No. 14835 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

E. D. WESTON, 

Plaintiff and Appellant, 

VS. 

MONTANA STATE HIGHWAY COMMISSION, 

a body politic, 

Defendants and Respondents. 

Appeal from: District Court of the First Judicial District, 

Honorable Gordon R. Bennett, Judge presiding. 

Counsel of Record: 

For Appellant: 

Patrick Flaherty, Boulder, Montana 

For Respondents: 

Jack A. Holstrom, Legal Div., Dept. of Highways, 

Helena, Montana 

Submitted on briefs: January 25, 1980 

Filed: -Fa vb (: . $$989 

Decided : FEB 8 = lgg~ - 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

c his is an action for the recovery of allegedly unpaid 

overtime compensation filed in the District Court of the 

First Judicial District of the State of Montana, in and for 

the County of Lewis and Clark, the Honorable Gordon R. 

Bennett presiding. Appellant's original complaint was filed 

in District Court on June 13, 1972, and respondent thereafter 

moved for dismissal. The motion for dismissal was then converted into a motion for summary judgment on January 23, 

1979 and granted by the District Court on May 9, 1979. 

From 1963 to 1971, appellant in this matter, Eldridge 

Weston, was employed by the Montana State Department of 

Highways. Appellant is now retired. During the tenure of 

his employment, appellant received two employment classifications. He was first classified as a "sectionman". A 

sectionman is a person who is assigned a portion of roadway 

and is charged with fulfilling primarily maintenance duties 

upon that roadway. The maintenance duties include driving 

trucks, running a motor patrol and loader, and doing patrol 

work. A sectionman may also have some supervisory duties. 

In 1964, appellant was reclassified as a "Maintenance Supervisor I." The classification resulted from an employment 

contract between the Montana Highway Commission and the 

Public Employees Craft Council, the union representative for 

Highway Maintenance Division employees. The position of 

"Maintenance Supervisor I" included supervisory duties and a 

specified monthly salary. 

Appellant alleges that he performed primarily and 

substantially non-supervisory work during his employment. 

It is upon this basis and the following provision of his 
employment contract that he alleges he is entitled to overtime compensation for hours he worked in addition to his 

usual workweek: 

"Eight (8) hours shall constitute a day's work 

and forty (40) hours shall constitute a work 

week. All time worked in excess of eight (8) 

hours in any one work day, or all time worked 

in excess of forty (40) hours in any one week, 

or on days other than the designated work week, 

shall be paid at the rate of one and one-half 

times the regular rate . . ." 

Two other provisions of the employment contract, however, 

provided : 

"Pay for Overtime or Holiday Work. Overtime, 

when worked will be based on one and one-half 

times employee's regular salary rate for the 

preceding normal shift. (Employees in Maintenance Supervisor I and I1 groups are supervisory employees and as such are expected to 

work such extra time over and above the eight 

(8) hour day and/or the forty (40) hour week 

without additional compensation as may be 

required to discharge their responsibilities. 

"Supervisory Personnel, including Maintenance 

Supervisor I, are expected to work over the 

normal work day and/or work week as necessary 

to discharge their responsibilities. Supervisory personnel will not receive overtime 

or call-out pay . . ." 

The District Court held in granting the summary judgment 

that the express terms of the employment contract were clear 

and unambiguous. It further held that there was no need for 

further interpretation and parole evidence, since the contract expressly covered the subject of overtime. Upon that 

basis, the motion for summary judgment was granted. 

The issue presented to this Court for review is whether 

the District Court erred in granting summary judgment and 

refusing appellant the right to offer additional evidence 

extraneous to the contract. 

Controlling in this matter is section 27-2-202, MCA, 
which bars appellant from recovering any unpaid wages due 

prior to June 13, 1964. The appellant's right to wages 

vested on each payday, and thus on each payday his cause of 

action accrued for wages earned during that period. See 

Cartwright v. Joyce (19701, 155 Mont. 478, 486-487, 472 P.2d 

515, 519-520, wherein the Court held that when services are 

rendered over an extended period of time, the term of employment is indefinite and the time for the payment is not 

expressly provided for, a statute of limitations commences 

at the end of each month for services performed during the 

month (applying section 39-2-602(2), MCA); Barrett v. National 

Malleable & Steel Casting Company (D. Pa. 1946), 68 F.Supp. 

410, 417; Keen v. Mid-Continent Petroleum Corporation (D. 

Iowa 1945), 63 F.Supp. 120, 129, affirmed 157 F.2d 310, 316; 

and Smith v. Continental Oil Company (D.N.Y. 1945), 59 

F.Supp. 91, 93. 

Under the fact situation presented here, there is no 

question that the appellant entered into an employment 

contract, was classified as a supervisor, and pursuant to 

that contract, was expressly exempt from recovering overtime 

compensation. The language in the contract is clear and 

unambiguous. We find no need for further interpretation 

and/or parole evidence; see sections 28-3-401, 28-3-303, 

MCA. The contract expressly covers the subject of overtime 

wages, and there is no need for construction of any implied 

contract. 

We held in Keith v. Kottas (1946), 119 Mont. 98, 101, 

172 P.2d 306, 308, that there can be no express and implied 

contract for the same thing existing at the same time. 

In addition it should be noted that the appellant at no 

time pursued the grievance procedure provided by the employ- 
ment contract with the State. 

The cause of action having arisen during the time of 

the 1889 Constitution and reference having been made to 

same, we note that under that Constitution, Article XVIII, 

sections 4 and 5, and under section 39-4-107, MCA, there is 

no right to receive overtime compensation on the part of the 

appellant. Article XVIII, section 4 is not self-executing 

but is dependant upon legislative enforcement. Article 

XVIII, section 5; see State v. Boykin (1973), 109 ~riz. 289, 

508 P.2d 1151, 1154. Section 39-4-107, MCA states in 

pertinent part: 

"A period of 8 hours constitutes a day's work 

in all works and undertakings carried on or 

aided by any municipal or county government, 

the state government, or a first-class school 

district, and on all contracts let by them, 

and for all janitors (except in courthouses 

of sixth- and seventh-class counties), engineers, 

firefighters, caretakers, custodians, and 

laborers employed in or about any buildings, 

works, or grounds used or occupied for any 

purpose by such municipal, county, or state 

government or first-class school district. 

A period of 8 hours constitutes a day's work 

in mills and smelters for the treatment of 

ores, in underground mines, and in the washing, reducing, and treatment of coal. In 

cases of emergency when life or property is 

in imminent danger this subsection does not 

apply " 

The purpose of this statute was not to create a duty to pay 

overtime wages but rather to compel employers to restrict 

their employees' workdays to 8 hours. See State v. Livingston 

Concrete Bldg. & Mfg. Co. (1906), 34 Mont. 570, 87 P. 980. 

The remedy for the violation of this statute is provided in 

39-4-107(4), MCA, which does not cover overtime compensation. 

The appellant has argued that section 39-3-208, MCA be 

applied as an additional remedy. The section cannot be 

applied for at the time this action was initiated, the State 
of Montana was specifically excluded from the class of 

employers covered by the Payment of Wages Act. Section 41- 

1301 (3) (b) , R.C.M. (1947). In addition, at that time there 

was a six month time limit to apply this remedy. See section 

41-1304, R.C.M. (1947). Here the appellant did not institute 

this suit until nearly a year after his last cause of action 

had accrued. 

The action of the District Court in granting summary 

judgment is affirmed. 

C-CL.U&- 

Justice 1 

We concur: 

~~s. U*& 

Chief Justice 

Q,kt.u- Justices