No. 81-552 INTHE SUPREME COURT OF THE STATE OF MONTANA 1982

HARLAND J. SINK and RUTH E. SINK, Plaintiffsand Appeliants,

SCHOOL DISTRICT NO. 6, CASCADE COUNTY and its BOARD OF TRUSTEES, Defendants and Respondents.

Appeal from: DistrictCourt 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, 1982Mr. 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 appellantswere awardedwages 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 penaltieswas 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 theyears 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 awritten addendum 

### to his custodial contract. Neither of the appellantswas employed for a specific number of hours; rather they were to devote such time as was necessary to complete thework. While the time devoted could fluctuate fromweek to week, the Sinks were paid their fixed salary according to the contract then in effect. Appellants' employmentwith the School Districtwas terminated in the summer of 1974. That July,Harland Sinkfiled a complaintwith the Montana Department of Labor alleging thathe 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 investigationof 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 determinationwas that for the period May 31, 1974 to October 16, 1974,wages in the amounts of $1,484.00 and $11161.00were due to Harland Sink and Ruth Sink, respectively. The Departmentof Labor unsuccessfully soughtvoluntary payment of back wages from the School District but did not undertake court action onbehalf of appellants. The Department of Labor recommended that they file their own legal action. Appellants instituted suit in February of 1976. Their original claimswere based upon the Fair Labor StandardsAct of 1938,as amended, 29 U.S.C. § 216(b), and the Montana Wage PaymentAct (WPA) and Minimum Wage and Overtime CompensationAct (MWOCA),Title 41, Chapters 13 and 23, R.C.M. 1947. The District Court subsequently dismissed the Fair Labor StandardsAct claim on the basis of National League of Cities v. Usery (1976), 426 U.S. 833, 96 S.Ct. 2465, 49 ~.Ed.2d245. The parties completed discovery and proceeded to trial on the claims arising under Montana law. Thematter 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 receivedfinal 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 courtdetermined 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 45hours per week during the three year period of his employment, fivehours 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 calculatehisweekly wages and his regular hourly wage before it could compute the total overtimewages 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 appellantswere not, however, entitled to statutory penalties and attorney's fees under the WPA as itwas incorporated into the minimum wage and overtime compensation statutes. CALCULATION OF WAGES DUE Appellants contend the District Court erred in computing the amount ofwages due them under the MWOCA. The errors alleged concern the trial lower court's treatment of wages receivedby Ruth Sink. Appellants assert that from 1971 through 1974 Ruth Sink's wages were deducted from Harland Sink's wages and that therefore she actuallywas not paid for her work and Harland Sink's hourly wage ratewas underestimatedby an amount equal to Ruth Sink's wages divided by the number of hours Harland Sinkworked. Respondents maintain that, although an addendum to a 1971 contract between the parties stated that Ruth Sink's wages were to be deducted fromHarland Sink's wages, the evidence on thewhole did not show that that in facthappened. The evidence is undisputed that the School District contracted topay 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 similarprovisions. Nevertheless, the District Court properly recognized, in calculating wages due Ruth Sink, that the contractprovision providing forher wages to be offsetwas not adhered to and shewas in factpaid in addition to her husband. The trial court found that Ruth Sinkwas 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 courtdid not find that Ruth Sink's salary had been deducted from the amount Harland Sinkwas to receive under his contract. In fact Harland Sink's answers to respondents' interrogatories show that the actual totalwages received by Harland Sinlrwere:1971 (6months) $2,591.22 1972 $5,858.10 1973 $6,738.56 1974 (6months) $3,369.24 TotalAmount 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

TotalAmount $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 contractwith the School District. Finding no evidentiarybasis for appellants'allegation the trial court's findings and calculationswill not be disturbed

on appeal. STATUTORY PENALTIESAND ATTORNEY FEES Plaintiffsfclaims 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 (codifiedas section 41-2306, R.C.M. 1947) provides that "[elnforcementof 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-interestof an employer in relation

- - to an employee, but 

### -- shall not include the United States. the state of Montana or any --- -- legal subdivision thereof.

### " (Emphasisadded.) "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 suchpenalty shall attach and suit may be brought in any court of competent jurisdiction to recover the same and the wages due.

### " (Emphasisadded.) "41-1306. Judgment forwages shall include attorney's fee. Whenever it shallbecome necessary for the employee to enter ormaintain 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 aspart of the costs in this case." (Emphasisadded.) We must determinewhat the legislature intended when it provided that "enforcementof [MWOCA]. 

# . . shallbe pursued in accordancewith [WPA] as amended." Appellants ask the Court to harmonize the two acts by limiting the exclusionsprovided under theWPA 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,andthat the phrase "enforcement

# . . . in accordancewith"means only that the sameprocedure and relief be afforded MFilOCAcovered employees as WPA-covered employees. Respondents support the trial court's decision,arguing that Bitney 

### v. School DistrictNo. 44 (1975),167Mont. 129, 535 P.2d 1273, controls this question. In Bitney, this Courtheld that schooldistricts, expressly excluded from theWPA 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 "inaccordancewith" to mean that if an employer is not liable under the terms of theWPA, the employer cannotbe 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 isnarrowly prescribed: we must simply "ascertain and declarewhat is in terms or in substance contained [in statutes], and not to insertwhat has been omitted or omit what has been inserted." Section 1-2-101,MCA. If possible, legislative intentmust be inferred from the plain meaning of the words contained in statutes;only if there exists ambiguity in suchwording 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 (5thed. 1973)defines ')enforcemen-6'as "theact 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 (5thed. 1979). The plain meaning of the statutory language at issue indicates that the legislature intended that themode of redress under theMWOCA complywith the remedial process established under theWPA. In adoptingMWOCA, it is apparent that the legislaturedid not find it necessary to separately set forth themeans by which an employee could effect his or her newly acquired rights; instead the execution framework of an existing lawwas engrafted onto the new lawby means of incorporation. That framework specifies the process by which a wage claimmay be prosecuted and the remedies afforded an employee if prosecution is successful. Successful enforcement garners not only thewages 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 fiveper 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 theMVOCA. This Court is not required to incorporate the omitted definition in order to make enforcement under MWOCA accordwith theWPA. 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 oddswith Bitney v. School DistrictNo. 44, supra. Bitney has no application here as it involved interpretation and enforcement of a contractbetween an employee and employer. Furthermore,Bitneywas not premised upon the LMWOCA. This Court need not, as appellants have argued, repeal by implication thatportion of the WPA definition of employer which excludes political subdivisions of the State. A repealby implication is appropriate only when there is an irreconcilable conflict between two statutes. Dolanv. School DistrictNo. 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 actwe have avoided such a conflict and maintained the integrity of both acts. We hold the appellants

are eligible forpenalties and attorney's fees under the XWOCA

# . STATUTEOF LIMITATIONS The issue regarding application of section 41-1304, R.C.M. 1947, isnotproperly before the Court. The District C~urt did not rule that plaintiffs' claim for statutory penaltieswas barred by the statute of limitations. The DistrictCourt'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 inpart. The case is remanded for consideration of attorney's fees and the appropriatepenalty.We Concur: 

# DAAJ.

# 4454L+&q Chief Justice