### No. 13562 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977

THE STATE OF MONTANA, Plaintiffs and Respondents,

ED DeGEORGE,WILLIAM KENNEDY and E. J. HOLMAN, Defendants and Appellants.

Appeal from: District Court of the Second Judicial District, Honorable James D. 

### Freebourn, Judqe presiding. Counsel ofbRecord: For Appellants: Mark P. Sullivan argued, Butte, Plontana For Respondents: John G. 

### Winston argued, County Attorney, Butte,

Montana Jack Parker argued, Deputy County Attorney, Butte,

P4ontana For Amicus Curiae: Terry Cosgrove argued,Helena, Montana

Submitted: May 23, 1977 Decided: 

## .lull 2

## 3 

# W"Honorable Joel G. Roth, sitting inplace of Mr. Justice Daniel J. Shea, delivered the Opinion of the Court. This 

### is an appeal from convictions of three Silver Bow County Commissioners of two counts of officialmisconduct, each a misdemeanor, under section 94-7-401 

### (1) (a) and (b)

## , R.C.M. 1947, which provides: "A public servant commits the offense of officialmisconduct when, inhis official capacity, he commits any of the following acts: "(a)purposely or negligently failstoperform any mandatory duty 

### as required by law

## * 

# * * or "(b)knowingly performs an 

### act inhis official capacity which he knows 

### is forbidden by 

### law

## * * 

## *."
A twelve person jury reached unanimous guiltyverdicts indistrict court, Silver Bow County, on September 29, 1976. Judge James D. Freebourn pronounced sentence on October 

### 4, 1976, and the commissioners filed notice of appeal on October 7, 1976. One count charges that the commissioners purposely or negligently failed toperform a mandatory duty of advertising a county road contract of over $10,000 forbid, 

### as required by section 16-1803(1) 

## , R.C.M. 1947, which provides: "No contract shallbe entered intoby 

### a county governing body

# * * * forthe construction of any 

## * 

# * * road 

## * * * forwhich must be paid 

### a sum inexcess of ten thousand dollars ($10,000), without firstpublishing a notice calling for bids for furnishing the same, which notice must be published atleast once 

### a week, for three (3) consecutiveweeks before the date fixed therein for receiving bids, inthe official newspaper of the county, and every such contract shallbe 

### let tothe lowest and best responsible bidder 

## * * 

## *." The other count charges that the commissioners knowingly performed forbidden actsby dividing a singleroad contract into parts so 

### as tocircumvent the bidding requirements. The prohibition 

### is contained in section 16-1803.1, R.C.M. 1947, and provides: "Whenever any 

### lawof this stateprovides a 

### limitationupon the amount of money that a county can expend upon any public work or construction projectwithout letting such public work orconstructionproject tocontractunder competitive bidding procedures, a county shall not circumvent such provision by dividing a public work or constructionproject or quantum of work tobe performed thereunder which by 

### its nature orcharacter 

### is integral to such public work or construction project, or serves toaccomplish one of the basic purposes or functions thereof, into several contracts, separatework orders or by any 

### similar device.

### " The sole issueon appeal 

### iswhether there

### was sufficient evidence to sustain the guiltyverdicts. Webelieve there was and affirm the verdicts and judgment of the districtcourt. The facts asdeveloped attrial

### werebriefly 

### as follows:

a new elementary public school (theMargaret Leary School), dedicated, September 1975, near Butte, 

### was serviced by a dirtcounty road which was inadequate for the increased vehicular traffic occasioned by the opening of the school. There had been discussions from June until September 12, 1975, between the commissioners and the county surveyor relating tocutting, graveling, and paving 1800 feetof the road. When the road work was not commenced, the commissioners issued a memo dated September 12, 1975, to the county road department tocut, gravel and pave the road in question. Again the road work was not commenced and the commissioners then signed 

### a contract dated October 

### 1, 1975, with a Butte contractor, Dugdale Construction Co., Inc

# ., tograde, gravel and straighten the road for an agreed price of $2,898. Subsequently, on October 30, 1975, another contract 

### was signed by the same parties topave the road for an agreed price of $9,901. The total contract price

### to grade, gravel, straightenand pave the road was $12,799, 

### let on two contracts which were not advertised forbids. Commissioner Kennedy testified during trial that the commissioners on October 1, 1975, did not expect any paving tobe

### done until Spring 1976, thereby justifying dividing the work into two separate contracts each for less than $10,000. The jurors resolved the conflictbetween the commissioners'memo, dated September 12, 1975, contemplating one undivided job, and Commissioner Kennedy's testimony, justifying two separate contracts, against the commissioners,and under proper instructions from the court, found the commissionershad purposely and negligently failed to advertise a county road project of over $10,000 for bid, and had knowinglydivided a single road contract into two parts so as to circumvent the bidding requirements. The scope of this Court's review is to determine whether

or not there is substantial evidence to support the jury's verdicts and the court's judgment. Section 95-2404 and 95-2425, R.C.M. 1947. This Court has frequently observed that disputed questions of fact and the credibility of witnesses will not be considered

on appeal but that determination of suchmatters is within the province of the jury. As long as there is substantial evidence to support the verdict, itwill not be disturbed on appeal. State

v. Bouldin, 153Mont. 276, 456 P.2d 830; State v. Lagge, 143 Mont. 289, 388 P.2d 792. Where there is sufficient substantial evidence to support the jury's verdict of guilty, itmust stand. State v. Feeley, Mont. 

## , 522 P.2d 66, 33 St.Rep. 648. From 

### a review of the record we find that there was sufficient substantial evidence to support the jury's verdicts of guilty. The judgment of the district court is affirmed.

sitting in place of Mr. Justice Daniel J. Shea.Chief Tustice 

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