No. 14902 INTHE SUPREME COURT OF THE STATE OF MONTANA 1980

ARNOLD A. BERGER, et al., Plaintiffs and Respondents,
VS

# . CITY OF BILLINGS, et al., Defendants and Appellants.
Appeal from: DistrictCourt of theThirteenthJudicial District, Honorable C. B. Sande, Judge presiding. Counsel of Record: For Appellants: Peterson and Hunt, Billings, Montana K. D. Peterson argued, Billings, Montana For Respondents: Berger, Anderson, Sinclair and Murphy, Billings,

Montana Arnold Berger argued, Billings, Montana

Submitted: February 21, 1980 Decided: 

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# 19~0 Filed: 

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# ,axMr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. In 1977 the City of Billings (City) assessed certain storm sewer charges for the year. After the assessmentsweremade, various Billings property owners (Plaintiffs)paid the assessments under protest and filed an action in District Court. Depositions were taken and a trialwas held without a jury before the Honorable C. B. Sande onMarch 15, 1979. The court entered final judgment in favor of plaintiffs on June 21, 1979. From this judgment, the City appeals. The plaintiffs in this case are owners of property within the Billings city limits. The land involved consists of four separate subdivisions: Sand Cliff Subdivision, Spring Valley Subdivision,Lot 2 of Block 1 EaglesNest Subdivision, and Certificate of SurveyNo. 380which is known as Wanigan Subdivision. In 1966,pursuant to Ordinance 3251, an improvement of the sewersystemof the City was undertaken. This ordinance authorized the issuance of revenue bonds to pay the cost of the improvements and created special funds and accounts for the administration of the moneys derived. The rates charged for the services and facilities were to be "calculatedon the basis of anticipated use." A method of assessmentwas establishec?by the City,but there were someproblems in ihe equity of thatmethod. As a consequence, a newmethod was devised and was used commencing in 1977. This newmethod classified land by the zone in which the land was situated,and by the actual square footage of the property as shown
on the tax rolls. Pursuant to this newmethod the plaintiffs were assessed for a portion of the costs of the storm sewers. It is this assessment which the plaintiffs paid under protest. At trial the City put forward testimony to the effect that water coming from the fourparcels of land flowed into the City'sstorm sewer system. Theplaintiffs introduced evidence to the contrary. As to each parcel of land the District Court made several findingsof fact; however, for the purposes of this case, only the following findings arepertinent: (1) That the land is classified for purposes of the storm sewer assessment by the
zone in which the land is situated rather than by the actual physical characteristicsof the land, (2) that all the information necessary to classify and levy assessment according to the physical characteristicsof the land was available to the City but had not yet been "computerized",and (3) that the charges or assessments levied by the City on the plaintiffs' landswere not
as nearly as possible equitable in proportion to the services rendered. In the conclusions of law the District Court stated, in part, that the presumption that official duty has been duly performed has been overcome by the plaintiffs. The District Court also stated as a conclusionof law that the assessments were not
as nearly as possible equitable in proportion to the services rendered. Itwas ordered that the City pay back the assessments which had been paid under protest. The City appeals from the j

udgrnent

# . The controlling issue iswhether the District Court erred in finding that the storm sewer assessmentswere not as nearly
aspossible equitable in proportion to the servicesrendered. The storm sewer systemwhich is the subject of this case
was properly authorized by the City pursuant to Ordinance 3251 in 1966. The authority for the Ordinance were sections 11-2217 to 11-2221,R.C.M. 1947. These statutes have been recodified at 7-13-4301 et seq., MCA, and the wording has been changed somewhat. The pertinent part of the statute can nowbe found at section 7-13-4304(4), MCA,which states:"Thewater and sewer rates, charges, or rentals shallbe asnearly as possible equitable in proportion to the services and benefits rendered." For purposes of this case the recodification isnotmaterial, because the essential language has not been changed. The plaintiffs paid the storm sewer assessmentsunder protest and instituted this action. Thisprocedure is authorized by section 15-1-402,MCA. In discussing this statute,this Court has said that the function of the trial court in such actions is to determinewhether a correctmethod of assessing the tax was pursued and whether therewas substantial evidence to support this assessment. Johnsonv. Johnson (1932), 92Mont. 512, 519,

Indiscussing such actions in the Johnson case, this Court said: "[In] 

# ... challenges [to] the sufficiency of the evidence to warrant the order of the board and, in determining the question thuspresented, the court does not substitute its judgment for that of the taxing authorities,but merely determines, as a matter of law,whether or not the evidence presented to the board is sufficient to sustain the order made." 92Mont. at 520. In the case of Power v. City of Helena (1911),43 Mont. 336, 116 P. 415, the plaintiff claimed that his property was so situated that it did not receive any benefit from the city's storm sewer. He brought suit to secure an injunction restraining the city from enforcing a tax which was to defray the cost of the
sewer. This Court set out the following testwhere the applicable statuteprovided that each parcel of land was to be taxed in proportion to the benefit it received: "If it appeared from the face of the councilproceedings that plaintiff's property is so situated that it is a physical impossibility for it to be benefited, or that the amount of the tax assessed against it clearly exceeds the benefit to be derived from the improvement,then the complaint would be invulnerable; for it is the settled law in this country that 'theexaction from the owner of private property of the cost of a public improvement in substantial excess of the special benefitsaccruing to him is, to the extent of such excess, a taking,under the guise of taxation, of private property for public use without compensation.' Norwood 

### v. Baker, 172U.S. 269, 19 Sup,Ct. 187, 43 L.Ed. 443.)" 43Mont. at 341. In thepresent case the District Court made findings as to each of the properties involved. As to each of these it was found that they received little or no benefit from the sewer system. There was also a specific finding that the assessments "were not as nearly aspossible equitable in proportion to the services rendered." In such a case, the District Court is not substituting its judgment for that of the taxing body. The District Court ismaking a finding that themethod of assessment
was contrary to the express provisions of section 7-13-4304(4), MCA

# . As this Court said in Goza v. District Court (1951), 125 Mont. 296, 298-299, 234 P.2d 463: "It is only when the action of the board is arbitrary, fraudulent,or that a wrong method of assessment was employed , ,

# . that the courtswill interfere." (Emphasisadded.) As a consequence the District Court was well within its jurisdiction inmaking the judgment thatwasmade in this case. This Court, in turn,will not disturb the judgment of a District Court unless the evidence preponderates against it. Our duty in this regard is to seewhether there was sound,competent evidence to uphold the findings of the District Court. Duffie
v. Metro. San. & Storm Dist. (1966),147Mont. 541, 545, 417 P.2d

There is substantial evidence in the record to support the findingsof the District Court. Simply because the City had expert testimony which the plaintiffs lacked does notmean that the City's testimony is inherently superior. The expert's testimony was, to a very large extent, in the form of opinion. His testimony was to the effect that some of the water from theseproperties might end up in the sewer system through infiltration
or various other routes. The plaintiffs, in turn,put forth evidence based upon personal observation to the effect that it
was highly unlikely or impossible that suchwater would contribute to the sewer system. Certainly the evidence is conflicting,but the findingswere supported by substantial credible evidence. Affirmed.

Chief Justice

We concur: