*1 228 notice merely serving of oral is ap ment appellants filed a notice of filing is then party has filed or that the 18, 1964, which notice

peal on March purpose of oral appeal. The notice of days date of the thirty after the filed within unnecessary fur- is to make announcement proof But no of serv appealed from. order has been notice which ther service appeal as was filed such notice of ice of appeal filed notice of filed. Since no service required by An affidavit of statute. 18, any March oral by appellants until 1964, notice 22, that such July states dated 3 March them on announcement service on on March 18 was served appellants proof Thus the but no was without effect. respondent, appeal by this method. perfect their thirty days failed to service filed within appeal required by An as the statute. order herein, the order of stated For reasons perfected service of notice was not court, appeal from the striking trial proofs of appeal by filing notice “with such county interpreting the court order of days thirty and after service” within from will, hereby the coun- is affirmed. Whether Therefore, per appeal was the order. no provisions of ty court’s construction of the Krueger v. fected in that manner. See an the will hereafter be reviewed 539; Hayko Nevland v. (N.D.), N.W.2d appeal appeal final an decree 845; 747, Njust, 51 N.W.2d Stier 78 N.D. allowing report final from the order Stierlen, 297, len N.D. 78 N.W. 990. v. distribution, petition for account and provisions contend, however, appellants that appeal. required on this appeal determined served oral notice of statute. The record discloses appellants’ counsel did announce his inten- TEIGEN, BURKE, J., KNUD- C. appeal taking an if the decision of ERICKSTAD, JJ., concur. SON clients, against court his should hearing, was done on the date of 3, court March 1964. The decision of the 6, 1964,

was not made until March at which parties

time the in court. The were not construing not entered the will was 18, 1964,

until March and the

not in court on that date. FALK, Respondent, Louise Plaintiff and appeal attempted oral from v. decision of the court effect was without Frandsen, Kenneth FRANDSEN Nettle announce, even if the court on March did Kenny’s Motel, Defendant d/b/a 3; its .that decision would be Appellant.

appellants, not, appellants because the did No. 8225. date, appeal on that file a notice of required by providing statute oral Supreme Court of North Dakota. provides: notice statute Sept. 10, 1965. “ * * * party taking ap- If the Rehearing Sept. 23, Denied 1965. peal files such notice and announces filing orally open court at the given,

time the decision is no other or

further service of the notice is neces-

sary.” appeal prior

The notice of must be filed party

to or at the time announces appealing.

intention of The oral announce- *2 Mills, Bismarck,

William R. appel- lant. Jungroth,

Mackenzie Jamestown, & respondent.

TEIGEN, Judge. appealed

The defendants from a have judgment rendered in favor of the awarding attor- ney’s fees under Section N.D.C. provides This C. section that if a woman paid by or minor em- worker shall be ployer than wage, Agri- established the Commissioner of Labor, culture and recover such worker “together a civil action the difference with such be allowed court.” jury. The case was tried to a It returned a verdict in favor of and thereafter the court awarded the fees. $225 Costs and disbursements also taxed the sum of $74.30. In the trial court the defendants tried pro their case se. An drew and served the answer to the semimonthly pay pe- attorney During A second before trial. withdrew meals, al- riods no deduction was procured for this appears took one though ver- No made for a directed motion was day. The working meal at the diner verdict, and, no motion dict after the defendants, request plaintiff, at n.o.v. made for a new trial *3 paper daily slips of the hours wrote on plaintiff we the contends For reason turned and the meals she ate and worked sufficiency evi- cannot review employer of each them in to the at the end specifications of law dence or error of pay per- day. working At the end each defendants, The occurring during the trial. iod, from wages computed were earned court, argument stated during to this stapled slips paper. They were then judgment for asking not of the are a review slip computation together with the they complaining about the wages nor are They kept by attached and by the and costs disbursements assessed periods are in evidence. The only question remaining is clerk. Thus the meals. the defendant made no deduction for validity fees of the award employment Novem- The was terminated on re- made the court after verdict was 13,1962. payment ber final was When ceived. employer wages deducted $21 pay period in during earned the last settle- N.D.C.C., adop- 34-06, Chapter before the employ- covering ment of certain items Chapter Dakota 236 of the North period. ment 1965, in its was limited Session Laws of application to and minors under women referred The order of Commissioner years. placed age of 18 It certain duties provides are to above that where meals powers Agri- and in Commissioner of premises, thirty-minute furnished hours, and wages, culture Labor relative to interruption free al- from shall and mi- working conditions for and women lowed for each meal and time such meal provided prescribe nors. It stand- occurring shall during the shift working regula- rules promulgate ards hours, part working be considered a Pursu- carry tions to them into effect. legal in maximum hours computing both adopted authority ant to the there was hourly wages. Occupation Housekeeping Public M.W.D. computation was made on final When no provides Order No. 1. that It slips daily to the settlement was attached qual- employer employ any They received in evidence. as usual. were help weekly kitchen of less ified at a rate state, They part, as follows: month, per than ($128.88 $29.28 61‡ operate hour). appears It the defendants even “Pop 10 a week 15 weeks bottles a diner in The connection with the motel. at a bottle $5.00 $7.50 5‡ employed was the defendants day. every 2 bottles almost doing cooking in their diner in the kitchen 2 1962, 13, Time: Cheated on lunch August 4, 1962. time at least from to November hrs. paid semimonthly. each week 12 24 hrs.” weeks She She per rate hour for the first two 75‡ disagreement There was also a as to wages her raised and then worked in the last Novem- per day per took meal hour. She one through ber 1 November 13. at the diner. 84 81 hours. claimed hours and the employer, through re- Nettie Frandsen providing The order diner, operated plain- who testified she had ferred to in effect above kept her own record of the time arrival employment. provided It also tiff’s departure plaintiff during this employer, meals are furnished when that, according computed per period and her calcula- meal meal. each at

231 tions, plain- signed 81 hours. file.” It was had worked making daily slips 84 hours. In Mrs. Frandsen on behalf of the defendants. tiff’s totaled computation wages, the stopped payment The defendants of both hours, lunch deducted 20 hours allowed checks and contacted the to cor- “I deduct before time which didn’t oversight claimed rect a or error period,” of 61 leaving weeks a balance computations negotiate but were unable to hour, equaled hours at $48.80. further. for, “pop then She deducted $5.00 candy figuring anything this isn’t alleges you helped yourself period” week to 15 and paid wage.” “under the minimum wages. balance of She $43.80 alleges agreement that an was entered into security then deducted social and withhold- defendant, between the and the ing equaling taxes and issued “underpayments wages and that had been *4 plaintiff a check in final settlement paid alleges of at least It $12.42.” amount of $38.78. plaintiff in gave defendant a check wages her last for $38.78 plaintiff complained The then to the Com- for another check in the amount of $12.42 Agriculture missioner of and Labor and an “underpayment Wage on the Minimum inspector department out was sent payment checks had Law” but that of said to see the A conference was held stopped. prays judgment been which resulted in a settlement. The in- checks), for (the sum of the two $51.20 spector’s computation was introduced sheet disbursements, eosts and and for reason- explained in evidence he it on provided by The fees law. able witness stand. He testified allow- that an the material defendants’ answer denies 55( n per equaled approxi- meal ance allegations of the and affirma- mately per hour for a maximum 8½ tively pleads 7‡ not en- that the working day. figure hour He used this places plain- wages and titled to more deducted from the minimum allowable 7‡ proof. tiff on her per wage of a balance hour. This left 54¾ n per multiplied by hour which he case no issue During trial of the (20 The developed pay hours deducted scale. relative to a time, for cheating plus 75 nn lunch paid per 3 hours for the first defendants hour per additional time claimed in semimonthly periods hour two and $12.42, period) last and arrived at which in excess of the thereafter. This is well pay advised the in provided by she should the order of wage minimum plaintiff’s help. settlement of the A second in- claim. The hour kitchen sheet is attached spector department to the settlement sheet verified this for the described showing figures arriving cross- testimony. at the He asked on was computed same result but aon different examination : basis. It is not marked as an exhibit and “Q. really I didn’t her under appear does not to be in evidence. wage minimum ? A check for given was to the in- fight. “A. That is There is no com- spector delivery plaintiff, to the who plaint I far as about that as present was not the conference. know.” inspector prepared a settlement state- ment providing payment of $12.42 only developed during the issue that “is settlement full wage for the and hour trial or not the defendants whether claim” of defend- permitted should be to deduct ants agree and “Both this as set- plaintiff’s during the earnings meals taken tlement employment in full in rate authorized accordance with our claim at the purpose simplicity interpretation, issue resolved department. This by the may plaintiff was we state it follows: found jury when it .the computation entitled recover $51.20. * * * any “If woman include a deduc- does * * * paid than the minimum less which last for meals * * * wage to which is entitled worked, there no allow- under or virtue of periods. ance for meals * * * worker commissioner such allowed claim should be Defendants full recover in a civil action the pe- employment the full this deduction for any amount riod. * * * actually to her record in this case have studied the We attorney’s together with such * *” * is a suit and are unable to determine that it be court. the “full collection of statute, wage” provided by (“If The first the sentence N.D.C.C., au- * * * any thorizes the to allow trial court * * * less than the minimum employee. defend- fees favor of the * ** to which under is entitled “underpaid ants denied byor virtue of an order of commission- order of the minimum er”) modifying is an adverbial clause *5 Department Agri- division the of of “may imposes verb recover.” It a condition culture of State of North Dakota.” right on the “shall be to recover. words is an complaint alleges in her this paid” compound are a The two verb. recovery action for the of full amount auxiliary the verb place verbs “shall be” failed wage of the but has minimum she “paid” in tense. makes the the future action, prove underpayment to a cause of operate statute verb prospectively. The although verdict. she recovered a favorable paid” “shall be is modified the adverbial N.D.C.C., provides: 34-06-16, Section phrase imposes which follows pay “less than condition that the shall not be “Recovery by underpaid employee.— wage the minimum to which is entitled she any any If or minor worker woman under or of an the com- virtue order of paid by her less or empower- missioner.” The commissioner is wage than the to minimum which chapter ed ascer- (Chapter 34-06) to or he is or an entitled under virtue of prescribe tain and of minimum standards commissioner, order of such worker 34-06-03(3). wages for Section women. may recover in a civil full action the 34-06-08), After investigations (Section any wage conferences consid- (Section 34-06-09), and actually paid to her himor 34-06-11), eration reports of the (Section employer, together with such attor- may commissioner render make and ney’s may be may necessary, such order as order be An agreement providing court. day shall become on effective the sixtieth employment at less than the minimum following employer shall its No rendition. wage specified in the order be no provisions disregard violate or the terms or defense in such action.” order; employ

of the not interpretation provide thereby wage Our worker covered a “lower rules of phrases that words and shall be construed scale” than authorized therein. Section 34-06-12, according gram to^ of clear the the context and rules N.D.C.C. Thus it is commissioner,” approved usage language. term “order used mar and the of the statute, establishing Reducing the an order a Section N.D.C.C. is pay first 34- minimum to (Section wage sentence of the statute scale rate of used 06-16, compute the supra) parts essential earned. The order to its notwithstanding paid the minimum occupations wage, appropriate also establish in agreed employer may have fact that the from time “piece distinguished rates as pay wage a in excess to the claimant 34-06-10, N.D.C.C. rates.” Section agreement was wage. minimum Where hourly rate that In this case it was an wage it would minimum for more than the ques- occupation was established for the elect to upon be incumbent the claimant hourly tion. There is no claim made her sue on wage or to sue for the minimum minimum wage in case was below she elected to sue contract. If provided by the commissioner’s order. recovery would wage, her minimum clearly in excess paid per hour was wage minimum limited to the amount provided by of the minimum the commis- If she elected and reasonable fees. sioner’s order. contract, recover she could to sue on the contract but the amount due under the adduced On the basis of the evidence attorney fees. recovery parties, both employer for worked for her Claimant upon wage minimum not based approximately 14 weeks. She department on the wheth issue two semimonthly. During the first er or not defendant should be allowed hour. an agreed her contrary to deduct for meals furnished it was During of the time the balance brought parties, the settlement between the an an hour. The through about the efforts of the work, dispute quit claimant hour. When Department Agriculture her and her arose between Labor. It follows that the trial court error, through contended fees under awarding error in from the amount had to deduct failed therefore, 34-06-16, N.D.C.C., and, the meals to claimant the value it awards insofar as employer’s by the claiment in the eaten reversed; otherwise, af fees must be it is periods. six *6 during restaurant first firmed. deductions were other but lesser Certain petitioned this court has In this also claimed for the fees on allowance of claimant, dispute employer and between petition denied for This must be had claimant whether the issue was the reasons set forth above. 34- overpaid the first six fact been 06-16, N.D.C.C., apply does not to this case, whether if such was the case. overpay- charge such could wages for ments the claimant’s aforesaid, judgment For the reasons period. last and, modified, modified affirmed. action complaint in this It is true that the wage. alleged failure to KNUDSON, STRUTZ and JJ., concur. reviewed However, in the case the evidence between all of the debits and credits BURKE, spe- Chief (concurring Justice employ- parties entire cially) . of a settlement Evidence ment. parties, was dispute agree given 1 cannot between with construction rendered jury opinion to Section received in evidence. N.D.C.C. the exact claimant by Judge opinion written á verdict for the my TEIGEN. In as testified of the settlement section allows fees in suit clearly The record wages by person for minimum entitled claimant’s witnesses. a in excess received claimant judgment thereto where the in the shows that the entered period, case, evidence, wage for upon sufficient determines relat- dispute between claimant had not in fact been which jury must have ed. Under the evidence the entitled to

found either that claimant was settlement mentioned in the parties, the contract between binding settlement was

parties. finding A that claimant had not

received the minimum disputed

during which arose would items judgment contrary to the evidence.

in this construed as case cannot therefore be judgment for minimum and con-

sequently does Section 34-06-16 N.D.C.C. apply. therefore, in a reversal I concur

of that allows

attorney fees. join special

I concurrence of Chief BURKE.

Justice

ERICKSTAD, Judge. HAGEN, Appellant,

Martin G. Plaintiff and

v. al.,

Alma M. HAGEN et Defendants and Respondents.

No. 8249.

Supreme Court of North Dakota.

Sept. 23, 1965.