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 Employees’ 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 to the law.
From the beginning, Alfred C. Rierson’s 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 *530PERS 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, § 1, 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 *531first 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 Am. Jur.2d 989, 990, Administrative Law, § 185:
“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), 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 *532statute 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 not limit utilization of or the scope of judicial review available under other means of review, redress, relief, or trial de novo provided by statute.” Section 2-4-702(l)(a), 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 jurisdictions 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 (1952), 156 Neb. 215, 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.
In Foy v. Schechter (N.Y.C.A.1956), 1 N.Y.2d 604, 154 N.Y.S.2d 927, 933, 136 N.E.2d 883, 887, the 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, § 146, 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 determination is void and subject to collateral attack where it is *533made 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 determination 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 draftsmanship 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 copy of the petition shall be “promptly 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.