No. 12930 INTHE SUPREME COURT OF THE STATE OF MONTANA 1975

DOUGTAS 

### HAMMILL, Plaintiff and Respondent,

FOWLER A. YOUNG, d/b/a BIGSKY VETERINARY CLINIC, Defendant and Appellant.



### .:,WV\. #. <:{I, Appeal from: District Court of the

### Fourth JudicialDistrict, Honorable Robert C. Sykes, Judge presiding. Counsel of Record: ForAppellant: Morrison and Hedman, Whitefish, Montana Donald E. Hedman argued, Whitefish, Montana ForRespondent: Warden, Walterskirchen & Christiansen, Kalispell,

Montana Gary R. Christiansen argued, Kalispell, Montana

Submitted: September 

### 8, 1975 

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### 1975 Decided: ""-.Mr. Justice Frank I. Haswell delivered the Opinion of the Court.

In an action to recover the unpaid balance of a bonus provided in a written employment contract, the district court of Flathead County entered judgment in favor of plaintiff employee for the unpaid balance of the bonus, a 100% statutory penalty for nonpayment when due, and attorney's fees. Defendant employer appeals from the judgment. Defendant is a veterinary operating the Big Sky Veterinary Clinic inWhitefish,Montana. He hired another veterinary, the plaintiff, under a written employment contract dated May 15, 1969. Under the terms of this contract, defendant agreed to pay plaintiff a monthly salaryplus a yearly bonus of 20% of the gross income of the veterinary clinic. Subsequently a disagreement arose concerning the amount of bonus payable for the year July 1, 1970 to June 30, 1971. Plaintiff sued and after trial, the district court, the Honorable Robert C. Sykespresiding without a jury, entered findings of fact, conclusionsof law and judgment as follows: (1) For $2,907.68 as unpaid bonus, (2) For $2,907.68 as a statutory penalty under section 41-1302,R.C.M. (5% of the amount owing per day up to a maximum of 20 days), (3) For $800 as reasonable attorney's fees under section 41-1306,R.C.M. 1947. Defendant appeals from the award of penalty and attorney's fees,but does not contest the award of $2,907.68 as the unpaid balance of the bonus. The issue on appeal is whether the district court properly awarded a penalty and attorney's fees under Montana's Wage Payment Act, section 41-1301 et seq. Defendant contends that the penalty and attorney's feesare not collectible against him because (1) plaintiff was not an "employee" within the meaning of theAct; (2)theAct does not apply to collection of a bonus as distinguished fromwages, and

(3) plaintiff as a "professionalemployee" is excluded from coverage under theAct. Defendant also argues that it is inequitable to charge him a penalty and attorney's fees for choosing to litigate the meaning of the terms used in the employment contract in order to determine the amount of bonus owed plaintiff. Defendant's first two contentionsmust fail because of express definitions contained in theAct. Plaintiff was an employee within the meaning of theAct because an "'Employee' includes any person who works for another for hire". Section 41-1301(3)(c), R.C.M. 1947. TheAct covers collection of a bonus because the term "wages" as defined therein expressly includes a bonus. Section 41-1301(3)(d)

# . Defendant'sprincipal contention is that "professional employees" are excluded from the coverage of theAct, and accordingly the penalty and attorney's feesprovisions therein do not apply to an action filed by a veterinary. In construing a statute, the intention of the legislature is controlling. Section 93-401-16,R.C.M. 1947. Here there are at least two controlling indications that the legislature intended that the "professionalemployees"exclusion apply only to the requirement of bi-monthly payment of wages, and not to other parts of theAct including the penalty and attorney's feesprovisions.First, the legislative history of theAct demonstrates such legislative intent. The originalWage PaymentAct was passed in 1919. Ch. 11,Laws of 1919. Section 1 of that Act required the payment of wages bi-monthly; Section 2 provided a statutorypenalty for failure to pay wages when due; Section 3required payment of accrued wages to discharged employees; Section 4 was a six month limitation on actions to recover the statutory penalty; Section 5 voided employeewaivers of the benefits of the Act; Section 6provided for attorney fees's in judgment for recovery of wages due; Section 7 was a repealer clause; and Section 8provided an effective date. This legislationwas subsequently codified in the 1921 Codes as Sections 3084 et seq. Section 1 of the 1911 legislation

was codified as Section 3084,R.C.M. 1921; Section 2 as Section 3085, R.C.M. 1921; Section 3 as Section 3086,R.C.M. 1921; and so

on. The 1925 legislature enacted a statute expressly approving, legalizing and adopting the 1921 Codes as compiled,numbered and arranged by the Code Commission. Ch. 54, Laws of 1925. The sectional arrangement of the law by separate statuteswas continued in the 1935 Codes under the same statute numbers. In 1941 the legislature amended Section 3084,R.C.M. 1935. Ch. 169, Laws of 1941. That part of the amendment pertinent to this case added the following sentence to the paragraph requiring bi-monthly payment of wages: "Provisions of this Section shall not apply to any professional, supervisory or technical employees,who by custom, receive their wages earned at least oncemonthly". (Emphasis supplied) The statute as amended was subsequently codified as section 41- 1301,R.C.M. 1947 and entitled "Semimonthly payment of wages". The 1951 legislature enacted a statute expressly approving, legalizing and adopting the 1947 Codes as compiled,numbered and arranged by the Code Commissioner. Ch. 4,Laws of 1951. The foregoing legislativehistory manifests an express legislative approval of the division of the Wage Payment Act into separate statutes,and of the limitation of the "professional employees" exclusion to the statutory requirementof bi-monthlypayment ofwages. Secondly, the language of the exclusion supports the

same legislative intent. The exclusion expressly amends Section 3084,R.C.M. 1935,now section 41-1301, relating to the semimonthly payment of wages. Ch. 169,Laws of 1941. The exclusion expressly relates to "provisions of this section",i.e., provisions relating to bi-monthly payment of wages in former Section 3084,R.C.M. 1935. The language of the exclusionary amendment designates and refers to a class of persons who are customarilypaid monthly, viz professional, supervisory or technical employees. Where the language of a statute isplain, unambiguous, direct and certain, the statute speaks for itself and there is nothing left for the Court to construe. Dunphy v. Anaconda Co., 151Mont. 76, 438 P.2d 660,and cases cited therein. The function of the Court is simply to ascertain and declarewhat is in terms and substance contained therein. Section 93-401-15,R.C.M. 1947. Defendant's contention that the statutory penalty and attorney's fees included in the judgmentare inequitable should be addressed to the legislaturewhich enacted the law in question and provided its applicability here. The Courtmay not omit what has been inserted in legislation,nor insertwhat has been omitted. Section 93-401-15. The duty of the Supreme Court is simply to construe the law as it finds it. Dunphy v. Anaconda Co., supra, and cases cited therein. We decline to assess damages against defendant for an appeal without merit under Rule 32,M.R.App.Civ.P. In our view the issues on appeal are arguable and have not heretofore been decided by this Court. We decline to award additional attorney's fees on appeal. We consider the attorney's fees and penalty heretofore imposed in the judgment sufficient tomake plaintiff whole after paymentof his attorney's fees. The judgment of the district court is affirmed.

Justice We concur:



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Mr. Justice Wesley Castles dissenting: I dissent. This, tome, is an obvious joint enterprise regardless of terminology, and a professional veterinarian should be excluded from coverage as the statute clearly states.