                                              NO.    81-51

                     I N T E SUPREPIE: COURT O THE STATE O M N A A
                          H                   F           F OTN

                                                 1981



ARCHIE W.       McPHAIL,

                                         P l a i n t i f f and A p p e l l a n t ,



MONTANA BOARD O PSYCHOLOGISTS o f t h e
                           F
Montana Department o f P r o f e s s i o n a l and
O c c u p a t i o n a l L i c e n s i n g , S t a t e o f Montana,

                                         D e f e n d a n t s and Respondents.



    meal from:         D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t ,
                       I n and f o r t h e County o f Lewis and C l a r k
                       Hon. James B. W h e e l i s , J u d g e p r e s i d i n g .

C o u n s e l o f Record:

      For Appellant:

             S c r i b n e r , Huss & H j o r t , H e l e n a , Montana
             B a r r y H j o r t a r g u e d , Helena, Montana

      F o r Respondents:

             D a n i e l G.   D i e m e r t a r g u e d , H e l e n a , Montana



                                       Submitted:           O c t o b e r 2 3 , 1981

                                          Decided :            FE% 11   m
              11
~ i l e d F E B 1982
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.


     Plaintiff (and appellant) Archie W. McPhail, filed an
action in District Court, Lewis and Clark County, asking the
court to declare invalid a rule promulgated by the Montana
Board of Psychologists, and asking that the court order the
board to issue him a license to practice psychology. On
appeal, McPhail contends that a rule adopted and applied by

the board engrafts an additional requirement on the psychologist
licensure statutes that was not envisioned by the legislature,
and is therefore invalid.    We agree.   We reverse the judgment
of the District Court.
    McPhail has been employed on a fulltime basis as a
psychologist supervisor at Warm Springs State Hospital since
1970 and is also engaged in the private practice of psychology
as an independent counselor.    He received his masters degree
in psychology in May 1971.    The Montana legislature enacted
the Psychologists Licensure Act that same year.    The act
provided a comprehensive licensure procedure for psychologists

practicing in the state, and created the Montana Board of
Psychologists to administer examinations and issue licenses
to qualified psychologists wishing to practice within the
state.
     The act required that persons wishing to practice

psychology within the state pass an examination, possess a
doctoral degree, and meet certain other prescribed requirements.
See section 37-17-302, MCA.    Before the enactment of the
act, Montana had no standards regulating the practice of
psychology.   The act therefore contained a "grandfather
clause" which applied to applicants for licensure who had
established psychology practices before the adoption of the
act, and exempted them from the doctoral degree requirement
of section 37-17-302.       The grandfather clause, section 66-
3208 (4), R.C.M. 1947, provided:
     "(4) Prior to January 1, 1973, a license may
     be issued to an individual who has been a
     resident of the State for at least one (1) year
     and who holds a master's deqree from an accredited
     college or university based-on a program which is
     primarily psychological, and in addition has had
     five (5) years of professional experience satis-
     factory to the Board, provided he has met the
     requirements of Paragraphs (a) (b) (c) of Subsection
     (2) of this section."
    Acting under its rulemaking powers, granted by section
37-7-202(1), MCA, the board adopted rule 40-3.90(6)-S90090
(2)(f) M.A.C., which provides in part:

     "Applicants who meet the qualifications for
     licensure as described in Section 66-3208 must
     have all five (5) years of qualified professional
     experience obtained after receiving the Master's
     Degree .    .
                ."
     McPhail's application for a license under the grandfather
clause was rejected by the board solely because he did not
have the required five years experience after obtaining his
masters degree.      McPhail sought judicial review of the board's
decision in the District Court of Lewis and Clark County in
December 1973.       No further action having been taken in that
case, the cause was dismissed with prejudice on May 10, 1978.
After dismissal of the action, the parties attempted to
negotiate their differences, apparently without success.
Early in 1979, the board sent a letter to the county attorney
of Deer Lodge County stating that McPhail was engaged in the
unauthorized practice of psychology, and referred the matter
for "possible criminal proceedings."      On May 25, 1979,
McPhail filed the present action.      The board sought dismissal
of the action on the grounds that the prior dismissal of
McPhailk suit barred any subsequent legal action under the
doctrine of res judicata.     The District Court ruled that
res judicata did not bar this action, and the board has not
cross-appealed that ruling.
       Because he established his practice before the act
became effective, McPhail had some kind of right to pursue
his profession.   The legislature obviously recognized such a
right by including a grandfather clause within the act.       The
purpose of section 66-3208(4), R.C.M.,was to exempt practicing
psychologists from the newly-enacted licensure requirements
if they met other, less restrictive requirements.      McPhail
contends that he was qualified for licensure under the
grandfather clause but his application was denied solely on
the basis of the board's rule requiring five years experience
after obtaining his master's degree.    We hold that the rule
is invalid because it is out of harmony with the grandfather
clause.
       In Brd. of Barbers v. Big Sky College Etc. (1951), -
Mont   . -, 626 P.2d   1269, 38 St.Rep. 621; and Bell v. Dept.
of Licensing (1979), - Mont     .   , 594 P.2d 331, 36 St.Rep. 880,
                                    -

we held that administrative rules must be strictly confined
within the applicable legislative guidelines.         --
                                                   In Bell, this
Court reviewed rules promulgated by the Board of Barbers
requiring all barber colleges to employ a fulltime "instructor,"

who must achieve a certain minimal percentage score on an
examination.    This Court held that such rules were invalid
because they exceeded the express grant of rulemaking authority
conferred upon the board by statute.     "Administrative agencies,
of course, have only those powers specifically conferred upon
them by the legislature."     594 P.2d at 332.   Any rule promulgated
by an administrative agency that is "out of harmony" with
the enabling statute will be void.     In Bell, we said:
     "The courts have uniformly held that administrative
     regulations are 'out of harmony' with legislative
     guidelines if they: (1) 'engraft additional and
     contradictory requirements on the statute' (citing
     cases); or (2) 'if they engraft additional, non-
     contradictory requirements on the statute which
     were not envisioned by the legislature.' (citing
     cases)." 594 P.2d at 333.
     In - -of Barbers, we considered a factual situation
        Brd.
somewhat similar to the present case.     In that case, the
statute provided that an applicant serve a one-year apprentice-
ship before being eligible for licensure as a barber.      By
rule, the board added to this statutory condition a require-
ment that the one year apprenticeship must include at least
six months in a "commercial barbershop."    We held that the
rule imposed an additional requirement not envisioned by the
legislature and was invalid.
     Similarly, courts in other states have stricken admini-
strative rules which have added conditions for licensure
under grandfather clauses.     See Bloom v. Texas State Bd.
of Exam. of Psychologists (Tex. 1973), 492 S.W.2d 460; and
Whittle v. St. Bd. of Examiners of Psychologists (Okla.


     The board here has promulgated a rule clearly imposing
an additional requirement not envisioned by the legislature.
The statute requires a master's degree and five years of
professional experience, and prescribes no chronological
order in which these requirements must be met.     The legislature
knew how to prescribe such a chronological order.     In section
37-17-302(2)(e), which deals with the qualifications of
applicants not within the grandfather clause, the statute
requires two years of professional experience and that "One
year of this experience shall be post doctoral."   The legislature
clearly chose not to impose a chronological requirement in
the grandfather clause.
     The board is statutorily charged with reviewing the
character of an applicants professional experience.   In its
reliance upon this rule, the board failed to examine the
character of McPhaills experience.   Instead, it denied him a
license by promulgation of a rule "out of harmony" with the
grandfather clause.
    We reverse the judgment of the District Court and order
that the case be remanded to the board so that it may consider
McPhail's application on the merits of his professional experience
both before and after he received his master's degree.




We Concur:



      Chief Justice
