dissenting:
I respectfully dissent from that part of the majority opinion affirming the circuit court’s approval of the pay schedule formulated by the Wheeling city manager. It is uncontroverted that the Wheeling firemen regularly work sixty-hour weeks. It is unanimously agreed that *868Code, 1931, 21-5C, as amended, requires payment at a rate of one and one-half times the regular hourly rate for hours in excess of forty-eight worked each week. This dispute concerns the formula for determining the regular hourly rate.
The City of Wheeling arrived at a regular hourly rate in a manner approved by the majority as follows: The city council on June 10, 1969, by ordinance, fixed an annual salary; the city manager divided this by fifty-two, arriving at a weekly wage; he then arbitrarily determined a sixty-six hour work week, divided the weekly wage by sixty-six, arriving at a regular hourly wage. Applying this rate to the actual sixty-hour work week, firemen were paid the regular rate for the first forty-eight hours and one and one-half times that rate for the next twelve hours. The use of the artificial sixty-six hour week (dividing the weekly rate by sixty-six rather than by sixty) obviously resulted in a lower regular hourly rate. The use of this lower “regular rate” insured with mathematical certainty that the sum of straight and overtime pay equaled the annual salary set by the city council.
The majority holds that, since the Wheeling City Charter empowers the city manager (“unless otherwise provided * * * by ordinance”) to fix compensation, he acted legally in fixing a basic hourly rate even though he utilized a ficticious sixty-six hour week to arrive at a final figure.
This is fallacious for two reasons. The city council, by ordinance, fixed the firemen’s annual compensation. The city manager only chopped it into artificial hourly increments to circumvent the overtime requirements of Code, 21-5C. The City Charter, interpreted to permit such actions by the city manager, is not only in conflict with Code, 21-5C, but it also conflicts with Code, 1931, 8-5-10, as amended, which prescribed a maximum bi-weekly work period of one hundred twenty hours. Any conflict between a city charter provision and a state legislative statute must be resolved in favor of the legislative en*869actment. “Attached to every statute, every charter, every ordinance or resolution affecting, or adopted by, a municipality, is the implied condition that the same must yield to the predominant power of the State, when that power has been exercised.” Brackman’s, Incorporated v. City of Huntington, 126 W. Va. 21, 21 S.E.2d 71; City of Huntington v. State Water Commission, 137 W. Va. 786, 73 S.E.2d 833. The city manager’s actions, violating these State statutes, could not be validated by an inconsistent city charter provision.
Code, 1931, 21-5C-3, as amended, provides that, for work over forty-eight hours each week, an employee shall be paid “one and one-half times the regular rate.” (Emphasis supplied.) No West Virginia case has defined “regular rate.” It is obvious, however, that W. Va. Code, 21-5C, is patterned after the Federal Fair Labor Standards Act of 1938, as amended by 29 U.S.C., Section 201, et seq. The Federal courts interpreting this Federal counterpart have unanimously disapproved artificial approaches such as that used by the Wheeling city manager. They have held uniformly that to calculate a regular hourly rate from annual or weekly compensation, the actual hours worked must be used. 149 Madison Avenue Corp. v. Asselta, 331 U.S. 199; Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419; Walling v. Helmerich & Payne, Inc., 323 U.S. 37; Seneca Coal and Coke Co. v. Lofton, 136 F.2d 359 (10th Cir. 1943), cert. denied 320 U.S. 722; Patsy Oil and Gas Co. v. Roberts, 132 F.2d 826 (10th Cir. 1943).
The Wheeling city firemen regularly work a sixty-hour week. The city council fixed their compensation on an annual basis. This divided by fifty-two mathematically determines a weekly rate. That divided by sixty should properly determine the regular hourly rate contemplated by Code, 21-5C. The firemen should be paid that rate for the first forty-eight hours worked in each week and one and one-half times that rate for all hours in excess of forty-eight weekly.
I would reverse the judgment of the Circuit Court *870which approved the pay schedule formulated by the city manager.
I am authorized to state that Justice Haden joins in this dissenting opinion.