No. 12930
I N THE SUPREME COURT OF THE STATE O M N A A
F OTN
1975
DOUGTAS HAMMILL,
P l a i n t i f f and Respondent,
FOWLER A . YOUNG,
d / b / a B I G SKY VETERINARY CLINIC,
Defendant and A p p e l l a n t .
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Appeal from: D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t ,
Honorable R o b e r t C. Sykes, Judge p r e s i d i n g .
Counsel o f Record:
For Appellant:
Morrison and Hedman, W h i t e f i s h , Montana
Donald E. Hedman a r g u e d , W h i t e f i s h , Montana
F o r Respondent :
Warden, W a l t e r s k i r c h e n & C h r i s t i a n s e n , K a l i s p e l l ,
Montana
Gary R. C h r i s t i a n s e n a r g u e d , K a l i s p e l l , Montana
Submitted: September 8, 1975
r p 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 em-
ployee for the unpaid balance of the bonus, a 100% statutory
penalty for nonpayment when due, and attorney's fees. Defend-
ant 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 cover-
age under the Act. Defendant also argues that it is inequitable
to charge him a penalty and attorney's fees for choosing to liti-
gate 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 em-
ployee 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. Sec-
tion 41-1301 (3)(d) .
Defendant's principal contention is that "professional
employees" are excluded from the coverage of the Act, and accord-
ingly 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 pro-
visions.
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; Sec-
tion 4 was a six month limitation on actions to recover the
statutory penalty; Section 5 voided employee waivers of the bene-
fits 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 sec-
tional 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, legal-
izing 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 relat-
ing 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.