                                         NO.    88-369

               I N THE SUPREME COURT O THE STATE O MONTANA
                                      F           F

                                               1988




DOROTHY JEFFERSON,

                Plaintiff        and A p p e l l a n t ,
        -vs-

B I G HORN COUNTY,   and STATE OF
MONTANA,

                Defendant and Respondent.




APPEAL F O :
        R M     The D i s t r i c t C o u r t o f t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
                I n and f o r t h e County o f Big Horn,
                The Honorable R o b e r t Holmstrom, Judge p r e s i d i n g .

COUNSEL O RECORD:
         F

        For Appellant:

                D . Michael E a k i n , Montana L e g a l S e r v i c e s , B i l l i n g s ,
                Montana

        For Respondent :

                James Y e l l o w t a i l , County A t t o r n e y , H a r d i n , Montana
                David W. Woodgerd, Dept o f Revenue, Helena, Montana
                G e r a l y n D r i s c o l l , Dept o f Revenue, Helena, Montana




                                               S u b m i t t e d on B r i e f s :   Nov.     17

                                                  Decided:         December 1 3 , 1988
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.

      Appellant commenced this action seeking declara-tory
relief from the payment of state real property taxes.     On
January 8, 1988, appellant filed an admission of fact,
acknowledging the nonpayment of 1986 real property taxes. On
March 15, 1988, the District Court entered its order denying
the appellant's motion for summary judgment and dismissing
the appellant's complaint.    Rule 12(b)(6), M.R.Civ.P.  The
court's memorandum stated the appellant's failure to comply
with the mandatory procedural requirement associated with the
declaratory relief remedy as the basis for its dismissal.
Section 15-1-406, MCA. Appellant's motion to amend the order
was also denied. This appeal followed. We affirm.
      The appellant, Dorothy Jefferson, is an enrolled member
of the Crow Tribe and the fee simple owner of a lot located
in the Townsite of Crow Agency, Montana, within the exterior
boundaries of the Crow Indian Reservation. The disputed lot
is in Block 14, which was conveyed by the United States to
School District No. 17-H, Big Horn County, by fee simple
patent dated June 10, 1922. Appellant thereafter obtained
the land in the course of normal business transactions.
      Respondents, Rig Horn County and the State of Montana,
assessed real property taxes against appel.lantls lot.   The
1986 taxes have not been paid and are delinquent. This Court
notes the total tax involved for the year in question was
$0.86 cents.
      Appellant presents two issues for our review:
      1. Must a member of the Crow Tribe residing on the
Crow Reservation pay a state tax while contesting that tax?
      2. Do the state and counties have jurisdiction to tax
land on the Crow Indian Reservation held in fee simple by a
member of the Crow Tribe?
      This appeal may be fully disposed of by an analysis of
appellant's first issue. Therefore, we will not address the
jurisdictional challenge raised by appellant's brief.
      The standard of review is clear:
           In appraising the sufficiency of the
           complaint we follow, of course, the
           accepted rule that a complaint should not
           be dismissed for failure to state a claim
           unless it appears beyond doubt that the
           plaintiff can prove no set of facts in
           support of his claim which would entitle
           him to relief.
Busch v. Kammerer (1982), 200 Mont. 130, 132, 649 P.2d 1339,
1340, quoting Conley v. Gibson (1957), 355 U.S. 41, 45, 78
S.Ct. 99, 102, 2 L.Ed.2d 80, 84.
      The Montana Legislature has provided alternative means
to challenge a property tax assessment. A taxpayer may elect
to pay the disputed tax under protest, and appeal to the
County and State Tax Appeal Boards. Title 15, chapters 2 and
15, MCA.   Judicial review is afforded one aggrieved by the
agency's final decision.    Section 15-2-303, MCA.    As an
alternative to administrative remedies, a taxpayer may elect
to seek a declaratory judgment in the district court.
Section 15-1-406, MCA. Appellant proceeded under the second
method, declaratory judgment.
      Section 15-1-406, MCA,    provides   in   pertinent   part:

          (1) An aggrieved taxpayer may, in lieu
          of proceeding under 15-1-402, bring a
          declaratory   judgment   action  in   the
          district court seeking a declaration that
          a tax levied by the state or one of its
          subdivisions was illegally or unlawfully
          imposed or exceeded the taxing authority
          of the entity imposing the tax.
          (2) The action must he brought within 90
          days of the imposition of the tax .  ..
          (3) The taxes that are being challenged
          under this section - -be paid when due
                             must - - -
          as-a condition of continuing the action.
          -
          (Emphasis added .
                          T
      Appellant's complaint, filed January 27, 1986, stated
that she had been assessed a tax on real property owned
within the Crow Reservation.   Appel-lant sought declaratory
relief from the imposition of such taxes, claiming the State
was without jurisdiction to assess the tax.     Prior to the
entry of judgment, appellant filed an admission of fact,
acknowledging the 1986 real property taxes upon her property
were not paid by the date due.     These facts indicate the
statutory requirements for maintaining an action were not
followed.
      In Eagle Communications v. Flathead County (1984), 211
Mont. 195, 685 P.2d 912, this Court stated that a taxpayer
must follow the conditions contained in the refund statute
each year for which he seeks a refund, reviewing S 15-1-402,
MCA.   Although the present case involves the declaratory
judgment statute, 5 15-1-406, MCA, we find the rule
enunciated equally applies:
           Where   a  right of     action   and   the
           conditions for bringing the action are
           contained within    the    same   statute,
           compliance with those conditions is a
           condition   precedent   which   must    be
           fulfilled to preserve the right.
Eagle Communications, 685 P.2d at 917, citing Van Tighem v.
Linnane (1960), 136 Mont. 547, 550-51, 349 P.2d 569, 571.
Appellant did not comply with the statutory condition for
bringing a declaratory judgment suit.
      By reason of her status as a member of the Crow Indian
Tribe, appellant contends she should be excused from the
burden of prepayment. In support of her position, appellant
points to our decision in LaRoque v. State (1978), 178 Mont.
315, 583 P.2d 1059, finding the tax refund procedure an
impermissible intrusion on the plaintiff's rights. Reliance
upon LaRoque is misplaced.
      LaRoque involved two separate plaintiffs who sought a
refund of state income taxes paid and to enjoin the
collection of such taxes.     Notably, appellant's argument
focuses on the injunction phase of the case. Having never
paid the tax, plaintiff did not seek a refund, but rather,
sought to enjoin the state from collecting the tax. Upon our
conclusion that the state lacked the power to tax income, we
moved to determine an appropriate remedy.
           Plainly, to require [plaintiff] to go
           through   the   refund   procedure  would
           subject him to state authority to collect
           the tax which we now hold invalid. The
           refund procedure implicitly presupposes
           the state can intrude on an Indian's
           rights by collecting the tax before the
           remedy   is   made   available.     Since
           [plaintiff] lacks an adequate remedy at
           law, equitable injunctive relief is
           necessary.
LaRoque, 583 P. 2d at 1065.   The State's tax refund procedure
provided an adequate remedy for the second plaintiff.
LaRoque, 583 P.2d at 1065.
      In the present case, we deal with a declaratory
judgment action.     While an injunction may issue absent
prepayment, payment of tax due is a condition preced-ent in a
declaratory judgment action. We find appellant's status as a
tribal member does not excuse compliance with the procedural
requirements associated   with   declaratory   judgment   relief.
      Affirmed.




We concur:
