dissenting:
In Donaldson v. Gainer, 170 W.Va. 300, 294 S.E.2d 103 (1982), this Court unanimously recognized that the constitutional guaranty of equal protection requires that similarly situated magistrates receive equal pay for equal work. I believe that the petitioners in the instant proceeding have demonstrated that full-time magistrates serving smaller populations are subjected to unjustifiable discrimination under the present compensation system.
Under West Virginia Code § 50-1-3 (Supp.1984), magistrates are divided into three classes for purposes of compensation. However, under West Virginia Code § 50-1-4 (1980 Replacement Vol.), magistrates are divided into two classes for purposes of determining the amount of time to be devoted to their official duties. In effect, this statute mandates that all magistrates who serve in a county with a total population of greater than ten thousand devote full time *364to their official duties. The petitioners herein have not specifically presented this Court with an argument in support of equal pay for those magistrates in eight counties who are, by operation of statute, part-time magistrates.* Given this fact, the majority’s comparisons of the busiest full-time magistrates with the least active part-time magistrates are of no relevance.
Regarding the disparities in compensation among full-time magistrates, it may be true, for example, that magistrates in Mercer and Kanawha Counties handle larger case loads and thus, spend more office time in the courtroom than full-time magistrates in more sparsely populated counties. But it remains that all are statutorily required to devote full time to their public office. An hour of time in Charleston is identical to an hour of time in Pineville, and both are identical to an hour of time in Greenwich.
The population-based salary scheme designed to set compensation levels of magistrates impermissibly discriminates against those full-time magistrates who serve in the more sparsely populated counties. These magistrates serve on a similar full-time basis, yet receive substantially less pay than their populous county counterparts. If greater case loads during office hours constituted a reasonable justification for higher salaries, then higher “on call” requirements in the more sparsely populated counties would certainly be a counterbalancing justification for the same.
For further illustration of the patent unreasonableness and inconsistency of the full-time magistrate pay system, I point out that the legislature has provided equal pay for all of the State's circuit judges without regard to the population served per judge. See West Virginia Code § 51-1-13 (Supp. 1984). Therefore, for example, the two judges in the Seventh Circuit, which is comprised of only one county, serve just over twenty-five thousand people per judge. But in the Fifth Circuit, one judge serves fifty thousand people and must travel to three counties in doing so. All circuit judges are paid equally for their full-time services, irrespective of population or territory size.
The four members of this Court in office when Donaldson v. Gainer, supra, was decided held that the constitutional guaranty of equal protection mandates equal pay for equal work. Apparently, three of these members have now changed their minds. The Constitution requires a majority of three. West Virginia Const, art. 8 § 4. I stand as a minority of one, and, for the foregoing reasons respectfully dissent.
The counties which currently have part-time magistrates are Calhoun, Doddridge, Gilmer, Pendleton, Pleasants, Pocahontas, Tucker and Wirt.