No. 13797 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1978 

BURLINGTON NORTHERN INC., a corporation, 

Plaintiff and Appellant, 

FLATHEAD COUNTY et al., 

Defendants and Respondents, 

and 

COMMUNITY COLLEGE DISTRICT OF FLATHEAD 

COUNTY , MONTANA, FLATHEAD VALLEY COFUIUNITY 

COLLEGE, 

Intervenor. 

Appeal from: District Court of the Eleventh Judicial District, 

Honorable Robert Sykes, Judge presiding. 

Counsel of Record: 

For Appellant : 

Gough, Shanahan, Johnson & Waterman, Helena, Montana 

Ward Shanahan argued and Daniel C. Murphy argued, 

Helena, Montana 

For Respondent : 

Louis Forsell argued, Helena, Montana 

R. Bruce McGinnis, Helena, Montana 

Patrick Springer, County Attorney, Kalispell, 

Submitted: January 23, 1978 

Decided: FEB 2 $ 1978 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

Burlington Northern, Inc. appeals from an order of the 

District Court of the eleventh judicial district of the 

State of Montana, in and for the County of Flathead, granting 

summary judgment in favor of Flathead County and others in a 

suit brought by Burlington Northern to recover certain taxes 

paid under protest. 

Burlington Northern was and is the owner of certain 

property located in Flathead County, Montana. In setting 

levies to finance the 1974-75 budget of the Flathead Valley 

Community College District, the Board of County Commissioners 

and Flathead County approved an item of $42,042.00 as the 

District's teachers' retirement fund contribution. In 

addition to levies for the general fund, the building debt 

service, and adult education, the Board authorized a separate 

levy of .768 mills to finance the teachers' retirement fund 

contribution. Flathead County assessed Burlington Northern 

$1,320.02 as its share of this levy. On November 30, 1974, 

Burlington Northern paid $660.02 of this amount under protest. 

On January 15, 1975, Burlington Northern filed suit 

against Flathead County, the Flathead County Treasurer, and 

the Montana Department of Revenue, to recover the $660.02 

and certain other taxes it had paid under protest. Plaintiff's 

claim for the $660.02 was submitted to the District Court 

upon written briefs and an agreed statement of the facts. 

On February 2, 1976, the District Court made findings of 

fact and conclusions of law, and denied plaintiff's motion 

for smary judgment. 

The Community College District of Flathead County, 

Montana, Flathead Valley Community College, then intervened 

as a defendant. On August 24, 1976, the District Court 

entered an order adopting its findings of fact and conclusions 
of law of February 2, 1976, and granting summary judgment in 

defendants' favor. Burlington Northern appealed. 

The only issue on appeal is whether, under the applicable 

1974 statutes, the Flathead County Board of County Commissioners 

had authority to levy a special tax to finance the Flathead 

Valley Community College District's teachers' retirement 

fund contribution separate from other levies it made to 

finance the District's general fund, building debt service 

and adult education program. 

All parties agree that community college districts are 

subject to the provisions of the teachers' retirement system 

and that community college teachers are eligible for the 

benefits provided under that system. See section 75-8120, 

R.C.M. 1947. Their disagreement is as to how the community 

college district and the county may finance the required 

contribution. Burlington Northern contends that the county 

has no specific and clear authority, as is required by law, 

to levy a special tax to finance the teachers' retirement 

fund contribution, and that consequently such a contribution 

must be financed from the community college district's 

general fund. The defendants counter that adequate statutory 

authority exists which allows the county to levy such a 

special tax. We agree with defendants and, therefore, 

affirm the District Court's order granting defendants summary 

j udgment . 

Prior to 1971, community colleges operated under and 

were governed by the same statutes as were high school 

districts. When first organized, community colleges, or 

junior colleges as they were then called, were under the 

supervision of the state superintendent of public instruction. 

1939 Mont. Laws, Ch. 158, §7. In 1965, the legislature 

placed then under the supervision of the state board of 
education. 1965 Mont. Laws, Ch. 274, S2. 

In 1971, the legislature recodified all laws relating 

to school districts. 1971 Mont. Laws, Ch. 5, ~1-496. Under 

this recodification, the state board of education initially 

was to retain supervision over community colleges. 1971 

Mont. Laws, Ch. 5, 5450 . . (codified at section 75-8103, R.C.M. 

1947, amended 1971). Also, community colleges were to be 

budgeted and financed under high school district budgeting 

and financing provisions. 1971 Mont. Laws, Ch. 5, 5468 

(codified at section 75-8121, R.C.M. 1947, repealed 1971). 

Later in the same session, however, the legislature passed a 

bill introduced in response to the 1969 Senate Education 

Committee's desire to spend State Foundation Program moneys 

exclusively for the public school systems through grade 

twelve and to separately finance community college districts. 

Senate Committee on Education, Hearings on S.B. 56, A Report 

to the 1971 Montana Legislature (Financing Montana Community 

Colleges) at p. 3, Fortyecond Session. (January 19, 1971.) 

As a result the 1971 legislature made two changes in 

its earlier recodification of school laws. First, it placed 

community colleges under the supervision of the board of 

regents, 1971 Mont. Laws, Ch. 406, $1 (codified at section 

75-8103, R.C.M. 1947). Second, it repealed section 75-8121 

(which provided for financing community college districts 

under high school budgeting and financing provisions) and 

replaced it with a new system for financing colnmunity college 

districts separately from the School Foundation Program. 

1971 Mont. Laws, Ch. 401, S$1-8 (codified at sections 75- 

8127 to 75-8133, R.C.M. 1947.) 

Burlington Northern argues that section 75-8121, which 

made high school district budgeting and financing provisions 

applicable to community college districts, provided the 

"only possible authority' for Flathead County to levy a 

special tax to finance the community college district's 
teachers' retirement fund contribution. When the 1971 

legislature repealed section 75-8121,its replacement 

sections did not contain language making high school district 

financing provisions applicable. See 1971 Mont. Laws, Ch. 

401, 551-8 (codified at sections 75-8127 to 75-8133, R.C.M. 

1947). Burlington Northern contends that the legislature 

intended to limit community college districts to the financing procedures outlined in Chapter 401. Consequently, it 

concludes authority no longer exists for Flathead County to 

make such a levy. 

This line of argument completely ignores the effect of 

section 75-6207(3) (b), R.C.M. 1947. That section requires 

community college districts to "budget and pay for the 

employer's contribution" to the pension accumulation fund of 

the teachers' retirement system "under the provisions of 

section 75-7204." Section 75-7204 and related sections are 

the same sections under which high school districts finance 

their contributions to the teachers1 retirement system. 

Section 75-6207 (3) (b) . 

Plaintiff next argues that neither sections 75-6207(3) (b), 

75-7204, nor 75-6717, R.C.M. 1947, authorize Flathead County 

to levy a special tax to finance Flathead Valley Community 

College District's teachers1 retirement fund contribution. 

In analyzing these statutes we note certain rules applicable 

to construing tax statutes. Before a governing body may 

impose a tax, it must have clear and specific authority 

providing for the imposition of that tax. Swartz v. Berg 

(1966), 147 Mont. 178, 182, 411 P.2d 736, 738; U. S. Gypsum 

Co. v. Brd.Equalization (1944), 116 Mont. 275, 280, 149 ~.2d 

774, 776. Also, tax statutes are to be strictly construed 

against the taxing authorities and in favor of the taxpayer. 

Swartz v. Berg, supra. 

As examples of what it considers clear and specific 
authority for imposing a tax, plaintiff points to sections 

75-7207 and 75-7709(2), R.C.M. 1947. Section 75-7207, 

concerning adult education, provides that the trustees of a 

district "may authorize the levy of a tax * * *.". Section 

75-7709(2), concerning post-secondary vocational-technical 

centers, provides that the board of county commissioners "is 

hereby authorized to levy a tax. * * *" 

We do not think that to have a validly authorized tax, 

the rules for construing tax statutes restrict the legislature 

to the use of such language. Although the authority in 

sections 75-6207(3) (b), 75-7204, and 75-6717 is not spelled 

out as directly as in those statutes pointed to by the 

plaintiff, we think it is nevertheless clear and specific. 

Chapter 62 of Title 75, R.C.M. 1947, establishes the 

teachers' retirement system. Section 75-6207, entitled 

"Method of financing", sets out the various funds to be 

maintained by the teacherst retirement system. Subsection 

(3)(b) of that section requires community college districts 

to "budget and pay for the employer's contributions" to the 

pension accumulation fund "under the provisions of section 

75-7204." 

Section 75-7204, entitled "Retirement fund", is included 

within the chapter on "Elementary Tuition and Special Purpose 

Funds". It requires the trustees of a community college 

district to establish a retirement fund "for the purposes of 

budgeting and paying the employer's contributions" to the 

teachers' retirement system, to calculate such contributions 

in accordance with section 75-6207, to adopt a retirement 

fund budget, and to pay their employer contributions in 

accordance with certain financial administration provisions. 

Once the trustees have adopted such a budget, the county 

superintendent must establish the retirement fund levy 

requirement according to a prescribed formula and report it 
to the county commissioners as the levy requirement for the 

community college district retirement fund. The county 

commissioners are then directed to "fix and set such county 

levy in accordance with section 75-6717." 

Section 75-6717, R.C.M. 1947, entitled "Fixing and 

levying tax levies by board of county commissioners", requires 

the board of county commissioners to "fix and levy on all 

the taxable value of all the real and personal property 

within a district or the county, * * * all district and 

county taxation required to finance, within the limitations 

provided by law, the final budgets and any emergency budgets 

of all districts of the county." 

Plaintiff argues that the verb "to pay" as used in 

section 75-6207 (3) (b) has a different meaning than the verb 

"to finance" and that this Court may not construe the one to 

mean the other. While this may be so in their abstract 

definitions, these words must be interpreted within the 

contexts in which they are used. Section 75-6207 (3) (b) 

establishes how community college districts are to "pay for" 

its teachers' retirement fund contributions. In this sense, 

we understand the phrase "pay for" to mean "finance". 

Plaintiff contends that section 75-7204 does not authorize 

a special levy but only establishes a reporting mechanism 

whereby the county superintendent determines the amount 

necessary to fund retirement contributions and reports it to 

the county commissioners. The mere existence of a fund, it 

reasons, does not authorize a special levy to finance that 

fund . 

Section 75-7204, however, does more than create a 

retirement fund and establish a reporting system. It directs 

the county superintendent to determine the "retirement fund 

levy requirementu necessary to meet the retirement fund 

budget and then directs the county commissioners to "fix and 
set" the retirement fund levy in accordance with section 75- 

6717. Section 75-6717 provides when the county commissioners 

shall levy on taxable property within the district. 

We think this language is sufficient to authorize the 

county commissioners to levy a special tax to finance community 

college districts' teachers' retirement fund contributions. 

Judgment affirmed. 

Justice 

We concur: 

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