LARSON, Justice.
This cause involves the interpretation of subdivision (b) of Sec. 12 of Chap. 85, Laws of Utah 1937, known as the Teachers’ Retirement Act, and is before us on an application for a Writ of Mandate. Plaintiff, a teacher at the University of Utah since 1904 sought membership in Teachers’ Retirement System. Defendants, as the Teachers’ Retirement Board, refused to admit or recognize plaintiff as entitled to membership in the system and he applied for a mandate directing the Board to admit him to, or recognize him as entitled to, membership in the system. Plaintiff has been a teacher in the public schools of the State of Utah for over 35 years. In 1923, through the University of Utah where he was teaching, he became the holder of a retirement annuity contract with the Teachers’ Insurance and Annuity Association of America, commonly spoken of as the Carnegie Retirement System. Plaintiff and the University of Utah each contributed one half of the monthly premiums until December, 1937 when at the request of plaintiff the payment of premiums ceased. Based upon the payments which had been made there has accrued a nonassignable deferred annuity, payable as a paid up contract for a lesser amount when the holder shall retire. When the Retirement Board rejected plaintiff’s application for membership, he commenced in the District Court an action under the Declaratory Judgment Act, Title 104, Chapter 64, R. S. U. 1933, for a determination of his rights and status under the Teachers’ Retirement Act. The District Court in due time entered an order dismissing plaintiff’s action.
These proceedings were then instituted in this court.
The Act under consideration provides in Sec. 11 that all teachers employed in the public schools of the state on or after July 1, 1937,
and nab excluded by Sec. 12,
become members of the Retirement System. We quote subdivision (b), Sec. 12, in haec verba:
“Section 12. Teachers Excluded From Membership.
“The following teachers shall be excluded from membership in the retirement system:
* * *
“ (b) Every teacher who is the holder of a retirement annuity contract with the teachers’ insurance and annuity association of America or with any other private organization or company, in which the state of Utah, or any subdivision thereof contributes part of the premium, under said contract; provided, however, that every such teacher, upon ceasing to be a holder of such contract and being otherwise eligible to membership in this system, shall forthwith become a member of the system.”
Plaintiff contends that having had the University cease payments under his annuity contract in December, 1937, he, as a teacher employed in the public schools of the state, automatically became a member of the State Teachers’ Retirement System December 29, 1938. The defendant, Retirement Board, urges three defenses:
(a) That the decision of the District Court in the suit under the Declaratory Judgment Law is res adjudicata and therefore this action will not lie.
(b) That by the terms of the Act the decision of the Retirement Board on questions of eligibility and membership is final, conclusive and not reviewable; and since its determination of eligibility was against plaintiff such decision is final, conclusive and controlling.
(c) That since plaintiff cannot divest himself of his deferred annuity contract he is holder of an annuity contract with the Teachers’ Insurance and Annuity Association
of America and so is ineligible for membership in the association.
Since it is conceded that plaintiff is, and since 1904 has been, a teacher in the public schools of Utah, as that term is defined by the Act, he is entitled to his writ unless he fails for one of the three reasons urged by defendants. We will therefore consider the question in connection with the defenses urged by the Retirement Board in the order given.
(a) The record reveals that the District Court did not make any finding or determination, or enter any judgment with respect to the status or rights of Plaintiff under the Teachers’ Retirement Act. The action was dismissed, presumably on the ground of lack of jurisdiction since that was the only issue raised or heard there. Such action was, and is, not res adjudicata.
(b) Is the decision of the Retirement Board on questions of eligibility to membership final and conclusive, and not subject to any judicial review on questions of law or jurisdiction?
The Retirement Act does not create a voluntary association or one with a permissive membership. The teacher has no option as to whether he is a member or not, that is, he cannot of his own free will decline membership and refuse to pay in his contributions to the retirement fund. Such contributions are by express mandate of law deducted from his earnings by the school board and by it remitted to the State Treasurer for the credit of the fund. All teachers in the public schools of the state on or after July 1, 1937, are by the mandate of law members of the retirement system, except those excluded by Sec. 12, to-wit: Part-time or substitute teachers; exchange teachers from without the state; contributing members of a local system who do not comply with Sec. 13; and holders of annuity contracts with a private organization or company to which the State or a subdivision thereof is contributing part of the premium. The Retirement Board is vested with the duty of determining the facts
as to whether a person, is in a.status requisite to membership, and to determine all questions of fact pertaining to application for benefits on retirement. Sec. 8. But the facts having been determined by the Board, the question of membership in the system under such facts is a question of law. Here the Board having determined the facts — they are not in dispute — the question as to whether or not under those facts the plaintiff is or is not entitled to membership is a question of law, and subject to our review.
(c) We come now to the real crux of the case. Does the fact that plaintiff is the holder of a paid up, deferred annuity contract with the Teachers’ Insurance and Annuity Association of America, of which he cannot divest himself, although neither the State nor any other public body or institution is contributing to the payment of premiums thereon, place plaintiff in a status of permanent ineligibility for membership in the retirement system? In other words what is the meaning of subdivision (b) of Sec. 12?
Subdivision (b) of Sec. 12, Chap. 85, Laws of Utah 1937, reads as follows:
“ (b) Every teacher who is the holder of a retirement annuity contract with the teachers’ insurance and annuity association of America or with any other private organization or company, in which the state of Utah, or any subdivision thereof contributes part of the premium, under said contract; provided, however, that every such teacher, upon ceasing to be a holder of such contract and being otherwise eligible to membership in this system, shall forthwith become a member of the system.”
The argument resolves itself as to whether the expression “the State of Utah * * *
contributes
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LARSON, Justice.
This cause involves the interpretation of subdivision (b) of Sec. 12 of Chap. 85, Laws of Utah 1937, known as the Teachers’ Retirement Act, and is before us on an application for a Writ of Mandate. Plaintiff, a teacher at the University of Utah since 1904 sought membership in Teachers’ Retirement System. Defendants, as the Teachers’ Retirement Board, refused to admit or recognize plaintiff as entitled to membership in the system and he applied for a mandate directing the Board to admit him to, or recognize him as entitled to, membership in the system. Plaintiff has been a teacher in the public schools of the State of Utah for over 35 years. In 1923, through the University of Utah where he was teaching, he became the holder of a retirement annuity contract with the Teachers’ Insurance and Annuity Association of America, commonly spoken of as the Carnegie Retirement System. Plaintiff and the University of Utah each contributed one half of the monthly premiums until December, 1937 when at the request of plaintiff the payment of premiums ceased. Based upon the payments which had been made there has accrued a nonassignable deferred annuity, payable as a paid up contract for a lesser amount when the holder shall retire. When the Retirement Board rejected plaintiff’s application for membership, he commenced in the District Court an action under the Declaratory Judgment Act, Title 104, Chapter 64, R. S. U. 1933, for a determination of his rights and status under the Teachers’ Retirement Act. The District Court in due time entered an order dismissing plaintiff’s action.
These proceedings were then instituted in this court.
The Act under consideration provides in Sec. 11 that all teachers employed in the public schools of the state on or after July 1, 1937,
and nab excluded by Sec. 12,
become members of the Retirement System. We quote subdivision (b), Sec. 12, in haec verba:
“Section 12. Teachers Excluded From Membership.
“The following teachers shall be excluded from membership in the retirement system:
* * *
“ (b) Every teacher who is the holder of a retirement annuity contract with the teachers’ insurance and annuity association of America or with any other private organization or company, in which the state of Utah, or any subdivision thereof contributes part of the premium, under said contract; provided, however, that every such teacher, upon ceasing to be a holder of such contract and being otherwise eligible to membership in this system, shall forthwith become a member of the system.”
Plaintiff contends that having had the University cease payments under his annuity contract in December, 1937, he, as a teacher employed in the public schools of the state, automatically became a member of the State Teachers’ Retirement System December 29, 1938. The defendant, Retirement Board, urges three defenses:
(a) That the decision of the District Court in the suit under the Declaratory Judgment Law is res adjudicata and therefore this action will not lie.
(b) That by the terms of the Act the decision of the Retirement Board on questions of eligibility and membership is final, conclusive and not reviewable; and since its determination of eligibility was against plaintiff such decision is final, conclusive and controlling.
(c) That since plaintiff cannot divest himself of his deferred annuity contract he is holder of an annuity contract with the Teachers’ Insurance and Annuity Association
of America and so is ineligible for membership in the association.
Since it is conceded that plaintiff is, and since 1904 has been, a teacher in the public schools of Utah, as that term is defined by the Act, he is entitled to his writ unless he fails for one of the three reasons urged by defendants. We will therefore consider the question in connection with the defenses urged by the Retirement Board in the order given.
(a) The record reveals that the District Court did not make any finding or determination, or enter any judgment with respect to the status or rights of Plaintiff under the Teachers’ Retirement Act. The action was dismissed, presumably on the ground of lack of jurisdiction since that was the only issue raised or heard there. Such action was, and is, not res adjudicata.
(b) Is the decision of the Retirement Board on questions of eligibility to membership final and conclusive, and not subject to any judicial review on questions of law or jurisdiction?
The Retirement Act does not create a voluntary association or one with a permissive membership. The teacher has no option as to whether he is a member or not, that is, he cannot of his own free will decline membership and refuse to pay in his contributions to the retirement fund. Such contributions are by express mandate of law deducted from his earnings by the school board and by it remitted to the State Treasurer for the credit of the fund. All teachers in the public schools of the state on or after July 1, 1937, are by the mandate of law members of the retirement system, except those excluded by Sec. 12, to-wit: Part-time or substitute teachers; exchange teachers from without the state; contributing members of a local system who do not comply with Sec. 13; and holders of annuity contracts with a private organization or company to which the State or a subdivision thereof is contributing part of the premium. The Retirement Board is vested with the duty of determining the facts
as to whether a person, is in a.status requisite to membership, and to determine all questions of fact pertaining to application for benefits on retirement. Sec. 8. But the facts having been determined by the Board, the question of membership in the system under such facts is a question of law. Here the Board having determined the facts — they are not in dispute — the question as to whether or not under those facts the plaintiff is or is not entitled to membership is a question of law, and subject to our review.
(c) We come now to the real crux of the case. Does the fact that plaintiff is the holder of a paid up, deferred annuity contract with the Teachers’ Insurance and Annuity Association of America, of which he cannot divest himself, although neither the State nor any other public body or institution is contributing to the payment of premiums thereon, place plaintiff in a status of permanent ineligibility for membership in the retirement system? In other words what is the meaning of subdivision (b) of Sec. 12?
Subdivision (b) of Sec. 12, Chap. 85, Laws of Utah 1937, reads as follows:
“ (b) Every teacher who is the holder of a retirement annuity contract with the teachers’ insurance and annuity association of America or with any other private organization or company, in which the state of Utah, or any subdivision thereof contributes part of the premium, under said contract; provided, however, that every such teacher, upon ceasing to be a holder of such contract and being otherwise eligible to membership in this system, shall forthwith become a member of the system.”
The argument resolves itself as to whether the expression “the State of Utah * * *
contributes
part of the premium” (italics added) is to be read as
“is contributing”
or as
“has contributed”
part of the premium. Plaintiff contends for the former construction and defendants contend for the latter one. If defendants are correct in their interpretation, any teacher who had ever while teaching in the State of Utah been the holder of such an annuity contract could never be
come a member of the retirement system. This follows of necessity since under the terms of the contract the holder thereof can never divest himself of the paid up deferred annuity based upon the amount he had paid, except by retirement from teaching, and using it up as retirement benefits, which disqualifies him for membership in the state system.
We think plaintiff’s construction and interpretation must prevail. In the first place, had the legislature intended otherwise it would have used the past tense,
“has contributed”
instead of the present tense
“contributes”
which is equivalent to
“is contributing.”
In the second place, if defendants’ construction is correct, the last part of the subdivision, the proviso, would be meaningless, for a teacher once a holder could never “cease to be a holder of such contract.” The proviso can only mean that a teacher otherwise eligible for membership can “cease to be a holder of such contract” and thereby become a member of the state system. What kind of a contract? Why one to which the state * * *
contributes
part of the premium ? One ceases to be the holder of a contract to which the state
contributes
when the state ceases to
contribute.
This construction is further evidenced by Sec. 21, dealing with “termination of membership — withdrawals and deposits,” and providing that a member who discontinues a status requisite to membership, except by death or retirement, may withdraw from the fund his accumulated contributions. He may again become a member with his old standing and rating upon acquiring a teaching status for membership and redepositing in the fund the amount of his withdrawals. It then provides that for the purpose of Sec. 21 only, that is of terminating a membership which is-in existence and allowing withdrawals of accumulated contributions, the holding of a contract with a private retirement pension company for which the State is contributing part of the premium shall be considered terminating the status of membership. It is evident the purpose of the provision is to prevent a teacher from having the State contribute to moré than one pension at the same time. This is further made clear by the
provisions with respect to teachers holding membership in local retirement systems. Such teachers can only draw from the state fund a pension or retirement benefit in proportion to what his contributions to the state fund bear to what he would have paid had he not belonged to the local system, where a subdivision of the state pays into the local fund, but such deduction shall only be made for the time such teacher was a member of both systems.
Let us note further the legislative history of the Act. As first introduced in the legislature as House Bill 103, it provided for exclusion of teachers from membership in the state system as long as they were “a contributing member of the Carnegie Retirement System” or “a contributing member of a local retirement system” such as the Salt Lake City Schools maintained. But the expression “a contributing member of the Carnegie Retirement System,” was a misnomer. In 1905 Andrew Carnegie established a trust of $10,000,000 as a “Foundation for the Advancement of Teaching”, to be administered for retirement allowances to teachers in universities, colleges and technical schools. The system set up in the administration of this trust became known as the Carnegie Retirement System and was non-contributing. That is, neither schools nor teachers contributed to the fund. In 1918 the Foundation received from the Carnegie Corporation a further sum of $13,000,000 to be used in the termination of the old system and the inauguration of a contributing system of pensions in which both the teachers and colleges contribute. To effectuate and carry on this new policy the Foundation organized a corporation known as the “Teachers’ Insurance and Annuity Association of America”, which issues policies or certificates. The corporation deals only through the schools and does not issue certificates to teachers except through the cooperation of the school which must share in the payment of the premiums. The teacher, ceasing his connection with the school, cannot withdraw what he has paid in but has a paid certificate for the amount accrued which may be utilized upon meeting retirement conditions
and status. So a “holder of a contract with the Teachers’ Insurance and Annuity Association of America in which the State of Utah pays part of the premium” is as near as such a thing could exist, “a contributing member of the Carnegie Retirement System”. The former expression is merely the correct legal way of expressing the meaning covered by the latter phrase. When therefore the legislature, upon motion of Mr. Peterson, amended subdivision (b) of Sec. 12 of the Act by deleting the words “a
contributing
member of the Carnegie Retirement System so long as he shall be a
contributing
member of such system” and inserted in lieu thereof the words “the holder of a retirement annuity contract with the Teachers’ Insurance and Annuity Association of America or any other private organization or company, in which the State of Utah or any subdivision thereof
contributes
part of the premium under said contract,” (italics added), it is evident they did not change or intend to change the meaning but to express the same idea in language correctly describing the factual situation. House Journal 1937, pages 579, 580 and 581. Under the agreed facts, the plaintiff, being a teacher in the public schools of the State of Utah, in a status otherwise requisite for membership, and having prior to December 31, 1937, had the University of Utah cease premium payments on any contracts with the Teachers’ Insurance and Annuity Association of America, the plaintiff automatically as a matter of law on the record before us, became a member of the Teachers’ Retirement System, and upon payment of all accumulated dues or contributions is entitled to recognition and standing as such member.
Let the writ of mandate issue accordingly.
PRATT, J., concurs.
MOFFAT, C. J., concurs in the result.