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 

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## 351gz Decided:

ClerkMr. 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-stateteaching service. Appellant, Robert E. Sullivan, is Dean of the University of Montana School of Law. Hewas previously employed as a faculty member of Notre Dame University from September 1947 to September 1954. In 1954,he moved directly fromNotre Dame University to the University ofMontana 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 contributionpayments as required by section 75-2705(9), R.C.M. 1947, to respondent Montana Teachers' Retirement Board (hereinafter referred to as the Board). At anApril 12, 1976,meeting, the Board denied appellant's applicationand thereafter returned his cashier's check for back retirement contributionpayments. 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-statepublic schools, to the exclusion of serviceperformed in out-of -stateprivate schools such as Notre Dame University. Appellant thenbrought an action in district court to require the Board to allowhim to purchase credit toward retirement benefits in the Teachers' Retirement System forhis out-of-stateteaching service. Counsel stipulated the case be submitted for final decisionon the law question as if it were a judicial review of the ~oard'sdenial of teaching credit. The District Court issued

a "MEMORANDUM OPINION

### AND ORDER" dismissing the petition for judicial reviewand 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 1954when appellant became a member of theMontana Teachers' Retirement System,allows a member to receive credit for teaching in outof-stateprivate schools. InMontana, retirement benefits in the teachers

## ' retirement systemare a matter of contract right. The terms of the teachers' retirement benefit contract inMontana 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, 122Mont. 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-ofistateteaching service. That portion of section 75-2705(9), as it was in effect in 1954,relevant to this appeal, provided: "Any teacherwho has become employed as a teacher inMontana

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# *may receive credit for service for out-of-stateteaching employment provided

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[hemakes 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 inMontana, 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 inMontana 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) canbe determined only by examining the teachers' retirement act in its entirety. Respondents contend that,inpassing the act, the Montana legislature established a benefit for public school teacherswith no regard for teachers in private institutions. The definitions of "teacher", "service", "employer", and "memberR.C.M. 1947, ship" in section 75-2701/a11spoke to public school employees. Respondents conclude the section 75-2701(4) definition of teacher

as

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# ** 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 cannotmeet the statutory definition of "teacher" for his service at Notre Dame University. We disagree. Respondents are correct in 'theirassertion that the teachers' retirement act must be construed 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 inconsistentwith 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 asa whole." State ex rel. Jones v. Giles, 168Mont. 130, 134, 541 P.2d 355 (1975). However, examining the act asa whole as itwas in 1954, we cannot say that the pervasive intent of the legislaturewas to preclude retirement system members from receiving credit for out-of-state teaching service inprivate schools. The statute

was undoubtedly enacted for the purpose of benefitingMontana public school teachers to the exclusion of private school teachers. No teacher ina private school could ever meet the statutory definitionof "teacher" in section 75-2701(4) and qualify for benefits in the retirement systemuntil he became a teacher in ' the public schools of this state. Once an individualbecame 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 tobe "Any teacher who has become employed as a teacher inMontana

# ** *". (Emphasis added.) Teachers covered by the statutewere teachers inthe 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 inMontana before he was eligible for out-of-state retirement credit in theMontana ~eachers' Retirement System. Just as clearly, however, the firstuse of the word "teacher" in section 75-2705(9) could not have been used as statutorily definedwithout rendering the section a nullity. Before becoming employed as a teacher inthis state, no individual could meet the statutory definition of "teacher" because he isnot then a teacher of the state of Montana. No out-of-state credit could begiven any teacher,public or private, if the statutorydefinitionwere 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--thatis, one who teaches or instructs others--since a meaning different from the statutory definition 

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# ** 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-stateteaching service inpublic and private schools alike "would create a grave disparity in the benefits afforded teachers transferring into the Montana [public] school system fromprivate schools'' withinMontana. No section of the act allowed creditable service for other than public school teaching within the state of Montana. The legislaturedid not incorporate into the act a section expressing legislativepolicy. 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, itwould 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 nothave this opportunity to purchase retirement credit for their out-of-state teaching serviceuntil the legislature amendedthe teachers' retirement act in 1949with the addition of section 75-2705(9). Whether by oversight or by design, the act was not further amended toprovide Montana private school teachers with

a similar opportunity to purchase retirement creditwhen they entered the state public school system. It is irrelevantwhat value judgmentwe place on the equities of the resultant distinctionbetween the opportunities forprivate in-stateand private out-of-state teachers to purchase retirement credit for their private school teaching servicewhen 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, 112Mont. 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 plainmeaning of section 75-2705(9) was to provide credit for out-of-state teaching service,without distinctionbetween out-of-state service inpublic or inprivate schools. Respondents argue that, despite its apparentplain 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-stateprivate 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 respondentBoard's interpretationof section 75-2705(9). Respondents claim the Board has consistently interpreted section 75-2705

### (9) as disallowing credit for out-of-stateprivate schoolteaching, and that this Court should respect this interpretation of an actwhich the Board has been empowered toenforce and administer. These arguments of respondents are likewise without merit. The successful house billswere introduced in 1975, in an attempt to amend not section 75-2705(9), but itsreplacement section 75-6213, R.C.M. 1947. The latter section enacted in 1971, expressly limitsretirement credit for out-of-state teaching to service inpublic schools, and is therefore substantially different from itspredecessor 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 isnot bound by that administrative interpretation. Statev. Toomey, 135Mont. 35, 44, 335 P.2d 1051 (1.958). While.it is true the Board's construction of the statute is entitled to respectful considerationby this Court:

It* 

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

# ** * established it iswithout persuasive effect." State ex rel.City of Butte v. Healy, 105Mont. 227, 233, 70 P.2d 437 (1937). In this case, the Board's interpretation of a statute contrary tothe plain meaning of itsterms willnot be adopted by this Court. Section 75-2705(9), R.C.M. 1947, as in effect in 1954, allowed any teacher inthe Montana StateTeachers' Retirement System toreceive credit for "out-of-state teaching employment." The legislature did not restrict the credit topublicout-of-state teaching service, and we willnot now judicially create such a restriction. 

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# ** Where the language of a statuteis plain, unambiguous, direct and certain, the statute speaks for itself and there isnothing left for the court to construe. [Citing cases.] The function of the court is simply toascertain 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., 151Mont. 76, 80, 438 P.2d 660 (1968). Appellant met each and allof the section 75-2705(9) requirements,topurchase 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: 

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