No. 14274 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

STAN DODD, 

Plaintiff and Appellant, 

THE CITY OF EAST HELENA, a Montana 

Corporation, and JOHN VERBANAC, the 

Mayor of East Helena, 

Defendants and Respondents. 

Appeal from: District Court of the First Judicial District, 

Honorable Gordon R. Bennett, Judge presiding. 

Counsel of Record: 

For Appellant: 

Jackson and Kelley, Helena, Montana 

For Respondents: 

Luxan, Murfitt, Davis and Cosgrove, Helena, Montana 

For Amicus Curiae: 

Keller, Reynolds & Drake, Helena, Montana 

Filed: 

Submitted on briefs: January 29, 1979 

Decided ~i~,ii - 1979 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

This is an appeal by Stan Dodd, a former policeman in 

the City of East Helena, County of Lewis and Clark, Montana, 

from a ruling of the District Court of the First Judicial 

District, determining that he was not entitled to overtime 

compensation as a policeman of a third class city. The 

issue on appeal is whether or not the trial court properly 

determined that policemen of third class cities are not 

entitled to overtime compensation. 

Appellant was employed as a policeman for the City of 

East Helena, Montana, from January 1, 1975, to May 19, 1977. 

Appellant has alleged that during this period he regularly 

worked overtime without any reimbursement. The City of East 

Helena admits that it did not pay any overtime to appellant 

during the period of his employment. The issue on appeal 

involves the sole question of whether or not policemen of 

third class cities are entitled to overtime compensation. 

In 1971 the legislature enacted the Minimum Wages and 

Hours Act which was codified as section 41-2301, et seq., 

R.C.M. 1947, now section 39-3-401 et seq. MCA, which became 

effective July 1, 1971. In conformity with the provisions 

of the act, the Commissioner of Labor issued, on July 1, 

1971, initial regulations interpreting the provisions of the 

Minimum Wage Act. Request was made of the Commissioner by 

the Montana Police Association as to whether policemen were 

covered by the act and entitled to overtime compensation. 

The Commissioner by letter responded in the affirmative. 

On July 27, 1971, a petition for a declaratory judgment 

was filed in this Court in Cause No. 12100, entitled the 

City of Billings and Yellowstone County v. The Honorable Sid 
Smith, Commissioner of Labor of the State of Montana. 

Numerous issues were raised in the petition regarding the 

validity and coverage of the Minimum Wage Act. The petition 

alleged (1) that the act was unconstitutional and void, and 

(2) that police officers, firemen, and deputy sheriffs were 

excluded from the provisions therein on the grounds that 

each was a professional. This Court accepted original 

jurisdiction and issued its opinion on October 29, 1971. 

City of Billings v. Smith (1971), 158 Mont. 197, 490 P.2d 

221. The act was determined to be constitutional, but we 

held that policemen were bona fide professionals and thereby 

exempt from its provisions. 

By reason of this Court's decision, the 1973 legislature amended the Municipal Police Act by enactment of section 11-1832.2, R.C.M. 1947, now section 7-32-4119 MCA, 

which provides: 

"Members of the police departments of cities of 

the first and second class, except those officers 

holding the rank of captain or above, are entitled 

to compensation for overtime as provided under 

section 41-2303 (b) ." 

The Billings determination by this Court was not limited 

in any way to the policcimen working in cities of any specific 

size. On the contrary, for the reasons set forth in the 

opinion, they are applicable to policemen working in any 

city or town in the State of Montana. In fact, the legislative treatment of policemen referred to in the opinion is 

contained in what is known as the Municipal Police Act, 

section 11-1801, et seq., R.C.M. 1947, now section 7-32-4101 

et seq. MCA, which provides the basic guidelines for all 

cities and towns for the administration and operation of 

their police departments. 
As a result of the Billings decision, no policemen in 

Montana were entitled to receive any overtime compensation. 

As noted, the 1973 legislative assembly amended the Police 

Act by adding section 11-1832.2, R.C.M. 1947, now section 7- 

32-4119 MCA. According to the amendment, those policemen in 

first and second class cities became entitled to overtime 

compensation. The decision in Billings applied to all 

policemen. The effect of section 11-1832.2 was that the 

legislature overruled the Billings decision only as it 

applied to policemen in first and second class cities. 

Consequently, policemen employed by cities of the third 

class were not entitled to receive overtime compensation. 

The decision of this Court has not been changed by the 

legislature or by this Court. All the arguments of appellant notwithstanding, the state of the law at this time is 

that while the Billings decision applied to all policemen, 

there is a special act which now segregates third class city 

policemen. 

Subissue (a) set forth by appellant is whether the 

Billinas decision contains an inherent conflict which must 

be addressed by this Court. Appellant argues that there is 

conflict in the reasoning of this Court's opinion which must 

be clarified. He argues that "[I]£ policemen are excluded 

from the Minimum Wages Act, then there can be no conflict 

between the Minimum Wage Act and Section 25-604. This 

inherent contradiction should be addressed and clarified by 

the Honorable Supreme Court of the State of Montana." The 

contradiction which appellant addresses does not exist. 

The Billings case held that policemen were excluded 

from the terms of the act because of their separate treatment under the terms of the ~unicipal Police Act, Chapter 
18, Title 11. The statute referred to by appellant, section 

25-604, R.C.M. 1947, now sections 7-4-2505 and -2402 MCA, 

relates only to compensation for deputy sheriffs. This 

Court in finding that a deputy sheriff was excluded referred 

to a conflict between the specific statute (25-604) specifying their pay and the general statute, the Minimum Wage 

Act, and a determination of which statute would govern. 

That discussion had nothing to do with the rationale for 

finding that policemen were professionals. We find no 

conflict in the opinion which requires further clarification. 

Appellant next addresses his subissue (b) concerning 

the effect of the legislature's enactment of section 11- 

1832.2, R.C.M. 1947, now section 7-32-4119 MCA. Appellant 

argues that the omission of policemen of third class cities 

from the statute was a mistake and that this Court should 

correct same. He states that "therefore, it is quite evident that the insertion of first and second class cities in 

the above act was either a drafting error or inserted simply 

through the ignorance of the possible consequences." The 

argument that this exclusion was "scrivener's error" on the 

part of the legislature and the request that this Court 

rewrite the statute to insert third class cities within its 

provisions contain no citation of authority to support such 

an action by this Court. 

We have held on numerous occasions that this Court 

cannot rewrite statutes to omit what parties feel should be 

omitted or insert what parties feel should be inserted. In 

a recent decision, Mont. Depart. of Rev. v. Am. Smelting & 

Refining (1977), Mon t . , 567 P.2d 901, 905-06, 34 

St.Rep. 597, 602, the Court said: 
"The function of the Supreme Court when construing a statute is simply to ascertain and 

declare what is in substance stated therein, and 

not to insert what has been omitted or to omit 

what has been inserted. (Citations omitted. ) 

The fundamental rule of statutory construction 

is that the intent of the legislature controls. 

(Citations omitted.) Where the intent of the 

legislature can be determined from the plain 

meaning of the words used, the courts may not 

go further and apply any other means of interpretation. . ." 

See also Matter of Estate of Baier (1977), Mont . I 

567 P.2d 943, 34 St.Rep. 860; Myers v. 4 B's Restaurant, 

Inc. (1977), 172 Mont. 159, 561 P.2d 1331, 34 St.Rep. 187; 

Lester v. J. & S. Investment Company (1976), 171 Mont. 149, 

557 P.2d 299, 33 St.Rep. 1104; State ex rel. Nawd's T.V. & 

App. Inc. v. District Court (1975), 168 Mont. 456, 543 P.2d 

Applying these rules of statutory construction supports the proposition that there is no mistake on the part 

of the legislature. It specifically mentioned cities of 

first and second class only and failed to mention cities of 

third class or towns. We are bound by the following rule of 

statutory construction: " . . . It is a rule of statutory 

construction that the express mention of one matter excludes 

other similar matters not mentioned. . ." Helena Valley 

Irr. Dist. v. State Highway Comrn'n (1967), 150 Mont. 192, 

It was also noted in the above entitled case that there 

is a presumption that the legislature acts knowing full well 

the facts existing at the time of the enactment of the 

legislation. "It is also a rule of statutory construction 

that the legislature acted with full knowledge and information as to the subject matter and existing conditions including the construction placed on previous law by the 

executive officers acting under it. . ." 150 Mont. at 199, 
The legislature obviously was aware of the Billings 

decision when it amended the act to include policemen of 

first and second class cities and knew full well of the 

effect of this act and intended specifically to limit it 

to the larger cities and to exclude the smaller cities. 

Appellant argues that the enactment of section 11-1832.2 

repealed the Billings decision. We do not agree. All that 

was done was to provide certain policemen with overtime 

compensation. The effect of the legislation did not.-aff ect 

the status of policemen in third class cities, and they are 

still bound by the provisions of the Billings decision. It 

is a legislative matter to decide whether or not policemen 

of third class cities and towns are to be given overtime 

compensation. 

Appellant then raises the issue of whether section 11- 

1832.2 violates the rights of policemen in third class 

cities by denying them overtime. This issue of unconstitutionality of the treatment of policemen of third class cities 

was raised for the first time on appeal. No attempt was 

made by appellant to serve the Attorney General of the State 

of Montana. We hold, therefore, that the issue is not properly before this Court. 

This Court in Johnson v. Doran (1975), 167 Mont. 501, 

511, 540 P.2d 306, stated, "As to Doran's contention that 

section 66-1940(c), R.C.M. 1947, is unconstitutional, this 

issue was raised for the first time on appeal. This Court 

has consistently ruled that a constitutional issue is waived 

if not presented at the earliest opportunity. . ." See also 

Clontz v. Clontz (1975), 166 Mont. 206, 531 P.2d 1003; Union 

Interchange, Inc. v. Allen (1962), 140 Mont. 227, 370 P.2d 

492; Rule 38, M.R.App.Civ.P. 
The decision of the District Court is affirmed. 

We concur: 

L/ 

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