No. 14902 

IN THE 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: District Court of the Thirteenth Judicial 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 : AsAliI; 19~0 

Filed: &i;>i s ,ax 
Mr. 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 assessments were made, 

various Billings property owners (Plaintiffs) paid the assessments under protest and filed an action in District Court. 

Depositions were taken and a trial was held without a jury before 

the Honorable C. B. Sande on March 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 Eagles Nest Subdivision, and Certificate of Survey No. 380 which is known as Wanigan Subdivision. 

In 1966, pursuant to Ordinance 3251, an improvement of 

the sewersystem of 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 "calculated on the basis of anticipated use." 

A method of assessment was establishec? by the City, but 

there were some problems in ihe equity of that method. As a consequence, a new method was devised and was used commencing in 1977. 

This new method 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 new method 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 four parcels of land flowed into the City's 
storm sewer system. The plaintiffs introduced evidence to the 

contrary. As to each parcel of land the District Court made 

several findings of fact; however, for the purposes of this case, 

only the following findings are pertinent: (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 characteristics of the land, (2) that all the information necessary to classify and levy assessment according to the 

physical characteristics of 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' lands were 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 conclusion of law that the assessments were not 

as nearly as possible equitable in proportion to the services 

rendered. It was ordered that the City pay back the assessments 

which had been paid under protest. The City appeals from the 

j udgrnent . 

The controlling issue is whether the District Court erred 

in finding that the storm sewer assessments were not as nearly 

as possible equitable in proportion to the services rendered. 

The storm sewer system which 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 now be found at 

section 7-13-4304(4), MCA, which states: 
"The water and sewer rates, charges, or rentals 

shall be as nearly as possible equitable in 

proportion to the services and benefits rendered." 

For purposes of this case the recodification is not material, 

because the essential language has not been changed. 

The plaintiffs paid the storm sewer assessments under 

protest and instituted this action. This procedure 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 determine whether a correct method of assessing the tax was 

pursued and whether there was substantial evidence to support 

this assessment. Johnson v. Johnson (1932), 92 Mont. 512, 519, 

In discussing 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 thus presented, 

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." 92 Mont. 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 test where the applicable 

statute provided that each parcel of land was to be taxed in proportion to the benefit it received: 

"If it appeared from the face of the council proceedings 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 'the exaction from the owner 

of private property of the cost of a public improvement in substantial excess of the special benefits 
accruing 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, 172 U.S. 269, 19 Sup,Ct. 187, 

43 L.Ed. 443.)" 43 Mont. at 341. 

In the present 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 as possible 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 is making a finding that the method 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 courts will 

interfere." (Emphasis added.) 

As a consequence the District Court was well within its 

jurisdiction in making the judgment that was made 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 see whether there was sound, competent 

evidence to uphold the findings of the District Court. Duffie 

v. Metro. San. & Storm Dist. (1966), 147 Mont. 541, 545, 417 P.2d 

There is substantial evidence in the record to support 

the findings of the District Court. Simply because the City had 

expert testimony which the plaintiffs lacked does not mean 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 these 
properties 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 such water would contribute 

to the sewer system. Certainly the evidence is conflicting, but 

the findings were supported by substantial credible evidence. 

Affirmed. 

Chief Justice 

We concur: