No. 13752 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

STATE ex rel. ROBERT E. SULLIVAN, 

Relator and Appellant, 

STATE OF MONTANA, TEACHERS' 

RETIREMENT BOARD, et al., 

Respondents and Respondents. 

Appeal from: District Court of the First Judicial District, 

Honorable Gordon R. Bennett, Judge presiding. 

Counsel of Record: 

For Appellant: 

Boone, Karlberg and Haddon, Missoula, Montana 

Sam E. Haddon argued, Missoula, Montana 

For Respondent: 

J. Michael Young argued, Helena, Montana 

For Amicus Curiae: 

Louis Forsell argued, Helena, Montana 

Submitted: September 29, 1977 

r\rW 3 5 1gz Decided : 

Clerk 
Mr. Chief Justice Paul G. Hatfield delivered the Opinion of the 

Court : 

Appellant appeals from an order of the District Court, Lewis 

and Clark County, dismissing his petition for judicial review 

and affirming a decision of the Montana Teachers' Retirement Board 

denying him retirement credit for out-of-state teaching service. 

Appellant, Robert E. Sullivan, is Dean of the University 

of Montana School of Law. He was previously employed as a faculty 

member of Notre Dame University from September 1947 to September 

1954. In 1954, he moved directly from Notre Dame University 

to the University of Montana School of Law faculty. In 1976, 

while a member of the Montana Teachers' Retirement System, appellant applied for seven years credit in the retirement system on 

the basis of his Notre Dame teaching service, He tendered back 

contribution payments as required by section 75-2705(9), R.C.M. 

1947, to respondent Montana Teachers' Retirement Board (hereinafter referred to as the Board). At an April 12, 1976, meeting, 

the Board denied appellant's application and thereafter returned 

his cashier's check for back retirement contribution payments. 

The Board based its denial on its decision that section 75-2705(9), 

R.C.M. 1947, in effect in 1954 when appellant became a member 

of the Montana Teachers' Retirement System, allowed retirement 

credit only for teaching service in out-of-state public schools, 

to the exclusion of service performed in out-of -state private 

schools such as Notre Dame University. 

Appellant then brought an action in district court to require 

the Board to allow him to purchase credit toward retirement benefits 

in the Teachers' Retirement System for his out-of-state teaching 

service. Counsel stipulated the case be submitted for final decision 
on the law question as if it were a judicial review of the 

~oard's denial of teaching credit. The District Court issued 

a "MEMORANDUM OPINION AND ORDER" dismissing the petition for 

judicial review and affirming the decision of the Board. 

The determinative issue presented on appeal is whether 

section 75-2705(9), R.C.M. 1947, as applicable in 1954 when 

appellant became a member of the Montana Teachers' Retirement 

System, allows a member to receive credit for teaching in outof-state private schools. 

In Montana, retirement benefits in the teachers ' retirement system are a matter of contract right. The terms of the 

teachers' retirement benefit contract in Montana are determined 

by the controlling provisions of the teachers' retirement system 

statute in effect at the time the teacher becomes a member of 

the Montana Teachers' Retirement System. "These sections of the 

statute become part of the teacher's contract." Clarke v. 

Ireland, 122 Mont. 191, 199¶ 199 P.2d 965 (1948). 

When appellant joined the Montana Teachers' Retirement 

System in 1954, section 75-2705(9), R.C.M. 1947, set forth the 

conditions by which a teacher entering the system could receive 

credit for out-ofistate teaching service. That portion of section 

75-2705(9), as it was in effect in 1954, relevant to this appeal, 

provided : 

"Any teacher who has become employed as a teacher 

in Montana * * * may receive credit for service for 

out-of-state teaching employment provided * * * 

[he makes certain contributions required by the 

statute] .I' (Bracketed material paraphrased.) 

Section 75-2705(9) controls this case, because no other section 

of the Monthna Teachers' Retirement Act, as it was in effect 

in 1954, spoke to creditable service for out-of-state teaching. 
On its face section 75-2705(9) appears to be perfectly clear. 

To receive credit in the Montana Teachers' Retirement System for 

out-of -state teaching service, section 75-2705 (9) merely required 

that the applicant teacher, who has become employed as a teacher 

in Montana, has performed out-of-state teaching service and made 

the required contributions into the retirement fund. Appellant, 

as Dean of the law school, is a teacher in Montana who performed 

out-of-state teaching service at Notre Dame University and made 

the statutorily required contributions into the retirement fund. 

Respondents assert the legislative intent behind section 

75-2705(9) can be determined only by examining the teachers' retirement act in its entirety. Respondents contend that,in passing the 

act, the Montana legislature established a benefit for public 

school teachers with no regard for teachers in private institutions. 

The definitions of "teacher", "service", "employer", and "memberR.C.M. 1947, 

ship" in section 75-2701/a11 spoke to public school employees. 

Respondents conclude the section 75-2701(4) definition of teacher 

as "* * * any teacher in the public elementary and high schools 

of the state, and the university of Montana * * *" must be used 

to define what "teacher" may qualify for out-of -state teaching 

credit under section 75-2705(9). Respondents conclude that appellant 

cannot meet the statutory definition of "teacher" for his service 

at Notre Dame University. We disagree. 

Respondents are correct in 'their assertion that the teachers' 

retirement act must be cons trued as a whole. Because the legislature did not pass section 75-2705(9) apart from the remainder of 

the act, this Court cannot literally construe that section in a 

manner inconsistent with the legislative intent expressed throughout the teachers' retirement act. 
"* * * legislative intent cannot be determined 

from the wording of any particular section or 

sentence, but rather must come from a consideration of the Act as a whole." 

State ex rel. Jones v. Giles, 168 Mont. 130, 134, 

541 P. 2d 355 (1975). 

However, examining the act as a whole as it was in 1954, we 

cannot say that the pervasive intent of the legislature was to 

preclude retirement system members from receiving credit for 

out-of-state teaching service in private schools. The statute 

was undoubtedly enacted for the purpose of benefiting Montana 

public school teachers to the exclusion of private school teachers. 

No teacher in a private school could ever meet the statutory 

definition of "teacher" in section 75-2701(4) and qualify for 

benefits in the retirement system until he became a teacher in ' 

the public schools of this state. Once an individual became a 

Montana public school teacher, section 75-2705(9) controlled 

whether he received credit for out-of-state teaching service. 

To qualify for out-of-state teaching service credit, section 

75-2705(9) required the applicant to be "Any teacher who has 

become employed as a teacher in Montana * * *". (Emphasis added.) 

Teachers covered by the statute were teachers in the public 

schools "of the state". Section 75-2701(4). The second use of 

the term "teacher" in section 75-2705 (9) was clearly used in 

its statutory sense. One must be employed as a public school 

teacher in Montana before he was eligible for out-of-state retirement credit in the Montana ~eachers' Retirement System. 

Just as clearly, however, the first use of the word "teacher" 

in section 75-2705(9) could not have been used as statutorily 

defined without rendering the section a nullity. Before becoming 

employed as a teacher in this state, no individual could meet 

the statutory definition of "teacher" because he is not then a 

teacher of the state of Montana. No out-of-state credit could be 
given any teacher, public or private, if the statutory definition were applied to the first use of the word "teacher". The first 

use of the word "teacher" in section 75-2705(9) must be the 

commonly understood definition--that is, one who teaches or 

instructs others--since a meaning different from the statutory 

definition "* * * is plainly required by the content ." Section 75- 

2701,R.C.M. 1947. 

Respondents argue that interpreting section 75-2705(9) 

as allowing retirement credit for out-of-state teaching service 

in public and private schools alike "would create a grave disparity 

in the benefits afforded teachers transferring into the Montana 

[public] school sys tem from private schools'' within Montana. No 

section of the act allowed creditable service for other than public 

school teaching within the state of Montana. 

The legislature did not incorporate into the act a section 

expressing legislative policy. We do not have the benefit of the 

legislative debate which preceded enactment of the statute. We 

can, therefore, only hypothesize as to the legislative intent for 

the enactment of section 75-2705(9). Logically, it would seem 

that a subsection which provided retirement credit for out-of-state 

teaching service was enacted to attract qualified teachers from 

outside the state into the Montana public school system. See: 

Driggs v. Utah State Teachers Retirement Board, 105 Utah 417, 142 

P.2d 657, 663 (1943). That purpose would indeed best be served 

by providing attractive retirement benefits to qualified out-ofstate private school and public school teachers alike. 

Out-of-state teachers entering the state public school system 

did not have this opportunity to purchase retirement credit for 

their out-of-state teaching service until the legislature amended 
the teachers' retirement act in 1949 with the addition of section 

75-2705(9). Whether by oversight or by design, the act was not 

further amended to provide Montana private school teachers with 

a similar opportunity to purchase retirement credit when they 

entered the state public school system. It is irrelevant what 

value judgment we place on the equities of the resultant distinction between the opportunities for private in-state and private 

out-of-state teachers to purchase retirement credit for their 

private school teaching service when they enter the Montana 

Teachers' Retirement System. 

It is this Court's function to ascertain the legislative 

intent behind section 75-2705(9) and not to substitute therefor 

our own discretion or conception of what might have been more 

equitable. General Finance Co. v. Powell, 112 Mont. 535, 540, 

118 P.2d 751 (1941). Rather, the benefits under the teachers' 

retirement plan are determined by the express provisions of the 

statute. The plain meaning of section 75-2705(9) was to provide credit for out-of-state teaching service, without distinction between out-of-state service in public or in private schools. 

Respondents argue that, despite its apparent plain meaning, 

the fact that section 75-2705(9) did not expressly refer to 

private school service creates an ambiguity as to whether the 

legislature intended the subsection to allow retirement credit for 

out-of-state private school teaching. Respondents assert that 

unsuccessful House Bills No. 301 and No. 589, introduced in 

the 1975 legislature to allow retirement credit for teaching in 

private schools, signified that the legislature at least impliedly 

approved respondent Board's interpretation of section 75-2705(9). 

Respondents claim the Board has consistently interpreted section 

75-2705 (9) as disallowing credit for out-of -state private school 
teaching, and that this Court should respect this interpretation 

of an act which the Board has been empowered to enforce and 

administer. 

These arguments of respondents are likewise without merit. 

The successful house bills were introduced in 1975, in an 

attempt to amend not section 75-2705(9), but its replacement 

section 75-6213, R.C.M. 1947. The latter section enacted in 

1971, expressly limits retirement credit for out-of-state teaching 

to service in public schools, and is therefore substantially 

different from its predecessor section 75-2705(9). It is 

illogical to assume the failure of the bills indicated legislative approval of the Board's interpretation of section 75-2705(9), 

rather than merely ill-fated attempts to amend the then existing 

law, section 75-6213. 

Even assuming the Board has consistently interpreted 

section 75-2705(9) to disallow retirement credit for private 

out-of-state teaching service, this Court is not bound by that 

administrative interpretation. State v. Toomey, 135 Mont. 35, 

44, 335 P.2d 1051 (1.958). While.it is true the Board's construction of the statute is entitled to respectful consideration by 

this Court: 

It* * * It is likewise true that when such practice 

is erronerously * * * established it is without persuasive effect." State ex rel.City of Butte v. 

Healy, 105 Mont. 227, 233, 70 P.2d 437 (1937). 

In this case, the Board's interpretation of a statute contrary to the plain meaning of its terms will not be adopted by 

this Court. Section 75-2705(9), R.C.M. 1947, as in effect in 

1954, allowed any teacher in the Montana State Teachers' Retirement System to receive credit for "out-of-state teaching employment." The legislature did not restrict the credit to public 
out-of-state teaching service, and we will not now judicially 

create such a restriction. 

"* * * Where the language of a statute is plain, 

unambiguous, direct and certain, the statute 

speaks for itself and there is nothing left for 

the court to construe. [Citing cases. ] The function 

of the court is simply to ascertain and declare 

what in terms or in substance is contained in the 

statute and not to insert what has been omitted." 

Dunphy v. Anaconda Co., 151 Mont. 76, 80, 438 P.2d 

660 (1968). 

Appellant met each and all of the section 75-2705(9) requirements,to purchase retirement credit. First, he is a 

"teacher". Second, he has been "employed as a teacher in 

Montana". Third, he performed "out-of-state teaching employment". Fourth, he made the contributions to the retirement 

fund which were required by statute. No other requirements 

were present in section 75-2705(9) and none can be implied. 

The order of the district court is reversed and the Board 

is ordered to accept appellant's contributions into the retirement 

fund and to give appellant retirement credit for his out-of-state 

teaching service. 

We Concur: n