No. 81-436 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

MISSOULA HIGH SCHOOL LEGAL DEFENSE ASSOCIATION, 

Plaintiff and Respondent, 

SUPERINTENDENT OF PUBLIC INSTRUCTION OF THE 

STATE OF MONTANA, and ED ARGENBRIGHT, et al., 

Defendants ,and Appellants. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Missoula 

Honorable James B. Wheelis, Judge presiding. 

Counsel of Record: 

For Appellants: 

John W.Larson argued, Helena, Montana 

Rick Bartos argued, Helena, Montana 

For Respondent: 

Jonkel and Kemmis, Missoula, Montana 

Daniel Kemmis argued, Missoula, Montana 

For Amicus Curiae: 

Hilley and Loring, Great Falls, llontana 

Garnaas, Hall, Riley and Pinsoneault, Missoula, Montana 

H. L.Garnaas argued, Missoula, Montana 

Submitted: December 3, 1981 

Decided: December 22, 1981 

Filed: L]Ec c !Y~I 
Mr. Justice John C. Sheehy delivered the Opinion of 

the Court. 

This is an appeal by the Superintendent of Public 

Instruction of the State of Montana from an adverse ruling 

in a declaratory judgment and injunction action issued by 

the District Court, Fourth Judicial District, Missoula 

County. The ~istrict Court ordered the Superintendent 

to pay $1,275,735.50 to a Missoula County high school district 

and awarded counsel for the respondent attorney fees and 

costs of $2,177.00 out of the funds to be so paid. 

We affirm the District Court. 

The Superintendent contends that the District Court 

erred in its interpretation and application of section 

20-1-301, MCA, and that it further erred in awarding attorney 

fees to the respondent. 

The disputed statute follows: 

"20-1-301. School fiscal year. The school 

fiscal year shall begin on July 1 and end 

on June 30. At least 180 school days of 

pupil instruction shall be conducted during 

each school fiscal year, [except that 175 days 

of pupil instruction for graduating seniors 

may be sufficient as provided in 20-9-313, or] 

unless a variance for kindergarten has been 

granted under 20-1-302 or a district is granted 

a variance under the provisions of chapter 9, 

part 8, of this title. Any district that fails 

to provide for at least 180 school days of pupil 

instruction shall not be entitled to receive 

any apportionment of the state interest and income 

funds. Any such forfeited moneys shall be 

apportioned by the county superintendent to the 

other elementary districts of his county." 

The bracketed portion of the above statute was added 

by an amendment in the 1981 legislative session and was 

effective at all times during this dispute. Section 1, 

Ch. 148, Laws of Montana (1981). 

The Missoula County high school district was forced 

to close its high schools 18 days earlier than the required 
180 day school term because of a teachers' strike. The 

total amount of interest and income monies to which the 

high school district would have been entitled for the school 

year 1980-81 was $1,275,735.50. 

The Missoula County Attorney, and later the Superintendent of Public Instruction, asked the Attorney General 

for an opinion as to the effect of section 20-1-301, in view 

of the shortened school term and also in light of section 

20-9-805(1), MCA, to which we will later advert. The Attorney 

General issued an opinion to the effect that the high 

school district, by way of penalty, should lose its interest 

and income monies and 1/180th of the remaining state equalization aid for each missed school day. 

When it appeared that the High School District would 

lose the interest and income monies by virtue of the Attorney 

General's opinion and the compliance with that opinion by 

the Superintendent of Public Instruction, the plaintiff, 

Missoula High School Legal Defense Association, a private 

association organized in connection with the teachers' 

strike, filed action in the District Court for a declaratory 

judgment that the high school district was entitled to its 

interest and income monies regardless of the statutes. The 

District Court so found and issued its order and judgment 

which is here appealed. 

We first examine the provisions of section 20-1-301, 

supra. The District Court concluded that the words of the 

statute and its legislative history indicate that the penalty 

provision of that section applies only to elementary districts 

and not to high school districts. The District Court 

further concluded that even if the penalty provision did 

apply to high school districts, it would be a denial of due 
process for the Superintendent of Public Instruction to 

impose such a penalty without first conducting a factfinding procedure to determine whether the failure to 

provide for at least 180 days of pupil instruction was a 

result of willful acts of the school district trustees. 

The Superintendent contends that by its interpretation 

the District Court amended the penalty provision of the 

statute by inserting the word "elementary" thus: 

"Any [elementary] district that fails to provide 

for at least 180 school days of pupil instruction 

shall not be entitled to receive any apportionment 

of the state interest and income funds." 

The Superintendent contends that such interpretation 

violates the equal funding requirements of 1972 Montana 

Constitution, Art. XI and the statutory widelines 

for interpretation of statutes contained in sections 1-2-101 

and 1-2-233, MCA. He further contends that the "plain 

meaning rule" adopted by this Court in State v. Cudahy 

Packing Co. (1905), 33 Mont. 179, 82 P. 833, 837, is 

violated by the District Court's interpretation. 

It is obvious that section 20-1-301, MCA, as it is now 

constituted, is ambiguous. The 1981 amendment did not clear 

up the ambiguity, as the Superintendent contends, but rather 

intensified it. The statute speaks of apportioning money 

"to the other elementary districts." The provision makes no 

sense unless an elementary district has already been referred 

to. This is clear from the common understanding of the word 

"other" and from ordinary rules of grammar, which this Court 

is bound to follow. Steinbrenner v. Love (1942), 113 Mont. 

466, 129 P.2d 101, 102. In order to agree with the Superintendent, this Court must ignore either the word "other" or 

the word "elementary." 
There would be no difficulty in applying the statute if 

we were dealing here with an elementary - school district 

that had failed to provide 180 school days of pupil instruction. It is when a high school district is involved, as 

here, that the internal conflicts within the statute manifest 

themselves to make the statute unworkable. Since this is a 

penal statute, admitted on all sides, it must be strictly 

construed. State v. State Highway Patrol (1958), 133 

Mont. 162, 321 P.2d 612, 613. 

Section 20-1-301, MCA, also appears to conflict with 

section 20-9-805(1). A study of the legislative history of 

section 20-1-301, is instructive to demonstrate such potential 

conflict, as well as to indicate how the problem we are 

dealing with here arose. 

"Interest & income moneys" (I&I) are defined in section 

20-9-341, MCA. Essentially our I&I money is derived as 

proceeds from land grants, gifts, escheated estates, and 

other sources set out in 1972 Mont. Const., Art. XI § 2. 

Ninety-five percent of such income must be "equitably 

apportioned annually to public elementary and secondary 

school districts . . ." 1972 Mont. Const., Art. XI § 5. 

Before the adoption of the 1972 Montana Constitution, 

section 75-6908, R.C.M. 1947 (Section 258, Ch. 5, Laws of 

Montana (1971)), erovided for the distribution by the Superintendent from the state treasury of I&I monies on the basis 

of the number of school census children through the county 

superintendent of schools. 

Section 75-7402, R.C.M. 1947 (Section 366, Ch. 5, 

Laws of Montana (1971)), provided for a 180 day school 

fiscal year and stated that if an elementary district did 
not provide a 180 day school year of pupil instruction, it 

forfeited the I&I monies to the "other elementary districts." 

At that time, under section 75-6909, R.C.M. 1947 

(Section 259, Ch. 5, Laws of Montana (1971)), the county 

superintendent apportioned the county's I&I monies only to 

elementary school districts on the basis of school census 

figures . 

Prior to the 1972 Constitutional Convention, there were 

two sources of state monies which were distributed to school 

districts. The I&I monies went only to elementary school 

districts. The other form of aid, state equalization monies 

under the foundation system, were distributed both to high 

school (secondary) districts and to elementary school 

districts. The 1972 Montana Constitution, however, changed 

the law relating to I&I monies to provide that distribution 

of those funds should be made to secondary as well as 

elementary school districts. 1972 Mont. Const., Art. XI § 

5. 

In 1973, the legislature acted with respect to I&I 

monies to comport with 1972 Mont. Const., Art. XI § 5. 

In an amendment to section 75-6908, R.C.M. 1947 (Section 10, 

Ch. 137, Laws of Montana (1973)), it was provided that the 

State Board of Land Commissioners should deposit the I&I 

monies into the "earmarked revenue fund for state equalization 

aid." This provision is now contained in section 20-9-342, 

MCA . 

Under the present law, therefore, the I&I monies are 

integrated with other funds under the foundation program in 

the earmarked revenue fund as "state equalization aid." 

Section 20-9-343, MCA. The state equalization aid is distributed and apportioned to provide an annual minimum operating 
revenue for elementary and high schools in each county. 

Section 20-9-344, MCA. The distribution of state equalization aid, which now includes the I&I monies, is ordered 

by the board of public education on the basis of annual 

entitlements determined by the Superintendent. Section 20- 

9-344 (2) (c) , MCA. 

This brings us to section 20-9-805(1), MCA, which did 

not exist prior to 1979 when it was enacted. That section 

provides : 

"20-9-805. -- Rate of reduction -- in annual 

apportionment entitlement. (1) For each 

school day short of the minimum number of 

school days required by law that a school 

district fails to conduct by reason of one 

or more unforeseen emergencies or by reason 

of any other cause and for which the school 

district is not entitled to apportionment 

credit, the superintendent of public instruction 

shall reduce the equalization apportionment 

and entitlement of the district for that 

school year by 1/180th." 

It appears that the legislature failed to consider 

that the I&I monies were now a part of the "equalization 

apportionment" referred to in section 20-9-805(1). The 

result is that section 20-1-301, the disputed statute here, 

requires the elimination of I&I monies from the offending 

district, and section 20-9-805(1), includes those I&I monies 

in determining the equalization apportionment for which the 

entitlement is to be reduced by 1/180th. These confusing 

statutes led the attorney general, small blame to him, to 

conclude that a school district which failed to conduct 180 

school days due to a teachers strike would lose the whole of 

the interest and income monies, and a 1/180th reduction of 

"remaining state equalization aid for each missed school 

day." Obviously section 20-9-805(1), does not include the 

word "remaining." 

These ambiguous provisions relating to the penalty to 

be assessed against any elementary or high school district 
that fails to provide 180 school days of pupil instruction 

are so conflicting that they require legislative review and 

revision. Meanwhile, since these are penal statutes, courts 

are powerless to apply them. Statutes which impose penalties, 

either civil or criminal, must be clear and explicit, and 

where such statutes are so vague and uncertain in their 

terms as to convey no meaning, or if the means of carrying 

out those provisions are not adequate or effective, the 

courts must declare the penal provisions void. State v. 

Nagle (1935), 100 Mont. 86, 45 P.2d 1041, 1042-1043. 

We point out in passing that section 20-1-301, MCA, 

is further ambiguous in that it provides that a high school 

district may provide 175 school days of pupil instruction 

for graduating seniors, but nevertheless, in its final 

sentence states that if a district fails to provide at 

least 180 school days of pupil instruction it is not entitled 

to interest and income monies. While that ambiguity is not 

involved in this case, we point it out to the legislative 

draftspersons. 

Now to the second issue. The Superintendent contends 

that the award of attorney fees and costs was improper in 

this case because of 1972 Mont. Const., Art. XI § 3, which 

provides that the public school funds shall forever remain 

inviolate, guaranteed by the state against loss or diversion. 

The respondent contends that the attorney fees are 

proper under the "common fund" doctrine. 

Art. XI § 3, is not violated when a school district 

expends funds to preserve or properly administer school 

funds. The Superintendent admitted the power of school 

districts to hire private attorneys when necessary, and that 

school funds could be used for the payment of the legal 

expenses thus incurred. 
In Means v. Montana Power Co. (1981), Mont . - I 

625 P.2d 32, 38 St-Rep. 351, we said: 

"The 'common fund' concept provides that 

when a party through active litigation 

creates, reserves or increases a fund, others 

sharing in the fund must bear a portion of the 

litigation costs including reasonable attorney 

fees. The doctrine is employed to spread the 

cost of litigation among all beneficiaries so 

that the active beneficiary is not forced to 

bear the burden alone and the 'stranger' (i.e., 

passive) beneficiaries do not receive their 

benefits at no cost to themselves. See Vincent, 

supra, 557 F.2d at 769. 

"The doctrine is well recognized and has been 

quoted in several Montana cases. [Citing 

cases.]" 625 P.2d at 37. 

The actions of the respondent to preserve for the 

Missoula County high school district the interest and monies 

that it would otherwise be entitled to receive bring the 

respondent within the "common fund doctrine." Accordingly, 

it is entitled to recover reasonable attorney fees and costs 

incurred in that effort out of the common fund. 

We therefore affirm the order and judgment of the 

District Court and remand the cause to the District Court 

for an evidentiary hearing with respect to attorney fees and 

costs to which respondent is entitled by reason of this 

appeal. The matter of attorney fees to be awarded on appeal, 

where proper, is completely within our prerogative, but when, 

as here, we find an evidentiary hearing is necessary, we 

request and order the District Court to determine a reasonable attorney fee and costs for appeal and to submit the 

same to us in an order for of our approval. Meanwhile, time 

for petitions for rehearing and remittitur shall run from 

the date hereof in the usual course. 

J Justice I 
We Concur: 

Chief Justice