### 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



### -Fa (:

# .$$989 Filed: vb 

### Decided: 

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### 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 complaintwas filed in District Court on June 13, 1972, and respondent thereafter moved for dismissal. The motion for dismissalwas 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 thismatter, 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 supervisoryduties. 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 "MaintenanceSupervisor 

### I" included supervisory duties and a specified monthly salary. Appellant alleges that he performed primarily and substantially non-supervisorywork 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. (Employeesin 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-outpay 

# ..." 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 judgmentwas granted. The issue presented to this Court for review iswhether 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 toJune 13, 1964. The appellant's right towages vested on each payday, and thus on each payday his cause of action accrued forwages earned during that period. See Cartwright v. Joyce (19701, 155Mont. 478, 486-487, 472 P.2d 515, 519-520, wherein the Court held thatwhen services are rendered over an extended period of 

### time, the 

### termof employment 

### is indefinite and the time for the payment isnot expressly provided for, a statute of limitations commences atthe end of each month for services performed during the month (applying section 39-2-602(2), MCA); Barrettv. 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 OilCompany 

### (D.N.Y. 1945), 59 F.Supp. 91, 93. Under the fact situationpresented here, there 

### isno question that the appellant entered into an employment contract, was classified asa supervisor, and pursuant to that contract, was expressly exempt from recovering overtime compensation. The language inthe 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 

### isno need for construction of any implied contract. We held inKeith 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 atthe same 

### time. In addition it should be noted that the appellant atno 

### timepursued the grievance procedure provided by the employ-ment contractwith the State. The cause of actionhaving arisenduring the 

### timeof 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 toreceive overtime compensation on the part of the appellant. ArticleXVIII, section 

### 4 

### isnot self-executing but isdependant upon legislativeenforcement. Article XVIII, section 5; 

### see Statev. 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 inallworks and undertakings carried on or aided by any municipal orcounty government, the 

### state government, or

### a first-class school district, and on allcontracts letby them, and for alljanitors (exceptincourthouses of sixth- and seventh-class counties), engineers, firefighters, caretakers, custodians, and laborers employed inorabout any buildings, works, orgrounds used oroccupied for any purpose by suchmunicipal, county, or 

### state government orfirst-class school district. A period of 8 hours constitutes a day's work in

### millsand smeltersfor the treatment of ores, inunderground mines, and inthe washing, reducing, and treatment of coal. In cases of emergency when lifeorproperty 

### is inimminent danger this subsection does not apply 

### " The purpose of this statutewas not tocreate 

### a duty topay overtime wages but rather tocompel employers to

### restrict their employees' workdays to 8 hours. See Statev. Livingston Concrete Bldg. & Mfg. Co. (1906), 34 Mont. 570, 87 P. 980. The remedy for the violation of this statute isprovided in 39-4-107(4), MCA, which does not cover overtime compensation. The appellant has argued that section 39-3-208, MCA be applied asan additional remedy. The section cannot be applied foratthe 

### timethisaction was initiated, the Stateof Montana was specificallyexcluded from the classof employers covered 

### by the Payment of Wages Act. Section 

### 41- 1301(3)(b)

## , R.C.M. (1947). In addition, atthat 

### timethere

was a sixmonth 

### time limittoapply thisremedy. See section 41-1304, R.C.M. (1947). Here the appellant did not institute this suituntil nearly a year after his lastcause of action had accrued. The actionof the DistrictCourt ingranting summary judgment is affirmed.



### C-CL.U&- Justice 1 We concur: 

# ~~s. U*& Chief Justice



# Q,kt.u- Justices