No. 80-182 IN THE SUP-ME COURT OF THE STATE OF MONTANA 1981

F. W. WOOLWORTH COMPANY, INC., a New York Corporation, Petitioner and Appellant,

EMPLOYMENT SECURITY DIVISION OF THE MONTANA STATE DEPARTMENT OF LABOR AND INDUSTRY etal.,

## -- Respondents.

No. 80-183

J. C. PENNEY COMPANY, INC., a Delaware Corporation, Petitioner and Appellant, VS

# . EMPLOYMENT SECURITY DIVISION OF THE MONTANA. STATE DEPARTMENT OF LABOR AND INDUSTRY et al., Respondents.

Appeal from: DistrictCourtof the TwelfthJudicial District, In and for the Countyof Hill. HonorableB. W. Thomas, Judge presiding. Counsel of Record: For Appellants: Poore, Roth, Robischon and Robinson, Butte, Montana Donald Robertsonargued and DouglasA. Buxbaum argued,

Butte, Montana For Respondents: Robert J. Campbell argued, Helena, Montana For Intervenor: D. PatrickMcKittrick argued, GreatFalls, Montana

Submitted: March 27, 1981 Decided: May 6, 1981 Filed: 

## MAY

## -6

## 1981Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of the Court.

F.W. Woolworth Co., Inc., and J.C. Penney Company, Inc., appeal from a summary judgment of the DistrictCourt for the Twelfth Judicial District. The appeals originate from claims filedJuly 18, 1976, by members of retail clerks' union, local no. 57, forunemployment benefits claimed during a strike. The issueduring the administrative process was whether

a work stoppage occurred under section 39-51-2305, MCA. Benefits aredenied during a period of strike if unemployment results from a "stoppage of work" existingbecause of the labor dispute. A deputy of the Employment SecurityDivision (Division)of theMontana StateDepartment of Labor and Industry found the claimants to be disqualified from benefits. Claiming strikers then brought appeal before an appeals referee of the Employment Security Division of the Department. The referee sustained denial of benefits. Claimants then appealed to the Board of Labor Appeals (Board) which reversed the referee and held claimantswere entitled to unemployment compensation benefits. The Board of Labor Appeals served notice of itsdecision

on January 10, 1978. On February 3, 1978, appellants filed petitions for review with the District Court of the Twelfth Judicial District. The petitions named asrespondents, the Board of Labor Appeals, Montana StateDepartment of Labor and Industry and themembers of the Board. Following a motion todismiss the petition, the appellants and counsel for the Employment SecurityDivision entered into a stipulation to substitute the Employment Security Division of the Montana StateDepartment of Labor and Industry for the Boardof Labor Appeals. This stipulation was followed by a court order accomplishing such substitution. Neither the individual claimants nor the union were made parties to the review sought inDistrictCourt. Appellants, attime service was made upon the Board of Labor Appeals, did not provide sufficientcopies to serve all persons whom might have been made parties. On March 20, 1978, the union moved to intervene inthe proceedings. The answer alleged that the District Court had

no jurisdiction because appellants had not joined the proper parties asdesignated by statute. Interventionwas granted and thereafter both appellants and intervenor moved for summary judgment. The lower court concluded that failure toname all parties, together with failure toprovide a sufficient number of copies of the petition for service upon allparties,

were fataljurisdictional flaws. Appellants' petitions for review were dismissed, and this appeal follows. The controlling statuteis section 39-51-2410, MCA, which provides inpertinent part as follows: "(1)Any decision of the board in the absence of an appeal therefrom asherein provided shall become final 30 days after the date of notification or mailing thereof 

# . . . The division shallbe deemed tobe a party to any judicial action involving any such decision and may be represented inany such actionby an attorney employed by the division or atthe division's request, by the attorney general. 

### "(2) Within 30 days after the date of notification or mailing of the decision of the board, any party aggrieved therebymay securejudicial review thereof by commencing an actioninthe district court of the county inwhich saidparty resides and inwhich action any other party to the proceeding before the board shallbe made a defendant. In such action a petition, which need not be verified but which shall state the grounds upon which a review is sought, shall be served upon the administrator of the division or the administrator's designee and such service shall be deemed completed service on allparties, but there shall be leftwith the party so served as many copies of the petition as there aredefendants and the division shall forthwithmail one such copy to each such defendant."Appellants made the Board of Labor Appeals of the Department a party instead of the Employment Security ~ivision of the same Department. Prior toJuly 1, 1977, the Board was theproper party, section 87-108 (2)(c)and-(d)

### , R.C.M., 1947, but on thatdatean amendment became effective which designated theDivision as theproper party. The above quoted statuterequires that inaddition to the Division, any parties to the Board proceeding shallbe made defendants. Though the claiming strikerswereparties to the Board decision they were notnamed inthepetition seeking review intheDistrictCourt. The issuespresented inthis appeal are: (1)Whether the petition forreview "commenced" an actionwithin the meaning of section 39-51-2410, MCA, when the Board of Labor Appeals was named asa party instead of the Employment SecurityDivision. (2)Whether interventionby the union conferred jurisdiction over the individual claimants. (3) Whether, if intervention did not confer jurisdiction, the DistrictCourt can add parties after the 30-day period has

run. (4) Whether review could be had against the Employment Security Division inthe absence of the individual claimants. Respondent urges us to find appellants' timely filing void because thewrong party inthe Department of Labor and Industry was originally named. Respondent contends that this technical approach isnecessary tohonor the literal statutoryrequirements forjudicial review. Wefeel that to hold such a technical error defeated jurisdiction would be unconscionable elevation of form over substance. The position of respondent would be more sound if the Employment SecurityDivision were a stranger to the Board of Labor Appeals. Of course, they arenot. They areeachhoused within the same department of stategovernment. The only entity is the Stateof Montana. Within the Department of Labor and Industry of that stategovernment are located doors designated Board of Labor Appeals and Employment SecurityDivision. The legislaturedetermineswhich personnel

can best dealwith process. Inpoint of fact, both the Board of Labor Appeals and the Employment Security Division

were represented by the same counsel, Moody Brickett. ~rickett filed a motion todismiss the petition for review inDistrict Court appearing ascounsel for the Board of Labor Appeals. The same Brickett entered into a stipulation on behalf of the Employment SecurityDivision to substitute thatDivision

asa party inplace of the Board of Labor Appeals. Brickett further filedan answer on behalf of the Employment Security Division. Professor Moore articulates the need for avoiding hypertechnical judicial approaches: "As the Advisory Committee commented, hardships arising from mechanical applications of the Rules had arisen most acutely in suitsby private parties against officers or agencies of the United States

# .

# . . where the claimants' need is often great, the applicable statutes or limitationsrelatively short, and choice of the proper individual defendant, who appears only as an official representative, is largely formal. With the potential for technical pleading errors growing along with the size and complexity of the bureaucracy itself, it was important to setup a definite, generous standard for handlins relation-back of corrective amend- - ments 

# . . ficulties a federal - Practice, 

# . these amgndments to Rule 15alleviatedif- 

### --- P incommencing or continuing an action against - offnery 

# . . ." ~oze's Federal Vol. 3, m5.15[4.2], pages 15-233, 234. (Emphasis added.) If this Courtwere to hold that appellants failed to

name an adverse party under these circumstances, wewould placeMontana outside the philosophy of modern legal practice. Justice Benjamin Cardozo said, 

# ".

. . The law has outgrown itsprimitive stage of formalism when the precise word wasthe sovereign talisman, and every slipwas fatal. It takes

a broader view today 

# . . ." Wood v. Lucy, Lady Duff-Gordon (1917), 222 N.Y. 88, 91, 118N.E. 214, 214. The spiritof Cardozo lives inour procedural rules. Wehold that the technical error was not fatal. It should alsobe noted that section 39-51-2410(1), MCA, states that the Division shall be deemed a party for judicial review. This occurs automatically by virtue of the statute

so that it is a party whether or not named. Subsection (2) of that statute states that allparties to the Board proceeding shallbe made parties tojudicial review by the aggrieved party. The Division isnot a party before the Board but becomes a party, for purposes of judicial review, by operation of law. The Employment Security Division itself consented to replace the misnamed Board of Labor Appeals. Under Rule 15(c)

## ,R.R.Civ.P., the amendment to the petition forjudicial review related back. We must confront the remaining questions in this appeal. Can unnamed parties be added after 30 days? Can this appeal proceed without those parties? Appellants argue that intervention by the union conferred jurisdiction. Itdid not. The answer raised lack of jurisdiction. The question presented is: Where a court acquires jurisdiction over one party to an appeal, can other parties be later added? Appellants argue the applicability of Rule 21, M.R.Civ.P., which provides thatparties may be added or dropped atany stageof the proceeding. This rulepresupposes 

### - inpersonam jurisdiction. The rule does not confer thatjurisdiction. Under section 39-51-2410, MCA, the decision of the Board became final as toclaimants 30 days after notificationof the decision. The DistrictCourt thereafter had no jurisdiction over claimants and could acquire none. The parties to the proceeding before the Board of Labor Appeals have separate and distinct identities. An appeal against one cannot affect the lower court's finding in favor of another againstwhom no appeal is taken. Surely, if five plaintiffs recover damage awards against a defendant, and thatdefendant timely appeals to the Supreme Court against only one, the remaining four cannot be added after expiration of time for filinga notice of appeal. Likewise, the individual claimants, againstwhom no review was timely sought, cannot later be added. If thepresence of these absent claimants is indispensable to review, then appellants' petitionmust be dismissed. Provident Tradesmen B & T Co. v. Lumbermans Mut. Cas. Co. (3rdCir. 1966), 365 F.2d 802. Oral argument devel-oped that claimants have been paid allbenefits towhich they are entitled by virtue of the Board decision. Appellants' petition for review seeks (1)a legal determination that therewas a "work stoppage" and (2) reinstatement of the decision of the appeals referee. The presence of claimants would, of course, be necessary to any finding which could prejudice their previously paid benefits. Hanson v. ~enckla (1958), 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283. However, these same parties arenot indispensable to a determination of the legal questions involved. Section 39-51-2410 (2), MCA, requires that all parties to the Board proceeding be made parties for purposes of review. This requirement presupposes issues on judicial review which could affect those parties. Under this holding, claimants' benefits cannot adversely be affected and, there-fore, claimants are not indispensable to a review of the legal questionsby the DistrictCourt. A determination of the work stoppage issueunder the facts of thiscase is important to the parties which remain in the review proceeding. The Employment Security Division filed an answer inthe District Court denying petitioner's alleged "work stoppage" and asking that the decision of the Board of Labor Appeals be upheld. There is a sufficient justiciable controversy between appellants and the Employment SecurityDivision to allow the review to go forward. We have rendered moot the question of service of copies. Sufficientcopies were provided for serviceupon the Employment Security Division which is the only adverse party to appellant remaining in the judicial proceeding. We hold that the District Court may review the legal question of whether there was a "work stoppage" within the meaning of section 39-51-2410, MCA. The DistrictCourt can make no determination which could inany way jeopardize the benefits previously paid to claimants. We remand the case to the District Court for such hearing as isnecessary to determine whether therewas a work stoppage.

Weconcur:

Chief Justice

JusticeJusticesMr. JusticeJohn C. Sheehy concurring and dissenting:

Iagree that the DistrictCourt acquired no jurisdiction. I .disagreethere is anything left in the case to litigate on remand. My careful reading of themajority opinion does not disclose clearlywhat themajority 

### Is up to. The apparent result, whichmay seem preposterous, is that the cause is remanded to the District Court on the issue of work stoppage without an adversaryparty, the claimants. Moreover, the work stoppage issue on remand is to be litigated between the agency on the one side and the appellafitson the other. Yet, these twoparties, at all stages subject to review, agreed that a work stoppagedue to a labor dispute had occurred. The agency twice has held against the claimants on that issue. There is no disputebetween the appellants and the agency to litigate on remand. In addition, the issues stated and discussed in the majority opinion are notprecisely the issues thatwere raised by the appellants in their briefs and oral argument.

I This is true particularly of the majority opinion's fourth issue: whether review could be had against the Employment Security Division (Division)in the absence of the individual claimants. This issue, if it is an issue,arises because of

an untutored answermade by appellants' counsel to a question posed by a justice during the oral argument of this cause. When counselwas asked if he was seeking to continue the

case against the Division, counsel replied that litigation against the Divisionmight help with respect to the retrospective rating of the appellantson their unemployment compensation contributions. That answer was incorrect since the claimants here already received their benefits, and the payment ofthose benefits determines the appellants "experience factor" and are now chargeable to the appellants' accounts. Section 39-51-1215, MCA. Because the issues raised and discussed in themajority opinion differ from those raised in the appellants' briefs, it isworthwhile to discuss the appellants' issues here. The issues raised by the appellants are: 

### 1. Whether the District Court had jurisdiction to review the actions of the Board of Labor Appeals (Board); 2. Whether the intervening union had standing to move to dismiss thepetitioner's appeals; 3. Whether the District Court abused its discretionby failing to relax the statutorydirectives on appeal in this instance. The appellants contend that the DistrictCourt erred in misinterpreting section 39-51-2410,MCA, the judicial review statute,quoted above in the court's memorandum. They contend thatby "commencing an action" for review, the District Court became vested with jurisdiction. They emphasize the language of the review statute that "anyparty may

secure reviewby commencing an action"within 30 days of a Board decision. Appellants argue the statute's requirement that the unemployment compensation claimants be named as respondents in the reviewpetition is not a jurisdiction requisitebut only procedural. They argue the claimant strikers can be made party defendants under the joinder provisions of theMontana Rules of Civil Procedure. They cite cases decided by United States Supreme Court to indicate that a reviewing courtmust be presented with clear and convincing evidence of no jurisdiction to justify a dismissal of a reviewpetition on jurisdiction grounds. See,AbbottLaboratories v. Gardner (19671,387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681. The appellants contend that a timely petition was filed in the District Court; that judicial review is favored in this instance and that joinder of claimants or intervenor is possible under Rules 19 and 21, M.R.Civ.P. On the other hand, the union argues that the District Court had no choice but to dismiss for lack of jurisdiction. It contends that the failure to name and serve the claimants with a copy of the petition constitutes a failureby appellants to assert the District Court's jurisdiction over the claimants. It asserts that failure to join the claimants as indispensable parties in an action for review of an agency proceeding requiresdismissal. Cissell v. Colorado State Bd. of AssessmentApp. (1977), 38 Colo.App. 560, 564 P.2d 124. The union further argues that the appellantsmay not now amend their reviewpetition to add the claimants as parties because the 30-day time limit fornaming claimants as respondents has expired. Themajor issue here iswhether the DistrictCourthad jurisdiction to review the decisions of the Board. The District Court held that the statutorily-imposed conditions for jurisdictionwere not satisfied by petitioning parties, and therefore, the court had no power to review the agency's decisions. The courtwas correct. Jurisdiction should not be assumed lightly. The enablement of the District Courts to adjudicate controversies is delimited by the sovereign grant of power to the courts found in our state constitution and in statutory law. "Jurisdiction"

means the right and authority of a court to adjudicate the subject matter of the case and to make binding decisionsthereon. State v. Bonner (1950), 123 Mont. 414, 214 P.2d 747. The essential elements of jurisdiction are that the court have authority to take cognizanceof the class of

cases to which the adjudged case belongs; that proper parties be present, and that the point decided be within the issue presented. Deich v. Deich (1958),136 Mont. 566, 323 P.2d 35. In that sense, courts are mere creations and instruments of the law; independentof the law, they have no adjudicatory existence. The law precedes and governs a court. Bond v. Birk (1952), 126 Mont. 250, 247 P.2d 199. The 1972Mont. Const., Art. VII, § 4,provides that the legislaturemay provide for a direct reviewby District Courts of decisions of administrative agencies. Section 39- 51-2410,MCA, was enacted under that constitutional grant, and operates to give statutory power to District Courts to hear cases of the nature involved here. The District Court here has the judicialpower to adjucate suchpetitions for review. Without such statutorygrant, the District Court would be without subjectmatter jurisdiction,which even consent could not confer. Stanton Trust & Savings Bank v. Johnson (1937),104Mont. 235, 65 P.2d 1188. A courthaving jurisdiction of the subjectmatter must further acquire jurisdiction of the parties. Jurisdiction of the court over persons may be compelled by the plaintiff's

(orpetitioner's) action ormay be voluntarily conferred by the defendant's (or respondent's) consent and submission to the court. Haggarty v. SherburneMercantile Co. (1947), 120Mont. 386, 186 P.2d 884. The power to reviewdecisions of the Board is governed by the particular provisions of section 39-51-2410,MCA, which must be followed in seeking review, especially thoseparticularswhich are jurisdictionalormandatory. This

means that in seeking judicial review by commencing an action, "anyother party to the proceeding before the Board shall be made a defendant" is a jurisdictionalelement. This is consistentwith the ordinary perception of jurisdiction not only of this Court,but all courts. We would not contend, in these days of omnipresent office copyingmachines, the failure to provide the Board with enough copies of the petition to serve all the defendants is essential, but any fair reading of section 39-51-2410(2), MCA,must lead to the conclusion thatmaking "anyother party" a defendant to the action before the Board is a mandatory elemental step to secure the right of review. As we have noted, one of the elements of jurisdiction is the power to make binding orders over proper parties present and subject to the court. Here, the unemployment compensation benefits claimants, the en:ployees, were not before the DistrictCourt. The appellants could have compelled their submission to the power of the District Court, on review,by naming them as respondentsunder section 39-51-2410,MCA, but did not do so. The claimants have not consented to the jurisdiction of the DistrictCourt. Therefore, the District Court further lacked jurisdiction of the claimants, the very persons the adjudicationwas bound to affect. The appellants next contend that the intervenor union lacked standing to raise the jurisdictiondefense. They contend that the intervenor must accept all prior court orders at the time of intervention, which in this case, included the stipulation between the appellants and the Divisionproviding that issuance and service of process upon the Division had been made pursuant to the judicial review statute. Appellantsalso contend that the interventionby the union constituted a general appearance which cured any jurisdictiondefect in their failing to name the c1ai:mants as party defendants to the action for review. As the first caption of the petitions for review disclose, the appellants did notmake the intervenor or the claimants parties to the actions; nor in fact did the appellants make the Division a party to the action. The answers to the appellants' contentions regarding the union's standing to raise the jurisdiction issue lie to some extent in our foregoing discussion of the elements of jurisdiction. At the time that the order for interventionwas granted, the District Courtwas without jurisdiction because the procedural stepsnecessary to vest the DistrictCourtwith jurisdiction to reviewhad not been followed. A party contesting jurisdiction may do so under our rules without filing a special appearance. With regard to - in personam jurisdiction,we stated in Knoepke

v. SouthwesternR:?. Co. (1980), 

### -Mont

# . - 

### , 620 P.2d 1185, 37 St.Rep. 1910, the following: "Ifa party to a lawsuitplans to appear in court to attack the court's personal jurisdiction, a special appearance of the party, as opposed to a general appearance, is no longer required. Rule 12,M.R.Civ.P., abolished the distinction between special and general appearances. Following service of process a party can attack the court's personal jurisdiction simplyby raising the jurisdiction issue in an initial response to plaintiff's claim by motion before answering the claim or in an answer to the claim. If the party's initial response to the opponent's claim raises a personal jurisdiction issue, then the party is not subject to the general power of the court solelybecause of the response. See, 2A Moore's Federal Practice 1 12.12. " In its initial response to the petition for review, the union,by means of affirmativedefenses, raised the jurisdiction issue. Itdid not waive the right to raise such anissue by moving to intervene in the action, or securing an order permitting intervention. The stipulation entered into between the Division and the appellants,and the court order approving that stipulation,which affected only the Division,

was not in anyway binding on either the union or the claimants who were not parties to the stipulation. Neither the stipulation nor the court order approving the same cured the jurisdiction defect that the elementalprocedures required under section 39-51-2410,MCA, had not been followed. The third issue raised by appellants is that the District Court abused itsdiscretionby failing to relax the statutory directivesnecessary to perfect the appeals in this instance. The appellants did not, by raising this issue admit the propriety of the summary judgments by the District Court, but raised the issue arguendo. The appellants submit that section 39-51-2410,MCA, grants them the right to an appellate review and that the District Court should have considered the willfulness and the extent of the Rules violation and the possible injustice thatmight result from the summary judgment order. The appellants further contend that although this Court has not yet considered the relaxationof such judicialreview requirements in an administrative setting, this Court has consistently exercised its inherent judicial discretion to relax jurisdiction requirements in appeals from the District Courts to the SupremeCourt. In support of the contentionon relaxationof rules for appeals the appellants cite State ex rel. HelenaAdjustment Company v. DistrictCourt of Lewis and Clark County (19321, 92Mont. 587, 19 P.2d 226; Krause v. Insurance Co. of North America (1925),73Mont. 169, 235 P. 406;Lewis v. Lambros(1922),65Mont. 366, 211 P. 212; and Stephensv. Conley (1914),48Mont. 352, 138 P. 189. In those caseswill be found language that does indicate support for the claim of the appellants. For example, in S&phens v. Conley, supra, this Court stated that a notice of appeal does not serve any higher purpose than a summons, and its entire absence can be waived. In Krause v. Insurance Company of North America, supra, it was held that substantial compliancewith appeals statutes is all that is required; moreover, the law favors the right of appeal. It should be recognized by practitioners in this State, particularly since the adoption of the Montana Rules of Appellate Civil Procedure in 1965, that this Court has strongly stated that a timely filing of a notice of appeal ismandatory to vest this Court with jurisdiction. Rule 4(a), M.R.App.Civ.P. provides: "(a) Filing the notice of appeal. An appeal shallbe takenby filing a notice of appeal in the district court. Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal,but is ground only for such action as the supreme court deems appropriate, which may include dismissal of the appeal." In recent years,we have regarded the taking of that step, the timely filing of a notice of appeal, as the sine qua non to our jurisdiction. We have dismissed appeals 

### -- where the notice of appeal has not been timely filed. See, Snyder v. Gommenginger (1979), 

### -Mont. - 

### , 600 P.2d 171, 36 St.Rep. 1426; Flathead Hay Cubing, Inc. v. Moore (19781, Mont

# . - -1 

### - P.2d 

### - 

### , 35 St.Rep. 1260; FirstNat. Bank of Lewistownv. Fry,(1978), Mont. - 

## , 575 P.2d 1325, 35 St-Rep.276; Zellv. Zell (1977),172 Mont. 496, 565 P.2d 311. In Snyder,we quoted from Paynev. MountainStates Tel. and Tel. Company (1963),142Mont. 406, 385 P.2d 100, to the following effect: "In our view, these statutes do not have reference to the notice of appeal which is jurisdictional. In such cases as Creek v. Bozeman Water Works Co., 22 Mont. 327, 56 P. 362, and In Re Malick's Estate, 124Mont. 585, 228 P.2d 963, we have held that the appellant is charged with the duty of perfecting his appeal in the manner and within the time provided by law and unless suchmandatory statutory provisions are complied with this court acquires no jurisdiction to entertain and determine the appeal. We are of the opinion that the 'amending provisions' contained in sections 93-8019and 93-8021apply onlywhen this court has acquired jurisdiction. Were it otherwise, our mandatory provisions regarding appellate procedure would be meaningless." (Sections 83-8019 and 93-8021,R.C.M. 1947, above referred to,were superseded by the adoption of the Montana Rules of Appellate Civil Procedure in 1965. Those sections related to defects in the record which could be cured by an amendment following the notice of appeal, under the former statutory appellate practice.) In a recent case involving the perfection of an appeal to the District Court from an administrative agency, Rierson

v. State (1980), Mont. - 

### , 614 P.2d 1020, 37 St.Rep. 627,we had before us an appeal from an administrative agency under the generalprovision for judicial review from administrative agencies, section 2-4-702,MCA. That statute provides that in seeking review, the party must file a petition in the District Court within 30 days from the serviceof the final decision of the agency and it further provides that "copiesof the petition shall be promptly served upon the agency and all parties of record." In Rierson, the decisionhinged upon whether Rierson had "promptly" served copies of his petition for review. The decision of the majority of this Court against Rierson was based largelyupon his laches in not serving the copy of the petition for reviewpromptly, but inherent in the decision of the court is the sense that compliance with the reviewprovisions necessary to vest jurisdiction in the DistrictCourt is mandatory. The appellants contend that under Rule 61,M.R. Civ.P., the court had the power to disregard any error or defect in the proceeding which does not affect the substantial rights of the parties. Appellants argue that since the union intervened, and was before the DistrictCourt,no substantial prejudice resulted to the unnamed parties arising out of the failure to name them asparty defendants and so the District Court in the exercise of its discretion could disregard defects in the steps taken by the appellants to seek judicial review. The appellants also contend that the court could have required the joinder of the unnamed parties under Rule 19,M.R.Civ,P., and that the pleadings thereafter could relate back to the commencement of the action under Rule 15(c), 1fl.R.Civ.P. The appellants cite ProfessorMoore's treatisewith respect to the reasonableness of the relation-back of corrective amendments under Rule 15. 3Moore's Federal Practice, 11 15.15 [4.1]

# . We disagree. This is a casewhere wemust put aside our personal inclinations respecting our preference for decisions on the merits, in the interestof consistencywith respect to previous decisions regarding appellate jurisdictionboth from ~istrict Courts to this Court, and from administrative agencies to the DistrictCourts. When statutes provide for review from

an administrative agency, or from a lower court, and set forth the procedures necessary to obtain such review; including theessential stepswith respect to the notice to be given, the time for suchnotice and the parties to be named or served; the statutory procedure constitutes jurisdiction guideswhic3 must be followed to vest authority in the reviewing or appellate tribunal. Indeed, the presence of the requirements in the statutesgives us no other choice,because it is only by virtue of statutes that the appellate adjudicatory power or reviewing power vests in the other tribunal, aswe have indicated foregoing in our discussion of jurisdiction. The District Court in these cases, after examining carefully the defects in the procedure taken for review,

as is shown from its memorandum aforementioned,had no discretion to overlook the defects. The court had no jurisdiction to act, and no discretion to waive the jurisdiction defects. My final observation is that the Divisionmay be surprised to find itself still in the case on remand to the District Court. On September 29, 1980, it had filed its written notice with this Court that itwas not taking a position on the jurisdiction dispute between the appellants and the intervenor union, and that itwould continue in suchposition and not submita brief on the jurisdiction question presented here.I would affirm the dismissal by the DistrictCourt of the petitions for review.



# u Justice vWe concur in the foregoing concurring and dissenting opinion.

Chief Justice \

Justice