                                          No.     14902

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

                                                1980



A N L A.
 R OD          BERGER,     et al.,

                                  P l a i n t i f f s and R e s p o n d e n t s ,

         VS   .
CITY O BILLINGS, e t a l . ,
      F

                                  D e f e n d a n t s and A p p e l l a n t s .



Appeal from:         D i s t r i c t Court of 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 ,
                     Honorable C . B. Sande, J u d g e p r e s i d i n g .

Counsel o f Record:

     For A p p e l l a n t s :

              P e t e r s o n and Hunt, B i l l i n g s , Montana
              K . D. P e t e r s o n a r g u e d , B i l l i n g s , Montana

     F o r Respondents:

              B e r g e r , Anderson, S i n c l a i r and Murphy, B i l l i n g s ,
               Montana
              Arnold B e r g e r a r g u e d , B i l l i n g s , Montana



                                                  Submitted:           F e b r u a r y 21, 1980

                                                     Decided :         AAi; 19~0
                                                                        s lI
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 assess-
ments 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 Certifi-
cate 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 author-
ized the issuance of revenue bonds to pay the cost of the improve-
ments 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 con-
sequence, 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 assess-
ment 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 informa-
tion 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 per-
formed 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
judgrnent   .
         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 deter-
         mines, 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 pro-
portion to the benefit it received:
         "If it appeared from the face of the council pro-
         ceedings 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 de-
         rived 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 improve-
         ment 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 testi-
mony 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:
