dissenting:
I would affirm the judgment of the Circuit Court of Kanawha County that under State ex rel. Crosier v. Callaghan, W. Va., 236 S.E.2d 321 (1977) state police troopers *37are entitled to be paid for their overtime hours, and would make this ruling fully retroactive.
Crosier involved conservation officers employed by the Department of Natural Resources and overruled State ex rel. Giles v. Bonar, 155 W. Va. 421, 184 S.E.2d 639 (1971) wherein we found state policemen not to be entitled to the benefits of the state wage and hour law, W. Va. Code, 21-5C-1 et seq., to the extent that it held that any employee having “some official character or responsibility” was excluded from that law.
I need not reiterate Crosier’s reasoning. It applies to members of the Department of Public Safety, unless there are peculiarities that make troopers first class1 professional, administrative or executive employees, and, as such, not protected by the law.
In Crosier we set out “West Virginia Minimum Wages and Maximum Hours Standards Regulations” describing duties and qualifications of professional, administrative or executive employees exempt from coverage. 236 S.E.2d at 324-25. The exemptions must be narrowly construed, Brennan v. Southern Productions, Inc., 513 F.2d 740 (6th Cir. 1975), and unless all exempting criteria are met an employee is protected. Hodgson v. Barge, Waggoner & Sumner, Inc., 377 F. Supp. 842 (M.D. Tenn. 1972), Aff’d, 477 F.2d 598 (6th Cir. 1973).
The West Virginia Department of Public Safety is governed by Code, 15-2-1 et seq. Its superintendent serves as the executive and administrative head of the department and chooses deputy supervisors. Persons enlisting must be between the ages of twenty-one and thirty, of sound constitution and good moral character. They must pass mental and physical examinations and successfully *38complete a training program. There are no specialized education requirements.
Members are empowered to make arrests only upon a warrant or when they witness a crime. They may serve criminal process, investigate crime and take affidavits. They are forest patrolmen and game and fish wardens. They may make complaints and procure warrants. No member may interfere with property rights except for prevention of crime, nor may they be politically active or aid either party in a labor dispute.
The department’s retirement board must retire any member who is fifty-five years old and has completed twenty-five years of service and also must retire any member who petitions for retirement and has twenty-five years of sevice or is fifty years old and has twenty years’ service or is under fifty and has twenty years’ service without military service credit. A member retired under those provisions may be recalled to active duty if he or she consents. Retirement of permanently disabled members is also permissible.
Nothing in the statute makes troopers and troopers first class professionals, executives or administrators. Labor department regulations define the terms: All three categories require that an employee regularly exercise discretion in his or her work. Regulation 301-6(a)(1), (b)(3), (c)(1). Most employees including troopers and troopers first class exercise some discretion doing their work, but consistent or regular discretionary activities are necessary if one is to be classified according to the regulation, as professional, executive or administrative. A trooper or trooper first class has specific duties and powers, most of which are not subject to independent interpretation by him or her.
A “professional’s” primary duty must require knowledge “customarily acquired by a prolonged course of specialized intellectual instruction”, Regulation 301-6(a)(l), and his work must be “predominantly intellectual”. Regulation 301-6(a)(1). Troopers and troopers first class are not required to have specialized intellectual instruction *39except a brief, though intensive, department training course. Their primary work, routine law enforcement, is not “predominately intellectual”. They are professional according to common understanding of the term, but not according to the detailed definition in the regulations which, we reiterate, must be met on all points.
“Executives” must be managers who direct the work of others and have firing or hiring influence. Regulation 301-6(b). Troopers and troopers first class do not manage the department or any division and have no authority over other members.
“Administrative employees” must do primarily non-manual work directly related to policy. Regulation 301-6(c). I believe troopers and troopers first class do not fit this definition.2
For what period are troopers and troopers first class entitled to overtime compensation?
Clearly they cannot recover for work done after June 30, 1978, because the Legislature amended Code, 15-2-5 effective July 1, 1978, to specifically exclude Department *40of Public Safety members from the benefits of the wage and hour law, providing supplemental pay instead.3 These mandamus petitions were filed in the Kanawha County Circuit Court on July 1, 1977; therefore no overtime compensation would be recovered for work done before July 1, 1975, because of the two year statute of limitation in Code, 21-5C-8(d):
In any ... action [to recover a claim under the wage and hour law] the amount recoverable shall be limited to such unpaid wages as should have been paid by the employer within two years next preceding the commencement of such action.
Overtime worked between July 1, 1977 and June 30, 1978 should be compensable because our decision should relate back to the original filing and both past and future overtime compensation was specifically demanded. How much, if any, of overtime worked between July 1, 1975 and July 1, 1977 would be compensable? The answer in my judgment depends on whether this holding applies retroactively considering Giles’ existence and, if so, to what extent.
Until very recently no West Virginia policy on civil retroactivity had been adopted except Syllabus Pt. 2 of Falconer v. Simmons, 51 W. Va. 172, 41 S.E. 193 (1902):
*41An overruled decision is regarded not law, but the law as given in the later case is regarded as having been the law, even at the date of the erroneous decision. To this rule there is one exception, that where there is a statute, and a decision giving it a certain construction, and there is a contract valid under such construction, the later decision does not retroact so as to invalidate such contract.
We are free to adopt whatever rule of civil retroactivity we deem wise. Great Northern Railway Company v. Sunburst Oil & Refining Company, 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932). In Bradley v. Appalachian Power Co., W. Va. _ S.E.2d _ (filed July 10, 1979), we discussed the applicable United States Supreme Court cases, Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971); Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971), and concluded that “while general guidelines can be evolved to determine whether retroactive or prospective application should be given to an overruling decision, it is difficult to etch them with precision so that they will fit all cases.” W. Va., _ S.E.2d at _ We determined what factors should be considered stressing that the weight given any factor depends on the facts of each case.
Retroactivity of an overruling decision is designed to provide equality of application to the overruling decision because its new rule has been consciously designed to correct a flawed area of the law. The more egregious the error, the greater the need to extend the benefits of the overruling decision to others occupying the same status ....
Counterbalancing this factor are several considerations. First, the nature of the substantive issue overruled must be determined. If the issue volves a traditionally settled area of law, such as contracts or property as distinguished from torts, and the new rule was not clearly foreshadowed, *42then retroactivity is less justified. Second, where the overruled decision deals with procedural law rather than substantive, retroactivity will be more readily accorded. Third, common law decisions, when overruled, may result in the overruling decision being given retroactive effect, since the substantive issue usually has a narrower impact and is more likely to involve fewer parties. Fourth, where, on the other hand, substantial public issues are involved, arising from statutory or constitutional interpretations that represent a clear departure from prior precedent, prospective application will ordinarily be favored. Fifth, the more radically the new decision departs from previous substantive law, the greater the need for limiting retroactivity. Finally, we will also look to the precedent of other courts which have determined the retroactive/prospective question in the same area of the law in their overruling decisions. W. Va., _ S.E.2d at_. [My emphasis]
Applying these factors to this case, and considering those that are anti-retroactivity first:
(1) We are not dealing with an issue of well-settled property or private contract law which deserves narrow retroactive treatment to insure stability. Citizens should be able to rely on our decisions in structuring their day to day life; however, here only the government can claim reliance.
Requiring public employees to work more than forty-two hours per week without budgetary worries by the government — extracting free labor from them — is not the kind of reliance stare decisis envisages.
Certainly no reliance after Crosier can be claimed. One day after that decision, the superintendent issued a notice allowing troopers and troopers first class overtime compensation. We commend the director’s speedy compliance.
(2) Our holding is substantive rather than procedural; therefore, retroactivity is negated somewhat.
*43(3) Giles had narrow impact affecting only one distinct group and the government. Applying our holding retroactively would not directly affect anyone outside the government, and its internal effect would be upon the budget.
(4) Our decision is based on statutory construction but it is not a substantial public issue with widespread ramifications. The question will probably never again confront us.
(5) A radical departure from Giles, but not from Crosier, is evident.
(6) We find no other cases which specifically address the retroactivity of overtime compensation awards; however, Crosier, State v. Boykin, supra n. 3, and Ferrara v. State of Louisiana, supra n. 3, all assumed retroactive application without discussion. Furthermore, Code, 21-5C-8(d)4 specifically allows recovery back two years. Refusing retroactivity emasculates Code, 21-5C-8(d) which the legislature designed to allow back pay to people wrongfully deprived of wage and hour benefits.
I would reiterate that principal which surely supports retroactivity here: “Retroactivity of an overruling decision is designed to provide equality of application to the overruling decision because its new rule has been consciously designed to correct a flawed area of the law.” Syllabus Pt. 4, Bradley v. Appalachian Power Co., supra.
Fairness of “equality of application” must be considered. It is patently inequitable to allow other state employees (e.g. conservation officers in Crosier) to recover back wages and deny because of our error, recovery to police officers who have worked just as hard. They put in long hours, had a right to be paid, and we should not *44deny them that right because we erred egregiously in Giles.
Basic fairness outweighs any reason for nonretroac-tivity discovered in the other six factors, and therefore I would make this ruling fully retroactive.
The majority has simply misplaced its equities, and the resultant denial of recovery to the officers takes deserved wages from those the government wronged, relying on our wrong decision in Giles.
I perceive no reason why these claimants cannot pursue recovery in the Court of Claims. As the President of this Court wrote in Slack v. Jacob, 8 W. Va. 612 (1875), discussing Sec. 38 of Article VI of the West Virginia Constitution which prohibits legislative payment of any claim hereafter created against the State under any agreement made without express authorization of law: “It does not apply to claims predicated upon simple justice and right....” 8 W. Va. at 633.
My Brother McGraw joins with me in this dissent.
Congress amended the Fair Labor Standards Act in 1974 to extend coverage to state law enforcement personnel, Act of Apr. 8, 1974, Pub. L. No. 93-259, 88 Stat. 55; however, these amendments were held unconstitutional in National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976). See, n. 1, State ex rel. Crosier v. Callaghan, W. Va., 236 S.E.2d 321 at 325 (1977).
I find no other state decisions directly on point; however, a few are helpful. In City of Billings v. Smith, 158 Mont. 197, 490 P.2d 221 (1971), the Supreme Court of Montana found that police were exempt as professional employees but cited no administrative or statutory definition of “professional” relying instead on legislative intent and the general meaning of the term. We find the results in State v. Boykin, 109 Ariz. 289, 508 P.2d 1151 (1973), and Ferrara v. State of Louisiana, 351 F. Supp. 265 (E.D. La. 1972) more reasonable. In Boykin, the Supreme Court of Arizona found no statutory authorization for payment of overtime compensation to state law enforcement officers since the Arizona statute, A.K..S. § 23-391(A), only applied to “manual or mechanical labor” but they did grant the officers compensatory time off because “it seems clearly unfair to require the law enforcement officers to work longer [than eight hours per day] without some compensatory measure.” 109 Ariz. at 294, 508 P.2d at 1156. In Ferrara, the issue was whether the legislature had approved and appropriated funds for state troopers’ overtime and the United States District Court held that even if the involved statute was invalid the troopers might have reasonably relied on it and be entitled to recovery in quantum meruit for their overtime work.
W. Va. Code, 15-2-5 currently provides, in pertinent part:
The legislature finds and declares that there is litigation pending in the circuit court of Kanawha county on the question whether members of the department of public safety are covered by the provisions of the state wage and hour law, article five-C [§21-5C-1 et seq.], chapter twenty-one of this Code. The legislature further finds and declares that because of the unique duties of members of the department, it is not appropriate to apply said wage and hour provisions to them. Accordingly, members of the department of public safety are hereby excluded from the provisions of said wage and hour law. The express exclusion hereby enacted shall not be construed as any indication that such members were or were not heretofore covered by said wage and hour law.
In lieu of any overtime pay they might otherwise have received under the wage and hour law, and in addition to their salaries and increases for length of service, members who have completed basic training may receive supplemental pay as hereinbefore provided.
W. Va. Code, 21-5C-8(d) provides:
In any such action the amount recoverable shall be limited to such unpaid wages as should have been paid by the employer within two years next preceding the commencement of such action. Nothing in this article shall be construed to limit the right of an employee to recover upon a contract of employment.