NO. 80-134 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

WAYNE THORNTON, 

Plaintiff and Appellant, 

THE COMMISSIONER OF THE 

DEPARTMENT OF LABOR AND 

INDUSTRY, STATE OF MONTANA, 

Defendants and Respondents. 

Appeal from: District Court of the Fifth Judicial District, 

In and for the County of Jefferson, Montana 

Honorable Frank Blair, Judge presiding. 

Counsel of Record: 

For Appellant: 

Patrick F. Flaherty argued, Boulder, Montana 

Fro Respondents: 

Marra, Wenz, Iwen and Johnson, Great Falls, Montana 

James Gardner argued, Dept. of Labor, Helena, 

Montana 

Submitted: November 21, 1980 

Decided: DEC 2 q f$j@($j 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

On August 10, 1978, appellant filed a wage claim with 

the Commissioner of the Department of Labor and Industry. A 

contested case hearing was held in Great Falls on November 

14, 1978. The hearings officer ruled in favor of 

respondents. On March 11, 1979, appellant petitioned the 

District Court of the Fifth Judicial District, in and for 

the County of Jefferson, for judicial review of the final 

agency decision. The District Court dismissed appellant's 

petition for judicial review. Appellant appeals. 

Appellant was employed as a truck driver by respondents 

John and Simone Furgeri on or about July 17, 1978. He 

terminated his employment on August 4, 1978, due to 

nonpayment of wages. Appellant was hired for $.13 per mile 

plus $3.00 per hour for unloading and loading. Appellant 

claimed he drove 7,250 miles ($942.50), worked 62 hours 

($186.00), and accumulated $86.39 in expenses, totaling 

$1,214.89 due. 

On November 14, 1978, an administrative hearing was 

held. The hearings examiner determined there were no 

expenses due and that appellant was therefore entitled to 

$1,128.50 ($942.50 plus 186.00). The examiner also found 

that respondents had paid appellant $500.00 on September 5 

and $281.75 on October 13, 1978, in back wages. The 

examiner subtracted $781.75 from $1,128.50 and found 

appellant was entitled to $346.75. Pursuant to section 

39-3-206, MCA, the examiner assessed a penalty on this 

portion of the wages due which resulted in a net amount due 

appellant of $693.50. [Due to an arithmetical error the 

hearings examiner found $492.50 due appellant; however, 
using the same formula, the error was corrected at the 

hearing on the petition for judicial review.] The examiner 

also denied appellant's prayer for attorney fees. 

On appeal the District Court affirmed the examiner's 

order and denied appellant's petition for review. 

There are two issues presented to this Court for 

review: 

1. Did the District Court err in affirming the 

decision of the hearings examiner to assess a statutory 

penalty to the balance due at the time of the hearing rather 

than the amount due at the initiation of the proceedings? 

2. Did the District Court err in affirming the 

decision of the hearings examiner refusing to award attorney 

fees to appellant at the administrative hearing level? 

Appellant contends that section 39-3-206, MCA, imposes 

a mandatory penalty on an employer who fails to pay wages to 

an employee when the wages become due. By imposing a 

penalty on $346.75, which was due at the time of the 

hearing, rather than on $1,128.50, which was due at the 

initiation of the proceedings, the hearings examiner and the 

District Court made a clear error of law in direct 

contravention of the statute. 

Appellant further contends that section 39-3-214, MCA, 

provides a mandatory award of attorney fees and costs for 

employees who successfully prove a claim for unpaid wages. 

The hearings examiner and the District Court erred in 

failing to award attorney fees and costs at either stage of 

the proceedings. 

Respondents' position is that this case involves the 

construction of two statutory provisions--section 39-3-206, 
MCA (the penalty statute), and section 39-3-211, MCA (the 

statute giving the commissioner discretion to settle or 

adjust claims upon assignment). In an attempt to promote 

settlements and avoid lengthy litigation, the commissioner, 

pursuant to his section 39-3-211, MCA, authority, 

compromised the penalty because the employer partially paid 

the wages due appellant prior to the administrative hearing. 

Respondents contend there exists a rebuttable presumption in 

favor of the action of an administrative agency. In the 

absence of a showing of manifest error by the party 

challenging the agency action, the agency order is deemed 

valid and enforceable. Appellant failed to meet his burden 

of proof; therefore, the District Court's order affirming 

the agency's decision should be affirmed. 

Concerning the second issue, respondents contend that, 

pursuant to section 39-3-214, MCA, an award of attorney fees 

is provided for only when it is necessary to institute "a 

suit at law" for the recovery of wages. An administrative 

hearing is not a suit at law. Therefore, neither the 

commissioner of the Department of Labor and Industry nor the 

District Court has the authority to award attorney fees for 

representation in an administrative hearing. The District 

Court has statutory authority to award attorney fees on a 

wage claim only for the legal work performed at the District 

Court level. 

When reviewing an administrative order, there exists a 

rebuttable presumption in favor of the decision of the 

agency, and the burden of proof is on the party attacking 

it to show that it is erroneous. Partoll v. Anaconda Copper 

Min. Co. (1949), 122 Mont. 305, 311, 203 P.2d 974; Kerns v. 
Anaconda Copper Min. Co. (1930), 87 Mont. 546, 289 P. 563. 

This Court may not substitute its judgment for that of the 

trial court or agency as to the weight of the evidence on 

questions of fact. Section 2-4-704 (2), MCA; Robins v. 

Anaconda Aluminum Co. (1978), 175 Mont. 514, 575 P.2d 67. 

We may reverse or modify the decision if substantial rights 

of the appellant have been prejudiced because the 

administrative findings, inferences, conclusions, or 

decisions are clearly erroneous in view of the reliable, 

probative and substantial evidence of the whole record. 

Section 2-4-704(2)(e), MCA. In Brurud v. Judge Moving and 

Storage Company, Inc. (1977), 172 Mont. 249, 563 P.2d 558, 

we determined that a finding is "clearly erroneous" when, 

although there is evidence to support it, a review of the 

entire record leaves the court with the definite and firm 

conviction that a mistake has been committed. See also 

United States v. United States Gypsum Co. (1948), 333 U.S. 

364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746, 766. 

We find no such prejudice here, and the decisions of 

the administrative agency and District Court are affirmed. 

The role of judges in construing statutes is stated in 

section 1-2-101, MCA. This Court interpreted that role in 

 amm mil! v. Young (1975), 168 Mont. 81, 540 P.2d 971, which 

held that the court may not omit what has been inserted in 

legislation nor inject what has been omitted. The duty of 

the court is simply to construe the law as it finds it. 

Dunphy v. Anaconda Co. (1968), 151 Mont. 76, 438 P.2d 660. 

With this mandate in mind, we must now construe the two 

statutes which are the subject of this litigation. 

Section 39-3-206, MCA, provides: 
"Any employer, as such employer is defined in 

this part, who fails to pay any of his employees 

as provided in this part or violates any other 

provision of this part shall be guilty of a 

misdemeanor. A penalty shall also be assessed 

against and paid by such employer and become due 

such employee as follows: a sum equivalent to the 

fixed amount of 5% of the wages due and unpaid 

shall be assessed for each day, except Sundays 

and legal holidays, upon which such failure 

continues after the day upon which such wages 

were due, except that such failure shall not be 

deemed to continue more than 20 days after the 

date such wages were due." 

Section 39-3-211, MCA, provides: 

"Whenever the commissioner determines that one or 

more employees have claims for unpaid wages, he 

shall, upon the written request of the employee, 

take an assignment of the claim in trust for such 

employee and may maintain any proceeding 

appropriate to enforce the claim, including 

liquidated damages pursuant to this part. With 

the written consent of the assiqnor, the commis- 

-- sioner may ----- settle or aaust ally claim assigned 

pursuant to this section." (Emphasis added.) 

The wage claim submitted and signed by appellant 

provided : "I hereby authorize the Labor Commissioner to 

approve a proposed compromise adjustment or settlement of 

the claim. In pursuance thereof, I authorize the Labor 

Commissioner to transfer, sell or assign this claim or any 

judgment thereon." Pursuant to the authority vested in the 

commissioner by section 39-3-211, MCA, he compromised the 

penalty on the $500.00 and $281.75 paid on September 5 and 

October 13, 1978, respectively. 

In the last two fiscal years, the Labor Standards 

Division processed an average of over 900 wage claims per 

year. Therefore, in an attempt to promote settlements and 

avoid lengthy litigation, the commissioner compromised the 

penalty on wages which were paid prior to hearing. Such a 

decision is within the commissioner's discretion and 

facilitates the purpose of the Wage Payment Act which is to 
collect unpaid wages of employees. However, in each case, 

the ultimate liability should first be determined and, 

thereafter, a compromise may be worked out from that amount. 

Sections 39-1-102 and 39-3-209, MCA. 

Appellant was entitled to $1,128.50; he was paid 

$781.75. Therefore, $346.75 remains due for unpaid wages. 

Respondents owe appellant an additional $346.75 in penalty 

pursuant to section 39-3-206, MCA, bringing the net amount 

due appellant $795.50. Appellant has received a portion of 

wages due and is entitled to unpaid wages plus a penalty 

imposed thereon. No substantial rights of appellant have 

been prejudiced and the administrative order is affirmed. 

Appellant asked for an award of attorney fees. It is a 

well-settled principle that attorney fees are allowable only 

when provided for by contract or statute. Section 39-3-214, 

MCA, provides: 

"Court costs and attorneys' fees. (1) Whenever 

it shall become necessary for the employee to 

enter or maintain a suit at law for the recovery 

or collection of wages due as provided for by 

this part, a resulting judgment must include a 

reasonable attorney's fee in favor of the 

successful party, to be taxed as part of the 

costs in the case. (2) Any judqment for the 

plaintiff in a proceeding pursuant to this act 

must include all costs reasonably incurred in 

connection with the proceeding, including 

attorneys' fees." (Emphasis added.) 

Section 39-3-212, MCA, provides: 

"A determination by the Commissioner of Labor and 

Industry made after a hearing may be enforced by 

application by the Commissioner to a district 

court for an order or judgment enforcing the 

determination if the time provided to initiate 

judicial review by the employer passed." 

The particular language of the statute indicates that 

an administrative hearing is not a "suit at law." A 

"determination" made by the commissioner as a result of the 
hearing is not a "judgment." In Massa v. Dept. of Social & 

Rehabilitation Services (1977), 172 Mont. 60, 560 P.2d 895, 

the appellate procedures used closely parallel those used in 

the case at bar. In that case this Court awarded attorney 

fees only for services rendered on appeal. In the absence 

of statutory authority we must affirm the holding of the 

District Court and the Department of Labor and Industry 

denying appellant attorne 3 

Affirmed. 

We concur: 

Chief Justice