                                              No.    81-552

                   I N THE SUPREME COURT O THE STATE O MONTANA
                                          F           F

                                                     1982




H R A D J . SINK and
 AL N
RUTH E. SINK,

                                P l a i n t i f f s and A p p e l i a n t s ,



SCHOOL DISTRICT NO. 6 , CASCADE
COUNTY and i t s BOARD O TRUSTEES,
                        F

                                D e f e n d a n t s and Respondents.




Appeal from:         D i s t r i c t Court of t h e E i g h t h J u d i c i a l D i s t r i c t ,
                     I n and f o r t h e County o f Cascade
                     IIonorable J o e l G. Roth, Judge p r e s i d i n g .

Counsel o f Record:

    For P l a i n t i f f s :

          J o s e p h W.    Duffy, G r e a t F a l l s , Montana

    For D e f e n d a n t s :

          J. F r e d Bourdeau, County A t t o r n e y ,               G r e a t F a l l s , Montana




                                              S u b m i t t e d on b r i e f s :   A p r i l 1, 1 9 8 2

                                                                   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 Compensa-
tion 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 dis-
crepancy 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, part-
          nership, association, corporation, business
          trust, legal representative, or any organized
          group of persons, acting directly or indirect-
          ly in the-interest of an employer in relation
                                      - -
          to an employee, but -- include the
                              shall not
          United States. --- of Montana - -
                         the state            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 - - - act, f a i l s
                                   in this
         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 dam-
         ages, and such penalty shall attach and suit
         may be brought in any court of competent jur-
         isdiction to recover the same and the wages
         due. " (Emphasis added. )
         "41-1306. Judgment for wages shall include
         attorney's fee. Whenever it shall become nec-
         essary for the employee to enter or maintain
         a suit at law for the recovery or collection
         of wages due, as provided - by this -
                                   for - - 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 all-
encompassing and therefore inclusive of respondents, and
that the phrase "enforcement    . . .   in accordance with" means
only that the same procedure and relief be afforded MFilOCA-
covered 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~urtdid 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
