                            No. 13858
         IN THE SUPREME COURT OF THE STATE OF MONTANA
                                1977



STATE OF MONTANA,
                        Plaintiff and Appellant,
          -vs-
HOLMAN AVIATION COMPANY,
                        Defendants and Respondents.



Appeal from:       District Court of the Eighth Judicial District,
                   Honorable Joel G. Roth, Judge presiding.
Counsel of Record:
   For Appellant:
         Patrick Flaherty argued, Helena, Montana
   For Respondent:
         Burton and Waite, Great Falls, Montana
         Charles M. Cruikshank, I11 argued, Great Falls,
          Montana
   For Amicus Curiae:
         James Zion argued, Helena, Montana


                                 Submitted:     December 9, 1977
                                   Decided:        10   l
                                                        m
Filed:   MAR 1 0


                                        Clerk
Mr. Justice Daniel J. Shea delivered the Opinion of the Court.


        Plaintiff and appellant, State of Montana, appeals from
separate orders of the District Court, Cascade County, setting aside
a final order and judgment in favor of plaintiff, and granting sum-

mary judgment to defendant and respondent, Holman Aviation Co.

        In 1975, the United States Department of Labor audited the
payroll records of defendant, Holman Aviation Co., and concluded
that defendant had not paid one of its employees, James Hansen,
$227.00 in back overtime wages that were due him under the provi-

sions of the Fair Labor Standards Act of 1938, 29 U.S.C.   SS201-219
(1970) (hereinafter referred to as the F.L.S.A.).   After defendant

refused the Department's request to pay the back wages, the United
States Department of Labor concluded that it was "not suitable" for
it to institute court action to secure payment.

        James Hansen then filed a wage claim on January 12, 1976,
against defendant for wages earned but not paid.    Hansen assigned

this wage claim for collection to plaintiff and appellant, State of
Montana, Department of Labor and Industry, Labor Standards Division
(hereinafter referred to as "Montana Department of Labor") pursuant
to section 41-1314.2, R.C.M. 1947.   Defendant was served with notice

and the opportunity for administrative hearing on the wage claim.
Defendant, however, refused to attend the administrative hearing,

alleging that plaintiff, Montana Department of Labor, lacked juris-
diction to prosecute the wage claim.   On May 25, 1976, an order of
default was entered in plaintiff's administrative proceedings against
defendant, directing defendant to pay plaintiff agency $454.00 in
back wages and penalties.
        Defendant was served by mail with notice of plaintiff agency's
order and with notice that within thirty days from the service of
the order, defendant could file a petition for judicial review of
the order, pursuant to section 82-4216, R.C.M. 1947.      Defendant did

not file a petition for judicial review by June 27, 1976, thirty
days after it was served with the agency's order.
           Plaintiff on September 10, 1976, filed an application for
judgment in District Court, Cascade County, pursuant to section 41-

1314.4, R.C.M. 1947, seeking a District Court order enforcing the
agency determination that defendant must pay $454.00 in back wages
and penalties to plaintiff agency in trust for James Hansen, and
requiring defendant to pay plaintiff $100.00, pursuant to section
41-1314.2, R.C.M. 1947, as reasonable attorney fees for the services
of the Cascade County attorney, plaintiff's attorney in this action.

The District Court issued a final order and judgment on September 10,
1976, ordering defendant to pay plaintiff $454.00 in back wages and

penalties and $100.00 in attorney fees.
           On September 29, 1976, the District Court, pursuant to a
motion filed by defendant, issued an order setting aside its final

order and judgment.     Thereafter, plaintiff and defendant each filed
separate motions for summary judgment, and submitted briefs in sup-
port of their motions.
           On April 25, 1977, the district judge issued an opinion in
which he adopted the position advanced by defendant, that section

41-2307, R.C.M.    1947, precluded plaintiff from bringing a wage col-

lection suit on behalf of an employee covered by the F.L.S.A.      The

judge granted defendant's motion and ordered that summary judgment
be entered for defendant.
           At issue in this appeal is whether the Montana Department
of Labor is precluded, either by section 41-2307, R.C.M. 1947, or
by any provision of the F.L.S.A., from seeking enforcement of the

F.L.S.A.    claims of an employee working in Montana.
           Section 41-1301, R.C.M.   1947, of the Montana Wage Payment

Act requires employers to pay each employee his wages within ten
business days after the wages become due and payable.           Other sec-
tions of the Wage Payment Act provide for the recovery by an unpaid
employee of a penalty and attorney fees, and for the method of court

enforcement.       Section 41-1314.2, R.C.M. 1947, of the Wage Payment
Act, the section under which James Hansen assigned his F.L.S.A.
claim to plaintiff provides:
          "Whenever the commissioner determines that one
          or more employees have claims for unpaid wages,
          he shall, upon the written request of the em-
          ployee, take an assignment of the claim in trust
               -


          for such employee, and may maintain any proceed-
          ing appropriate to enforce this claim * * *."

          The expansive language of section 41-1314.2, R.C.M. 1947,
allows the Montana Department of Labor to seek enforcement of

"claims for unpaid wages", without excluding F.L.S.A. wage claims
from the Department's jurisdiction.
          Furthermore, section 41-1137, R.C.M.        1947, a provision of

an act governing the hours of labor in various employments, autho-
rizes the Montana Department of Labor "       * * *   to assist and cooper-

ate   * * *   in the enforcement within this state of the Fair Labor
Standards Act of 1938      * * *."   Sections 41-1314.2 and 41-1137, R.C.M.

1947, when read together, indicate a very clear intent by the Montana
legislature to vest the Montana Department of Labor with the power

to maintain enforcement proceedings of F.L.S.A. wage claims.
          Respondent employer argues, and the District Court held,

that whatever inferences one may draw from sections 41-1314.2 and
41-1137, R.C.M. 1947, as to Montana Department of Labor enforcement
power in F.L.S.A. wage claims, section 41-2307, R.C.M. 1947, prohi-
bits state activity in any action involving employees covered by
the F.L.S.A.       We disagree.
          Section 41-2307, R.C.M. 1947, states:
          "The provisions of this act shall be in addition
          to other provisions now provided by law for the
          payment and collection of wages and salaries, but
          shall not apply to employees covered by the Fair
          Labor Standards Act."
         Section 41-2307, by its plain meaning provides merely that
"the provisions of this act", the Montana Minimum Wages and Maximum
Hours Act, shall be applicable to set minimum wages and maximum hours
for certain Montana employees in occupations not covered by the F.L.

S.A., and that the F.L.S.A. shall apply to those employees which the

federal act specifies.    The Wage Payment Act is an act distinct from
the Wages and Hours Act, and therefore, falls outside the section 41-
2307 exclusion.    The Wage Payment Act evinces the Montana legislature's
intent to provide a method for the Montana Department of Labor to
collect all unpaid wages of Montana employees, without distinction
between wages unpaid under the F.L.S.A.   or under the Montana Minimum

Wages and Maximum Hours Act.
         Regardless of whether the Montana legislature intended
through section 41-1314.2, R.C.M. 1947, to vest the Montana Department
of Labor with the power to prosecute F.L.S.A.   unpaid wage claims,
respondent employer argues that the F.L.S.A. itself expressly pro-

hibits state enforcement of F.L.S.A.   wage claims.   If the F.L.S.A.,
a federal statute, precludes state agency enforcement of F.L.S.A.
claims, Montana legislation giving the Montana Department of Labor
the power to enforce F.L.S.A. claims would be unconstitutional under

the Supremacy Clause, Art. VI, Section 2, United States Constitution.
Sinnot v. Davenport (1859), 63 U.S.    (22 How.) 227, 242-243, 16 L.Ed.
243.   Furthermore, regulations of the administrator of the United
States Department of Labor, Wage and Hour Administration "have the
force of law as much as though they had been written in the statute".
Helliwell v. Haberman (2d Cir. 1944), 140 F.2d 833.     If section 41-
1314.2, R.C.M.    1947, conflicts with a United States Department of
Labor regulation, the Supremacy Clause would be violated.
         Respondent employer argues that 29 C.F.R.    515.8 preempts
state enforcement of F.L.S.A. wage claims.    Respondent underlines
for emphasis that portion of the regulations which reads:
        "All litigation * * *shall be undertaken by and
        be under the direction and control of the Federal
        Government * * *.  I'




The command in 29 C.F.R. 515.8 that all F.L.S.A. litigation must
be undertaken by the federal government, however, is specifically
limited by the express language of the regulation to litigation:
         "   * * *
                other than civil actions for the recovery
        of wages due instituted pursuant to section 16(b)
        of the Fair Labor Standards Act of 1938 * * *."

        In this case, James Hansen's wage claim was for overtime
wages due under section 16(b) of the F.L.S.A.    29 C.F.R. 515.8 fur-
ther sanctions state enforcement of F.L.S.A. wage claims when it
provides :

        " * * * Any State agency intending to institute
        a civil action in behalf of an employee or employees
        for the recovery of wages due, pursuant to section
        16(b) of the Fair Labor Standards Act of 1938 shall
        notify the Division and the Secretary of Labor prior
        to the institution of such action."
        The Montana Department of Labor was authorized by both the
Montana legislature, through section 41-1314.2, R.C.M. 1947, and

by the United States Congress, through the F.L.S.A. and'29 C.F.R.

515.8, to institute civil actions on behalf of employees such as
James Hansen to recover unpaid F.L.S.A. wages.
        The District Court final order and judgment in the amount

of $454.00 in back wages and penalties, and $100.00 in attorney
fees is affirmed.    We note that the $100.00 attorney fees must be

paid into the Cascade County general fund and not given to the Cas-
cade County attorney as private attorney fees.    Because Cascade

County is a county with a population in excess of 30,000 people,
the Cascade County attorney is prohibited from receiving profits
from the private practice of law.    Section 16-3106, R.C.M. 1947.
        The District Court orders setting aside the final order and
judgment in favor of plaintiff    and granting summary judgment to

defendant employer are reversed.
We Concur:




(&    ustice




Hon. Ronald D. McPhillips, Dis-
trict Judge, sitting for Mr.
Justice Haswell.
