State ex rel. Giles v. Bonar, 13090

CourtSupreme Court of West Virginia
Citation155 W.Va. 421,184 S.E.2d 639
Docket NumberNo. 13090,13090
Parties, 20 Wage & Hour Cas. (BNA) 559, 67 Lab.Cas. P 52,737 STATE ex rel. James L. GILES, etc. v. R. L. BONAR, Superintendent of the Department of Public Safety of West Virginia.
Decision Date16 November 1971

Syllabus by the Court

The members of the West Virginia Department of Public Safety, commonly referred to as state police, are public officers as distinguished from mere employees and, therefore, are not covered by and entitled to the benefits of the minimum wages and maximum hours provisions of Article 5C of Chapter 21, Code, 1931, as amended.

Preiser, Greene, Hunt & Wilson, W. Dale Greene, Charleston, for relator.

Chauncey H. Browning, Jr., Atty. Gen., Cletus B. Hanley, Deputy Atty. Gen., Thomas P. O'Brien, Jr., Asst. Atty. Gen., Charleston, for respondent.

CALHOUN, Judge:

In this proceeding in mandamus instituted in this Court, James L. Giles, as the petitioner, seeks to require R. L. Bonar, Superintendent of the West Virginia Department of Public Safety, as the respondent, to issue a requisition directed to the State Auditor for the payment to the petitioner of the sum of $6,117.53, which sum he alleges is the proper amount of overtime compensation earned by him while he was previously employed as a member of the Department of Public Safety, which hereafter in this opinion may be referred to merely as the Department.

The basic question presented for decision is whether members of the Department, who are commonly referred to as state police, are covered by and entitled to the benefits of the minimum wages and maximum 21 of Code, 1931, as amended. Stated 21 of Code, 1931m, as amended. Stated more precisely, the question presented for decision is whether, pursuant to these statutory provisions, a member of the Department is entitled to be paid at a rate not less than one and one-half his regular rate of compensation for all the time he is engaged in his employment by the Department for a 'workweek' in excess of forty-eight hours.

The case was submitted for decision upon the mandamus petition; upon an answer and a demurrer to the petition filed by and in behalf of the respondent; upon a replication filed by the petitioner to the answer of the respondent; upon a paper filed by and in behalf of the petitioner which is designated as a replication to the respondent's demurrer; upon a deposition of a witness; and upon briefs and oral argument of counsel for the respective parties.

The petitioner undertakes to prosecute the mandamus proceeding on his own behalf and also on behalf of and for the benefit of all other persons similarly situated who were members of the Department prior to November 24, 1970, upon which date the petitioner, while holding the rank of trooper, was discharged from his employment as a member of the Department.

In his mandamus petition, the petitioner alleged that, while employed by the Department with the rank of trooper, he 'worked numerous work weeks longer than 48 hours' and that he was not paid 'any additional sum for those work weeks exceeding 48 hours.' He further alleged in his mandamus petition that, as a member of the Department, he was entitled to the benefit of the minimum wages and maximum hours provisions of Article 5C of Chapter 21 of Code, 1931, as amended, which, for the sake of convenience, may be referred to hereinafter in this opinion as the Wage and Hour Law.

By his answer to the mandamus petition, the respondent admitted that the petitioner, while a member of the Department, worked some workweeks in excess of forty-eight hours and that he was not paid any overtime compensation, but the respondent denied that the petitioner is entitled to receive any sum as overtime compensation. The respondent alleged affirmatively that members of the Department are not entitled to the benefit of the provisions of Article 5C of Chapter 21, Code, 1931, as amended; that members of the Department 'are public officers, not employees,' within the meaning of these statutory provisions; and that all members of the Department are 'specifically excluded' from the benefit of the statutory provisions in question 'by reason of being executives and administrators' as defined in the Wage and Hour Law. In Haynes v. Commonwealth, 104 Va. 854, 52 S.E. 358, it was held that a policeman was an 'executive officer' within the meaning of a bribery statute which was involved in that case. The demurrer of the respondent asserted, by way of defense, essentially the same legal propositions which were asserted in the answer.

In support of the allegations of his mandamus petition, the petitioner took and duly filed the deposition of Sergeant S.S. Satterfield, a member of the Department who occupied the position of chief accountant in the accounting division of the Department. His deposition was taken for the purpose of submitting certain computations which form the basis of the petitioner's claim of overtime compensation. On the basis of certain information supplied to Sergeant Satterfield, which was alleged to represent the time the petitioner worked as a trooper for workweeks in excess of forty-eight hours during the period of time in question, Sergeant Satterfield arrived at the sum of $6,139.23 as the overtime compensation to which the petitioner was entitled, pursuant to the petitioner's contention. The brief of counsel for the petitioner states that the amount actually claimed is $6,117.53. The computations made by Sergeant Satterfield did not represent his contention or an expression of his belief that the petitioner, as a member of the Department, was entitled to any sum as overtime compensation. Sergeant Satterfield testified that his computations 'reflect the period from May 48 1969, up through and including November 22, 1970.' The mandamus petition was filed in the office of the Clerk of this Court on May 3, 1971.

Counsel for the respondent assert that payment by the Department of the sum demanded by the petitioner in this proceeding would constitute a violation of the provisions of Code, 1931, 12--3--17, as amended, which provides, generally speaking, that it 'shall be unlawful for any state board, commission, officer or employee: * * * (2) to authorize or to pay any account or bill incurred during any fiscal year out of the appropriation for the following year, * * *.' Counsel for the respondent assert additionally that it would be unlawful for him or for the Department to pay the sum demanded by the petitioner because of the provisions of Code, 1931, 12--3--12, as amended, a portion of which provisions are as follows: 'Every appropriation which is payable out of the general revenue, * * * shall be deemed to have expired at the end of the year for which it is made, and no Warrant shall thereafter be issued upon it: * * *.' (Italics supplied.) See State ex rel. Henson v. Gore, 151 W.Va. 97, 150 S.E.2d 575. In that connection, counsel for the petitioner assert that he does not seek to require the issuance of a 'warrant' but that rather he seeks merely to require the issuance by the respondent of a requisition directed to the State Auditor.

Counsel for the respondent assert that, for reasons previously stated in this opinion, an award of a writ of mandamus in this case would require the performance of an unlawful act and also the performance of a vain and useless act. In the light of these contentions, counsel for the petitioner assert, as we understand their contentions made in oral argument, that issuance of a requisition by the respondent, directed to the State Auditor, might, at least, afford to the petitioner a proper basis for asserting a claim before the State Court of Claims. Without considering the merits of the contentions thus made by counsel for the respective parties, we deem it proper to proceed directly to a decision of the basic question whether members of the Department are covered by and entitled to the benefits of the Wage and Hour Law.

The Wage and Hour Law involved in this case, enacted in 1966 and amended in 1971, is designated as Article 5C of Chapter 21, Code, 1931, as amended. Reference in this opinion will be made to the several sections 3 Article 5C, as amended. A portion of Section 3 is as follows:

'(a) On and after January one, one thousand nine hundred sixty-seven, no employer shall employ any of his employees for a workweek longer than forty-eight hours, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.'

Section 1 contains the following definitions:

'(c) 'Wage' means compensation due an employee by reason of his employment.

'(d) 'Employ' means to hire or permit to work.

'(e) 'Employer' includes the State of West Virginia, its agencies, departments and all its political subdivisions, any individual, partnership, association, public or private corporation, or any person or group of persons acting directly or indirectly in the interest of any employer in relation to an employee; and who employs during any calendar week six or more employees as herein defined In any one separate, distinct and permanent location or business establishment: * * *. (Italics supplied.)

'(f) 'Employee' includes any individual employed by an employer...

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7 cases
  • Ables v. Mooney
    • United States
    • West Virginia Supreme Court
    • 9 Octubre 1979
    ...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 Petitioner G. A......
  • Gribben v. Kirk
    • United States
    • West Virginia Supreme Court
    • 8 Diciembre 1995
    ...the DPS Superintendent refused to pay such wages. The DPS Superintendent refused the payment on the basis of State ex rel. Giles v. Bonar, 155 W.Va. 421, 184 S.E.2d 639 (1971) (State Police Officers were not employees protected by the Wage and Hour Law), prior to its overruling in State ex ......
  • McCarty v. Harless
    • United States
    • West Virginia Supreme Court
    • 28 Julio 1989
    ...of the retroactivity of the payments since deputy sheriffs were never the subject of the overruled decision, State ex rel. Giles v. Bonar, 155 W.Va. 421, 184 S.E.2d 639 (1971), which was the basis of the decision in Ables.14 West Virginia Code § 21-5C-1(h) (1985) defines "hours worked" as "......
  • State v. Macri
    • United States
    • West Virginia Supreme Court
    • 11 Febrero 1997
    ...West Virginia Code § 21-5C-1(f).13 In arriving at this conclusion, we overruled this Court's prior decision in State ex rel. Giles v. Bonar, 155 W.Va. 421, 184 S.E.2d 639 (1971), to the extent it denied wage and hour law coverage "to any employee who is clothed with some official character ......
  • Request a trial to view additional results

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