### 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 - 

## 1979Mr. Justice John Conway Harrison delivered the Opinion of the Court.

This is an appeal by Stan Dodd, a former policeman in the City of EastHelena, 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 

### iswhether or not the trial court properly determined that policemen of third class cities are not entitled toovertime compensation. Appellant was employed as a policeman for the City of East Helena, Montana, from January 

### 1, 1975, toMay 19, 1977. Appellant has alleged that during thisperiod 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 toovertime 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 etseq. MCA, which became effectiveJuly 

### 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 towhether policemen 

### were covered by the actand entitled to overtime compensation. The Commissioner by letterresponded inthe affirmative. On July 27, 1971, a petition for a declaratory judgment

was filed inthis Court inCause No. 12100, entitled the City of Billings and Yellowstone County v. The Honorable Sid

### Smith, Commissioner of Labor of the Stateof Montana. Numerous issues

### were raised inthe petition regarding the validity and coverage of the Minimum Wage Act. 

### The petition alleged (1)

### that the actwas unconstitutional and void, and (2) 

### thatpolice officers, firemen, and deputy sheriffswere 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), 158Mont. 197, 490 P.2d 221. The actwas 

### determined tobe constitutional, but

### we held thatpolicemen were bona fideprofessionals and thereby exempt from itsprovisions. By reason of thisCourt'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 firstand second 

### class, except those officers holding the rank of captain or above, 

### are entitled tocompensation forovertime as 

### provided under section 41-2303 (b)

# ." The Billings determination by this Court was not limited inany way to the policcimen working in

### cities of any specific size. On the contrary, for the reasons set forth inthe opinion, they are applicable topolicemen working inany cityor town inthe State of Montana. In fact, the legislative treatment of policemen referred tointhe opinion is 

### contained inwhat 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 toreceive any overtime compensation. As noted, the 1973 legislative assembly amended the Police Actby adding section 11-1832.2, R.C.M. 1947, now section 

### 7- 32-4119 MCA. According to the amendment, those policemen in 

### firstand second class citiesbecame entitled to overtime compensation. The decision inBillings applied to 

### all policemen. The effectof section 11-1832.2 was that the legislature overruled the Billings decision only as 

### it applied topolicemen infirstand second 

### class cities. Consequently, policemen employed by cities of the third class

### were not entitled toreceive overtime compensation. The decision of this Court has not been changed by the legislature orby this Court. All the arguments of appellantnotwithstanding, the stateof the 

### law atthis 

### timeis thatwhile the Billings decision applied to allpolicemen, there 

### is a special 

### act which now segregates third class city policemen. Subissue 

### (a) setforth by appellant 

### iswhether the Billinas decision contains an inherent conflictwhich must be addressed by thisCourt. Appellant argues that there 

### is conflict inthe 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 theMinimum Wage Act and Section 25-604. This inherent contradiction should be addressed and clarifiedby the Honorable Supreme Court of the State of Montana." The contradiction which appellant addresses does not exist. The Billings case held thatpolicemen were excluded from the 

### terms of the actbecause of their separate treatment under the 

### terms of the ~unicipal Police Act, Chapter18, Title 11. The statutereferred toby 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 infinding that a deputy sheriff was excluded referred to 

### a conflictbetween the specific statute (25-604) specifying their pay and the general statute, the Minimum Wage Act, and a determination of which statutewould govern. That discussion had nothing todo with the rationale for finding thatpolicemen 

### were professionals. We find no conflict inthe 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 isquite evident that the insertion of firstand 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 toinsert third 

### class citieswithin 

### its provisions contain no citationof authority to support such

an action by this Court. We have held on numerous occasions that this Court cannot rewrite statutes toomit what parties feel should be omitted or insertwhat parties feel should be inserted. In



### a recent decision, Mont. Depart. of Rev. v. Am. Smelting & Refining (1977), Mont

# . , 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 toascertain and declarewhat 

### is in substance stated therein, and not toinsertwhat has been omitted or toomit what has been inserted. (Citations omitted.) The fundamental rule of statutory construction 

### is that the intent of the legislature controls. (Citationsomitted.) Where the intent of the legislature can be determined from the plain meaning of the words used, the courtsmay not go further and apply any other means of interpretation. 

# . ." See alsoMatter of Estateof Baier (1977), Mont

# . I 567 P.2d 943, 34 St.Rep. 860; Myers v. 

### 4 B's Restaurant, Inc. (1977), 172Mont. 159, 561 P.2d 1331, 34 St.Rep. 187; Lester v. J. & S. Investment Company (1976), 171Mont. 149, 557 P.2d 299, 33 St.Rep. 1104; State ex 

### rel. Nawd's T.V. & App. Inc. v. DistrictCourt (1975), 168Mont. 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 citiesof firstand second class only and failed tomention cities of third class or towns. We arebound by the following rule of statutory construction: 

### "

# . .. It 

### is a rule of statutory construction that the express mention of one matter excludes other 

### similarmatters not mentioned. 

# . ." Helena Valley 

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

It was also noted inthe above entitled case that there 

### is a presumption that the legislature actsknowing full

### well the facts existing atthe 

### timeof the enactment of the legislation. "Itis also a rule of statutory construction that the legislature acted with fullknowledge and information as to the subjectmatter 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 decisionwhen 

### it amended the act to include policemen of firstand second class cities and knew full

### wellof the effectof this 

### act and intended specifically to 

### limitit to the larger cities and to exclude the 

### smaller cities. Appellant argues that the enactment of section 11-1832.2 repealed the Billings decision. Wedo not agree. Allthat



### was done was toprovide certain policemen with overtime compensation. The effect of the legislation did not.-affect the status of policemen inthird 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 tobe given overtime compensation. Appellant then raises the issue of whether section 11- 1832.2 violates the rights of policemen inthird class citiesby denying them overtime. This issue of unconstitutionality of the treatment of policemen of third class cities



### was raised for the first

### timeon appeal. No attemptwas made by appellant to serve the Attorney General of the State of Montana. Wehold, therefore, that the issue 

### is not properlybefore this Court. This Court inJohnson v. Doran (1975), 167Mont. 501, 511, 540 P.2d 306, stated, "As to Doran's contention that section 66-1940(c), R.C.M. 1947, 

### is unconstitutional, this issuewas raised for the first

### timeon appeal. This Court has consistently ruled that a constitutional issue 

### iswaived if not presented atthe earliest opportunity. 

# . ." See also Clontz v. Clontz (1975), 166 Mont. 206, 531 P.2d 1003; Union Interchange, Inc. v. Allen (1962), 140Mont. 227, 370 P.2d 492; Rule 38, M.R.App.Civ.P.

### The decision of the District 

### Court is 

### affirmed.

We 

### concur:

L/ cJTA&. 

### ustices