*1 22
RAE SUBDIVISION & COUNTY WATER SEWER DISTRICT NO. 313, public corporation,
a Montana service Respondent, Plaintiff v. FRANK J. & TRUNK SON, partnership;
a Montana FRANK J. TRUNK JR., PATRICIA TRUNK, A.
MARIE DOTING,
Appellants.
Defendants
No. 91-228.
10,
Submitted Oct.
1991.
4,
Decided Dec.
1991.
Rehearing
Denied March
1992.
St.Rep.
1065.
For Brian H. Gallik and James H. Wheat; Dunn; Penwell; Brown, Madden & J. David John Cok & Bozeman. Firm, Respondent: Lilly argued, Berg
For Michael J. Law Bozeman. *2 opinion
JUSTICE TRIEWEILER delivered the of the Court. (RAE) RAE Subdivision Water and Sewer District sued the Trunks Eighteenth County in the Judicial District Court in Gallatin to collect “annual assessments” for the retirement ofbonded indebtedness. The parties stipulated separate summary to relevant facts and then filed judgment granted motions. The District Court RAE’s motion and unsuccessfully denied the Trunks’ motion. The Trunks moved for reconsideration appeal. and now We reverse.
The issues are:
1. Did the District in finding authority Court err that RAE has to levy against “annual assessments” the Trunks?
2. Did finding the District Court err in the Trunks are personally for these “annual liable assessments”? Because we con- authority levy assessments,” clude that RAE had no “annual will not address the second issue.
RAE is a water and sewer district located outside Bozeman. The unimproved district, Trunks own real property within the but that property system. is not connected to RAE’s and sewer Trunks can demand to system any be connected to the at time but litigation. had not done so at the time ofthis RAE physical finances its plant operations through monthly and charges, special service as- sessments, and “annual RAE assessments.” uses the “annual assess- ments” to retire finance bonded indebtedness it incurred to the system. construction of its water and sewer RAE only property bills those actually owners who are connected system monthly charges. service It also “annual levies against district, assessments” all property regard- owners within the property actually less of whether is connected to the water and system. monthly RAE has never billed Trunks for service charges, against but it has levied “annual them. The assessments” 1981, paid Trunks have not these “annual since and if assessments” currently delinquent are valid the amount $110,196.09. a lien for assessments 1985, the Trunks to foreclose RAE sued on dismissed that action The District Court property. their
against lien. such a tax County could foreclose theory Gallatin County to Instead, requested Gallatin RAE did not refused, sought County and Gallatin collect the assessments. District do as it asked. The compel the ofmandamus to writ writ, County had no clear holding that Gallatin Court denied the appealed, and we assessments. to collect the 456, (1988), County 233 Mont. Subdivision v. Gallatin affirmed. RAE I). (RAE 755, filed the instant action RAE then 760 P.2d District Court. ultimately prevailed erred in the District Court appeal in this is whether The issue against authority “annual assessments” finding that RAE has Trunks. and sewer fund-raising devices for water governing The statutes “annual assessments.” Section expressly provide for districts do not MCA, provides pertinent part: (1) The charges for services. Establishment “7-13-2301. shall, and sewer rates directors shall fix all water board of charges the sewer manager, collect through general of water to all users. for the sale and distribution charges *3 service, “(2) water, other furnishing The in the board of rate, fee, toll, rent, charge or other services, shall fix such and facilities district, repairs provide for expenses of the pay operating as will it, interest by pay the operated owned or depreciation of works debt, provide sinking or other possible, far as any bonded and so on may it become of such debt as payment principal of the fund for the added.] [Emphasis due.” it only users and that applies to argue that this section
The Trunks to the water and sewer are not connected apply cannot to those who (1) limited to users but that subsection system. RAE concedes (2) authorize it to in subsection charge” “other argues that the words fair share of pay make them their in order to assess non-users bonded indebtedness. if the fund- 7-13-2302(1), MCA, happens what describes
Section 7-13-2301, MCA, adequate: prove listed in raising devices and other obligations Levy taxes to meet bond “7-13-2302. of (1) be the district shall any the revenues of If from cause expenses. it debt as any bonded principal interest or inadequate pay to of district, then against the claims any expenses other or due or becomes county board of directors must ... furnish to the board ... of an writing: commissioners ... estimate in “(a) money by of the amount of required payment the district due; the principal any or interest on bonded debt as it becomes of of “(b) of the money required amount of to establish reasonable reserve funds ... and
“(c) money of the amount of required by any the district for other purpose set forth in this [Emphasis added.] section.” county levy commissioners must then appropriate an tax on the lands in the 7-13-2302(2), sewer district. Section MCA. The argue Trunks that only procedure this is the RAE can use to reach non-users. RAE admits that it did not procedure follow this “tax” argues procedure that the “tax” necessary only becomes in the event emergency. an view,
In RAE’s relevant distinction between the statutes identity is the assessing of the taxing entity. or RAE argues that 7-13-2301, MCA, lists the fund-raising devices available to the dis- 7-13-2302, MCA, trict and that fund-raising lists the devices avail- county. By able to the argument, this imply it seems to that powers revenue of the district county co-extensive, and the the district an has “assessment” power very similar to the county’s “taxing” power. disagree. We governing
The statutes county notice, “tax” procedure require 7-13-2304, MCA, hearing, 7-13-2307, and a MCA. Section 7-13- 2301, MCA, the statute upon which RAE relies for its “assessment” power, does not any contain similar hearing provisions. notice and Thus, RAE argues that it can achieve fiat what the cannot do affording process. fundamental due 7-13-2301,
We find it instructive compare MCA, with the governing statutes conservancy districts. These express districts have statutory authority supervision by assessments without 85-9-601, commissioners. Furthermore, Section MCA. conser- vancy statutorily districts are obligated provide process. due Sec- 85-9-602, tion MCA. order to conclude that RAE is authorized to levy assessments, we imply would have to where it does 7-13-2301, statutes, not exist in construing MCA. In it is not our role Thus, “insert what has been omitted.” Section MCA. *4 7-13-2301, decline to read an power assessment into MCA. RAE RAE I proposition already cites for the upheld we have the assessments at issue in In particular, points this case. to the following language opinion: in that 7-13-2217(l)(b), con- MCA. We to sue under
“RAE has the
7-13-2301, MCA, RAE had the
that statute and
clude that under
from
assessments
delinquent
bring an action to collect
power as
county for collection
Trunk,
the same to the
referring
Mr.
added.]
[Emphasis
taxes.”
I,
notparties to
I,
the Trunks were
RAE concedes in extremely persuasive language should be argues quoted that the share RAE’s assess- We do not present appeal. of the our resolution language. import of that ment of as follows:
“In RAE I framed the issue County did not concluding that err in Gallatin “Did the trial court and sewer delinquent water legal duty to collect have a clear [Emphasis added.] by RAE?” assessments levied duty to collect had no I, at 756. We held that RAE 760 P.2d case circumstances of this because under the RAE’sassessments county. We said: not been levied assessments had legal a clear do not set forth that the statutes “We conclude charges. collect the of the part on the indebted- to cover both the bonded county can taxes sufficient assess to do so there order operating expenses, payments ness may parties that all interested given in advance so must be notice 2307, MCA. Delin- through levy. Section[s] 7-13-2304 protest the tax an individual against levied quent water the district property all within against taxes levied different from 7-13-2302, [Emphasis original.] MCA.” under I, at 757. RAE 760 P.2d validity of argued the County briefed or RAE nor Gallatin
Neither us. We question was not before themselves. That the assessments duty upon a clear 7-13-2301,MCA, impose not did held they had become once collect RAE’sassessments County to Gallatin Court of by this I, Any P.2d at 757. discussion RAE 760 delinquent. was therefore themselves validity ofthe assessments underlying of this binding purposes and not dicta RCA, authorize RAE does not We hold that were The assessments non-users. against “annual assessments” therefore void.
Reversed. GRAY, HARRISON, and JUSTICES TURNAGE
CHIEF JUSTICE HUNT, concur. and McDONOUGH *5 WEBER, concurring: specially
JUSTICE join I in majority opinion, analysis of the the agree As I with holding. the I, stated: 760 P.2d at we 7-13-2217(l)(b), MCA. We con- under power the to sue
“RAE has 7-13-2301, MCA, has the that statute and clude that under from delinquent the assessments an action to collect power bring as for collection Trunk, referring the same to Mr. ruling of this conclusion contradicts recognize that taxes. We Unfortunately, brought by RAE. in the first action district court judgment in that case.” appeal chose not to that RAE had the conclusion foregoing constitute Court’s bring an action to power and the to sue under the statute Trunk. That is the from Mr. delinquent collect consider- present in action which we now procedure followed ing on this “Any by majority: join in the conclusion stated
I am not able to validity of the assessments by underlying this Court of the discussion this binding purposes and not themselves was therefore dicta of added.) Technically, it true that the stated appeal.” (Emphasis case presented issue were dicta because the conclusions a to collect the or not the had was whether made assessments, suggestion the clear that does not address procedure. appropriate the Court of the made a acknowledge appropriate I believe it more all of the facts before in RAE 7. It is true that we did not have mistake I, present true that the case establishes us in RAE and it is also 7,1 prefer As the author of RAE the conclusion in RAE was incorrect. conclusions, reaching the stated acknowledge our mistake theory responsibility. to disclaim using rather than dicta