                              No. 14741
             IN THE SUPREME COURT OF THE STATE OF MONTANA

                                1979


BRADCO SUPPLY COMPANY,
                Plaintiff and Appellant,
         -vs-
SANDRA LARSEN,
                Defendant and Respondent.


Appeal from:        District Court of the Twelfth Judicial District,
                    Honorable B. W. Thomas, Judge presiding.
Counsel of Record:
    For Appellant:
          Sias, Ranstrom and Graham, Chinook, Montana
    For Respondent:
          Fredrick F. Sherwood, Helena, Montana


                               Submitted on briefs:June 29, 1979

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Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
         Appellant Bradco Supply Company (Bradco) appeals from
an order of the Hill County District Court dismissing its peti-
tion for judicial review.
         On April 7, 1976, respondent Sandra Larsen filed a com-
plaint with the Human Rights Commission (Commission) alleging
sex discrimination against Bradco for failing to hire her on
March 15, 1976.   On January 21, 1977, she filed an amended
complaint alleging sex discrimination as the reason she was not
hired by Bradco on March 15, 1976, or June 16, 1976, or August
24, 1976.   The Human Rights Division, the investigative staff of
the Commission, investigated the case and found reasonable cause
to believe that Bradco had in fact discriminated against Ms. Larsen.
This finding was issued April 22, 1977.    All efforts at concilia-
tion failed and the case was certified for hearing on November 10,
1977.   The matter was heard by the Human Rights Division on Jan-
uary 19, 1978.
        On June 29, 1978, the Commission issued its findings of
fact, conclusions of law, and order.    The findings of fact assert
that Ms. Larsen had been refused employment because she was a
woman and that she suffered economic harm to the extent of $20,550
between March 15, 1976, and January 19, 1978.    The conclusions
of law stated that Bradco's actions violated section 49-2-303(1)(a),
MCA, which makes sex discrimination unlawful in employment where
the reasonable demands of a position do not require a sex dis-
tinction.   The conclusions of law also asserted that Bradco would
bear the burden of showing any amounts which should be deducted
from the back pay award.    The order directed Bradco to pay to Ms.
Larsen $18,000 plus 6% interest less deductions for income earned
by Ms. Larsen during the time in question.
        On July 27 Bradco requested a rehearing on this matter
from the Commission.     On September 15 the Commission issued an
order which denied Bradco's request for a rehearing.      The reason
given for the denial was that the rules of the Commission did
not provide for a rehearing.     On October 13 Bradco petitioned
the Hill County District Court for judicial review of the final
order of the Commission.     On November 1 the Human Rights ~ivision
filed a notion to dismiss.     The parties submitted briefs on this
matter.     On December 7, 1978, the District Court granted the
motion to dismiss.     From this order, Bradco appeals.
           The sole issue is whether the District Court erred in
denying judicial review of an administrative decision under sec-
tion 2-4-702(2)(a), MCA.     This statute provides, in part, that
the petition for judicial review must be filed within 30 days of
the agency's final decision or, if a rehearing is requested,
within 30 days after the decision thereon.
           Montana's Administrative Procedures Act (MAPA) is found
in section 2-4-101, et seq., MCA.     Section 2-4-305(6), MCA, states,
"No rule is valid unless adopted in substantial compliance with
2-4-302 and subsection (1) of this section or 2-4-303 and within
6 months of the publishing of notice thereof."      Section 2-4-302,
MCA, outlines the procedures an agency must follow in adopting a
new rule.    This includes a written notice, an opportunity for
hearing and the chance to offer views or arguments orally or in
writing.     Section 2-4-303, MCA, provides for procedures whereby
an agency may adopt emergency rules.
           Section 2-4-301, MCA, provides that, "   . . . nothing   in
this chapter [MAPA] confers authority upon or augments the authority
of any state agency to adopt, administer, or enforce any rule."
In other words, the MAPA alone does not confer authority to adopt
rules.    The MAPA merely outlines the correct procedure an agency
must use once the agency has been granted statutory power to
adopt rules.    In this connection, one must look at the statute
creating the Commission, section 49-2-201, et seq., MCA.        Sec-
tion 49-2-204, MCA, provides in part that "        . . . Rulemaking
procedures shall comply with the requirements of the Montana
~dministrativeProcedures Act."
        The regulations which the Commission has adopted do
not provide for a rehearing of a Commission decision.        M.A.C.
S24-3.9(1)   -   0900, et seq.   It is conceded by both parties that
the Commission did not follow the MAPA procedures in adopting
any rule concerning rehearings.
        Section 2-4-702(2)(a), MCA, provides:        "Proceedings
for [judicial] review shall be instituted by filing a petition
in district court within 30 days after service of the final de-
cision of the agency or, if a rehearing is requested, within 30
days after the decision thereon."        (Emphasis added.)
        This Court must now decide whether the 30 day period began
to run on June 29, 1978, when the Commission issued its final
order or whether it began to run on September 15, 1978, when the
Commission denied the requested rehearing.       To this end we note
the case of Burlington Northern, Inc. v. Public Service Commission
of Montana, in the District Court of Lewis and Clark County.
        In Burlington Northern, the District Court considered the
model rules which have been proposed by the Attorney General for
the hearings of and disposition of contested agency cases.          M.A.C.
51-1.6(1)-0600, et seq.     Under a fact situation similar to the
instant case, the District Court held that the agency had absolutely
no power to grant a hearing under its enabling statute or its
regulations "[tlherefore     . . .   if judicial review was to be sought,
it must have been sought within thirty (30) days after the service
date of the final decision of the Public Service Commission           . . ."
Burlington Northern at p. 8.
        Under M.A.C.     S24-3.9(2)-P9116, the Commission has also
adopted the model rules which were the subject of the Burlington
Northern case.   Because the Commission has no authority to grant
a rehearing, the request for such a rehearing is an act of no
significance and the date which begins the running of the 30
days within which an aggrieved party must seek judicial review
is the date of the agency's final order.
        Since there was no possibility of a rehearing the Com-
mission lost jurisdiction over the case as soon as its final
order was made effective on June 29, 1978.   Even if the Commis-
sion had granted a rehearing, it would not have been legally
binding under the MAPA.   Therefore, the provisions of section
2-4-702(2)(a), MCA, concerning a requested rehearing do not apply
as a date for measuring the 30 day period.   In Burlington Northern
the matter was stated in this language:
       "  ...  Section 82-4216 ( 2 ) , R.C.M. 1947 [now
       section 2-4-702 (2)(a), MCA] was passed before
       the state administrative agencies had adopted
       and published the rules of procedures the indi-
       vidual agencies would follow. The language
       found in the statute and relied upon by the
       respondent and intervenor merely anticipates
       that some administrative agencies would adopt
       rehearing procedures and establishes a method for
       judicial review in instances where an agency has
       a rehearing procedure as well as in instances
       where no rehearing procedure has been adopted
       by an agency. Section 82-4216, R.C.M. 1947
       [now section 2-4-702(2) (a), MCA] does not grant
       any substantive right to a rehearing. Before the
       language relied upon by respondent and intervenor
       has effect, the administrative agency must first
       adopt a procedural rule allowing for a rehearing.
       In this case, no such rule allowing for a rehear-
       ing was adopted by the Public Service Commission.
       The Public Service Commission's jurisdiction ended
       when its Order No. 4148 was entered and it had no
       authority to grant a request for a rehearing.
       Therefore, in the present case, if judicial re-
       view was to be sought, it must have been sought
       within thirty (30) days after the service date
       of the final decision of the Public Service
       Commission, or within thirty (30) days after
       December 30, 1974.
       "There is one further reason which compels this
       Court to conclude that the Public Service Commis-
       sion does not have jurisdiction and did not retain
       inherent powers to provide for a rehearing. Were
       the Court to enter an order supporting that con-
       clusion, confusion would follow, unless the Court
       also decided that the time frame within which a
          rehearing could be requested, the manner in which
          a rehearing was to be requested, the reasons for
          which a rehearing could be requested and the length
          of time an administrative agency had to act upon
          the request and to act upon the hearing itself.
          Such an order would be a judicial substitution for
          a rule making-procedure which the Montana legislature
          has reserved for the administrative agency itself."
          Burlington Northern, at pages 8-9.
          While a District Court opinion is certainly not control-
ling so far as this Court is concerned, the Burlington Northern
case is a rational discussion of an identical problem.          The final
paragraph of the above quote is also a sound policy for this
decision.     If section 2-4-702(2)(a), MCA, may be triggered by a
request for a rehearing where the agency has no rule providing for
a rehearing there would be nothing to prevent a losing party in
an agency decision from requesting a rehearing several months after
what appeared to be an agency's final order.
          This Court is only called upon to decide whether or not
the District Court had jurisdiction to consider Bradco's petition.
It is not this Court's duty to consider the legal merits of that
petition.     Because the petition for judicial review was not filed
within the statutory 30 day period, we hold that the District
Court had no jurisdiction to hear the case.
          Bradco cites the case of State ex rel. Stowe v. Board of
Administration (1977),       Mont   .   ,   564 P.2d 167, 34 St.Rep. 349,
for the proposition that a petitioner may not be held to a strict
30 day period where an agency has failed to comply with what is
now section 2-4-623, MCA.     It must be pointed out, however, that
in Stowe, the relator was informed by a letter of an adverse de-
cision.     He was not even given an agency hearing.     The letter did
not contain findings of fact, but merely a final conclusion.         This
Court held that, "It is inconceivable under these circumstances
that the PERS board would seek to hold Stowe to his remedy under
the Montana Administrative Procedures Act while there was not even
token compliance by the PERS board."        (Emphasis added.)   Stowe,
     Mont. at        , 564 P.2d at 171, 34 St-Rep. at 354.
        There may be some circumstances where Stowe might provide
relief for a petitioner who filed for judicial relief after 30
days of a purported "final decision", but this is not that case.
The Stowe decision was limited to a set of circumstances wherein
the agency did not even show a "token compliance" with the MAPA.
In the instant case, the appellant was given the hearing as re-
quired by the MAPA and the final decision substantially complied
with section 2-4-623, MCA.
        Af firmed.



                                          Chief Justice




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