                                      No. 12357

         I N THE SUPREME COURT O THE STATE OF MONTANA
                                F

                                          1973



TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
and HELPERS, LOCAL 7'145,

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



CASCADE C U T SCHOOL DISTRICT NO.
         O NY                                            1,
                             Defendant and Respondent,



MONTANA PUBLIC EMPT,OYEES ' ASSOCIATION,
    .
I N C , a Montana corpora t i o n ,

                             I n t e r v e n e r and A p p e l l a n t .



Appeal from:         D i s t r i c t Court o f t h e E i g h t h J u d i c i a l D i s t r i c t ,
                     Honorable Pau 1 G. H a t f i e l d , Judge p r e s i d i n g .

Counsel of Record:

     For I n t e r v e n e r and A p p e l l a n t :

              Cannon and G a r r i t y , Helena, Montana
              Ross Cannon argued, Helena, Montana

     For Defendant and Respondent:

              J . Fred Bourdeau, County A t t o r n e y , Great F a l l s , Montana
              Michael T. Greely, argued, Deputy County A t t o r n e y ,
               Great F a l l s , Montana

     For P l a i n t i f f and A p p e l l a n t :

              Amicus C u r i a e
              H i l l e y and M c K i t t r i c k , Great F a l l s , Montana
              D. P a t r i c k McKittrick argued, Great F a l l s , Montana



                                                       Submitted:          May 30, 1973

F i l e d : \y$! 1 ;18
                     9                                  Decided :
         '2
                                                                             i 13 j97'
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
        This appeal is from a declaratory judgment in the district
court of Cascade County, declaring that the members of plaintiff's
union and intervener's association are not entitled as a matter
of right to the vacation benefits enumerated in section 59-1001,
R.C.M. 1947.
        This action was submitted to the district court on an
agreed statement of facts.      Plaintiff's members and intervener's
members are employed by defendant Cascade County School District
No. 1 on a full time basis in nonteaching capacities.      These
employees receive vacation benefits under administrative regula-
tions of the school district as part of contract negotiations,
rather than pursuant to the provisions of section 59-1001, R.C.M.


        The main issue for review is whether full time employees
in nonteaching capacities of defendant School District are entitled
as a matter of right to the vacation benefits enumerated in sec-
tion 59-1001, R.C.M.    1947.   The secondary issue is whether they
are entitled to these benefits retroactive to the date of their
employment.
        In 1949, the Montana legislature passed an Act providing
annual vacation leave for state, county and city employees.
Chapter 131, Laws of 1949, now codified as section 59-1001, et
seq., R.C.M. 1947.     The pertinent sections are:
        "Section 59-1001(1). Each employee of the state,
        or any county or city thereof, who is in contin-
        uous employment and service of the state, county
        or city thereof, is entitled to and shall earn
        annual vacation leave credit from the first full
        calendar month of employment. However, employees
        are not entitled to any leave with full pay until
        they have worked continuously for a period of
        twelve (12) calendar months. Vacation credits
        shall be earned in accordance with the following
        schedule: * * *.
            "Section 59-1007. The term 'employee,' as used
            herein, does not refer to or include elected
            state, county, or city officials, or school-
            teachers."
            The district court concluded and defendant now contends
that the "schoolteachers" referred to in the Act are those
teachers who work for the State Department of Institutions or
other schoolteachers employed by the state of Montana, rather
than schoolteachers employed by the various school districts.
Therefore, the school district concludes that the exclusion of
schoolteachers in section 59-1007, R.C.M. 1947 does not imply
inclusion of all other school district employees.        The district
court further concluded that plaintiff's members and intervener's
members cannot be included by implication.        We do not agree.
            It is a basic principle of statutory construction that
the intention of the legislature is controlling.        Section 93-
401-16, R.C.M. 1947; Dunphy v. Anaconda Co. 151 Mont. 76, 438
P.2d 660.      In construing legislative intent     statutes must be
read and considered in their entirety and legislative intent
may not be gained from the wording of any particular section or
sentence, but only from a consideration of the whole.        Home
Bldg.   &   Loan v. Bd. of Equalization, 141 Mont. 113, 375 P.2d
312.
            On the other hand, where the words of the statute are
plain, unambiguous, direct and certain, the court is not at
liberty to insert what has been omitted, or to omit what has
been inserted.      Section 93-401-15, R.C.M. 1947.
            In the instant case, we hold that school district em-
ployees other than teachers are entitled to vacation benefits
under section 59-1001, R.C.M. 1947.      In doing so, this Court has
given effect to a long line of this Court's decisions holding
that a school district is a political subdivision and instru-
mentality of the State.      Longpre v. School Dist. No. 2, 151
Mont. 345, 443 P.2d 1; Fitzpatrick v. State Bd. of Exmrs.,
105 Mont. 234, 70 P.2d 285; State v. Cooney, 102 Mont. 521, 59
P.2d 48; State v. Holmes, 100 Mont. 256, 47 P.2d 624.
        The legislature used the term "employeesf'in its generic
sense to include all employees of the state or employees of
state agencies of which a school district is included.        This in-
terpretation is given further support by the language of section
59-1007, R.C.M. 1947,wherein schoolteachers are specifically
excluded.   The nonteaching school district employees are includ-
ed by the definition of employees as used in section 59-1001,

R.C.M. 1947.
        We cannot accept the limited interpretation sought by
the defendant School District.        The court's function is to
construe the language of the statute in accordance with its
usual and ordinary acceptance.        County of Hill v. County of
Liberty, 62 Mont. 15, 203 P. 500.         Schoolteachers in its common
usage refers to those teaching at district schools as well as
in the State's system of higher education.        Thus we conclude
that nonteaching school district employees are employees of an
agency of the state government and entitled to the vacation
schedule set forth therein.
        The second issue presented for review is whether the
plaintiff's members and the intervener's members are entitled
to the benefits of section 59-1001, R.C.M. 1947,retroactive to
the date of their employment.
        While the question of whether school district employees
other than certified teachers are governed by this Act is here
before this Court for the first time, the Attorney General has
rendered several opinions supporting this position.        This Court
is not bound by these opinions but they will be given consider-
ation, especially when determining if this decision should be
applied retroactively.
                              -   4   -
        As early as 1950rt,he
                            Attorney General for the State of
Montana issued opinions declaring that noncertified employees
of school districts are entitled to the benefits of section 59-
1001, R.C.M. 1947.    In 23 Opinions of the Attorney General 345,
346, it was stated:
        "Since a school district is a political subdivision
        of the State it is only reasonable to assume that
        the Legislature intended that the employees of a
        school district were included in the category of
        State employees as provided in the Act. That
        assumption is strengthened by the language of
        Section 7 of Chapter 131 wherein the Act specific-
        ally excludes school teachers from the operation
        of the Act. Since the law makers deemed it neces-
        sary to specially withhold the benefits of the Act
        from school teachers, it follows therefrom that it
        was their intention that the remaining employees
        of the school districts should be entitled to
        vacation leave."
This conclusion has been reemphasized several times since then.
See 25 Op. Att'y Gen. 123 (1954); 27 Op. Att'y Gen. 184 (1958),
28 Op. Att'y Gen. 133 (1960), 31 Op. Att'y Gen. 31 (1966).
        Due to the fact that several opinions of the Attorney
General have been issued on this or related matters and that
this Court has long held that a school district is a political
subdivision of the State, we see no reason why the school dis-
trict was unaware of the application of the statute to their
nonteaching employees.
       Additionally eleven sessions of the State legislature
have not seen fit to change this interpretation of the Attorney
General and the previous decisions of this Court.        Our decision
does not take away or impair a vested right or create any new
obligation upon the school district.     Butte   &   Superior Min. Co.
v. McIntyre, 71 Mont. 254, 229 P. 730.     It merely enforces the
rights which were created by the 1949 legislature.
        Plaintiff's members and intervener's members are entieled
to the vacation benefits of section 59-1001, R.C.M.        1947,retroactive
to the date of their employment subject to the two year statute
of l i m i t a t i o n p l a c e d upon a l i a b i l i t y c r e a t e d by s t a t u t e ( S e c t i o n

93-2607,       R.C.M. 1 9 4 7 ) and r e d u c e d by t h e v a c a t i o n b e n e f i t s re-
c e i v e d under c o n t r a c t n e g o t i a t i o n s o r a d m i n i s t r a t i v e r e g u l a t i o n s .
                    F o r t h e s e r e a s o n s t h e judgment o f t h e d i s t r i c t c o u r t

i s r e v e r s e d a n d t h e c a u s e remanded t o t h e d i s t r i c t c o u r t f o r e n t r y

o f judgment i n a c c o r d a n c e w i t h t h i s o p i n i o n .


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                                                                Associate J u s t i c e
