### No. 13136 INTHE SUPREME COURT OF THE STATE 

### OF MONTANA 1976

STATE ex 

### re1 BUTTE YOUTH SERVICE CENTER, 

### Plaintiff and Respondent,

MICHAEL A. 

### MURRAY, ADMINISTRATIVE DIRECTOR OF SOUTHWESTERNMONTANA DRUG 

### PROGRAM, an AGENCY OF 

### THE STATE OF MONTANA, Defendant and Appellant.

Appeal from: District Court of the Second Judicial 

### District, Honorable James D. 

### Freebourn, Judge presiding. Counsel of Record: For Appellant: Poore, McKenzie, Roth, Robischon 6 Robinson, Butte,

Montana Urban 

### L. Roth argued, Butte, Montana For Respondent: Stimatz and Engel, Butte, Montana Lawrence G. 

### Stimatz argued, Butte, Montana

Submitted: May 27, 1976 Decided: 

## JUL

# -1

## 1976 Filed: .IL)L 

## 1yTr5Mr. Justice Frank I. Haswell delivered the Opinion of the Court.

The districtcourt, Silver Bow County, granted plaintiff's petition for a writof mandate. Defendant appeals from the denial of 

### itsmotion toquash the 

### writand for change of

venue. Plaintiff, Butte Youth Service Center, is a nonprofit corporation providing room, board, and treatment for individuals ina statedrug rehabilitation program. Defendant is the administrative director of/~outhwestern Montana Drug Program, the 

### state agency operating the drug rehabilitation program. The Youth Center was toreceive $7.50 per day per boy, later raised to $10.34 per boy, from the Southwestern Montana Drug Program under contracts toprovide drug rehabilitation services. The funding was from a Federal grant. Subsequently the SouthwesternMontana Drug Program discovered that the Youth Center was alsoreceiving a foster-home grant, $4.00 per day per boy, from Social and Rehabilitation Services, a stateagency, which inturn was receiving ~ederal funding. A dispute arose

as towhether this constituted an illegal duplication of payment of Federal funds tothe Youth Center under Federal law. The Youth Center resolved todetermine this dispute by requesting the administrative director of the Southwestern Montana Drug Program toapply for a waiver of the Federal prohibition against payment of funds by two Federal agencies. When he refused, the Youth Center sought a 

### writof mandate commanding him to apply for the waiver provided in 21U.S.C. 

### 5 1135, entitled "Single non-Federal share requirements; waiver", providing inpertinent part: "Where funds aremade available by more than one Federal agency tobe used by an agency, organization, or individual tocarry out a drug abuse prevention function, a single non-Federal share requirement maybe established according tothe proportion of funds advanced by each Federal agency, and the Director may order any such agency towaive any technical grant or contract requirement established inregulations which is inconsistent with the similar

### requirement of the other Federal agency or which the other Federal agency does not impose." (Emphasis added.) The district court granted an alternative

### writcommanding defendant to act or show cause for his refusal. Upon receipt of the 

### writ, defendant moved, with a brief and affidavit in support: (1)toquash the alternative

### writof mandate; (2) toquash and dismiss the petition for 

### writof mandate; and (3) tochange venue toLewis and Clark County. After an adversary hearing on themotions, the district court denied themotions and issued a 

### writof mandate. ~efendant appeals.The issues on appeal are- (1)whether the writ should have been issuediand (2) whether venue was properly in Silver Bow County or Lewis and Clark County. A 

### writof mandate may be issued tocompel the performance of an actwhich the law specially enjoins as a duty. Section 93-9102, R.C.M. 1947. However, the Youth Center has not presented any statuteor regulation that requires the Statedrug program to apply for thewaiver. Counsel for the Youth Center points togeneral assurances contained incontracts between the State and Federal agencies that the policies and regulations of the superior agency willbe followed under the contracts. Counsel points tothese assurances, which are not inevidence and not a part of the record, to establish a 

### clear legal duty on the part of the State Drug Program to apply for the waiver. Mandamus 

### willnot lietocompel performance of a discretionary function. The Youth Center has not established 

### a clearlegal duty to apply for the waiver requested. Further, if the Youth Center isrelying on a contractual obligation to establish a clear legal duty, 

### we f a i l t o see why it does not have a remedy atlaw for breach of contract or in equity for specific performance. Quotingfrom the brief for the Youth Center (atpage 7): "Counsel for BYSC [ButteYouth Services Center] recognizes and accepts the fact that a Writof Mandamus is an extraordinary remedy and is obtainable only inthese rare 

### cases wherein there is not any plain, speedy and adequate remedy in the ordinary course of law, and therefore the applicant must disclose the factswhich establish his clear legal right to the relief sought. State ex rel. Duggan vs. District Court, 65 Mont. 197, 199, 210 P. 1062." Yet, counsel simply states in his brief that he does not have

a remedy on the contract without explanation or proof. Accordingly, defendant's motion toquash and dismiss the petition should have been granted. Our ruling on this issue renders review of the venue issue unnecessary. The district court's denial of defendant's motion to quash and dismiss is reversed. Plaintiff's action is hereby dismissed with prejudice.

- Justice Weconcur:

B2rnard Thomas, District sitting in place of Mr. Chief Justice James T. Harrison.