               IN THE SUPREME COURT OF THE STATE OF MONTANA




RAE SUBDIVISION COUNTY WATER AND
SEWER DISTRICT NO. 313,
                Plaintiffs and Appellants,
       -vs-
GALLATIN 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 ordi-
nary 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.
        RAEfiled 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 assess-
ments. 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 sit-
ting in the same judicial district. RAE here petitioned for
a writ of mandamus to compel Gallatin County to begin pro-
ceedings 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 delin-
quent 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 direc-
tors 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 statu-
tory 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 dis-
           trict 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 commission-
           ers 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 proportion-
          ate 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,         t o b e known a s t h e                  ......
                d i s t r i c t w a t e r a n d / o r sewer t a x .

                ( 3 ) Such t a x e s f o r t h e payment of any
               such bonded d e b t s h a l l b e l e v i e d on t h e
               p r o p e r t y b e n e f i t e d t h e r e b y , a s s t a t e d by
               t h e b o a r d of d i r e c t o r s i n t h e r e s o l u t i o n
               d e c l a r i n g t h e n e c e s s i t y t h e r e f o r , and a l l
               t a x e s f o r o t h e r purposes s h a l l be l e v i e d
               on a l l p r o p e r t y i n t h e t e r r i t o r y compris-
               ing the d i s t r i c t .

Water    and    sewer     district        taxes      are     collected i n the         same
manner a s a r e c o u n t y t a x e s and a r e a l i e n upon t h e p r o p e r t y :
               7-13-2309. C o l l e c t i o n o f t a x e s .  (1) A l l
               t a x e s r e f e r r e d t o i n 7-13-2302(3) s h a l l
               b e c o l l e c t e d a t t h e same t i m e and i n t h e
               same manner and form a s county t a x e s a r e
               c o l l e c t e d and when c o l l e c t e d s h a l l be
               p a i d t o t h e d i s t r i c t f o r which such t a x e s
               were l e v i e d and c o l l e c t e d .

               ( 2 ) Such t a x e s ,       if    not paid,      shall
               become d e l i n q u e n t a t t h e same t i m e a s d-o
               county t a x e s .

               7-13-2310.             Taxes t o b e l i e n .            (1) I f
               such t a x e s a r e l e v i e d f o r t h e payment of
               a bonded d e b t f o r t h e b e n e f i t o f c e r t a i n
               property within t h e d i s t r i c t , a s s t a t e d
               i n t h e a f o r e s a i d r e s o l u t i o n o f t h e board
               of d i r e c t o r s , such t a x e s s h a l l be a l i e n
               upon e a c h l o t o r p a r c e l o f s a i d p r o p e r t y
               t o t h e e x t e n t of t h e levy of s a i d t a x e s
               upon s a i d l o t o r p a r c e l .           A l l taxes for
               o t h e r p u r p o s e s s h a l l b e a l i e n upon e a c h
               l o t o r p a r c e l of land within t h e e n t i r e
               a r e a comprising t h e d i s t r i c t , t o t h e
               e x t e n t of t h e l e v y o f s a i d t a x e s upon
               said l o t o r parcel.

                ( 2 ) S a i d t a x e s , whether f o r t h e payment
               of a bonded i n d e b t e d n e s s o r f o r o t h e r
               p u r p o s e s , s h a l l b e o f t h e same f o r c e and
               e f f e c t a s o t h e r l i e n s f o r t a x e s , and
               t h e i r c o l l e c t i o n s h a l l b e e n f o r c e d by t h e
               same means a s p r o v i d e d f o r i n t h e 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 delin-
quent 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 dif-
ferent 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 indebted-
ness - - other purposes." (Emphasis supplied..) RAE argues
     or for
that because of the reference to "other purposes," the word
"taxes" includes delinquent water and sewer charges. Howev-
er, 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
