                             No.   90-028

           IN THE SUPREME COURT OF THE STATE OF MONTANA




HEDDEN-EMPIRE LIMITED PARTNERSHIP,
                plaintiff and Appellant,
     -v-
DEPARTMENT OF REVENUE, STATE OF MONTANA,
YELLOWSTONE COUNTY, and COUNTY TREASURER
OF YELLOWSTONE COUNTY.
                Defendants and Respondents.



APPEAL FROM:   District Court of the Thirteenth Judicial District,
               In and for the County of Yellowstone,
               The Honorable Russell K. Fillner, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
               Charles E. Snyder, Billings, Montana
           For Respondent:
               Larry G.Schuster, Department of Revenue, Helena,
               Montana
               Anne Sheehy, Deputy County Attorney, Billings,
               Montana



                               Submitted on Briefs:   April 26, 1990
                                            Decided: June 5, 1990
Filed:                                 J
Justice Fred J. Weber delivered the opinion of the Court.

     This appeal arises from an order by the District Court,
Thirteenth   Judicial    District,       Yellowstone    County,   Montana,
dismissing plaintiff's     complaint      for lack of     subject matter
jurisdiction.     Plaintiff appeals.     We affirm.
     The sole issue presented for review is whether the District
Court erred in dismissing plaintiff ' s complaint for lack of subject
matter jurisdiction.
     Plaintiff Hedden-Empire Limited Partnership is the owner of
commercial property      and    commercial   property    improvements    in
Yellowstone County, Montana.         On January 1, 1978, the State
Department of Revenue (Department) assigned new appraised values
to all real property and real property improvements in Montana for
ad valorem taxes.       In making these appraisals, the Department
relied upon the 1976 Marshall Valuation Service. For appraisal of
residential improvements, the Department relied upon the 1972
Montana Manual.    The use of these two manuals produced the "manual
disparityrrcontroversy.        See Department of Revenue v. State Tax
Appeal Board (1980), 188 Mont. 244, 613 P.2d 691.          Ultimately the
Department equalized the values of commercial real property
improvements by reducing by 12% the appraised values from the 1976
Marshall Valuation Service.       See, Hanley v. Department L f Revenue
                                                              I
(1983), 207 Mont. 302, 673 P.2d 1257. Additionally, the Department
                                                              I
settled   outstanding   manual     disparity   appeals by     entering   a
                                                              1
settlement agreement with owners of commercial improvements.
     Plaintiff was one such owner.         On July 21, 1982, plaintiff
                                     2
entered a settlement agreement with the Department.            In the
agreement the Department agreed to refund 34% of 1978 taxes
attributable to commercial improvements.        The agreement also
stated:
       For tax year 1982 and the remaining tax years of the
       current appraisal cycle, a 12% reduction in the 1978
       appraised value ..   . shall be granted to the taxpayer,
       said 12% reduced value is $603,930. Said reduction shall
       be subject to any increase due to the addition of new
       commercial improvements or industrial improvements to the
       property or to the remodeling of existing commercial
       improvements or industrial improvements.
       On May 25, 1989, plaintiff filed a complaint in Yellowstone
County District Court, alleging that the Department and Yellowstone
County had violated this settlement agreement.        The complaint
alleges that for the years 1982 through 1985, plaintiff's property
was taxed at an appraised value of $767,930 rather than the agreed
$603,930, and that the property was taxed at an appraised value of
over   one million    dollars for the years     1986 through    1988.
Plaintiff requested that a temporary restraining order be issued
to restrain the Department from collecting taxes due for the second
half of 1988. The District Court issued a restraining order on May
25, 1989.    The Department moved to dismiss the complaint for lack
of jurisdiction and to quash the restraining order.      On June 28,
1989, the District Court held a show cause hearing on this matter.
After the hearing and consideration of memorandum         from both
parties, the District Court dismissed the complaint for lack of
subject matter jurisdiction and quashed the restraining order. The
court agreed with the Department that, inter alia, plaintiff had
failed to exhaust administrative remedies, which include appeals
before the Yellowstone County Tax Appeal Board and the State Tax
Appeal Board.
      In reviewing the propriety of a motion to dismiss, the
allegations of the complaint must be viewed in a light most
favorable to plaintiffs, accepting as true all facts well pleaded.
Devoe v. Missoula County (1987), 226 Mont. 372, 374, 735 P.2d 1115,
1116.
      On appeal plaintiff contends that because his complaint
alleged a breach of the settlement agreement, he should be allowed
to proceed directly through district court.           We conclude however,
that the District Court properly dismissed plaintiff's suit.
      The     Department    begins   by    asserting    that   plaintiff's
allegations of breach of the agreement are unfounded in that they
are   based    on   a   misunderstanding   of   the    agreement   and   the
appraisals.     The Department asserts that the appraised value of
plaintiff's commercial improvements of $603,930 pursuant to the
1982 Settlement Agreement, was reflected in the assessments for
years 1982 through 1985.       When the appraised value of the land,
which was $164,000, is added to the above figure, the assessed
value of $767,000 is obtained. Thus the Department contends it did
not breach      its agreement.       Further, the agreement was only
effective until the next appraisal cycle, which began in 1986; thus
the agreement did not apply to appraisals made in 1986 and
thereafter.
      The Department also contends that plaintiff is precluded from
challenging the value of the assessments for all of the years in
issue in District Court since his proper forums are county and
state tax appeal boards.     Since plaintiff did not pay taxes when
due   or under protest, and      failed to exhaust administrative
remedies, the District Court lacked subject matter jurisdiction and
properly dismissed the complaint.
      We begin by noting relevant statutes. Section 15-1-402, MCA,
establishes procedures for payment of taxes under protest. Payment
of taxes under protest must be done before the taxes become
delinquent. Appeals may be taken before county or state tax appeal
boards pursuant to 5 15-2-301 and 302, MCA, and subject to certain
time requirements. Judicial review of these decisions is available
pursuant to   §   15-2-303, MCA, but such appeal must be made within
sixty days of the decision by the State Tax Appeal Board.      Section
15-1-402 (4), MCA.
      This Court has previously held that subject to few exceptions,
administrative remedies must be exhausted prior to judicial review
in a tax appeal case:

      Section 15-1-402, MCA, allows a taxpayer to pay his taxes
      under protest and recover the amount protested if he
      challenge is successful. That statute allows a taxpayer
      to file an action in court to recover taxes paid under
      protest   after   the taxpayer has       exhausted    the
      administrative appeals available under Title 15, chapters
      2 and 15. (Emphasis in original.)
Devoe, 735 P.2d at 1116.     See also Belknap Realty Co. v. Simineo
(1923), 67 Mont. 359, 365, 215 P. 659, 662; Larson v. State    (1975),

166 Mont 449, 456, 534 P.2d 854, 858.
      In   analyzing   plaintiff's   contentions, we   first   address
allegations in respect to the settlement agreement.      The express
wording of the agreement demostrates that it only applies to
improvements.   As noted by the Department, and reflected in tax
statements entered as exhibits at the hearing, for the years 1982
through 1985, plaintiff's commercial property improvements were
assessed in accordance with the agreement.     By its language the
agreement was only effective until the next reappraisal cycle,
which began in 1986.    However, plaintiff's remedy in challenging
the assessed values for any of the years 1982 through 1988 would
be timely payment under protest, followed by administrative appeals
pursuant to the above-mentioned statutes.
     Having failed to even allege that this was done, plaintiff's
complaint provides no basis for District Court jurisdiction.
Further, appellant presents no basis which would allow him to
utilize the alternate remedy of 5 15-1-406, MCA, which provides
that a taxpayer may, in lieu of proceeding under 5 15-1-402, MCA,
bring a declaratory judgment action in district court seeking a
declaration that a tax was illegally or unlawfully imposed or
exceeded the taxing authority.   An action under this statute may
only be brought if the taxes were paid when due, and must be
brought within ninety days of the imposition of the tax.        As
previously noted, taxpayer did not pay the taxes when due and has
failed to meet the ninety day filing requirement.    Pursuant to 9
15-2-307, MCA, an action may be initiated in district court to
challenge an assessment method or procedure.   This statute is not
helpful to plaintiff since his complaint does not challenge the
method of assessment.   Although plaintiff urges application of   §
15-16-601, MCA,    which   provides   that   the   Board   of    County
Commissioners may refund taxes paid more than once or erroneously
or illegally collected, neither the allegations nor the facts
presented to District Court provide any basis for application of
this statute.    We conclude plaintiff has presented no basis for
bringing an action in District Court, and the District Court
properly dismissed the complaint for lack of subject matter
jurisdiction.
     We further conclude that the District Court properly quashed
the temporary restraining order.      An injunction is not to be
granted by any court to restrain the collection of tax.         Section
15-1-405, MCA.    The remedy of injunction is superseded by other
statutory remedies.    Section 15-1-404, MCA.
     Accordingly, we affirm the action of the District Court in
dismissing the complaint for lack of subject matter jurisdiction
and in quashing the temporary restraining order.




We Concur:       A


       Chief Justice
