Carpenter v. Miller ( 1985 )

NEELY, Chief Justice,

dissenting:

Although I am in sympathy with the majority’s desire to protect miners who testify against their employers about mining conditions from discrimination, I must dissent because this Court, in its opinion today, has misread and incorrectly applied the relevant statutes.

Two statutes are relevant to a disposition of this case. The first, W.Va.Code 22-1-21 [1977], prevents discrimination against miners or their representatives who contact or cooperate with the Department of Mines in an investigation or hearing. Subsection (c) of W.Va.Code 22-1-21 [1977] awards all costs and expenses, inclusive of attorney’s fees, to a miner who successfully proves a case of employer discrimination.

The second statute, W.Va.Code 22-1-4(10) [1984] must be read in pari materia with W.Va.Code 22-1-21 [1977]. W.Va. Code 22-1-4(10) [1984] gives the Director of the Department of Mines the “power and duty” to call or subpoena all witnesses material to the case and to reimburse them out of the state treasury. Obviously such a reimbursement is a cost of litigation and thus it is obvious such costs are only awarded where the complainant has prevailed against his employer. It is doubtful that the legislature intended that the Director of Mines has carte blanche to require employers to bring in potential witnesses from all four corners of the globe where the complainant does not prevail and it certainly is not, contrary to the majority’s assertion, a “mandatory duty.”