                         No. 13752
       IN THE SUPREME COURT OF THE STATE OF MONTANA
                             1977


STATE ex rel. ROBERT E. SULLIVAN,
               Relator and Appellant,


STATE OF MONTANA, TEACHERS'
RETIREMENT BOARD, et al.,
               Respondents and Respondents.


Appeal from:   District Court of the First Judicial District,
               Honorable Gordon R. Bennett, Judge presiding.
Counsel of Record:
    For Appellant:
        Boone, Karlberg and Haddon, Missoula, Montana
        Sam E. Haddon argued, Missoula, Montana
    For Respondent:
        J. Michael Young argued, Helena, Montana
    For Amicus Curiae:
        Louis Forsell argued, Helena, Montana


                                Submitted:      September 29, 1977
                                                r\rW 3 5 1 g z
                                    Decided :




                                          Clerk
Mr. Chief Justice Paul G . Hatfield delivered the Opinion of the
Court :

     Appellant appeals from an order of the District Court, Lewis
and Clark County, dismissing his petition for judicial review
and affirming a decision of the Montana Teachers' Retirement Board
denying him retirement credit for out-of-state teaching service.
         Appellant, Robert E. Sullivan, is Dean of the University
of Montana School of Law.     He was previously employed as a faculty
member of Notre Dame University from September 1947 to September
1954.      In 1954, he moved directly from Notre Dame University
to the University of Montana School of Law faculty. In 1976,
while a member of the Montana Teachers' Retirement System, appel-
lant applied for seven years credit in the retirement system on
the basis of his Notre Dame teaching service, He tendered back

contribution payments as required by section 75-2705(9),    R.C.M.
1947, to respondent Montana Teachers' Retirement Board (herein-
after referred to as the Board).     At an April 12, 1976, meeting,
the Board denied appellant's application and thereafter returned
his cashier's check for back retirement contribution payments.
The Board based its denial on its decision that section 75-2705(9),
R.C.M.     1947, in effect in 1954 when appellant became a member
of the Montana Teachers' Retirement System, allowed retirement
credit only for teaching service in out-of-state public schools,
to the exclusion of service performed in out-of-state private
schools such as Notre Dame University.
     Appellant then brought an action in district court to require
the Board to allow him to purchase credit toward retirement benefits
in the Teachers' Retirement System for his out-of-state teaching
service. Counsel stipulated the case be submitted for final decision
on the law question as if it were a judicial review of the
~oard's denial of teaching credit. The District Court issued
a "MEMORANDUM OPINION AND ORDER" dismissing the petition for
judicial review and affirming the decision of the Board.
     The determinative issue presented on appeal is whether
section 75-2705(9),   R.C.M.   1947, as applicable in 1954 when
appellant became a member of the Montana Teachers' Retirement
System, allows a member to receive credit for teaching in out-
of-state private schools.
     In Montana, retirement benefits in the teachers' retire-
ment system are a matter of contract right. The terms of the
teachers' retirement benefit contract in Montana are determined
by the controlling provisions of the teachers' retirement system
statute in effect at the time the teacher becomes a member of
the Montana Teachers' Retirement System. "These sections of the
statute become part of the teacher's contract."      Clarke v.
Ireland, 122 Mont. 191, 199¶ 199 P.2d 965 (1948).
     When appellant joined the Montana Teachers' Retirement
System in 1954, section 75-2705(9),    R.C.M.   1947, set forth the
conditions by which a teacher entering the system could receive
credit for out-ofistate teaching service. That portion of section
75-2705(9),   as it was in effect in 1954, relevant to this appeal,
provided :
     "Any teacher who has become employed as a teacher
     in Montana * * * may receive credit for service for
     out-of-state teaching employment provided * * *
     [he makes certain contributions required by the
     statute] .I' (Bracketed material paraphrased.)
Section 75-2705(9) controls this case, because no other section
of the Monthna Teachers' Retirement A c t , as it was in effect

in 1954, spoke to creditable service for out-of-state teaching.
       On its face section 75-2705(9) appears to be perfectly clear.
To receive credit in the Montana Teachers' Retirement System for

out-of-state teaching service, section 75-2705(9) merely required
that the applicant teacher, who has become employed as a teacher
in Montana, has performed out-of-state teaching service and made
the required contributions into the retirement fund. Appellant,
as Dean of the law school, is a teacher in Montana who performed
out-of-state teaching service at Notre Dame University and made
the statutorily required contributions into the retirement fund.
      Respondents assert the legislative intent behind section
75-2705(9) can be determined only by examining the teachers' retire-
ment act in its entirety. Respondents contend that,in passing the
act, the Montana legislature established a benefit for public
school teachers with no regard for teachers in private institutions.
The definitions of "teacher", "service", "employer", and "member-
                         R.C.M. 1947,
ship" in section 75-2701/a11 spoke to public school employees.
Respondents conclude the section 75-2701(4) definition of teacher
as   "* * *   any teacher in the public elementary and high schools
of the state, and the university of Montana    * * *" must be used
to define what "teacher" may qualify for out-of-state teaching
credit under section 75-2705(9).     Respondents conclude that appellant
cannot meet the statutory definition of "teacher" for his service
at Notre Dame University. We disagree.

      Respondents are correct in 'their assertion that the teachers'
retirement act must be construed as a whole.     Because the legisla-
ture did not pass section 75-2705(9) apart from the remainder of
the act, this Court cannot literally construe that section in a
manner inconsistent with the legislative intent expressed through-
out the teachers' retirement act.
       "* * *     l e g i s l a t i v e i n t e n t cannot be determined
       from t h e wording of any p a r t i c u l a r s e c t i o n o r
       sentence, but r a t h e r must come from a considera-
       t i o n of the Act a s a whole."
       S t a t e ex r e l . Jones v. Giles, 168 Mont. 130, 134,
       541 P. 2d 355 (1975).

       However, examining the a c t a s a whole a s i t was i n 1954, we

cannot say t h a t the pervasive i n t e n t of the l e g i s l a t u r e was t o

preclude retirement system members from receiving c r e d i t f o r

out-of-state teaching s e r v i c e i n p r i v a t e schools.          The s t a t u t e

was undoubtedly enacted f o r the purpose of b e n e f i t i n g Montana

public school teachers t o the exclusion of p r i v a t e school teachers.

N teacher i n a p r i v a t e school could ever meet the s t a t u t o r y
 o

d e f i n i t i o n of "teacher" i n s e c t i o n 75-2701(4) and q u a l i f y f o r
                                                                                            '
b e n e f i t s i n the retirement system u n t i l he became a teacher i n

the public schools of t h i s s t a t e .        Once an individual became a

Montana public school teacher, section 75-2705(9) c o n t r o l l e d

whether he received c r e d i t f o r out-of-state teaching service.

       To q u a l i f y f o r out-of-state teaching s e r v i c e c r e d i t , s e c t i o n

75-2705(9) required the applicant t o be "Any teacher who has

become employed a s a teacher i n Montana                **   *". (Emphasis added.)
Teachers covered by the s t a t u t e were teachers i n t h e public

schools "of t h e s t a t e " .     Section 75-2701(4).            The second use of

the term "teacher" i n s e c t i o n 75-2705 (9) was c l e a r l y used i n

i t s s t a t u t o r y sense.   One must be employed a s a public school

teacher i n Montana before he was e l i g i b l e f o r out-of-state r e t i r e -

ment c r e d i t i n t h e Montana ~ e a c h e r s 'Retirement System.

       J u s t a s c l e a r l y , however, t h e f i r s t use of the word "teacher"

i n s e c t i o n 75-2705(9) could not have been used a s s t a t u t o r i l y

defined without rendering the section a n u l l i t y .                Before becoming

employed a s a teacher i n t h i s s t a t e , no individual could meet

t h e s t a t u t o r y d e f i n i t i o n of "teacher" because he i s not then a

teacher of the s t a t e of Montana.            N out-of-state c r e d i t could be
                                                 o
given any teacher, public or private, if the statutory defini-
tion were applied to the first use of the word "teacher".      The first
use of the word "teacher" in section 75-2705(9) must be the
commonly understood definition--that is, one who teaches or
instructs others--since a meaning different from the statutory
definition    "* * *   is plainly required by the content." Section 75-
2701,R.C.M.    1947.
     Respondents argue that interpreting section 75-2705(9)
as allowing retirement credit for out-of-state teaching service
in public and private schools alike "would create a grave disparity

in the benefits afforded teachers transferring into the Montana
[public] school system from private schools'' within Montana.     No
section of the act allowed creditable service for other than public
school teaching within the state of Montana.
     The legislature did not incorporate into the act a section
expressing legislative policy. We do not have the benefit of the
legislative debate which preceded enactment of the statute. We
can, therefore, only hypothesize as to the legislative intent for
the enactment of section 75-2705(9).      Logically, it would seem
that a subsection which provided retirement credit for out-of-state
teaching service was enacted to attract qualified teachers from
outside the state into the Montana public school system.      See:
Driggs v. Utah State Teachers Retirement Board, 105 Utah 417, 142
P.2d 657, 663 (1943).      That purpose would indeed best be served
by providing attractive retirement benefits to qualified out-of-
state private school and public school teachers alike.
     Out-of-state teachers entering the state public school system
did not have this opportunity to purchase retirement credit for
their out-of-state teaching service until the legislature amended
the teachers' retirement act in 1949 with the addition of section
75-2705(9).   Whether by oversight or by design, the act was not
further amended to provide Montana private school teachers with
a similar opportunity to purchase retirement credit when they

entered the state public school system. It is irrelevant what
value judgment we place on the equities of the resultant distinc-
tion between the opportunities for private in-state and private
out-of-state teachers to purchase retirement credit for their
private school teaching service when they enter the Montana
Teachers' Retirement System.
     It is this Court's function to ascertain the legislative
intent behind section 75-2705(9) and not to substitute therefor
our own discretion or conception of what might have been more
equitable. General Finance Co. v. Powell, 112 Mont. 535, 540,
118 P.2d 751 (1941).   Rather, the benefits under the teachers'
retirement plan are determined by the express provisions of the
statute. The plain meaning of section 75-2705(9) was to pro-
vide credit for out-of-state teaching service, without distinc-
tion between out-of-state service in public or in private schools.
     Respondents argue that, despite its apparent plain meaning,
the fact that section 75-2705(9) did not expressly refer to
private school service creates an ambiguity as to whether the
legislature intended the subsection to allow retirement credit for
out-of-state private school teaching.   Respondents assert that
unsuccessful House Bills No. 301 and No. 589, introduced in
the 1975 legislature to allow retirement credit for teaching in
private schools, signified that the legislature at least impliedly
approved respondent Board's interpretation of section 75-2705(9).
Respondents claim the Board has consistently interpreted section
75-2705( ) as disallowing credit for out-of-state private school
        9
teaching, and t h a t t h i s Court should respect t h i s i n t e r p r e t a t i o n

of an a c t which the Board has been empowered t o enforce and

administer.

       These arguments of respondents a r e likewise without merit.

The successful house b i l l s were introduced i n 1975, i n an

attempt t o amend n o t section 75-2705(9), but i t s replacement

section 75-6213, R.C.M.              1947.       The l a t t e r s e c t i o n enacted i n

1971, expressly l i m i t s retirement c r e d i t f o r out-of-state teaching

t o service i n public schools, and i s therefore s u b s t a n t i a l l y

d i f f e r e n t from i t s predecessor section 75-2705(9).                   It i s

i l l o g i c a l t o assume the f a i l u r e of the b i l l s indicated l e g i s l a -

t i v e approval of t h e Board's i n t e r p r e t a t i o n of section 75-2705(9),

r a t h e r than merely i l l - f a t e d attempts t o amend the then e x i s t i n g

law, s e c t i o n 75-6213.

       Even assuming the Board has c o n s i s t e n t l y i n t e r p r e t e d

s e c t i o n 75-2705(9) t o disallow retirement c r e d i t f o r p r i v a t e

out-of-state teaching s e r v i c e , t h i s Court i s n o t bound by t h a t

administrative i n t e r p r e t a t i o n .     S t a t e v. Toomey, 135 Mont. 35,

44, 335 P.2d 1051 (1.958).               W h i l e . i t i s t r u e t h e Board's construc-

t i o n of the s t a t u t e i s e n t i t l e d t o r e s p e c t f u l consideration by

t h i s Court:

       It*   **It i s likewise t r u e t h a t when such p r a c t i c e
       i s erronerously         ***
                               established i t i s without per-
       suasive effect." S t a t e ex rel.City of Butte v.
       Healy, 105 Mont. 227, 233, 70 P.2d 437 (1937).

       I n t h i s case, the Board's i n t e r p r e t a t i o n of a s t a t u t e con-

t r a r y t o t h e p l a i n meaning of i t s terms w i l l n o t be adopted by

t h i s Court.      Section 75-2705(9), R.C.M.               1947, a s i n e f f e c t i n

1954, allowed any teacher i n the Montana S t a t e Teachers' Retire-

ment System t o receive c r e d i t f o r "out-of-state                  teaching employ-

ment."       The l e g i s l a t u r e did n o t r e s t r i c t t h e c r e d i t t o public
out-of-state teaching s e r v i c e , and we w i l l not now j u d i c i a l l y

c r e a t e such a r e s t r i c t i o n .

        "*   **      Where the language of a s t a t u t e i s p l a i n ,
        unambiguous, d i r e c t and c e r t a i n , the s t a t u t e
        speaks f o r i t s e l f and t h e r e i s nothing l e f t f o r
        t h e court t o construe. [Citing cases. ] The function
        of the court i s simply t o a s c e r t a i n and declare
        what i n terms o r i n substance i s contained i n t h e
        s t a t u t e and n o t t o i n s e r t what has been omitted."
        Dunphy v. Anaconda Co., 151 Mont. 76, 80, 438 P.2d
        660 (1968).

        Appellant met each and a l l of t h e section 75-2705(9) re-

quirements,to purchase retirement c r e d i t .         F i r s t , he i s a

"teacher".         Second, he has been "employed a s a teacher i n

Montana".        Third, he performed "out-of-state         teaching employ-

ment".       Fourth, he made t h e contributions t o the retirement

fund which were required by s t a t u t e .      N other requirements
                                                  o

were present i n s e c t i o n 75-2705(9) and none can be implied.

        The order of the d i s t r i c t court i s reversed and t h e Board

i s ordered t o accept a p p e l l a n t ' s contributions i n t o t h e retirement

fund and t o give appellant retirement c r e d i t f o r h i s out-of-state

teaching service.




W Concur:
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