                       No. 13786

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                         1977




THE STATE OF MONTANA,
                 Plaintiff and Appellant,
         -vs-
FRANK COLE, JR.,
                 Defendant and Respondent.


Appeal   from:   District Court of the Thirteenth Judicial
                  District,
                 Honorable Robert H. Wilson, Judqe presiding.
Counsel of Record:
      For Appellant:
          Hon. Mike Greely, Attorney General, Helena, Montana
          Arthur W. Ayers, Jr., argued, County Attorney,
           Red Lodge, Montana
      For Respondent :
          Kampfe and Perhacs, Red Lodge, Montana
          D. Frank Kampfe argued, Red Lodge, Montana


                                Submitted:        September 26, 1977
                                   Decided : ' J C i   2 6 1977
Mr.   Chief J u s t i c e Paul G. H a t f i e l d d e l i v e r e d t h e Opinion of
t h e Court.

                 The Carbon County a t t o r n e y charged defendant w i t h
f o u r c o u n t s of o f f i c i a l misconduct under s e c t i o n 94-7-401,

R.C.M.     1947.        Defendant moved t o d i s m i s s t h e f o u r count
Information.            The d i s t r i c t c o u r t g r a n t e d t h e motion t o d i s m i s s

Count I and denied t h e d i s m i s s a l of Counts 11, 111, and I V .

The Carbon County a t t o r n e y a p p e a l s t h e d i s m i s s a l .

                 O January 20, 1977, t h e Carbon County a t t o r n e y a p p l i e d
                  n
t o t h e d i s t r i c t c o u r t f o r l e a v e t o f i l e an I n f o r m a t i o n c h a r g i n g

d e f e n d a n t w i t h f o u r c o u n t s of o f f i c i a l misconduct w h i l e chairman
of t h e Carbon County Board of County Commissioners.                                   The county

a t t o r n e y supported h i s a p p l i c a t i o n w i t h an a f f i d a v i t wherein

he s e t f o r t h v a r i o u s f a c t s t e n d i n g t o e s t a b l i s h p r o b a b l e c a u s e

f o r b e l i e v i n g defendant committed t h e o f f e n s e s .               The c o u r t g r a n t e d
l e a v e t o f i l e t h e Information.
               Count I of t h e Information charged t h a t d e f e n d a n t , i n
h i s o f f i c i a l c a p a c i t y , had knowingly performed an a c t which he

knew was p r o h i b i t e d by law ( s e c t i o n 16-1803, R.C.M.                    1947) when
he e n t e r e d i n t o a c o n t r a c t t o purchase road machinery from A l l i e d

Equipment Company f o r a sum i n e x c e s s of $10,000 w i t h o u t f i r s t

publishing a notice c a l l i n g f o r bids.

               O February 1 4 , 1977, defendant f i l e d t w o motions t o
                n
dismiss.          I n t h e motion e n t i t l e d ''MOTION TO DISMISS" d e f e n d a n t

a s s e r t e d t h a t Count I f a i l e d t o c h a r g e an o f f e n s e because s e c t i o n

16-1803 p e r t a i n s o n l y t o t h e "county governing body" qnd n o t t o

an i n d i v i d u a l commissioner, such a s d e f e n d a n t .               I n h i s motion
e n t i t l e d "MOTION TO DISMISS             -   #2",   defendant alleged t h e a f f i -
d a v i t s he submitted i n s u p p o r t of t h a t motion showed he d i d n o t
commit an o f f e n s e .

                 Defendant and t h e A l l i e d Equipment Company salesman

and p r e s i d e n t swore i n t h e a f f i d a v i t s accompanying "MOTION TO

DISMISS      -    # 2 " t h a t no c o n t r a c t had been e n t e r e d i n t o by d e f e n d a n t
with ~llied, alleged in the Information's Count I.
            as                                           The
affiants all asserted that, although defendant had signed
an order form, the purpose of the form was to allow the sales-
man to order the equipment to county specifications of the
equipment might be available when the county accepted equip-
ment bids.   The affiants stated the form in no way bound Carbon
County to the purchase of the machinery.     Defendant and the
other two county commissioners stated in affidavits that the
commissioners published a call for bids in the February 26,
March 4 and March 11, 1976, Carbon County News and did not
accept Allied Equipment Company's bid until the regular meeting
of the commissioners on March 11, 1976.
         The Carbon County attorney submitted no counter-affi-
davits and offered no other proof to rebut the sworn statements
in the affidavits submitted by defendant.    On March 7, 1977, the
district court ordered that Count I of the Information be dis-
missed, without setting forth the reasons for the dismissal.
         The issues on appeal are whether a trial judge may dis-
miss a criminal case prior to trial over the objection of the
prosecuting attorney, and, if he may, whether the trial judge
in this case followed the proper procedure in dismissing Count I.
        Appellant state of Montana notes that the district court
did not specify the basis for its dismissal of Count I, and
asserts that either ground for dismissal advanced by defendant
was insufficient. The state argues the proscription in section
16-1803(1), R.C.M. 1947, against a county governing body enter-
ing into certain contracts without first publishing a notice
calling for bids, applied to each county commissioner individually,
as well as to the commissioners as a body.    Appellant maintains
dismissal for the reason that section 16-1803(1) did not apply
to defendant as an individual was therefore incorrect.    Appellant
asserts that neither could the judge dismiss Count I on the

basis of the affidavits defendant submitted with his "MOTION
TO DISMISS    -   #2".    The affidavits went directly to the general
issue to be determined at trial, that of whether defendant
had actually entered into an unauthorized contract.             The state
contends that issue is a question to be decided by the jury
at trial and not by the judge prior to trial.            As the state
notes, section 95-1701, R.C.M. 1947, which sets forth the de-
fenses and objections which a defendant may raise before trial,
allows motions only for "Any defense or objection which is cap-
able of determination without the trial of the general issue              * * *."
Unlike the defense of entrapment raised by pretrial motion in
State ex rel. Hamlin v. ~istrictCourt, 163 Mont. 16, 515 P.2d
74 (1973), defendant's defense in his "MOTION TO DISMISS           -   #2"

went squarely to the general issue of existence or nonexistence
of a contract, and was, therefore, not authorized by section 95-
1701.

         The judge could, however, for the reason there were
insufficient facts to bring defendant to trial, dismiss Count I
of the Information under section 95-1703, R.C.M. 1947, which
provides "The court may          * * *   on its own motion * * * and in
furtherance of justice, order an            * * * information * * * to be
dismissed   * * *."       The defendant in State ex rel. Forsythe v.
Coate,        Mont   .     ,   558 P.2d 647, 33 St.Rep.1350 (1976), was
also charged with official misconduct, and sought to dismiss
the charge.       This Court held the district judge in Forsythe had
the authority under section 95-1703 to dismiss the indictment
where he was thoroughly familiar with the facts underlying the
alleged offense.         The motion      to dismiss by the defendant in
Forsythe was in effect a motion requesting the court to exercise
its discretion to dismiss a charge "on its own motion" and "in
furtherance of justice".       See: People v. Benson, 64 Cal.App.3d
Supp. 10, 134 Cal.Rptr. 766 (1976).
            The authority of the court to dismiss an Information
under section 95-1703, however, is not unbridled.         The court
nay only dismiss the Information if dismissal is "in furtherance
of justice".     Section 95-1703 further requires "the reasons of
the dismissal must be set forth in an order entered upon the
minutes."  If the reasons for dismissal are not set forth, this
                                             judge
Court has no basis to review whether the trial/exercised his dis-
cretion to dismiss within the "in furtherance of justice" standard.
            The "in furtherance of justice" standard, though not
defined in section 95-1703, is not merely verbiage; rather, it
requires that the court exercise its discretion to dismiss a
criminal charge "    * * *   in view of the constitutional rights of
the defendant and the interests of society      * * *".   State ex rel.
Anderson v. Gile, 119 Mont. 182, 187, 172 P.2d 583 (1946).        The
California courts, interpreting the California Penal Code, sec-
tion 1385, a section virtually identical to section 95-1703, R.C.M.
1947, have stated the factors which a trial court should consider
before dismissing a case, either before trial or after a verdict,
include weighing the evidence indicative of guilt or innocence,
the nature of the crime involved, the length, if any, of the de-
fendant's pretrial incarceration, and the possible harassment
and burdens imposed upon the defendant by a trial.        People v.
Superior Court of Marin County, 69 Cal.2d 491, 72 Ca1.Rpt.r. 330,
446 P.2d 138, 147 (1968); People v. Ritchie, 17 Cal.App.3d
1098, 95 Cal.Rptr.462, 466 (1971).
            Because the trial judge in this case did not set forth
the reasons for dismissing Count I, we can only guess as to the
rationale for the dismissal.       If he dismissed the Count because
he felt that an individual commissioner cannot violate section
 16-1803, R.C.M. 1947, the rationale advance by defendant in
 his "MOTION TO DISMISS", the judge was incorrect.         An individ-
 ual commissioner may be criminally liable for official miscon-
 duct under section 94-7-401(1) ( c ) , R.C.M.   1947, for entering
 into a contract for the purchase of road equipment in excess
of $10,000 cost, without publishing notice calling for bids.
 Section 94-7-401(1)(c) states:
          "(1) A public servant commits the offense
          of official misconduct when, in his official
          capacity * * *
           "(c) with the purpose to obtain advantage for
           himself or another, he performs an act in
           excess of his lawful authority * * *."
          Although it is true, as defendant maintains, that section
16-1803 allows only the county governing body as a unit to enter
into such construction contracts, this section merely defines the
scope of the commissionerst lawful authority.       Any contract made
by an individual board member without board approval is "an act
in excess of his lawful authority", and a crime under section 94-
7-401 (1)(c).
           Defendant maintains that the affidavits he submitted with
his "MOTION TO DISMISS   -   # 2 " were uncontested by the state, clearly

proved defendant had not entered into any contract, and warranted
the judge in dismissing Count I "in the furtherance of justice".
           Defendant asserts the judge was fully cognizant of
the attendant facts of this case because the affidavits which
defendant submitted with his "MOTION TO DISMISS      -   # 2 " were identi-

cal to the affidavits he submitted in support of a motion for
summary judgment which the judge previously granted in a civil
case.   Defendant maintains that the affidavits stood uncontroverted
by any other evidence in the civil case, were part of the court
record, and provided the judge with the basis on which to make an
informed judgment to order dismissal of Count I of the criminal
Information.
          If these were the judge's reasons for dismissing Count
I, he did not state them in the record.    In an order filed
March 9, 1977, the judge merely stated that "IT IS ORDERED that
said motion to dismiss Count I be, and hereby is, granted."      The
judge had no authority under section 95-1701 to grant a defen-
dant's motion to dismiss based on a defense which went to the
general issue to be determined at trial.   If the judge wishes to
dismiss Count I of the Information on his own motion and in the
furtherance of justice, under section 95-1703, he must set forth
the reasons for the dismissal in an order entered on the minutes.
          The order of dismissal is vacated and the case is re-
manded to the district court for further proceedings consistent
with this opinion.                    -3




                                             Chief Justice
                                                             A




  Justices   G-*
