No. 12930 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

DOUGTAS HAMMILL, 

Plaintiff and Respondent, 

FOWLER A. YOUNG, 

d/b/a BIG SKY VETERINARY CLINIC, 

Defendant and Appellant. 

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Appeal from: District Court of the Fourth Judicial District, 

Honorable Robert C. Sykes, Judge presiding. 

Counsel of Record: 

For Appellant: 

Morrison and Hedman, Whitefish, Montana 

Donald E. Hedman argued, Whitefish, Montana 

For Respondent : 

Warden, Walterskirchen & Christiansen, Kalispell, 

Montana 

Gary R. Christiansen argued, Kalispell, Montana 

Submitted: September 8, 1975 

rp 2 g 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 in Whitefish, 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 salary plus 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. Sykes presiding without a jury, entered findings of fact, 

conclusions of 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 fees 
are not collectible against him because (1) plaintiff was not an 

"employee" within the meaning of the Act; (2) the Act does not 

apply to collection of a bonus as distinguished from wages, and 

(3) plaintiff as a "professional employee" is excluded from coverage under the Act. 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 contentions must fail because of 

express definitions contained in the Act. Plaintiff was an employee within the meaning of the Act because an "'Employee' includes 

any person who works for another for hire". Section 41-1301(3)(c), 

R.C.M. 1947. The Act covers collection of a bonus because the 

term "wages" as defined therein expressly includes a bonus. Section 41-1301 (3) (d) . 

Defendant's principal contention is that "professional 

employees" are excluded from the coverage of the Act, and accordingly the penalty and attorney's fees provisions 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 "professional employees" exclusion apply only to the 

requirement of bi-monthly payment of wages, and not to other 

parts of the Act including the penalty and attorney's fees provisions. 

First, the legislative history of the Act demonstrates 

such legislative intent. The original Wage Payment Act 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 

statutory penalty for failure to pay wages when due; Section 3 
required payment of accrued wages to discharged employees; Section 4 was a six month limitation on actions to recover the 

statutory penalty; Section 5 voided employee waivers of the benefits of the Act; Section 6 provided for attorney fees's in judgment 

for recovery of wages due; Section 7 was a repealer clause; and 

Section 8 provided an effective date. 

This legislation was 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 statutes was 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 once monthly". (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 legislative history 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 requirement of bi-monthly 
payment of wages. 

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 customarily paid monthly, 

viz professional, supervisory or technical employees. Where the 

language of a statute is plain, unambiguous, direct and certain, 

the statute speaks for itself and there is nothing left for the 

Court to construe. Dunphy v. Anaconda Co., 151 Mont. 76, 438 P.2d 

660, and cases cited therein. The function of the Court is simply 

to ascertain and declare what 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 judgment are inequitable should 

be addressed to the legislature which enacted the law in question 

and provided its applicability here. The Court may not omit what 

has been inserted in legislation, nor insert what 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 to make plaintiff whole after payment 
of 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, to me, is an obvious joint enterprise 

regardless of terminology, and a professional veterinarian should 

be excluded from coverage as the statute clearly states.