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 in place 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 official misconduct, 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 

official misconduct when, in his official 

capacity, he commits any of the following 

acts: 

"(a) purposely or negligently fails to perform 

any mandatory duty as required by law * * * or 

"(b) knowingly performs an act in his official 

capacity which he knows is forbidden by law * * *." 

A twelve person jury reached unanimous guilty verdicts in district 

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 to perform a mandatory duty of advertising a 

county road contract of over $10,000 for bid, as required by 

section 16-1803 (1) , R.C.M. 1947, which provides: 

"No contract shall be entered into by a county 

governing body * * * for the construction of 

any * * * road * * * for which must be paid a sum 

in excess of ten thousand dollars ($10,000), 

without first publishing a notice calling for 

bids for furnishing the same, which notice must 

be published at least once a week, for three (3) 

consecutive weeks before the date fixed therein 

for receiving bids, in the official newspaper of 

the county, and every such contract shall be let 

to the lowest and best responsible bidder * * *." 

The other count charges that the commissioners knowingly 

performed forbidden acts by dividing a single road contract into 

parts so as to circumvent the bidding requirements. The prohibition 

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

"Whenever any law of this state provides a limitation upon the amount of money that a county can 

expend upon any public work or construction project 
without letting such public work or construction project to contract under competitive 

bidding procedures, a county shall not circumvent 

such provision by dividing a public work or construction project or quantum of work to be performed thereunder which by its nature or character 

is integral to such public work or construction 

project, or serves to accomplish one of the basic 

purposes or functions thereof, into several contracts, separate work orders or by any similar 

device. " 

The sole issue on appeal is whether there was sufficient 

evidence to sustain the guilty verdicts. We believe there was 

and affirm the verdicts and judgment of the district court. 

The facts as developed at trial were briefly as follows: 

a new elementary public school (the Margaret Leary School), dedicated, September 1975, near Butte, was serviced by a dirt county 

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 to cutting, graveling, and paving 

1800 feet of the road. When the road work was not commenced, 

the commissioners issued a memo dated September 12, 1975, to 

the county road department to cut, 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 . , to grade, 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 to pave the road for an agreed price 

of $9,901. 

The total contract price to grade, gravel, straighten and 

pave the road was $12,799, let on two contracts which were not 

advertised for bids. 

Commissioner Kennedy testified during trial that the 

commissioners on October 1, 1975, did not expect any paving to be 
done until Spring 1976, thereby justifying dividing the work 

into two separate contracts each for less than $10,000. The 

jurors resolved the conflict between 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 commissioners had purposely and negligently failed to advertise a county road project of over $10,000 

for bid, and had knowingly divided 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 such matters is within the 

province of the jury. As long as there is substantial evidence 

to support the verdict, it will not be disturbed on appeal. State 

v. Bouldin, 153 Mont. 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, it must 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 n