No. 81-552 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

HARLAND J. SINK and 

RUTH E. SINK, 

Plaintiffs and Appeliants, 

SCHOOL DISTRICT NO. 6, CASCADE 

COUNTY and its BOARD OF TRUSTEES, 

Defendants and Respondents. 

Appeal from: District Court of the Eighth Judicial District, 

In and for the County of Cascade 

IIonorable Joel G. Roth, Judge presiding. 

Counsel of Record: 

For Plaintiffs: 

Joseph W. Duffy, Great Falls, Montana 

For Defendants: 

J. Fred Bourdeau, County Attorney, Great Falls, Montana 

Submitted on briefs: April 1, 1982 

Decided: August 11, 1982 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion 

of the Court. 

This appeal results from a judgment entered by the 

Eighth Judicial District Court, Cascade County, wherein 

appellants were awarded wages due based upon respondents' 

violation of Montana's minimum wage and hour statutes, 

previously found in sections 41-2301 through 41-2307, R.C.M. 

1947. The same judgment denied appellants' attorney's fees 

and a penalty. 

Three issues are presented on appeal: 

(1) Whether the District Court erred in calculating 

wages due and owing to appellants? 

(2) Whether the District Court erred in denying statutory 

penalties and attorney's fees to appellants on their wage 

claim? 

(3) Whether the District Court erred in holding appellants' 

claim for statutory penalties was barred by the statute of 

limitations? 

Appellants were employed at the Fort Shaw School from 

July 1971, to June 15, 1974, pursuant to written contracts. 

During each of the years involved, Harland Sink was hired to 

perform custodial and maintenance duties under one contract 

and to drive a school bus under another contract. Ruth Sink 

was employed to assist Harland Sink in his duties, under the 

terms of a written addendum to his custodial contract. 

Neither of the appellants was employed for a specific number 

of hours; rather they were to devote such time as was necessary 

to complete the work. While the time devoted could fluctuate 

from week to week, the Sinks were paid their fixed salary 

according to the contract then in effect. 

Appellants' employment with the School District was 

terminated in the summer of 1974. That July, Harland Sink 
filed a complaint with the Montana Department of Labor 

alleging that he had not been properly paid for regular and 

overtime hours worked while he was employed by the School 

~istrict. Subsequently, the Montana Department of Labor 

transferred investigation of the case to the Employment 

Standards Division of the United States Department of Labor. 

An investigation of appellantk' complaint ensued. On March 

19, 1975, Harland and Ruth Sink received a letter detailing 

the results of the United States Department of Labor investigation. 

The Department of Labor's determination was that for the 

period May 31, 1974 to October 16, 1974, wages in the amounts 

of $1,484.00 and $11161.00 were due to Harland Sink and Ruth 

Sink, respectively. The Department of Labor unsuccessfully 

sought voluntary payment of back wages from the School 

District but did not undertake court action on behalf of 

appellants. The Department of Labor recommended that they 

file their own legal action. 

Appellants instituted suit in February of 1976. Their 

original claims were based upon the Fair Labor Standards Act 

of 1938, as amended, 29 U.S.C. § 216(b), and the Montana 

Wage Payment Act (WPA) and Minimum Wage and Overtime Compensation Act (MWOCA), Title 41, Chapters 13 and 23, R.C.M. 1947. 

The District Court subsequently dismissed the Fair Labor 

Standards Act claim on the basis of National League of 

Cities v. Usery (1976), 426 U.S. 833, 96 S.Ct. 2465, 49 

~.Ed.2d 245. The parties completed discovery and proceeded 

to trial on the claims arising under Montana law. 

The matter was tried by the court without a jury. 

Appellants testified, as did two witnesses for respondents, 

regarding employee obligations, duties, and amount of time 

required to complete the work involved. The court received 
final briefs and proposed findings of fact and conclusions 

of law subsequent to the trial. 

In its findings of fact, conclusions of law and judgment, 

the trial court found that Ruth Sink performed custodial 

work at the Fort Shaw School an average of 13 hours per 

workweek over the 1971 to 1974 period, for a total of 1,755 

hours. The court determined wages due Ruth Sink by multiplying 

her hours by the appropriate minimum wage and subtracting 

wages paid to her. 

The District Court found that Harland Sink worked 

approximately 45 hours per week during the three year period 

of his employment, five hours of which were overtime for 

which he was not compensated at overtime rates. Because 

Harland Sink received a fixed monthly payment, the District 

Court had to calculate his weekly wages and his regular 

hourly wage before it could compute the total overtime wages 

due him. 

The District Court found that Ruth Sink was entitled to 

$1,871.40 and that Harland Sink was entitled to $1,030.90 

under Montana's MWOCA. The District Court concluded that 

appellants were not, however, entitled to statutory penalties 

and attorney's fees under the WPA as it was incorporated 

into the minimum wage and overtime compensation statutes. 

CALCULATION OF WAGES DUE 

Appellants contend the District Court erred in computing 

the amount of wages due them under the MWOCA. The errors 

alleged concern the trial lower court's treatment of wages 

received by Ruth Sink. Appellants assert that from 1971 

through 1974 Ruth Sink's wages were deducted from Harland 

Sink's wages and that therefore she actually was not paid 

for her work and Harland Sink's hourly wage rate was underestimated 
by an amount equal to Ruth Sink's wages divided by the 

number of hours Harland Sink worked. Respondents maintain 

that, although an addendum to a 1971 contract between the 

parties stated that Ruth Sink's wages were to be deducted 

from Harland Sink's wages, the evidence on the whole did not 

show that that in fact happened. 

The evidence is undisputed that the School District 

contracted to pay Ruth Sink a sum of $485.60 for the services 

she rendered from 1971 through 1974. The evidence is also 

undisputed that an addendum to a 1971 contract between 

Harland Sink and the School District indicated Ruth Sink's 

wages were to be deducted from Harland Sink's salary. The 

evidence conflicts as to whether the 1972-73 and 1973-74 

contracts included similar provisions. 

Nevertheless, the District Court properly recognized, 

in calculating wages due Ruth Sink, that the contract provision 

providing for her wages to be offset was not adhered to and 

she was in fact paid in addition to her husband. 

The trial court found that Ruth Sink was paid $485.60 

over the course of her employment. The trial court committed 

no error in incorporating this finding into its calculation 

of wages currently due Ruth Sink. 

Likewise the trial court's calculations regarding the 

amount due Harland Sink are proper. The court did not find 

that Ruth Sink's salary had been deducted from the amount 

Harland Sink was to receive under his contract. In fact 

Harland Sink's answers to respondents' interrogatories show 

that the actual total wages received by Harland Sinlr were: 
1971 (6 months) $2,591.22 

1972 $5,858.10 

1973 $6,738.56 

1974 (6 months) $3,369.24 

Total Amount 

Defendants' answers to plaintiffs' interrogatories show that 

the parties contracted the following amounts for Harland 

Sink's custodial and bus driving services: 

CUSTODIAL DRIVING TOTAL 

Total Amount $18.564.26 

While it is not apparent what accounts for the $6.84 discrepancy between the three year totals, the evidence clearly 

shows that there is not a $485.60 deficiency between the 

amount Harland Sink received as wages and the amount he was 

obliged to receive under contract with the School District. 

Finding no evidentiary basis for appellants'allegation the 

trial court's findings and calculations will not be disturbed 

on appeal. 

STATUTORY PENALTIES AND ATTORNEY FEES 

Plaintiffsf claims arise under the MWOCA as enacted by 

the legislature in 1971. Chapter 417, Laws of Montana 

(1971), codified as sections 41-2301, et seq., R.C.M. 1947. 

Section 6 of that enactment (codified as section 41-2306, 

R.C.M. 1947) provides that "[elnforcement of this act shall 

be treated as a wage claim action and shall be in accordance 

with sections 41-1301 through 41-1324, R.C.M. 1947." The 

statutes referred to in section 6 comprised the WPA, formerly 

found at sections 41-1301, et seq., R.C.M. 1947. At the 

time of enactment the WPA provided in part: 
"41-1301. Semimonthly payment of wages. 

"(3) The following are the definitions used 

for the purpose of this act: 

"(b) 'Employer' includes any individual, partnership, association, corporation, business 

trust, legal representative, or any organized 

group of persons, acting directly or indirectly in the-interest of an employer in relation - - 

to an employee, but -- shall not include the 

United States. --- the state of Montana -- or any 

legal subdivision thereof. " (Emphasis added. ) 

"41-1302. Penalty for failure to pay at times 

specified in law. Whenever any employer, as 

such employer is defined --- in this act, fails 

to pay any of his employees, as provided in 

the preceding section, he shall be guilty of 

a misdemeanor. A penalty shall also attach 

to such employer and become due such employee 

as follows: A sum equivalent to a penalty of 

five (5%) per cent of the wages due and not 

paid, as herein provided, as liquidated damages, and such penalty shall attach and suit 

may be brought in any court of competent jurisdiction to recover the same and the wages 

due. " (Emphasis added. ) 

"41-1306. Judgment for wages shall include 

attorney's fee. 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 act, 

then such judgment shall include a reasonable 

attorney's fee in favor of the successful 

party, to be taxed as part of the costs in 

this case." (Emphasis added.) 

We must determine what the legislature intended when it 

provided that "enforcement of [MWOCA]. . . shall be pursued 

in accordance with [WPA] as amended." 

Appellants ask the Court to harmonize the two acts by 

limiting the exclusions provided under the WPA to enforcement 

of that act, Appellants maintain that the term "employer" 

as used in the MWOCA is exclusive of the WPA definition of 

"employer," that under the MWOCA the term "employer" is allencompassing and therefore inclusive of respondents, and 
that the phrase "enforcement . . . in accordance with" means 

only that the same procedure and relief be afforded MFilOCAcovered employees as WPA-covered employees. 

Respondents support the trial court's decision, arguing 

that Bitney v. School District No. 44 (1975), 167 Mont. 129, 

535 P.2d 1273, controls this question. In Bitney, this 

Court held that school districts, expressly excluded from 

the WPA definition of "employer," were not liable for attorney's 

fees in a wage claim action. Additionally, respondents do 

not read section 41-2306, R.C.M. 1947, to require that the 

WPA procedures and relief be available to all MWOCA-covered 

employees. They interpret the phrase "in accordance with" 

to mean that if an employer is not liable under the terms of 

the WPA, the employer cannot be liable for attorney's fees 

or statutory penalties under WPA-based enforcement of the 

MWOCA . 

The role of the courts in construing and applying 

statutes is narrowly prescribed: we must simply "ascertain 

and declare what is in terms or in substance contained [in 

statutes], and not to insert what has been omitted or omit 

what has been inserted." Section 1-2-101, MCA. If possible, 

legislative intent must be inferred from the plain meaning 

of the words contained in statutes; only if there exists 

ambiguity in such wording should the court resort to the 

rules of statutory construction. Haker v. Southwestern Ry. 

Co. (1978), 176 Mont. 364, 578 P.2d 317. 

Black's Law Dictionary 474 (5th ed. 1973) defines 

')enforcemen-6'as "the act of putting something such as law 

into effect; the execution of a law, the carrying out of a 

mandate or a command." "Accordance" is defined as "agreement; 
harmony; concord; conformity." Black's Law Dictionary 16 

(5th ed. 1979). 

The plain meaning of the statutory language at issue 

indicates that the legislature intended that the mode of 

redress under the MWOCA comply with the remedial process 

established under the WPA. In adopting MWOCA, it is apparent 

that the legislature did not find it necessary to separately 

set forth the means by which an employee could effect his or 

her newly acquired rights; instead the execution framework 

of an existing law was engrafted onto the new law by means 

of incorporation. That framework specifies the process by 

which a wage claim may be prosecuted and the remedies 

afforded an employee if prosecution is successful. Successful 

enforcement garners not only the wages to which the employee 

was entitled under the substantive portions of the act but 

the additional relief of attorney's fees and a penalty equal 

to five per cent of the wages due. 

We do not construe section 41-2306, R.C.M. 1947, to 

mean that substantive limitations of the WPA also be incorporated 

into the MVOCA. This Court is not required to incorporate 

the omitted definition in order to make enforcement under 

MWOCA accord with the WPA. Substantive provisions of the 

MWOCA refer to "every employer" or "no employer." (See 

section 41-2303, R.C.M. 1947.) Neither of these references 

indicate that the legislature in any way intended to carve 

from this all-encompassing language a subset of employers 

who would be immune from prosecution under the WPA. 

Our discussion today is not at odds with Bitney v. 

School District No. 44, supra. Bitney has no application 

here as it involved interpretation and enforcement of a 

contract between an employee and employer. Furthermore, 
Bitney was not premised upon the LMWOCA. 

This Court need not, as appellants have argued, repeal 

by implication that portion of the WPA definition of employer 

which excludes political subdivisions of the State. A 

repeal by implication is appropriate only when there is an 

irreconcilable conflict between two statutes. Dolan v. 

School District No. 10 (1981), Mont . , 636 P.2d 

825, 38 St.Rep. 1903. That is not the case here. By limiting 

application of the definition of "employer" under the WPA to 

enforcement of that act we have avoided such a conflict and 

maintained the integrity of both acts. We hold the appellants 

are eligible for penalties and attorney's fees under the 

XWOCA . 

STATUTE OF LIMITATIONS 

The issue regarding application of section 41-1304, 

R.C.M. 1947, is not properly before the Court. The District 

C~urt did not rule that plaintiffs' claim for statutory 

penalties was barred by the statute of limitations. The 

District Court's discussion of the statute of limitations 

was entirely gratuitous. This Court does not issue advisory 

opinions. 

The District Court's decision is affirmed in part and 

reversed in part. The case is remanded for consideration of 

attorney's fees and the appropriate penalty. 
We Concur: 

DAAJ. 4454 L+&q Chief Justice