                               No. 85-256
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1986




LEO HUBER and EMILIA HUBER, a
partnership d/b/a LIBBY THEATERS,
                Plaintiffs and Respondents,


COMMISSIONER OF LABOR AND INDUSTRY,
STATE OF MONTANA, ex rel., SCOTT
KIRSCHENMANN,
                Claimant and Appellant.




APPEAL FROM:    District Court of the Nineteenth Judicial District,
                Ln and for the County of Lincoln,
                The Honorable Robert Holter, Judge presiding.

COUNSEL OF RECORD:

         For Appellant:
                L. Charles Evans, (Kirschenmann), Libby, Montana

         For Respondent:
                Garnaas, Hall, Riley   &   Pinsoneault; H. L. Gaxnaas,
                Missoula, Montana




                                  Submitted on Briefs: Nov. 6, 1985
                                    Decided: March 11, 1986

         MAR 11 1986
Filed:




                                  Clerk
Mr. Justice JJ.     C. Gulbrandson delivered the Opinion of the
Court.

       Scott Kirschenmann appeals a Lincoln County District
Court order which awards him the amount of his wage claim but
denies him his attorney's fees.            The sole issue on appeal is
whether 5 39-3-214, MCA, entitles appellant to his attorney's
fees at the District Court level where the Commissioner of
Labor's attorney, who intervened on appellant's behalf, may
have adequately represented appellant and it may not have
been necessary for appellant to hire his own private counsel.
We reverse and remand to the District Court.
       Leo and Emilia Huber (respondents) own and operate the
Dome   &   Libby Drive-In Theaters.              In June 1983, appellant
filed a wage claim with the Labor Standards Division of the
Deparment of Labor and Industry, contending that he did not
receive    wages    owed     to     him   for    services        performed   for
respondents.         After      respondents      filed      an    answer,    the
Department of Labor and Industry set a hearing date.                         The
hearing was held in April 1.984 and appellant was represented
by private counsel.         In May 1984, the hearing officer entered
his findings of fact, conclusions of law and order, ruling
that   respondents owed           appellant     $1,113.75    in wages plus
$1,113.75 as a penalty under S 39-3-206, MCA.                      Pursuant to
§   2-4-702, MCA,        respondents filed       a   petition       in   Lincoln
County District Court for judicial review of the hearing
officer's decision.        Promptly thereafter, the Commissioner of
Labor and Industry moved before the court to intervene on
behalf of the employee (appellant here).                 The court granted
that    motion     and    the     Commissioner's     attorney        vigorousl-y
intervened on appellant's behalf.               The Commissioner filed a
lengthy and detailed response to the respondent's petition
for judicial review, alleging six affirmative defenses to the
petition.       Appellant's private counsel also filed a response
to the petition for judicial review.                   In January 1985, a
hearing was to be held. by the District Court on appellant's
wage    claim     and     both     the    Commissioner's         attorney      and
appellant's       private    counsel were          present.        Respondents'
counsel       arrived     late    for    the     hearing   and     the    parties
stipulated that the matter would be submitted on briefs.                        In
March 1985, the District Court filed its opinion and order
affirming       the     hearing    officer ' s    decision       and   award    to
appellant.
       Several days later, appellant's private counsel filed a
motion to amend judgment requesting that appellant be award.ed
his attorney's fees under S 39-3-214, MCA.                    In April 1985,
the Commissioner filed a Memorandum of Commissioner's Costs
and Disbursements wherein the Commissioner claimed no costs,
disbursements or attorney's fees.                The District Court issued
an order which denied appellant's request for attorney's fees
and which stated:
            It appears then that while [appellant]
            had the right of separate representation,
            such representation was not necessary to
            dispose of the case.    The Commissioner
            fully and adequately presented the case
            to the Court.
The District Court's final judgment orders respondents to pay
appellant        $2,488.50        plus   interest      and       to      pay   the
Commissioner's costs.             This appeal followed the denial of
attorney's fees to appellant.
       As    stated, the only issue is whether S 39-3-214, MCA,
entitles appellant to his attorney's fees at the District
Court level.       Section 39-3-214, PICA, provides;
            (1) Whenever it is 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 reason-
            able attorney's fee in favor of the
          successful party, to be taxed as part of
          the costs in the case.
          (2) Any judgment for the plaintiff in a
          proceeding pursuant to this part must
          include all costs reasonably incurred in
          connection with the proceeding, includ.ing
          attorneys1 fees.
          (3) If the proceeding is maintained by
         the commissioner, no court costs or fees
         are required of him nor is he required to
         furnish any bond or other security that
         might otherwise be required in connection
         with any phase of the proceeding.
This Court has established that a plaintiff may not collect
attorney's fees under this statute for the services of his
attorney       at   the    administrative hearing        level because    an
administrative hearing is not a "suit at law" for the purpos-
es of    $    39-3-214 (I), MCA, and because the hearing officer's
determination        is    not   a    "judgment"   for   the   purposes   of
S 39-3-21.4(2), MCA.          Thornton v. Commissioner of Department
of Labor and Industry (Mont. 1980), 621 P.2d 1062, 37 St.Rep.
2026.     In Chagnon v. Hardy Constructin Co. (M.ont. 1984) , 680
P.2d 932, 41 St.Rep. 441, we impliedly held that the district
court review of an a.dministrative decision on a wage claim -
                                                            is
a suit at law within the meaning of the statute.                Given that
the   lower court proceeding was a suit at law, the only
remaining inquiry under the statute and in this appeal is
whether       it was      necessary    for the appellant to enter or
maintain the suit.
        Appellant was the only other named party to the action
at the time of the petition for judicial review.                   At that
time, the Commissioner of Labor and Industry had not inter-
vened and was not a party to the action.                   Even after the
intervention, appellant may have considered it necessary to
take part           the suit         monitor the proceedings       nothing

else.        We also note that the Commissioner, in a memorandum
submitted to the District Court, stated:
         An appearance by a private party respond-
         ed [sic] to protect his interests that
         may or may not coincide with those of the
         Commissioner or the State is always
         warranted.
       The District Court denied the attorney's fees stating
that the attorney's representation of appellant "was not
necessary to dispose of the case."      Under the statute, it is
the necessity to enter the suit at law which triggers the
attorney's fees, not the necessity of hiring a lawyer.
       We reverse the District Court and remand this case for a
determination of reasonable attorney's fees in accordance
with   the   statute and vacate   the   award of costs to the
Commissioner and remand for a deter




we concur:       -/
