Ables v. Mooney, 164 W.Va. 19, 264 S.E.2d 424 (1979); Bradley v. Appalachian Power Company, 163 W.Va. 332, 256 S.E.2d 879 (1979). These new legal principles have resulted in ......
  • LaRue v. LaRue, No. 15578
    • United States
    • Supreme Court of West Virginia
    • May 25, 1983
    ...Freight, Inc., 169 W.Va. 698, 289 S.E.2d 679 (1982); Bond v. City of Huntington, 166 W.Va. 581, 276 S.E.2d 539 (1981); Ables v. Mooney, 164 W.Va. 19, 264 S.E.2d 424 Because equitable distribution based on economic contributions does not involve any substantial departure from our prior law w......
  • Request a trial to view additional results
19 cases
  • DePond v. Gainer, No. 16902
    • United States
    • Supreme Court of West Virginia
    • March 12, 1986
    ...Freight, Inc., 169 W.Va. 698, 289 S.E.2d 679 (1982); Bond v. City of Huntington, --- W.Va. ----, 276 S.E.2d 539 (1981); Ables v. Mooney, 164 W.Va. 19, 264 S.E.2d 424 (1979); Syllabus Point 5, Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 In summary, two cases bearing direc......
  • State v. Chase Securities, Inc., No. 20863
    • United States
    • Supreme Court of West Virginia
    • November 25, 1992
    ...178 W.Va. 291, 359 S.E.2d 124 (1987); Hesse v. State Soil Conservation Comm., 153 W.Va. 111, 168 S.E.2d 293 (1969). In Ables v. Mooney, 164 W.Va. 19, 264 S.E.2d 424 (1979), we recognized that Article VI, Section 35 of the Constitution does not prohibit actions against state officials, but h......
  • City of Fairmont v. Pitrolo Pontiac-Cadillac Co., PONTIAC-CADILLAC
    • United States
    • Supreme Court of West Virginia
    • July 18, 1983
    ...Motor Freight, Inc., 169 W.Va. 698, 289 S.E.2d 679 (1982); Bond v. City of Huntington, W.Va., 276 S.E.2d 539 (1981); Ables v. Mooney, 164 W.Va. 19, 264 S.E.2d 424 (1979); Bradley v. Appalachian Power Company, 163 W.Va. 332, 256 S.E.2d 879 (1979). These new legal principles have resulted in ......
  • LaRue v. LaRue, No. 15578
    • United States
    • Supreme Court of West Virginia
    • May 25, 1983
    ...Freight, Inc., 169 W.Va. 698, 289 S.E.2d 679 (1982); Bond v. City of Huntington, 166 W.Va. 581, 276 S.E.2d 539 (1981); Ables v. Mooney, 164 W.Va. 19, 264 S.E.2d 424 Because equitable distribution based on economic contributions does not involve any substantial departure from our prior law w......
  • Request a trial to view additional results

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