Mitchell v. City of Wheeling, 24155.

Citation502 S.E.2d 182,202 W.Va. 85
Decision Date12 March 1998
Docket NumberNo. 24155.,24155.
CourtSupreme Court of West Virginia
PartiesThomas MITCHELL, Plaintiff below, Appellee, v. The CITY OF WHEELING, a West Virginia Municipal Corporation, Defendant below, Appellant.

Ronald M. Musser, Rosemary Humway-Warmuth, Office of the City Solicitor, Wheeling, for Appellant.

Stephen D. Herndon, Wheeling, for Appellee.

STARCHER, Justice:

The City of Wheeling, the appellant, appeals a decision of the Circuit Court of Ohio County holding that the President of the United States William J. Clinton's Proclamation No. 6677 and Executive Order 12910, commemorating the death of former President Richard M. Nixon, established a legal holiday within the State of West Virginia. Thomas Mitchell, the plaintiff below and appellee, a police officer employed with the City of Wheeling, argues that the proclamation and the executive order did establish April 27, 1994 as a legal holiday, and, as such, he and others so situated are entitled to holiday benefits.1

We conclude that the circuit court erred in its conclusion and we reverse.

I. Facts and Background

On April 22, 1994, former President Richard M. Nixon passed away and as a mark of respect, President William J. Clinton issued a statement calling on the Nation to mourn. By proclamation on April 22, 1994, the President encouraged the American people to gather in their places of worship to "pay homage to the memory of President Nixon and to seek God's continued blessing on our land." Presidential Proclamation No. 6677, 59 Fed.Reg. 21913 (1994).2 In this proclamation the President made no reference to a holiday.

The following day, April 23, 1994, President Clinton issued Executive Order 12910 in which he ordered the following:

Section 1. All executive departments, independent establishments, and other governmental agencies, including their field services, shall be closed on April 27, 1994, as a mark of respect for Richard Milhous Nixon, the thirty-seventh President of the United States. That day shall be considered as falling within the scope of 5 U.S.C. 6103(b), and of all statutes so far as they relate to the compensation and leave of employees of the United States.
Sec. 2. The first sentence of section 1 of this order shall not apply to those offices and installations, or parts thereof, in the Department of State, the Department of Defense, or other departments, independent establishments, and governmental agencies that the heads thereof determine should remain open for reasons of national security or defense or other public reasons.

Executive Order No. 12910, 59 Fed.Reg. 21915 (1994).

On April 3, 1996, Thomas Mitchell, a police officer with the City of Wheeling ("City"), filed suit against the City asserting inter alia that April 27, 1994 was a legal holiday and seeking an order from the circuit court providing him an additional day of leave under W.Va.Code, 8-14-2a [1976].3 After filing its answer, the City moved for summary judgment. At the hearing on the motion, the appellee Mitchell tendered a responsive pleading, and the parties stipulated that the matter was ripe for summary judgment.

The circuit court granted summary judgment to Mitchell and found that April 27, 1994 was a holiday and that Mitchell was entitled to holiday compensation. This appeal followed.

II. Discussion

The standard of review for summary judgement is de novo. Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

West Virginia legal holidays are enumerated in W.Va.Code, 2-2-1 [1985].4 This statute also empowers both the governor of our state and the President of the United States to declare additional holidays. Specifically it provides:

The following days shall be regarded, treated and observed as legal holidays, viz..., and 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; and when any of these days or dates falls on a Sunday, then the succeeding Monday shall be regarded, treated, and observed as the legal holiday.

This Court has addressed the steps necessary for our governor to follow in order to declare additional holidays pursuant to W.Va. Code, 2-2-1. However, this is the first time we have considered what procedures the President must comply with to create an additional holiday for West Virginia public employee compensation purposes, or for the citizens of West Virginia generally.

In Pullano v. City of Bluefield, 176 W.Va. 198, 342 S.E.2d 164 (1986), police officers and firefighters in Bluefield argued that certain days5 enumerated in memoranda by the governor as days off for State employees should be credited to the Bluefield police officers and firefighters as holidays for compensation purposes. We held in Pullano:

When a governor intends to appoint or recommend an additional legal holiday applicable to all the citizens in this State pursuant to W.Va.Code, 2-2-1, he must make such intent clear in the order or proclamation by either citing W.Va.Code, 2-2-1, or by using the applicable language of W.Va.Code, 2-2-1.

Pullano v. City of Bluefield, 176 W.Va. 198, 342 S.E.2d 164 (1986).

In Pullano, we required the governor to either specifically cite W.Va.Code, 2-2-1 or the language contained therein to manifest his clear intention to provide a holiday. Further, in Capitol City Lodge No. 74, FOP v. City of Charleston, 180 W.Va. 159, 375 S.E.2d 791 (1988), we required the governor to specifically state that the holiday be for all citizens. In Capitol City Lodge No. 74, FOP, we said:

Absent a clear intent by a governor to appoint or recommend an additional legal holiday pursuant to W.Va.Code, 2-2-1, for all citizens, no legal holiday is created when he simply recommends that State employees be given all or part of a day off.

Syllabus Point 1, Capitol City Lodge No. 74, FOP, supra.

We recognize that we cannot expect the President of the United States to specify our statute section, W.Va.Code, 2-2-1, when he wishes to recommend a holiday that would be applicable to the citizens of this State, but it would not be unreasonable to require him to use the applicable language of our statute.

We have previously held that no part of a statute is to be treated as meaningless and we must give significance and effect to every section, clause, word or part of a statute as well as to the statute as a whole. State v. General Daniel Morgan Post No. 548, 144 W.Va. 137, 107 S.E.2d 353 (1959); Wilson v. Hix, 136 W.Va. 59, 65 S.E.2d 717 (1951). Therefore, as the President has been granted the power to create additional holidays in West Virginia by appointing or recommending6 certain days "as days of thanksgiving or for the general cessation of business," he must be allowed some other mechanism to do so absent specifying W.Va. Code, 2-2-1 in his proclamation or order.

The President currently has the power under 5 U.S.C. § 6103(b) [1983] to create holidays for federal employees. The President derives this power from the Constitution of the United States and federal legislation. The President has not been given the authority to announce state holidays through the federal statutes. The only power that has been given to the President to create holidays within West Virginia is through our statute W.Va.Code, 2-2-1 [1985], and as amended in 1995.

As the governor is required to meet the tests of Pullano and Capitol City Lodge No. 74, FOP for declaring a holiday for the citizens of West Virginia pursuant to W.Va. Code, 2-2-1, so must the President.

For the President to declare a legal holiday that includes all West Virginians, there must be some language in his order or proclamation that manifests his intent that there is to be a holiday. Here, in Executive Order No. 12910, by citing 5 U.S.C. § 6103(b), the President did express an intent to declare a holiday, but only for federal employees.

Also, the President must declare that the holiday is to be for all citizens. In Proclamation No. 6677, the President, while incorporating language which encouraged all citizens to "assemble ... in their respective...

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