State ex rel. Ebel v. Schye, 9714

• Decision Date: 04 January 1957
• Docket Number: No. 9714,9714
• Citation: 130 Mont. 537,305 P.2d 350
• Parties: The STATE of Montana ex rel. Walter EBEL, Relator and Respondent, v. Mrs. Elmer SCHYE et al., and The Board of Administration of the Public Employees' Retirement System of the State of Montana, Appellants.
• Court: Montana Supreme Court

Page 350

305 P.2d 350

130 Mont. 537

The STATE of Montana ex rel. Walter EBEL, Relator and Respondent, v. Mrs. Elmer SCHYE et al., and The Board of Administration of the Public Employees' Retirement System of the State of Montana, Appellants.

No. 9714.

Supreme Court of Montana.

Submitted July 17, 1956.

Decided Dec. 19, 1956.

Rehearing Denied Jan. 4, 1957.

Ralph J. Anderson, Helena, argued orally, for appellant.

Skedd, Harris & Mufich, Helena, for respondent, LaVerne V. Harris, Helena, argued orally.

ADAIR, Chief Justice.

This is an appeal from a judgment entered in the district court of Lewis and Clark County, directing the issuance of a peremptory writ of mandate against the Board of Administration of the Public Employees' Retirement System of the State of Montana and its members.

The proceedings were brought by Walter Ebel, the relator, under the Public Employees' Retirement Act, R.C.M.1947, Title 68, Secs. 68-101 to 68-1320.

The district court made findings of fact and conclusions of law, and in accordance therewith, entered its decree in favor of the relator, Walter Ebel, and against the Board of Administration of the Public Employees' Retirement System and its members, against whom the court ordered the issuance of a writ of mandate requiring said Board and its members to carry out the terms and conditions of the decree.

For more than forty years last past the relator, Walter Ebel, has been and he still is a resident of Chinook, Blaine County, Montana. He is a man of limited education, having only reached the sixty grade in school. The only kind of work he has ever done has been heavy manual labor. He has had no formal or special training or education especially fitting him for any particular type of work. Continuously for some five or six years prior to and including March 18, 1951, the relator Ebel, was employed by Blaine County, Montana.

On March 18, 1951, the relator Ebel was driving and operating Blaine County's fourteen ton road maintainer, on which there was a snowplow attachment. A blizzard was raging and the relator Ebel, in the performance of the duties for which he was hired, was plowing snow in an attempt to open a highway on which a traveler was reported to have been lost or frozen.

While so engaged the road maintainer plow suddenly struck a rock with great force, stopping the machine dead still. By the force of the impact the relator Ebel was thrown forward, striking his nose and head on the metal cab of the machine and the lower portions of his body hitting the steering wheel of the maintainer, by reason whereof relator became and was shocked and dazed.

The following day the relator was treated in Chinook by Dr. Leeds for the injuries which he had sustained. Thereafter the relator attempted to work but continued to suffer so much pain in his neck, back, and head that in the latter part of October 1952 he was finally forced to quit work, since which time relator's condition has steadily grown worse by reason whereof he has been able to work but three or four half days since December 1955, for which he only earned and for which he was only paid the sum of $20 to $25.

It is conceded that the relator sustained such accidental injuries on March 18, 1951, in the course of his employment as an employee of Blaine County, Montana, and that he came within the provisions and protection of both the Public Employees' Retirement Act, R.C.M.1947, Secs. 68-101 to 68-1320, and the Workmen's Compensation Act of the State of Montana, R.C.M.1947, Secs. 92-101 to 92-1222.

On March 18, 1952, the relator Ebel filed a claim for workmen's compensation with the Industrial Accident Board of the State of Montana for and on account of the accidental injuries so received. After the lapse of considerable time the Industrial Accident Board made a compromise lump sum settlement with the relator for his claim for permanent partial disability.

On October 3, 1953, and before reaching any settlement with the Industrial Accident Board of his claim so filed, the relator filed, with the Board of Administration of the Public Employees' Retirement System, a claim for retirement disability allowance, which claim said Board considered together with all medical reports at its regular meeting held on October 22, 1953, at which time such Board unanimously approved relator's claim and awarded him industrial disability retirement benefits in the sum of $138.82 per month. However, the respondent Board's resolution provided and required that any payments made to the relator by the Industrial Accident Board would be deducted from relator's retirement payments. Thereby did the respondent Board determine that the rate of disability retirement to which the relator was entitled, without regard to any workmen's compensation benefits, is the sum of $138.82 per month.

After the Industrial Accident Board made its lump sum settlement with the relator, the respondent Board of Administration of the Public Employees' Retirement System, then deducted $101.83 per month from the $138.82 per month originally awarded to relator and from October 16, 1952, to December 1, 1955, paid the relator disability retirement benefits of only $36.99 per month, being the amount of the difference between the above mentioned $138.82 and the $101.83. Since December 1, 1955, the respondent Board has paid relator nothing. These facts stand undisputed in the record.

The record further shows that the respondent Board has denied relator's repeated requests that he be paid disability retirement benefits in the amount of $138.82 per month from October 16, 1952, as authorized by the statutes and by the respondent Board's findings.

The relator and his counsel were present at a meeting of the respondent Board held on November 18, 1955, at which the legal questions involved were discussed, following which the respondent Board discontinued all of relator's industrial disability retirement benefits.

The Public Employees' Retirement Act, R.C.M.1947, Title 68, in section 68-501, thereof, in part, expressly declares: 'The attorney general is hereby designated legal counsel for the board.'

In R.C.M.1947, Sec. 82-401, the legislature has prescribed the duties that are imposed upon the attorney general and by such law the legislature has declared it is the duty of the attorney general 'To give his opinion in writing, without fee * * * to any state officer, board, or commission * * * when required upon any question of law relating to their respective offices.' Subd. 6.

On February 15, 1951, the attorney general of Montana rendered and delivered to the secretary of the respondent Board a written official opinion dealing with a similar case relating to the questions here involved, being Opinion No. 3 in Volume 24 of the Official Reports of the Attorney General, which opinion states:

'It is therefore, my opinion that an employee who is a member of the Public Employees' Retirement System and who is also covered by Industrial Accident Insurance shall be eligible to draw benefits from the Industrial Accident Board and shall also be entitled to whatever retirement allowance is payable under the circumstances of his case. The benefits paid to an injured workman by the Industrial Accident Board are entirely separate and distinct from any payments made out of the retirements fund and the Public Employees' Retirement Board may not subtract benefits paid by the Industrial Accident Board when computing the retirement allowance to be paid by the Public Employees' Retirement System.'

The foregoing opinion was rendered during the Thirty-second Session (1951) of Montana's Legislative Assembly. Since the handing down and publishing of such opinion two other legislative sessions have been held, yet the legislature has not seen fit to take issue with the opinion or to enact any statute declaring otherwise.

While executive construction of the law, acquiesced in by the legislative assembly, is not binding on this court, yet such interpretation is persuasive and will be upheld if not erroneous. Compare State ex rel. Barr v. District Court, 108 Mont. 433, 436, 91 P.2d 399.

At its meeting held on November 18, 1955, the respondent Board of Administration, after considerable discussion had, directed its secretary to employ private counsel to resist relator's efforts to obtain the retirement payments which its Board had theretofore set, determined, and allowed.

It is to be regretted that the respondent Board of Administration saw fit to ignore the counsel, advice and written opinion of the attorney general as well as the plain direction and mandate of the legislature. R.C.M.1947, Sec. 68-501 and 82-401. When the legislature has so expressly provided legal counsel and services for the Board at no expense to the retirement system, the trust funds of that system should not be used for the payment of attorneys' fees and services already supplied and provided for by express statutes.

The respondent Board contends that after finding the relator to be incapacitated as a result of an injury arising out of and in the course of his employment and after making and fixing his benefit payments, such Board may then deduct from such benefit payments such sum as has been awarded by the Industrial Accident Board for the same or like injuries, in the absence of a finding by the Industrial Accident Board that by reason of his injuries the claimant has become totally and permanently disabled.

R.C.M.1947, Sec. 68-901, subd. (h), as amended by chapter 186, Laws of 1951, of the Retirement Act, so far as pertinent here, provides:

'* * * If the board determines on the evidence that it obtains and application filed that the disability resulted from injury or disease arising out [of] and in the course of employment, the said member shall be retired forthwith and be paid the benefits provided under the retirement system.'

R.C.M.1947, Sec. 68-901, subd. (h), further provides:

'Any compensation paid by the...