No. 12357 INTHE SUPREME COURT OF 

### THE STATE OF MONTANA 1973

TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN and HELPERS, LOCAL 7'145, Plaintiff and Appellant,

CASCADE COUNTY SCHOOL DISTRICT NO. 1, Defendant and Respondent,

MONTANA PUBLIC EMPT,OYEES

## ' ASSOCIATION, INC

# .,a Montana corporation, Intervener and Appellant.

Appeal from: District Court of theEighth Judicial District, Honorable Pau1G. Hatfield, Judge presiding. Counsel of Record: For Intervener and Appellant: Cannon and Garrity, Helena, Montana Ross Cannon argued, Helena, Montana For Defendant and Respondent: J. Fred Bourdeau, County Attorney, Great Falls, Montana Michael T. Greely, argued, Deputy County Attorney,

Great Falls, Montana For Plaintiff and Appellant: Amicus Curiae Hilley and McKittrick, Great Falls, Montana D. PatrickMcKittrick argued, Great Falls, Montana

Submitted: May 30, 1973 Filed: 

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# 198

'2 Decided: 

## i13j97'

### Mr. Justice Frank I. 

### Haswell delivered the Opinion of the Court. This appeal is from a declaratory judgment in thedistrict court of Cascade County,declaring that themembers of plaintiff's union and intervener's association are not entitled as a matter of right to the vacation benefits enumerated in section 59-1001, R.C.M. 1947. This actionwas submitted to the district court on an agreed statement of facts. Plaintiff's members and intervener's members are employed by defendant Cascade County School District No. 1

### on a full time basis in nonteaching capacities. These employees receivevacation benefits under administrative regulations of the school district as part of contract negotiations, rather than pursuant to theprovisions of section 59-1001, R.C.M.

Themain issue for review iswhether full time employees in nonteaching capacitiesof defendant School District are entitled

as a matter of right to thevacation benefits enumerated in section 59-1001,R.C.M. 1947. The secondary issue iswhether they

are entitled to these benefits retroactive to the date of their employment. In 1949, theMontana legislaturepassed anAct providing annual vacation leave for state, county and city employees. Chapter 131,Laws of 1949,now codified as section 59-1001, et seq., R.C.M. 1947. The pertinent sections are: "Section 59-1001(1). Each employee of the state, or any county or city thereof, who is in continuous employment and service of the state, county or 

### city thereof, is entitled to and shall earn annualvacation leave credit from the first full calendarmonth of employment. However, employees are not entitled to any leave with fullpay until they have worked continuously for a period of twelve (12) calendarmonths. Vacation credits shallbe earned in accordancewith the following schedule: 

## * 

## * *."Section 59-1007. The term 'employee,'as used herein, does not refer to or include elected state,county,or city officials, or schoolteachers." The district court concluded and defendant now contends that the "schoolteachers"referred to in theAct are those teachers who work for the State Department of Institutions or other schoolteachers employed by the state of Montana, rather than schoolteachers employed by the various school districts. Therefore, the school district concludes that the exclusion of schoolteachers in section 59-1007,R.C.M. 1947 does not imply inclusion of all other school district employees. The district court further concluded that plaintiff's members and intervener's members cannotbe included by implication. We do not agree. It is a basic principle of statutory construction that the intention of the legislature is controlling. Section 93- 401-16,R.C.M. 1947; Dunphy v. Anaconda Co. 151Mont. 76, 438 P.2d 660. In construing legislative intent statutesmust be read and considered in their entirety and legislative intent may not be gained from the wording of any particular section or sentence,but only from a consideration of thewhole. Home Bldg. & Loan v. Bd. of Equalization, 141Mont. 113, 375 P.2d 312. On the other hand,where the words of the statute are plain, unambiguous, direct and certain, the court is not at liberty to insertwhat has been omitted, or to omit what has been inserted. Section 93-401-15,R.C.M. 1947. In the instant case, we hold that school district employees other than teachers are entitled to vacation benefits under section 59-1001,R.C.M. 1947. In doing so, this Court has given effect to a long line of this Court's decisions holding that a school district is a political subdivision and instrumentality of the State. Longpre v. School Dist. No. 2, 151Mont. 345, 443 P.2d 1; Fitzpatrick 

### v. State Bd. of Exmrs., 105 Mont. 234, 70 P.2d 285; State v. Cooney, 102 Mont. 521, 59 P.2d 48; State

### v. Holmes, 100Mont. 256, 47 P.2d 624. The legislature used the term "employeesf' in its generic

sense to include all employees of the state or employees of state agencies of which a school district is included. This interpretation is given further support by the language of section 59-1007,R.C.M. 1947,wherein schoolteachers are specifically excluded. The nonteaching school district employees are included by the definition of employees as used in section 59-1001, R.C.M. 1947. We cannot accept the limited interpretation sought by the defendant School District. The court's function is to construe the language of the statute in accordance with its usual and ordinary acceptance. County of Hill v. County of Liberty, 62Mont. 15, 203 P. 500. Schoolteachers in its common usage refers to those teaching at district schools as well as in the State's system of higher education. Thus we conclude that nonteaching school district employees are employees of an agency of the state government and entitled to the vacation schedule set forth therein. The second issue presented for review is whether the plaintiff's members and the intervener'smembers are entitled to the benefits of section 59-1001, R.C.M. 1947,retroactive to the date of their employment. While the question of whether school district employees other than certified teachers are governed by this Act is here before this Court for the first time, the Attorney General has rendered several opinions supporting this position. This Court is not bound by these opinions but they will be given consideration, especially when determining if this decision should be applied retroactively.



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### As early as 1950rt,he Attorney General for the State of Montana issued opinions declaring that noncertified employees of schooldistricts are entitled to the benefits of section 59- 1001,R.C.M. 1947. In 23 Opinions of theAttorney General 345, 346, itwas stated: "Sincea schooldistrict is a political subdivision of the State it is only reasonable to assume that the Legislature intended that the employees of a school districtwere included in the category of State employees as provided in the Act. That assumption is strengthenedby the language of Section 7 of Chapter 131wherein theAct specifically excludes school teachers from the operation of theAct. Since the lawmakers deemed it necessary to speciallywithhold the benefits of theAct from school teachers, it follows therefrom that it was their intention that the remaining employees 

### of the schooldistricts should be entitled to vacation leave." This conclusion has been reemphasized several times since then. See 25 Op. Att'y Gen. 123 (1954); 27 Op. Att'y Gen. 184 (1958), 28 Op. Att'y Gen. 133 (1960), 31Op. Att'y Gen. 31 (1966). Due to the fact that several opinions of theAttorney General have been issued on this or related matters and that this Court has long held that a school district is a political subdivision of the State, we see no reasonwhy the schooldistrictwas unaware of the application of the statute to their nonteaching employees. Additionally eleven sessionsof the State legislature have not seen fit to change this interpretation of theAttorney General and the previous decisions of this Court. Our decision does not take away or impair a vested right or create any new obligationupon the school district. Butte & 

### Superior Min. Co.



### v. McIntyre, 71Mont. 254, 229 P. 

### 730. Itmerely enforces the rights which were created by the 1949 legislature. Plaintiff'smembers and intervener's members are entieled to the vacation benefits of section 59-1001, R.C.M. 1947,retroactive to the date of their employment subject to the two year statuteof limitation placed upon a liabilitycreated by statute (Section 93-2607, R.C.M. 1947) and reduced by thevacation benefits received under contract negotiations or administrative regulations. For thesereasons thejudgment of thedistrict court is reversed and thecause remanded tothedistrictcourt for entry of judgment inaccordance with this opinion.



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## -------------- Associate Justice