                                           No.    79-32

                  I N THE SUPREME COURT O THE STATE O M N A A
                                         F           F OTN




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

         VS.

THE STATE O MONTANA, AND
           F
BOARD O ADMINISTRATION OF
       F
PUBLIC EMPLOYEES RETIREMENT
DIVISION I

                            Defendants and Respondents.



Appeal 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 a n d F o r t h e County o f Lewis a n d C l a r k ,
                    H o n o r a b l e Gordon B e n n e t t , 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:

           C o n n e r , B a i z & O l s o n , Great F a l l s , Montana
           D e n n i s Conner a r g u e d , Great F a l l s , Montana

     For Respondents:

           Hughes, B e n n e t t & C a i n , H e l e n a , Montana
           J o h n S u l l i v a n a r g u e d , H e l e n a , Montana



                                             Submitted:           Februa.ry 2 6 ,    1980

                                                 Decide?     - -AP'R.& "-
                                                                 ---
Filed:
Mr.    J u s t i c e John Conway H a r r i s o n d e l i v e r e d t h e Opinion of
 t h e Court.

         A.   C.    R i e r s o n a p p e a l s from a n o p i n i o n and o r d e r d i s -

m i s s i n g h i s o r i g i n a l and amended p e t i t i o n s f o r j u d i c i a ?
review of an a d m i n i s t r a t i v e agency's d e c i s i o n .                The o p i n i o n
and o r d e r was e n t e r e d by t h e D i s t r i c t C o u r t , F i r s t J u d i c i a l

D i s t r i c t , L e w i s and C l a r k County, upon m o t i o n s t o d i s m i s s

by t h e S t a t e and t h e Board o f A d m i n i s t r a t i o n o f t h e P u b l i c

Employees' R e t i r e m e n t D i v i s i o n .

         Rierson served f o r over twenty-five years with t h e

Montana Highway P a t r o l .               When R i e r s o n began h i s c a r e e r , t h e

p a t r o l m e n ' s r e t i r e m e n t system was a d m i n i s t e r e d by t h e Montana

Highway P a t r o l m e n ' s R e t i r e m e n t Board.             I t had i n t e r p r e t e d

t h e l a w t o p r o v i d e f o r a n a c t u a r i a l e q u i v a l e n t which would

i n c r e a s e a patrolman's pension f o r a d d i t i o n a l s e r v i c e a f t e r

r e t i r e m e n t a g e w i t h o u t drawing on t h e p e n s i o n .

         I n 1971, t h e f u n c t i o n o f a d m i n i s t e r i n g t h e Highway

P a t r o l m e n ' s R e t i r e m e n t A c t was t r a n s f e r r e d t o t h e Board of

Administration.               It interpreted the l a w differently.                          Under

t h e new i n t e r p r e t a t i o n , no p a t r o l m a n ' s r e t i r e m e n t a l l o w a n c e

s h o u l d e v e r exceed one-half              of h i s f i n a l s a l a r y , r e g a r d l e s s

o f h i s y e a r s of s e r v i c e .        T h i s new i n t e r p r e t a t i o n of t h e

r e t i r e m e n t s t a t u t e was a p p l i e d p r o s p e c t i v e l y .
        On September 24,               1973, R i e r s o n w r o t e t o t h e Board of

Administration.               R i e r s o n wanted t o know how h i s r e t i r e m e n t

b e n e f i t s would be a f f e c t e d i f he worked more t h a n twenty-
f i v e y e a r s w i t h t h e Highway P a t r o l .            R i e r s o n was t o l d h i s
r e t i r e m e n t b e n e f i t s would n o t c o n t i n u e t o accumulate a f t e r
h i s t w e n t y - f i f t h y e a r w i t h t h e Highway P a t r o l .

        On J a n u a r y 3 0 , 1974, R i e r s o n o f f i c i a l l y r e q u e s t e d h i s
r e g u l a r r e t i r e m e n t allowance.          Rierson planned t o continue
a s a p a t r o l m a n , b u t h e made t h e r e q u e s t b e c a u s e h i s r e t i r e -

ment b e n e f i t s were f i x e d and he w a s no l o n g e r working under

t h e r e t i r e m e n t program.        I n i t i a l l y , R i e r s o n was a d v i s e d no

p r o v i s i o n p e r m i t t e d a p a t r o l m a n t o r e c e i v e r e t i r e m e n t bene-

f i t s while continuing t o s e r v e a s a patrolman.                         Later,

R i e r s o n was t o l d h e would be d e n i e d a d d i t i o n a l r e t i r e m e n t

b e n e f i t s f o r h i s s e r v i c e s a f t e r twenty-five years.

        R i e r s o n r e s i g n e d from t h e Highway P a t r o l on March 8,

1974.      Two y e a r s l a t e r , o n A p r i l 6, 1976, he r e q u e s t e d a n

a d m i n i s t r a t i v e hearing on h i s claim f o r a d d i t i o n a l retire-

ment b e n e f i t s f o r s e r v i c e a f t e r t w e n t y - f i v e y e a r s a s a

p a t r o l m a n and c r e d i t f o r s e r v i c e i n t h e m i l i t a r y .

        The a d m i n i s t r a t i v e h e a r i n g was h e l d on J u l y 1 5 , 1976.

The Board of A d m i n i s t r a t i o n d e n i e d R i e r s o n ' s r e q u e s t e d

r e l i e f on September 1 6 , 1977, and R i e r s o n was n o t i f i e d o f

t h e d e c i s i o n on December 1 2 , 1977.

        On J a n u a r y 11, 1978, R i e r s o n f i l e d a p e t i t i o n f o r j u d i -

c i a l r e v i e w i n L e w i s and C l a r k County.            A summons w a s i s s u e d

b u t never served.            On May 2 1 , 1979, R i e r s o n f i l e d a n amended

petition.          H e r e t u r n e d t h e o r i g i n a l summons and r e q u e s t e d

a n amended summons.               Both t h e amended p e t i t i o n and summons

w e r e s e r v e d on t h e Board o f A d m i n i s t r a t i o n on May 29, 1979.

        On J u n e 1 8 , 1979, t h e S t a t e and t h e Board of A d m i n i s t r a -

t i o n f i l e d motions t o d i s m i s s t h e p e t i t i o n f o r i n s u f f i c i e n c y
of s e r v i c e of p r o c e s s and f a i l u r e t o s t a t e a claim.              A hear-

ing on t h e motion was h e l d on J u l y 3 , 1979, and a n o p i n i o n

and o r d e r d i s m i s s i n g b o t h t h e o r i g i n a l and amended p e t i t i o n s

w i t h p r e j u d i c e was i s s u e d on August 29, 1979.                 T h r e e grounds

were g i v e n .      F i r s t , t h e r e was no prompt s e r v i c e of t h e
o r i g i n a l p e t i t i o n under s e c t i o n 2 - 4 - 7 0 2 ( 2 ) ( a ) , MCA.     Conse-

q u e n t l y , t h e o r i g i n a l p e t i t i o n must be d i s m i s s e d f o r l a c k
of ~ i s t r i c C o u r t j u r i s d i c t i o n .
                 t                                      Second, a b s e n t s u c h s e r v i c e ,

t h e amended p e t i t i o n c o u l d n o t r e l a t e back t o t h e o r i g i n a l

p e t i t i o n under Rule 1 5 (c) , M. R.Civ. P.                 Third, both p e t i t i o n s

must be d i s m i s s e d w i t h p r e j u d i c e under Rule 4 1 ( b ) , M.R.Civ.P.,

f o r l a c k of p r o s e c u t i o n .

        The judgment of d i s m i s s a l was e n t e r e d on September 25,

1979.       R i e r s o n ' s n o t i c e of a p p e a l was f i l e d on September

28, 1979.

        Two i s s u e s a r e r a i s e d upon t h i s a p p e a l .         The f i r s t

i s whether s e c t i o n 2 - 4 - 7 0 2 ( 2 ) ( a ) , MCA, i s u n c o n s t i t u t i o n a l .
The second i s whether t h e D i s t r i c t C o u r t e r r e d i n g r a n t i n g

t h e motions t o d i s m i s s R i e r s o n ' s p e t i t i o n f o r j u d i c i a l re-

view.      W e uphold t h e c o n s t i t u t i o n a l i t y of t h e s t a t u t e , and

w e c a n f i n d no e r r o r by t h e D i s t r i c t C o u r t .
        R i e r s o n f i r s t c o n t e n d s s e c t i o n 2 - 4 - 7 0 2 ( 2 ) ( a ) , MCA, i s

u n c o n s t i t u t i o n a l l y vague.    Next. R i e r s o n i m p l i e s t h e s t a t u t e

v i o l a t e s h i s equal protection r i g h t s .             Both c o n t e n t i o n s a r e

without m e r i t .

        S e c t i o n 2-4-702 ( 2 ) ( a ) , MCA,       is not unconstitutionally

vague.       A s t a t u t e v i o l a t e s due p r o c e s s f o r vagueness when

t h e l a n g u a g e used d o e s n o t s u f f i c i e n t l y d e f i n e t h e r e q u i r e d

c o n d u c t and men o f common i n t e l l i g e n c e must n e c e s s a r i l y

g u e s s a t i t s meaning.           U n i t e d S t a t e s v. Powell ( 1 9 7 5 ) , 423

U.S.    87, 96 S.Ct.          316, 46 L.Ed.2d            228.      Such i s n o t t h e

c a s e w i t h t h e t e r m "promptly."              "Promptly" i s a common word
w i t h a p l a i n and w e l l known meaning.                  T h a t meaning i s r e a d y

and q u i c k t o a c t , depending on t h e c i r c u m s t a n c e s .              1rvin
                                                                                                      .
v. Koehler (2nd C i r . 1 9 1 6 ) , 230 F. 795; T a f t v . Wolma (~ex.--
1 9 7 6 ) , 541 S.W.2d        673.         A statute is not unconstitutionally
                                                                                                          .   I
vague merely because c l e a r e r and more p r e c i s e language

m i g h t have been used.              See United S t a t e s v. p e t r i 1 1 0 (19471,
332 U.S. 1, 7, 67 S.Ct. 1538, 1541, 91 L.Ed. 1877, 1882.
Moreover, Rierson conceded "promptly" may be governed by
standards of reasonableness.       Such standards are consonant
with due process when they can be judged by a common standard
of conduct.   See F   &   A Ice Cream Co. v. Arden Farms Co.
(S.D. Cal. 1951), 98 F.Supp. 180.
     Section 2-4-702(2) (a), MCA, also does not violate
Rierson's equal protection rights.      Rierson asserts the
statute unconstitutionally discriminates in favor of the
government by requiring a stricter standard of service of
process simply because Rierson's claim involves redress
against a governmental body.      However, this requirement ap-
plies with equal force to governmental agencies who seek
review of adverse administrative decisions.
     We also hold the District Court properly dismissed
Rierson's petition for judicial review for failure of ser-
vice and lack of prosecution.
     The Montana Administrative Procedure Act governs the
procedural aspects of this cause.      Under that act, a petition
for judicial review must be filed within 30 days after ser-
vice of the final agency decision, and once filed, the peti-

tion must be promptly served upon all parties of record.
Section 2-4-702 (2)(a), MCA.
     Rierson asserts the State and the Board of Administra-
tion were timely served under this statute.      Rierson first
points out that service under the Administrative Procedure
~ c is governed by the Montana Rules of Civil Procedure
    t
unless a statute expressly provides otherwise.      Section 2-4-

106, MCA.   From this Rierson contends "promptly" is an indefi-
nite term, and as a consequence, service is governed by the
three-year time limit of Rule 41(e), M.R.Civ.P.      ~lternatively,
R i e r s o n asserts s e r v i c e s i x t e e n and one-half             months a f t e r

f i l i n g i s prompt.         Both c o n t e n t i o n s a r e w i t h o u t m e r i t .

        When c o n s t r u i n g a s t a t u t e words s h o u l d be g i v e n t h e i r

p l a i n and o r d i n a r y meaning.          J o n e s v . Judge ( 1 9 7 8 ) ,

Mont.               577 P.2d 846, 848, 35 St.Rep.                     460, 462.            As

a l r e a d y n o t e d , t h e p l a i n meaning of " p r o m p t l y " i s r e a d y and

q u i c k t o a c t , depending l a r g e l y on t h e f a c t s o f e a c h c a u s e .

I r v i n v. Koehler, s u p r a ; T a f t v. Wolma, s u p r a .

        H e r e , a s i x t e e n and one-half          month d e l a y i s n o t r e a s o n -

a b l e under t h e f a c t s of t h i s c a u s e .          Rierson never served

h i s o r i g i n a l p e t i t i o n , and no e x p l a n a t i o n h a s been g i v e n f o r

this failure.            C e r t a i n l y , s e r v i c e on t h e S t a t e o r t h e Board

of A d m i n i s t r a t i o n c o u l d e a s i l y have been o b t a i n e d .       Similarly,

no a c c e p t a b l e e x p l a n a t i o n h a s been g i v e n f o r t h e d e l a y i n

f i l i n g and s e r v i n g t h e amended p e t i t i o n .         Rierson's attorney

f e l t he had t h r e e y e a r s i n which t o p e r f e c t s e r v i c e of a

p e t i t i o n f o r j u d i c i a l review.      An a t t o r n e y ' s m i s t a k e i s

u n f o r t u n a t e , p a r t i c u l a r l y h e r e where R i e r s o n ' s c l a i m was

dismissed with prejudice.                    However, t h e r e a r e two s i d e s t o

a l l l i t i g a t i o n , and t h e S t a t e and t h e Board o f A d m i n i s t r a t i o n

a r e e n t i t l e d t o i n s i s t on t h e f i n a l i t y o f l i t i g a t i o n .     Arm-

s t r o n g v . High C r e s t O i l , I n c .      ( 1 9 7 4 ) , 164 Mont. 1 8 7 , 520 P.2d

1081; and S t a t e e x r e l . E q u i t y Supply Co. v. ~ i s t C o u r t
                                                                  .

( 1 9 7 2 ) , 159 Mont.       34, 494 P.2d 911.

        R i e r s o n n e x t c o n t e n d s h i s amended p e t i t i o n s h o u l d have

r e l a t e d back under Rule 1 5 ( c ) , M.R.Civ.P.,                   t o t h e t i m e of

h i s o r i g i n a l p e t i t i o n which was t i m e l y f i l e d b u t n e v e r s e r v e d .

This contention i s a l s o without m e r i t .

        The amended p e t i t i o n c a n n o t r e l a t e back under Rule 1 5 ( c ) ,

M.R.Civ.P.,         t o t h e d a t e t h e o r i g i n a l p e t i t i o n was f i l e d .         he

c o n c e p t o f n o t i c e i s c r i t i c a l t o o p e r a t i o n of t h e r e l a t i o n
back r u l e .       I n Rozan v. Rosen ( 1 9 6 7 ) , 150 Mont. 1 2 1 , 125,

431 P.2d 870, 872, t h e r e l a t i o n back r u l e w a s d e s c r i b e d as

follows:

         ". .      . Rule 1 5 ( c ) i s based on t h e c o n c e p t
        t h a t a p a r t y who i s n o t i f i e d of l i t i g a t i o n
        concerning a given t r a n s a c t i o n o r occurrence
        h a s been g i v e n a l l t h e n o t i c e t h a t s t a t u t e s
        of l i m i t a t i o n are i n t e n d e d t o a f f o r d .     Thus,
        i f t h e o r i g i n a l pleading gives f a i r n o t i c e
        of t h e g e n e r a l f a c t s i t u a t i o n o u t of which
        t h e c l a i m o r d e f e n s e a r i s e s , a n amendment
        which merely makes more s p e c i f i c what h a s
        a l r e a d y been a l l e g e d    ...      w i l l r e l a t e back
        even though t h e s t a t u t e of l i m i t a t i o n s h a s
        run i n the interim              . . ."       ( Q u o t i n g 3 Moore's
        F e d e r a l P r a c t i c e , 1115.15(3) a t 15-194 t o
        15-196. )

Here, t h e amended p e t i t i o n was f i l e d more t h a n 30 d a y s a f t e r

R i e r s o n had been s e r v e d w i t h t h e f i n a l agency d e c i s i o n , and

t h e S t a t e and t h e Board o f A d m i n i s t r a t i o n were n e v e r s e r v e d

with the o r i g i n a l p e t i t i o n .       I t f o l l o w s t h a t t h e S t a t e and

t h e Board of A d m i n i s t r a t i o n w e r e n o t g i v e n f a i r n o t i c e by

t h e o r i g i n a l p e t i t i o n , and t h e amended p e t i t i o n s h o u l d be

d i s m i s s e d s i n c e t h e r e l a t i o n back d o c t r i n e w i l l n o t o p e r a t e .

        I t i s n o t o r d i n a r i l y t h e f u n c t i o n of a p p e l l a t e t r i b u -

n a l s t o review a d m i n i s t r a t i v e procedures o r t o e s t a b l i s h

e x a c t t i m e l i m i t s where none h a s been p r o v i d e d by t h e l e g i s -

lature.        I s o b e v . C a l i f o r n i a Unemployment I n s u r a n c e App. Bd.

( C a l i f . 1 9 7 4 ) , 526 P.2d 528, 532.               However, f o r t h e s a k e of

g u i d a n c e i n t h e f u t u r e , w e n o t e t h a t s e r v i c e of a p e t i t i o n

f o r j u d i c i a l review w i t h i n t h i r t y days, o r thereabouts,

from t h e t i m e t h e p e t i t i o n was f i l e d i n t h e D i s t r i c t C o u r t

s h o u l d n o t r e s u l t i n a d i s m i s s a l f o r f a i l u r e t o comply w i t h

s e c t i o n 2-4-702 ( 2 ) ( a ) , MCA.

        The o p i n i o n and o r d e r of t h e D i s t r i c t C o u r t i s a f f i r m e d .

R i e r s o n ' s c o n t e n t i o n s l a c k s u b s t a n c e and R i e r s o n h a s n o t

c a r r i e d h i s burden on a p p e a l .
We concur:


  ? Jds ta e % 4
   A ic
     u
     Chief
Mr. Justice John C. Sheehy dissenting:

     Somewhere in the dim past of my legal education and of
what I thought was a broad legal experience, I missed something.
While my attention was elsewhere, an administrative body
became possessed of the full judicial power of the State to
decide constitutional issues and to determine, even against
itself, whether a promissory estoppel cause existed.      While
I was napping, this remarkable event of legal progress,

unique among the several estates or in the federal system,
bridged the abyss that used to exist between the powers of
the judicial- and the powers of the executive branches.
     Unless we concede that the Public Employeesf Retirement
Board is vested with broad judicial power contra to our
state constitution, Alfred C. Rierson is deprived by the
majority opinion of his constitutional right to have his
cause of action for promissory estoppel tried in a judicial
forum, and we have surrendered for ourselves and the District
Courts, our constitutional duty to decide finally such items
as due process and equal protection of the law.
     From the beginning, Alfred C. Riersonfs claims before
the Public Employees' Retirement Board were three-fold:      (1)
he was entitled to purchase credit toward his retirement,
pension for military service, and credit for time worked

over 25 years; (2) PERS had tortiously misled him into
working beyond 25 years by promising him that such additional
work years would be credited to his retirement; and, ( 3 ) if
PERS decided otherwise, he was deprived of due process and
equal protection of the laws.
     I would concede that PERS has the administrative power to
interpret the retirement system laws - -
                                     as they exist and its rules
thereunder as to the eligibility and extent of retirement benefits
due Alfred C. Rierson.   However, that power is subject to judicial
review.    I do not concede, although the majority has decided
otherwise, that PERS has the judicial power to decide a tort
action against itself, or that it can make decisions of
constitutional quality, which bind the District Courts or
us.   In other words, while PERS has administrative power to
render a reviewable decision on Rierson's first claim, it
has no judicial power to decide his second and third claims.
      The Board exercised judicial power beyond doubt.   In
its conclusion of law no. 3, it determined that Rierson was
not "denied due process of law"; in conclusion of law no. 4,
it found that "petitioner was not denied equal protection of
the laws."    In conclusion of law no. 5, it stated that the
"petitioner cannot by way of promissory or equitable estoppel
bar the application" of a statute to his retirement benefits.
      Those conclusions go far beyond the interpretative power of
the Public Employees' Retirement Board.   The only power that I
can find vested in the Board, beyond the authority to make rules,
is the following:
      "The board shall determine who are employees within
      the meaning of this chapter. The board shall be the
      sole authority under this chapter as to the conditions
      under which persons may become members of and receive
      benefits under the retirement system. The Board shall
      determine and may modify allowances for service and
      disability under this chapter. All persons in similar
      circumstances shall be treated alike." Section 19-
      3-304 (2), MCA.
      That grant of responsibility by the legislature does
not constitute an investment of judicial power.   In fact the
legislature could not invest the Board with judicial functions,
because under the 1972 Montana Constitution, Art. VII, §I,
the judicial power of the state is vested in the courts.
      When Alfred C. Rierson lost before the Public Employees'
Retirement Board, he filed his petition for review in the District
Court.    His petition, and his amended petition, continued his claims
for benefits, as a reviewable matter, but also included his
due process and equal protection contentions, and his promissory
estoppel claim against PERS.   His petition should be regarded by
us not only as one for review of the administrative action, but
as an independent, separable complaint on the tort and
constitutional issues.    His petition in the District Court
on these contentions is filed for the first time in a forum
with the judicial power to decide them.   We should therefore
not kick him out of court on a procedural point relating to
administrative review when the same procedure would be
acceptable had his petition been confined to the judicial
issues.   What I am saying is Rierson could have ignored the
adverse findings of PERS and filed instead a petition for
certiorari to review the constitutionality of the laws as
applied to him, and to prosecute his promissory estoppel
action.   This would not be a collateral attack, as we shall
show.   He chose instead to combine his administrative review
petition with his other contentions, which has the advantage
of showing that he had exhausted his administrative remedies.
     Determination of constitutional issues is reserved to
the courts.   It is said in 1 Arn.Jur.2d 989, 390, Administrative

- S185:
Law,
     "While in some special instances the determination
     of the validity of a legislative act may be within the
     competence of an administrative agency it is
     universally recognized that administrative agencies,
     as such, do not determine constitutional issues and
     specifically do not determine the constitutionality
     of statutes or ordinances under which they act the
     validity of which is and must be assumed by them
     until a judicial declaration to the contrary."
     Take note, therefore, that the majority opinion deprives
Alfred C. Rierson of any judicial action or review with
respect to his constitutional issues or his tort claim and
leaves him only with the decision of a Board that had no
choice but to uphold the constitutionality of its actions.
     The procedural point upon which the majority decision turns
is that Rierson, although he filed his petition for review of the
administrative action in time, did not serve a copy of the
petition "promptly" as required by section 2-4-702(2), (a-l'r
MCA.     Leaving aside the legislative imprecision inherent in
the term "promptly" it has no application in this case in
any event because Rierson's petition in the District Court
is presented for the first time in a forum with the judicial
power to decide his issues of constitutionality and promissory
estoppel.      What the majority opinion overlooks, as indeed
did the parties, is that section 2-4-702, MCA, the procedural
statute relied on by the majority, is not intended to limit
the scope of judicial review in precisely this kind of case.
That same section provides:
       "A person who has exhausted all administrative
       remedies available within the agency and who
       is aggrieved by a final decision in a contested
       case is entitled to judicial review under this
       chapter. This section does- limit utilization
                              - not
       of - - scope of judicial review available under
       -  or the
             --
       other means of review, redress, relief, or trial
          novo provided by statute." Section 2-4-702(1) (a),
       de -
       -
       MCA. (Emphasis added.)
       Not only does our statute permit other types of judicial review
such as should have been given to Rierson here, but other juris-
idictions have indicated that the procedural rules for
judicial review do not apply when decisions beyond the
competence of the administrative body are up for review.
        In Hadden v. Aitken (Neb. 1952), 55 N.W.2d 620, 35 A.L.R.2d
1003 (decided on other grounds) a motion to dismiss was filed because
the appeal from an administrative agency had not been filed in
time.    The Nebraska court determined that it had before it
an original action in equity to enjoin the enforcement of an
administrative order on the grounds of unconstitutionality.
In that situation, the Nebraska court refused to dismiss the
appeal on the ground that the appeal had not been filed in
time.
                                                       883867
        In Foy v. Schechter (N.Y.C.A. 1956), 136 N.E. 2d H + 84-5, the
                                                          I,
                                                       !

New York Court of Appeals allowed a collateral attack on an
administrative action where the contention was made that the attack
was on the ground of lack of power in the administrative agency to
make the decision and quoted 73 C.J.S. Public Administrative
Bodies and Procedure, 8146, as follows:
     "Notwithstanding the rule against collateral attack,
     a decision [of an administrative body] may be subject
     to such attack where it is absolutely void; and, since
     the jurisdiction of an administrative board or agency
     consists of the powers granted it by statute, a
     determin~tsonis void and subject to collateral attack
     where idmade either without statutory power or in
     excess thereof. Accordingly, administrative decisions
     may be collaterally attacked as void for want of
     jurisdiction; and where a board's order is without
     the board's authority, and is based not on a deter-
     mination of fact, but on an erroneous conclusion
     of law, it is clearly void and subject to collateral
     attack. "
     The procedural statute upon which the majority relies, section
2-4-702(2)(a), MCA, is an example of poor legislative drafts-
manship insofar as the review procedure in District Courts is
concerned.   After providing that the petition for review
shall be filed in the District Court within 30 days after
service of the final decision of the agency, it goes on to
provide that a - - -the petition shall be "promptly
               copy of
served" upon the agency.    Nothing in the statute indicates
anything about service of process out of the District Court.
In the normal procedure, which we assume should apply here,
upon the filing of the petition for review, either a summons
or a writ of review issued by the court and served upon the
agency would be the method to bring the agency within the
jurisdiction of the District Court.    Nothing in the procedural
section provides for service of process upon the agency.
Presumably therefore, the ordinary statutes and rules pertaining
to process should be followed on petitions for review from
administrative agencies.     In my opinion, the provision that
a copy of the petition (which is not a process) be "promptly
served" upon the agency is merely directory and has nothing
to do with the acquiring of jurisdiction by the District
Court over the agency.     That is acquired when process issued
by the court, either a summons, or a writ, is served upon
the agency.   The ordinary rules of service apply to a
summons or a writ.   I would reverse and remand with directions
to the District Court to deny the motion to dismiss filed by
the agency, and to proceed to a valid determination of all
the issues raised by the amended petition.




I join in the dissenting opinion of Mr. Justice John C. Sheehy.



                                             Justice      /
