                                    No.    13797

             I N THE SUPREME COURT O THE STATE OF M N A A
                                    F              O T N

                                        1978



BURLINGTON NORTHERN I N C . ,             a corporation,
                               P l a i n t i f f and A p p e l l a n t ,



FLATHEAD COUNTY e t a l . ,

                               Defendants and Respondents,
             and

COMMUNITY COLLEGE DISTRICT O FLATHEAD
                            F
C U T , MONTANA, FLATHEAD VALLEY COFUIUNITY
 O NY
COLLEGE,
                    Intervenor.



Appeal from:         D i s t r i c t Court of t h e Eleventh J u d i c i a l D i s t r i c t ,
                     Honorable Robert Sykes, Judge p r e s i d i n g .

C o u n s e l o f Record:

     For A p p e l l a n t :

           Gough, Shanahan, J o h n s o n & Waterman, H e l e n a , Montana
           Ward Shanahan a r g u e d and D a n i e l C. Murphy a r g u e d ,
            H e l e n a , Montana

     F o r Respondent :

           L o u i s F o r s e l l a r g u e d , H e l e n a , Montana
           R. Bruce McGinnis, H e l e n a , Montana
           P a t r i c k S p r i n g e r , County A t t o r n e y , K a l i s p e l l ,



                                                     Submitted:             J a n u a r y 2 3 , 1978

                                                         Decided:          FEB 2 $ 1978
Mr.    J u s t i c e Frank I . Haswell d e l i v e r e d t h e Opinion of t h e C o u r t .


         B u r l i n g t o n N o r t h e r n , I n c . a p p e a l s from a n o r d e r of t h e

D i s t r i c t C o u r t of t h e e l e v e n t h j u d i c i a l d i s t r i c t of t h e

S t a t e of Montana, i n and f o r t h e County of F l a t h e a d , g r a n t i n g

summary judgment i n f a v o r o f F l a t h e a d County and o t h e r s i n a

s u i t b r o u g h t by B u r l i n g t o n N o r t h e r n t o r e c o v e r c e r t a i n t a x e s

p a i d under p r o t e s t .

         B u r l i n g t o n N o r t h e r n was and i s t h e owner of c e r t a i n

p r o p e r t y l o c a t e d i n F l a t h e a d County, Montana.                 In setting

l e v i e s t o f i n a n c e t h e 1974-75 b u d g e t of t h e F l a t h e a d V a l l e y

Community C o l l e g e D i s t r i c t , t h e Board of County Commissioners

and F l a t h e a d County approved an i t e m of $42,042.00 a s t h e

D i s t r i c t ' s t e a c h e r s ' r e t i r e m e n t fund c o n t r i b u t i o n .   In

a d d i t i o n t o l e v i e s f o r t h e general fund, t h e building d e b t

s e r v i c e , and a d u l t e d u c a t i o n , t h e Board a u t h o r i z e d a s e p a r a t e

l e v y of .768 m i l l s t o f i n a n c e t h e t e a c h e r s ' r e t i r e m e n t fund

contribution.             F l a t h e a d County a s s e s s e d B u r l i n g t o n N o r t h e r n

$1,320.02 as i t s s h a r e of t h i s l e v y .                  On November 30, 1974,

B u r l i n g t o n N o r t h e r n p a i d $660.02 of t h i s amount under p r o t e s t .

        On J a n u a r y 1 5 , 1975, B u r l i n g t o n N o r t h e r n f i l e d s u i t

a g a i n s t F l a t h e a d County, t h e F l a t h e a d County T r e a s u r e r , and

t h e Montana Department of Revenue, t o r e c o v e r t h e $660.02

and c e r t a i n o t h e r t a x e s it had p a i d under p r o t e s t .                 Plaintiff's

c l a i m f o r t h e $660.02 was s u b m i t t e d t o t h e D i s t r i c t C o u r t

upon w r i t t e n b r i e f s and a n a g r e e d s t a t e m e n t o f t h e f a c t s .

On F e b r u a r y 2 , 1976, t h e D i s t r i c t C o u r t made f i n d i n g s of

f a c t and c o n c l u s i o n s of law, and d e n i e d p l a i n t i f f ' s motion

f o r s m a r y judgment.

        The Community C o l l e g e D i s t r i c t of F l a t h e a d County,

Montana, F l a t h e a d V a l l e y Community C o l l e g e , t h e n i n t e r v e n e d

a s a defendant.             On August 2 4 , 1976, t h e D i s t r i c t C o u r t

e n t e r e d a n o r d e r a d o p t i n g i t s f i n d i n g s of f a c t and c o n c l u s i o n s
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
judgment .
     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 fin-
ancing 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 ~ . 2 d
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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