Liebman v. Brunell ( 1984 )

No. 84-25
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
LAWRENCE LIEBMAN and THELMA
LIEBMAN,
Plaintiffs and Appellants,
DON BRUNELL, Mayor of the CITY OF
WALKERVILLE, the CITY COUNCIL;
DON PEOPLES & COUNCIL OF COMMISSIONERS
of Butte-Silver Bow,
Defendants and Respondents.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Butte-Silver Bow,
The Honorable Robert Boyd, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Joseph C. Engel, 111, Butte, Montana
For Respondents:
Robert McCarthy, County Attorney, Butte, Montana
Robert J. Holland, Butte, Montana
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Submitted on Briefs: May 3, 1984
Decided: October 9, 1984
Filed: 9L.I 9 i3*q
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Clerk
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
The petitioners, Lawrence and Thelma Liebman , appeal
from an order of the Silver Bow County District Court
dismissing their petition for a writ of mandamus. The writ
was sought to compel the City-County of Butte-Silver Bow, or
in the alternative, the City of Walkerville, to declare the
premises adjacent to petitioners' a public nuisance, and
abate the same. The trial court held that the premises did
not constitute a public nuisance.
We affirm, but on a different basis. We do not reach
the substantive issues presented because the petitioners
failed to show that they formally requested the respondents
to abate the alleged nuisance before filing their petition
for a writ of mandamus. Their petition is therefore
premature and must be dismissed.
As a general rule, before mandamus will issue to a
public officer, board or municipality, a demand for the
performance of the act sought to be compelled is required.
State ex rel. School District No. 29, Flathead County v.
Cooney (1936), 102 Mont. 521, 59 P.2d 48. The reason for
this rule is apparent. Because they failed to make a formal
demand, neither the petitioners nor any court can say with
certainty that the respondents would have refused to abate
the alleged nuisance upon request. Under the facts here, the
public officials should not be subjected to the harsh
remedies of mandamus, including the payment of attorney fees,
unless they refused to take action after a request had been
made. If a request had been made and they refused to take
action, then, of course, the question becomes whether the
premises involved did constitute a nuisance and whether the
officials acted reasonably in response to the request to
abate the nuisance.
In their pleadings, the petitioners alleged they had
made formal demand upon the City, but in its answer the City
denied this allega.tion. At most, the record affirmatively
establishes that Mrs. Liebmann spoke briefly to one of the
volunteer firemen at the fire station concerning the problem,
although the record does not indicate the substance of the
conversation. Furthermore, after the order of dismissal, the
petitioners filed a motion to amend the findings and
conclusions and in effect admitted in their motion that they
had never made a request upon city officials to inspect the
premises.
We affirm the order dismissing the petition for a writ
of mandamus.
We Concur:
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Justices I