IN THE SUPREME COURT OF THE STATE OF MONTANA 

RAE SUBDIVISION COUNTY WATER AND 

SEWER DISTRICT NO. 313, 

Plaintiffs and Appellants, 

-vsGALLATIN COUNTY, and LOY R. CARROLL, 

GALLATIN COUNTY TREASURER, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Mark P. Sullivan, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Michael J. Lilly; Lilly, Andriolo & Schraudner, Bozeman, 

Montana 

For Respondent: 

A. Michael Salvagni, County Attorney, Bozeman, Montana 

James McKenna, Deputy County Attorney, Bozeman 

Submitted on Briefs: July 14, 1988 

Decided: August 30, 1988 

&L *, 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

RAE Subdivision County Water and Sewer District No. 313 

(RAE) petitioned for a writ of mandamus to compel Gallatin 

County to collect delinquent water and sewer assessments. 

The District Court for the Eighteenth Judicial District, 

Gallatin County, denied RAE'S petition. RAE appeals. F7e 

affirm. 

The issues are whether RAE has shown the two elements 

necessary for a writ of mandamus: a clear legal duty and the 

absence of a plain, speedy, or adequate remedy in the ordinary course of law. Because we hold that the trial court was 

correct in concluding RAE has not shown that Gallatin County 

had a clear legal duty to collect the delinquent water and 

sewer assessments, we do not discuss the second element. 

RAE is a water and sewer district formed just outside 

of Bozeman. It levies assessments against landowners within 

the district for water and sewer service. Frank J. Trunk is 

one of those landowners. He did not pay his 1982, 1983, 

1984, 1985, and 1986 assessments. 

RAE filed a lien against Frank Trunk's property and 

then filed an action to foreclose the lien in district court. 

The court dismissed the complaint, ruling that Gallatin 

County was the proper party to collect the delinquent assessments. RAE chose not to appeal that judgment. It asked the 

county treasurer to collect the taxes. However, the county 

attorney's office, on behalf of the county, informed RAE that 

Gallatin County was not going to collect the taxes. 

RAE then filed this action before a second judge sitting in the same judicial district. RAE here petitioned for 

a writ of mandamus to compel Gallatin County to begin proceedings to collect the delinquent assessments from Mr. 

Trunk. After hearing arguments by the parties and studying 
the applicable statutes, that court ruled that RAE had failed 

to establish that Gallatin County has a clear legal duty to 

collect the assessments. It noted that since it found no 

such clear legal duty, it did not need to address the second 

requirement for issuance of a writ of mandamus under 

§ 27-26-102, MCA, that the applicant has no plain, speedy or 

adequate remedy at law. RAE appeals from the court's refusal 

to issue the writ. 

Did the trial court err in concluding that Gallatin 

County did not have a clear legal duty to collect the delinquent water and sewer assessments levied by RAE? 

This issue may be restated as whether past due water 

and sewer assessments are collectible by the board of directors of the water and sewer district as are regular water and 

sewer assessments, or by the county as are taxes for bonded 

debts. The answer to this question is reached through statutory interpretation. The role of the courts in construing a 

statute is to declare what is there, not to insert what has 

been omitted or omit what has been inserted. Section 

1-2-101, MCA. 

The board of directors of a water and sewer district 

sets and collects the charges for sewer service and for sale 

and distribution of water: 

7-13-2301. Establishment of charges for 

services. (1) The board of directors 

shall fix all water and sewer rates and 

shall, through the general manager, 

collect the sewer charges and the charges 

for the sale and distribution of water to 

all users. 

(2) The board in the furnishing of 

water, sewer service, other services, and 

facilities shall fix such rate, fee, 

toll, rent, or other charge as will pay 

the operating expenses of the dist.rict, 
provide for repairs and depreciation of 

works owned or operated by it, pay the 

interest on any bonded debt, and so far 

as possible, provide a sinking or other 

fund for the payment of the principal of 

such debt as it may become due. 

In contrast, the county commissioners have the duty to 

levy taxes for payment of bond obligations for water and 

sewer districts: 

7-13-2302. Levy of taxes to meet bond 

obligations and other expenses. (1) If 

from any cause the revenues of the district shall be inadequate to pay the 

interest or principal of any bonded debt 

as it becomes due or any other expenses 

or claims against the district, then the 

board of directors must . . . furnish to 

the board or boards of county commissioners and to the auditor or auditors, 

respectively, an estimate in writing: 

(2) The board of county commissioners of 

such county or city and county, annually, 

at the time and in the manner of levying 

other county or city and county taxes, 

must: 

(a) until any such bonded debt is fully 

paid, levy upon the lands so benefited 

and cause to be collected the proportionate share to be borne by the land located 

in their county of a tax sufficient for 

the payment thereof, to be known as the ...... district bond tax; and 

(b) until all other expenses or claims 

are fully paid, levy upon all of the 

lands of the district and cause to be 

collected the proportionate share to be 

borne by the land located in their county 

of a tax sufficient for the payment 
thereof, to be known as the ...... district water and/or sewer tax. 

(3) Such taxes for the payment of any 

such bonded debt shall be levied on the 

property benefited thereby, as stated by 

the board of directors in the resolution 

declaring the necessity therefor, and all 

taxes for other purposes shall be levied 

on all property in the territory comprising the district. 

Water and sewer district taxes are collected in the same 

manner as are county taxes and are a lien upon the property: 

7-13-2309. Collection of taxes. (1) All 

taxes referred to in 7-13-2302(3) shall 

be collected at the same time and in the 

same manner and form as county taxes are 

collected and when collected shall be 

paid to the district for which such taxes 

were levied and collected. 

(2) Such taxes, if not paid, shall 

become delinquent at the same time as d-o 

county taxes. 

7-13-2310. Taxes to be lien. (1) If 

such taxes are levied for the payment of 

a bonded debt for the benefit of certain 

property within the district, as stated 

in the aforesaid resolution of the board 

of directors, such taxes shall be a lien 

upon each lot or parcel of said property 

to the extent of the levy of said taxes 

upon said lot or parcel. All taxes for 

other purposes shall be a lien upon each 

lot or parcel of land within the entire 

area comprising the district, to the 

extent of the levy of said taxes upon 

said lot or parcel. 

(2) Said taxes, whether for the payment 

of a bonded indebtedness or for other 

purposes, shall be of the same force and 

effect as other liens for taxes, and 

their collection shall be enforced by the 

same means as provided for in the en- 
forcement of liens for state and county 

taxes. 

After setting forth the above statutory framework, the 

District Court ruled that 

[tlaxes imposed and collected by the 

county must be distinguished from charges 

imposed and collected by the district for 

maintenance and service. Authority for 

the former is derived from Section 

7-13-2302, MCA, while authority for the 

latter is derived from Section 7-13-2301, 

MCA. I find no statutes which grant to 

the county authority or a duty to collect 

the district's semi-annual charges. 

We conclude that the statutes do not set forth a clear 

legal duty on the part of the county to collect the delinquent water charges. The county can assess taxes sufficient 

to cover both the bonded indebtedness payments and operating 

expenses, but in order to do so there must he notice given in 

advance so that all interested parties may protest the tax 

levy. Section 7-13-2304 through 2307, MCA. Delinquent water 

and sewer assessments levied against an individual are different from taxes levied against all property withj.n the 

district under 5 7-13-2302, MCA. 

RAE points to the reference in 5 7-13-2310(2), MCA, to 

"[slaid taxes, whether for the payment of a bonded indebtedness -- or for other purposes." (Emphasis supplied..) RAE argues 

that because of the reference to "other purposes," the word 

"taxes" includes delinquent water and sewer charges. However, that reference is consistent with the language of 

5 7-13-2302(1), MCA, as to "bonded debt . . . or any other 

expenses or claims against the district," for which the board 

of directors is authorized to levy taxes. Again, these 

"other expenses" are subiect to the notice requirements and 
are levied upon all property in the district, unlike the 

delinquent assessments here. 

RAE has the power to sue under S 7-13-2217 (1) (b) , MCA. 

We conclude that under that statute and 5 7-13-2301, MCA, RAE 

had the power to bring an action to collect the delinquent 

assessments from Mr. Trunk, without referring the same to the 

county for collection as taxes. We recognize that this 

conclusion contradicts the ruling of the district court in 

the first action brought by RAE. Unfortunately, RAE chose 

not to appeal the judgment in that case. 

Because there is no clear legal duty on the part of the 

county to collect the delinquent assessment, we affirm the 

denial of RAE'S petition for mandamus. 

Chief Justice