No. 13136 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1976 

STATE ex re1 BUTTE YOUTH SERVICE 

CENTER, 

Plaintiff and Respondent, 

MICHAEL A. MURRAY, ADMINISTRATIVE DIRECTOR 

OF SOUTHWESTERN MONTANA 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: .I L) L 1 yTr5 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

The district court, Silver Bow County, granted plaintiff's petition for a writ of mandate. Defendant appeals from 

the denial of its motion to quash the writ and for change of 

venue. 

Plaintiff, Butte Youth Service Center, is a nonprofit 

corporation providing room, board, and treatment for individuals in a state drug rehabilitation program. Defendant is 

the 

administrative director of/~outhwestern Montana Drug Program, 

the state agency operating the drug rehabilitation program. 

The Youth Center was to receive $7.50 per day per boy, 

later raised to $10.34 per boy, from the Southwestern Montana 

Drug Program under contracts to provide drug rehabilitation 

services. The funding was from a Federal grant. Subsequently 

the Southwestern Montana Drug Program discovered that the Youth 

Center was also receiving a foster-home grant, $4.00 per day 

per boy, from Social and Rehabilitation Services, a state agency, 

which in turn was receiving ~ederal funding. A dispute arose 

as to whether this constituted an illegal duplication of payment 

of Federal funds to the Youth Center under Federal law. 

The Youth Center resolved to determine this dispute 

by requesting the administrative director of the Southwestern 

Montana Drug Program to apply for a waiver of the Federal prohibition against payment of funds by two Federal agencies. When 

he refused, the Youth Center sought a writ of mandate commanding him to apply for the waiver provided in 21 U.S.C. 5 1135, 

entitled "Single non-Federal share requirements; waiver", providing in pertinent part: 

"Where funds are made available by more than one 

Federal agency to be used by an agency, organization, 

or individual to carry out a drug abuse prevention 

function, a single non-Federal share requirement may 
be established according to the proportion of funds 

advanced by each Federal agency, and the Director 

may order any such agency to waive any technical 

grant or contract requirement established in regulations 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 writ commanding defendant to act or show cause for his refusal. Upon 

receipt of the writ, defendant moved, with a brief and affidavit 

in support: 

(1) to quash the alternative writ of mandate; 

(2) to quash and dismiss the petition for writ of 

mandate; and 

(3) to change venue to Lewis and Clark County. 

After an adversary hearing on the motions, the district 

court denied the motions and issued a writ of 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 writ of mandate may be issued to compel the performance 

of an act which the law specially enjoins as a duty. Section 

93-9102, R.C.M. 1947. However, the Youth Center has not presented any statute or regulation that requires the State drug program 

to apply for the waiver. Counsel for the Youth Center points 

to general assurances contained in contracts between the State 

and Federal agencies that the policies and regulations of the 

superior agency will be followed under the contracts. Counsel 

points to these assurances, which are not in evidence 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 will not lie to compel performance of a discretionary function. The Youth Center has not established a clear 
legal duty to apply for the waiver requested. 

Further, if the Youth Center is relying 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 at law for breach of contract or in 

equity for specific performance. Quoting from the brief for the 

Youth Center (at page 7) : 

"Counsel for BYSC [Butte Youth Services Center] 

recognizes and accepts the fact that a Writ of 

Mandamus is an extraordinary remedy and is 

obtainable only in these 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 facts which 

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 to quash 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 

We concur: 

B2rnard Thomas, District 

sitting in place of Mr. 

Chief Justice James T. Harrison.