                               No. 87-380
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                      1988



ELLEN CORNWALL, HERBERT JONES,
and DONN PENNE1,L, et al. ,
                Plaintiffs and Respondents,
       -vs-
THE STATE OF MONTANA, acting by and
through the DEPARTMENT OF JUSTICE, THE
LAW ENFORCEMENT ACADEMY BUREAU, et al.,
                Defendants and Appellants.




APPEAL FROM:    District Court of the Tenth Judicial District,
                In and for the County of Fergus,
                The Honorable Peter Rapkoch, Judge presiding.
COUNSEL OF RECORD:
       For Appellant:
                Mike Greely, Attorney General, Helena, Montana
                Clay Smith argued, Asst Atty General, Helena, Montana
       For Respondent:
                Thomas P. Meissner argued, Lewistown, Montana



                                      Submitted:   December 3, 1987
                                       Decided:    March 8, 1988




                                 *4
                                      Clerk
Mr. Justice John C.   Sheehy delivered the Opinion of the
Court.


     The Lewistown Montana Law Enforcement Academy Committee,
chiefly Ellen Cornwall, Herbert Jones and Donn Pennell,
brought an action for declaratory judgment in the District
Court, Tenth Judicial District, County of Fergus, against
officials and employees of the State of Montana, chiefly Mike
Greely, as Attorney General and the head of the Department of
Justice.   The Committee applied for and obtained from the
District Court a preliminary injunction pendente lite
enjoining and restraining the defendants in legal effect from
taking any step for the purchase or lease of modular
buildings or facilities currently being used by the Montana
Law Enforcement Academy in Gallatin County, Montana.
     For ease of reference, we will denote the plaintiffs
collectively as the Committee and the defendants collectively
as the Attorney General.
     The Attorney General appeals the issuance of the
preliminary injunction pendente lite to this court.        On
consideration and examination of the law and applicable
statutes, we order that the preliminary injunction be
dissolved.
     This case involves the interrelation of statutes which
provide for the procurement of real and personal property for
the operation of state government; it also involves the
jumble of conflict which arose when the legislature provided
separately for the procurement of property for the Montana
Law Enforcement Academy.    It is in threading through the
jumble that we determine that the preliminary injunction must
be dissolved.
     Statutory authority for the establishment of the Montana
Law Enforcement Academy was enacted in 1959 (Ch. 7, Laws of
Montana (1959)). In general, the Academy was to be governed
by the Department of Justice ( § 44-10-201, MCA) and with
respect to the location of the Academy, two provisions of the
original enactment are important:
     44-10-202. Powers and duties of department. The
     Department of Justice shall have the power and it
     shall be its duty to:
    (1) Choose a site for the Montana Law Enforcement
    Academy at the unit of the university system of
    Montana which   in  the determination of      the
    department is best suited for the needs of the
    academy.


    (10) Do all other things necessary and desirable
    for the establishment and operation of the academy
    not   inconsistent with   this chapter or      the
    constitution and    statutes of    the  State of
    Montana;.  ..
     The original location chosen for the Academy was on the
campus of the Montana State University at Bozeman. In 1977,
the Montana Board of Regents stated that the Academy must be
relocated due to the need for space on the campus occasioned
by a substantial increase in the student population.       In
July, 1978, the Attorney General, on behalf of the State,
entered into two agreements which in effect continued the
location of the academy in Bozeman.
     On July 27, 1978, Donald Cape and Jo Ann Cape entered
into an option agreement with the Attorney General, granting
to the Attorney General, on or before September 1, 1988, the
right to purchase certain listed personal property for the
purchase price of $442,500.00.     Upon the exercise of the
option by the Attorney General, the option price would be
reduced by the amount of principal and interest payments made
by the Capes on the indebtedness incurred by them to acquire
and fund the personal property subject to the option.     The
resulting figure would be the purchase figure for the
exercise of the option.     The personal property consisted
essentially of the modular buildings and facilities and
equipment utilized for the operation of the Academy.
     A day later, on July 28, 1978, Donald Cape and Jo Ann
Cape entered into a lease agreement with the Attorney General
whereby the Capes leased to the state for a term of 10 years
ending on September 31, 1988, the same modular buildings and
equipment as the personal property listed in the option. The
lease provided for an annual rent of $107,000.00, payable
quarter-annually, escalated by certain factors, including
inflation, as contained in the lease.     The lease provides
that the state occupancy is for the purpose of the Law
Enforcement Academy.
     Under the option agreement, the Attorney General
exercised the option to purchase the personal property on
June 30, 1987, when the Attorney General notified the Capes
in writing to that effect.     Disagreement as to the exact
option price exists.     As of July 1, 1987, the Attorney
General determined    the option purchase price        to be
$80,745.62, while the Capes determined the purchase price to
be $295,032.63.    No money as yet has been transferred to
complete the option.
Long Range Building Program
     Through all of the foregoing history of the dealings by
the Attorney General with Don and Jo Ann Cape, there have
been in effect statutes pertaining to the long range building
program of the state.      Section 17-7-201, et seq., MCA.
Generally those provisions require each state agency and
institution to submit to the Department of Administration its
proposed long range building projects with enough information
on which the legislature can act and set a budget.   Further,
the governor, in submitting his budget to the legislature,
must report the requests of the state agencies for long range
proposed building programs together with his recommendations
for the construction of buildings during the forthcoming
biennium.   Section 17-7-203, MCA.   Since 1975, the governor
must recommend to the legislature priorities for proposed
buildings. Section 17-7-204, MCA.
     There is, however, no provision in the chapter regarding
long range building programs making the process therein
exclusive as to the acquisition of property for the operation
of state government. In the case of the Academy, each year
since 1978, the legislature has appropriated, and the
legislative auditor has consented to, the monies necessary to
keep the state current on its personal property lease with
the Capes.   In the light of statutory construction, we find
no conflict therefore between the long range building program
and the lease-option arrangement for the acquisition of
personal property from the Capes, since the long range
building statutes are not exclusive.
Duties of the Department of Administration
     In this state, we have a Department of Administration,
whose department head is appointed by the governor ( §
2-15-1001(1), MCA). The head is also ex officio the state
treasurer ( S 2-15-1002, MCA).  Among the duties assigned to
the Department of Administration is the management of real
property and buildings used by state agencies.    Except for
the university system, "no state agency shall lease, rent or
purchase property for quarters without prior approval of the
Department" [of Administration] .  Section 2-17-101 (1), MCA.
     The Department of Administration is further given the
authority, as part of the long range building program, to
enter into rental contracts which provide an option to
purchase the leased building used by the state or any
department of state government.       Section 18-3-101, MCA.
There    are  certain   limitations   to   such  lease-option
agreements.    They must first be authorized by a vote of
two-thirds of the members of each house of the legislature;
the plans and specifications are to be drawn by an architect
appointed by the Department of Administration; there is a
required bidding procedure for the awarding of the contract
( S 18-3-103, MCA), the contracts cannot exceed 20 years and
the option to purchase cannot exceed $50,000.00. Location of
the building is determined by the call for bids.      Section
18-3-105, MCA.
      In this case, the Committee contends that the lease and
separate option agreement entered into by the Attorney
General with the Capes should have been governed by the
provisions of S 18-3-101, et seq., pertaining to lease-option
agreements. The Attorney General contends on the other hand
that since the instruments are separate, the provisions for
lease-option in those statutes do not apply.
      We see no merit in the Attorney General's contention
that this is not a lease-option agreement simply because the
instruments are separate.    Undoubtedly, the lease payments
made by the State under the lease agreement in this case were
utilized by the Capes to make the underlying funding payments
required when the Capes borrowed to furnish the property
subject to the option.    What is always important in this
case, however, is that the provisions of 5 44-10-202, MCA, in
effect at the time of the dealings with the Capes,
specifically gave the Attorney General the power to choose
the site for the Academy at a unit of the University System
of Montana, and in addition, to do all of the things
necessary and desirable for the establishment and operation
of the Academy not inconsistent with state statutes. Under
widely accepted rules of statutory construction that specific
provisions   control   the    general   provisions,    the   specific
authority given to the Attorney General in       §   44-10-202, MCA,
overrides the limitations placed upon lease-option contracts
contained in § 18-3-101, et seq., MCA.
Amendment of $ 44-10-202, MCA
     The complicating factor in this case is that in 1985,
the legislature amended 5 44-10-202 in Ch. 431, Laws of
Montana (1985).    The title of the act states that it is
"removing the requirement that the Montana Law Enforcement
Academy be located at one of the units in the Montana
University System." Whatever its purpose, the amendment not
only took away the requirement for the location of                the
Academy at a university unit, but it also stripped                the
Department of Justice of the power to choose the site for the
Montana Law Enforcement Academy.         This provision was
eliminated from § 44-10-202, in its entirety:
     (1) Choose    the  site   for   the  Montana   Law
     Enforcement Academy at the unit of the university
     system of Montana, which in the determination of
     the department is best suited for the needs of the
     Academy.
     The amendment, however, left in effect the provisions of
subparagraph   (10)    of    the   section   which    empowered   the
Department of Justice to "do all other things necessary and
desirable for the establishment and operation of the Academy"
not inconsistent with other statutory provisions.
     For the purposes of this case, the net effect of the
1985 amendment of 5 44-10-202, MCA, is to require that the
Attorney General [Department of Justice] must now have the
approval of the Department of Administration before he can
lease, rent or purchase property for quarters under S
2-17-101 (11, MCA.
1987 Budget Amendment
     A final complicating factor in this case is the
budgetary direction of the 1987 legislature.       In the 1987
General Appropriations Act, the legislature directed:
     The Department [of Justice] shall purchase the
     modular facilities in Bozeman that currently house
     the Montana Law Enforcement Academy.         For the
     purpose   of   purchasing   such    facilities,   the
     Department   is    authorized    to   expend    funds
                               .
     appropriated in item 10 (a)
Item 10(a) provides a total of $622,291.00.
     The 1987 budgetary direction is, of course, in conflict
with the provisions of S 2-17-101, MCA, which require the
approval of the Department of Administration, and with 5
17-7-201, MCA, et seq. pertaining to the long-range building
program.   Nevertheless, the 1987 budgetary direction is on
equal footing with the other statutes, and is a recognition
by the legislature of the terms of the lease and option
agreements entered into by the state with the Capes. Again,
the statutory construction rule that the specific controls
the general applies.
The Preliminary Injunction
     The   District Court, in      issuing  the preliminary
injunction, made findings of fact pertaining to the cause.
It noted the execution of the option agreement and the
subsequent lease agreement with the Capes; it noted that more
than 20 proposals for the location of the Academy have been
submitted by various communities in Montana, including one
submitted by the residents of Fergus County, of which group
the plaintiffs were members; it noted the 1987 budgetary
direction to purchase the modular facilities; and then it
made certain conclusions of law.
     In its conclusions, the District Court determined that
the committee had met the threshhold standard of 5 27-19-201,
MCA, in that it had made a prima facie case of irreparable
injury; it determined that the attempted exercise of the
option to purchase the personal property from the Capes was
void under $ 2-17-101, MCA, without the approval of the
Department of Administration; it determined that the option
agreement and the lease agreement were in effect a single
document and subject to the lease-option statutes in § S
18-3-101, MCA, et seq. It held the lease agreement and the
option agreement with the Capes to be null and void because
the provisions of 9 18-3-101, MCA, et seq. were not complied
with; and it found the budgetary direction on the 1987
General Appropriations Act violated the provisions of Art. V,
S 11(4) of the state constitution as an act of special or
local legislation.
     Thereafter, in a separate instrument, the court issued
its preliminary injunction on July 17, 1987, restraining the
defendants from entering into any discussions, consultations
or negotiations for the purchase or release of modular
buildings or facilities; from executing, signing or entering
into any oral or written agreement for the purchase or
release of those modular buildings or facilities; from
exercising any option to purchase the personal property
described in the option agreement or from seeking to
accomplish payment of any sum for the purchase of those
facilities; and from exercising any option to renew or extend
the lease of personal property from the Capes. No bond is
required of the plaintiffs.
     On appeal, the Attorney General contends that the
issuance of the preliminary injunction was improper, that the
injunction was overbroad, and that the District Court erred
by not requiring a written undertaking pursuant to §
27-19-306 (I), MCA.
     Although there are conflicts in the statutes pertaining
to the Academy, the rules of statutory construction lead us
to conclude that insofar as the statutes are concerned, the
Attorney General had the authority in 1978 to select the site
for the Academy and to enter into the lease and option. By
statute, we are required in the construction of statutes, to
pursue the intention of the legislature where possible, and
we are commanded that when general and particular statutory
provisions are inconsistent, the particular provisions are
paramount, so that a particular intent governs a general one
that is inconsistent with it.      Section 1-2-102, MCA.   The
cases are legion upholding this     statutory requirement. The
lapse of 9 years time under the    lease, during which time the
legislature appropriated monies    for the continuation of the
lease, and the 1987 budgetary       direction to purchase the
modular facilities are all solid   evidence of the intention of
the legislature in the matter.       Section 1-2-102, MCA.
Executive constructions of a law, acquiesced in by the
legislature are not binding on the court, but are persuasive
and will be upheld if not erroneous. State ex rel. Ebel v.
Schye (1957), 130 Mont. 537, 541, 305 P.2d 350, 353; McBride
v. Reardon (1937), 105 Mont. 96, 103, 69 P.2d 975, 979;
Miller Insurance Agency v. Porter (19331, 93 Mont. 567, 575,
20 P.2d 643, 646.
     The 1987 budgetary direction to the Department of
Justice to purchase the modular facilities is on the same
footing as other statutes of the state and is further
indication of the intent of the legislature.
     The case for the respondents must ride or fall on
whether the provisions of Art. V, § 11 (4), render the 1987
budgetary   direction  unconstitutional.      The  pertinent
provisions of the state constitution are found in Art. V, as
these:
     Section 11 ...    (4) A general appropriation bill
     shall contain only appropriations for the ordinary
     expenses of the legislative, executive and judicial
     branches, for interest on the public debt, and for
     public schools. Every other appropriation shall be
     made by a separate bill, containing but one
     subject.
     Section 12. Local and special legislation.     The
     legislature shall not pass a special or local act
     when a general act is, or can be made, applicable.
     The District Court determined that each of the foregoing
constitutional provisions were offended in this cause
(1) because the 1987 budgetary provision was not for an
"ordinary expense" and (2) because the budgetary direction
is a special or local act.      The Committee contends that
Miller Insurance Agency v. Porter, supra, applies here, in
determining whether the purchase of the modular facilities is
an "ordinary expense."   In Miller, we defined such expenses
as:
     Any expense which recurs from time to time and is
     to be reasonably anticipated as likely to occur in
     order for the proper operation and maintenance of
     the departments of the state government is an
     ordinary expense.
93 Mont. at 571, 20 P.2d at 645.       We find the citation
inapplicable here, however, because under the terms of the
lease, the expense of purchase is certain to occur during the
biennium and none can doubt the power of the legislature to
make provision for biennial expenses through appropriations,
whether those expenses are incurred through purchase or by
lease.
     We also determine that the budgetary direction of 1987
does not offend Art. V, § 12, of the Montana Constitution.
As a part of the General Appropriation Act pertaining to the
operation of state governments, the direction to purchase was
regarded by the legislature as an expense to be incurred in
the coming biennium. The legislature could have set out the
budgetary direction in a separate statute or law instead of
including it in the general law, but that problem is "broadly
speaking for the legislative assembly alone." Arps v. State
Highway Commission (1931), 90 Mont. 152, 165, 300 P. 549,
554; and State ex rel. Fisher v. School District No. 1
(1934), 97 Mont. 358, 367, 34 P.2d 522, 526 "if the
applicability of a general law depends upon extrinsic facts
and circumstances, the question of applicability is referable
to the legislature and with its determination the courts will
not interfere."
     We   determine, therefore that the       1987 budgetary
direction does not offend the state constitution as either a
special or local act or as an appropriation beyond an
ordinary expense.
     We therefore determine that the Committee has failed to
meet the standards required for the issuance of a preliminary
injunction under S 27-19-201, MCA.   Accordingly, we reverse
the District Court in the issuance of a preliminary
injunction, and order that the said preliminary injunction be
and the same is hereby dissolved. Remittitur in this cause
shall issue forthwith. The Clerk of this Court is instructed
to notify counsel of record forthwith by telephonic notice
and to serve copies on said counsel by ordinary mail in due
course of this opinion, which shall have the force and
effect, without further order, of the office of such an order
dissolving the preliminary injunction. The cause is remanded

                               Pt
to the District Court with instr e ions to dismiss the same.


                                       ,
                                       &   4,.
                                           Justice
We Concur:
Justices
