dissenting:
I respectfully dissent to the decision of the Court.
While I am in wholehearted agreement with the proposition of law stated in syllabus point 1., I do not believe it to be applicable to the facts of the case.
State ex rel. Kucera v. City of Wheeling, 153 W. Va. 539, 170 S.E.2d 367 (1969), the second case in this litigation trilogy, recognized and held that firemen employed by the City of Wheeling were not entitled to a pay raise for fiscal year 1969-70 upon the mere approval of budgeted funds adequate to provide a pay raise in that fiscal period; for entitlement to pay raises to arise which would be enforceable in mandamus, the city manager would have had to grant, by affirmative act, a pay raise effective July 1, 1969 to the firemen. The opinion then noted that the city manager had not granted the pay raise and that the city council on June 10, 1969 further had adopted an “ordinance” which provided “that if the original Kucera case [the first case in this trilogy] ... were decided against the city [It was.] the pay raises for those affected thereby [the firemen, appellants herein] would not be implemented inasmuch as the budget for the fiscal year 1969-1970 would have placed upon it ‘a tremendous financial burden.’ ” Accordingly, this Court held mandamus would not lie to compel the payment of raises effective July 1, 1969. See, syllabus point 3., and pp. 543-544 of Volume 153 of the West Virginia Report.
On October 31, 1969, the city manager approved a pay raise for the appellant effective November 1, 1969 and also volunteered the equivalent of a pay raise for the period of July 1 through October 31, 1969 to those firemen who chose to execute a release discharging the city *871from all claims for overtime compensation under W. Va. Code 1931, 21-5C-3, as amended, for the period of July 1, 1969 through November 1, 1969.
W. Va. Code 1931, 21-5C-8, as amended, renders void and unenforceable an agreement executed by an employee covered by the State Minimum Wage Act to accept “less than the applicable wage rate to which such employee is entitled....” (Emphasis supplied). By the second Kueera decision, still presumably recognized by the majority, the firemen were not entitled to a pay raise until it was granted by the city manager effective November 1, 1969. The releases should have been recognized as valid in that such did not purport to cover wage entitlements protected by the statute.
Secondly, there was little or no evidence adduced which supported a general charge that the releases in question were executed under duress. Duress must be proved by- clear and convincing testimony. Carroll v. Fetty, 121 W. Va. 215, 220, 2 S.E.2d 521, 524, cert. denied, 308 U.S. 571, 60 S. Ct. 85, 84 L. Ed. 479 (1939); see, McPeck v. Graham, 56 W. Va. 200, 201, 49 S.E. 125, 126 (1904). The trial court’s factual determination regarding the charge of duress should not be disturbed unless clearly wrong. Rule 52(a), W. Va. R.C.P.; Lewis v. Dils Motor Co., 148 W. Va. 515, 135 S.E.2d 597 (1964).
I am authorized to state that Justice Neely joins in the foregoing portion of this dissent.For reasons stated in a dissenting opinion prepared by Justice Sprouse, I wish to note that I join him in his opinion that the city manager’s formula for computation of overtime compensation violates the public policy expressed in W. Va. Code 1931, 21-5C-1, et seq. and 8-15-10, as respectively amended. Likewise, I would reverse that part of the judgment of the Circuit Court of Ohio County which approved the pay schedule formulated by the city manager.