FRAZIER v. STATE BY AND THROUGH PITTMAN

HAWKINS, Presiding Justice, for the court:

The State through Edwin Lloyd Pittman brought an action for declaratory judgment in the chancery court of the First Judicial District of Hinds County against Hillman T. Frazier and Bill F. Knox, alleging they were in violation of Article 4, Section 109 of the Mississippi Constitution. The final decree of that court so found, and the defendants have appealed.

The State through the Mississippi Ethics Commission brought a separate action for declaratory judgment in the same court against Donald N. Logan, James D. Nunnally, Manuel Killebrew, Douglas L. Anderson and Perrin H. Purvis, likewise alleging they were in violation of the same section of the Constitution. The final decree of that court so found, and all defendants with the exception of Purvis have appealed.

Also at issue in the chancery court was the constitutionality of certain statutes specifically authorizing the conduct in which the defendants were engaged, and the court found such statutes to be violative of the Constitution.

In addition to declaratory relief the Ethics Commission in an amended complaint sought restitution from the defendants named in its suit, for compensation received from the state in violation of Section 109. The court denied restitution. The Ethics Commission has cross-appealed from this denial.

We have consolidated these appeals, and the issues faced in each defendant's case, with the exception of Purvis, will be addressed. Mr. Purvis having refunded the State all funds with which he was charged with receiving in violation of Section 109, and having made no appeal, the decree as to him is final, and no issue as to him is before us.

On this appeal we construe Section 109 and its application to six officials serving in various public offices, together with prohibited interest contracts each was alleged to have under § 109. We likewise address the constitutionality of certain sections of Miss. Code Ann. § 25-4-101, et seq. (Chapter 469, Laws of 1983).

We further address whether the Ethics Commission had legal authority to maintain this action, and conclude it did.

For the reasons set forth below, on direct appeal we affirm the chancery court as to the defendants Frazier, Knox, Anderson and Killebrew, and affirm in part and reverse in part as to Nunnally and Logan.

We affirm on cross-appeal.

FACTS HILLMAN T. FRAZIER

Frazier was elected to the office of State Representative, 67th District of the Mississippi Legislature most recently on November 8, 1983, for a four-year term, and formally accepted membership in that body for this term in January, 1984. On April 17, 1984, Representative Frazier voted "yea" on Senate Bill 2985, which became law on May 14, 1984, as Chapter 209, Mississippi Laws, 1984. This bill was an act making an appropriation to the Board of Trustees of State Institutions of Higher Learning for disbursement by the Board to Jackson State University and other state institutions of higher learning for the fiscal year 1985 (July 1, 1984, through June 30, 1985).

On June 19, 1985, Frazier entered into a contract of employment with Jackson State University as a Lecturer in the Department of Political Science for the June 3-July 28, 1985, period. As payment under this contract, Frazier received two checks totalling $2,484.84.

On March 19, 1985, Representative Frazier voted "yea" on Senate Bill 2997, which became law on April 19, 1985, as Chapter 149, Mississippi Laws, 1985, and which likewise was an appropriation bill to the State Institutions of Higher Learning just as Senate Bill 2985, but for the fiscal year 1986.

On September 16, 1985, Frazier entered into a contract of employment with Jackson State University in the same capacity for the September 3-December 16, 1985, period. As payment under this contract, Frazier received four checks totalling $6,986.00.

BILL F. KNOX

Knox was first elected as a Supervisor, District 2 of the Board of Supervisors of Panola County in 1979, and was re-elected on November 8, 1983, for a four-term, which he began serving January 2, 1984.

On January 9, 1984, the Board of Supervisors of Panola County entered an order selecting the State Bank of Como, the Bank of Crenshaw and other Panola County banks as county depositories for the year 1984. On January 14, 1985, this Board again entered an order selecting these two banks and other Panola County banks as county depositories for the year 1985. Pursuant to these Board orders, for the period October, 1984 — August, 1985, $1,095,917.57 of Panola County public funds were deposited in the State Bank of Como, and $1,516,896.62 of Panola County public funds were deposited in the Bank of Crenshaw.

Throughout 1984 Knox was president and chief executive officer of the Bank of Crenshaw, and chairman of its board of directors. On December 31, 1984, the Bank of Crenshaw was merged into the State Bank of Como, and continued to do business as the Bank of Crenshaw, a branch bank of the State of Como. Following the merger Knox remained president and chief executive officer of the Bank of Crenshaw, and was also the president, and bank security officer of the State Bank of Como, as well as a member of its board of directors. Knox was also a shareholder in the State Bank of Como, owning at least $200.00 of its capital stock. The record discloses no further information on the number of shares held by Knox, or percentage of stock ownership held by him in this bank.

DONALD N. LOGAN

Logan was principal at the Harper McGaughan Elementary School, a public school in the Long Beach Municipal Separate School District, a position he had held for a number of years, when he was elected as Alderman at Large of the city of Long Beach in a February, 1982, special election. He was re-elected in June, 1984, for a four-year term, and following his election he held both positions as school principal and alderman.

On September 7, 1982, the Board of Aldermen of Long Beach entered a resolution fixing and levying an ad valorem tax of 25.00 mills on each dollar of assessed valuation of all taxable property in the district for 1982 for operation of district schools. On September 20, 1983, this Board entered a similar resolution levying an ad valorem tax of 28.70 mills on all taxable property in the district for 1984 for this purpose. On September 12, 1985, this Board entered a similar resolution levying an ad valorem tax of 31.95 mills on all taxable property in the district for 1985 for school operating expenses.

The millage for school operating expenses mentioned above encompasses two ad valorem tax levies, a levy to support the minimum education program and a levy for the school district maintenance. The taxes collected from these levies are deposited to the credit of the school district, and from those funds Logan receives the local portion of his salary under his employment contract.

Successive annual contracts of employ between Logan and the school district were executed as follows:

May 19, 1983, with salary of $25,565 for 1983-84 school year;

May 5, 1984, with salary of $25,565 for 1984-85 school year;

June 27, 1985, with salary of $28,331 for 1985-86 school year.

As to the 1982 school tax levy, under Miss. Code Ann. §§ 37-57-3 (1972) and -57-35 (1972) (repealed 1983), upon receipt of a certified copy of the order of the board of trustees of the school district requesting the same, it was mandatory that the city board levy up to a maximum amount of 25 mills on the taxable property of the district. In addition to the statutory mandate, pursuant to a suit filed by the board of trustees of the school district against the city, the chancery court of the First Judicial District of Harrison County issued a final decree permanently enjoining the mayor and board of aldermen to annually levy the statutorily mandated tax, pursuant to a request of the board of trustees by appropriate resolution or order. Long Beach Municipal Separate School District v. City of Long Beach, Cause No. 77,285 (Chancery Court, October 16, 1980). The portion of Logan's salary that came from the local tax, as opposed to state funds paid into the school district under the minimum education program, see Miss. Code Ann. §§ 37-19-37 (Supp. 1985) and -19-39 (Supp. 1985), came from these mandatory levies.

As to the 1983 school tax levy, under Miss. Code Ann. § 37-57-105 (Supp. 1985), upon receipt of a certified copy of the order of the board of trustees of the school district requesting the same, it was mandatory that the city board levy up to a maximum amount of 28 mills on the taxable property in the district, in addition to the minimum education levy under Miss. Code Ann. § 37-57-3. Under this mandate and the order of the school district, the city board levied 23.75 mills for the school district maintenance fund. Again, the portion of Logan's salary that came as a result of local taxation came from these mandatory levies paid into the district maintenance fund and minimum education fund.

As to the 1984 school tax levy, the city board and school trustees were under the same law as in 1983. Under the order from the school district, the city board levied 27.45 mills for the school district maintenance fund. Again, the portion of Logan's salary resulting from local taxation came from levies it was mandatory for the city board to make.

As to the 1985 school tax levy, under the order of the school district the city board levied 28 mills on the district's taxable property. In addition to the required 28 mills, under Miss. Code Ann. § 37-57-105 (Supp. 1985), the city board levied an additional 3.95 mills for the school district maintenance fund, which was discretionary with the city board. It was from this total 31.95 mill levy and the mandatory minimum education fund levy that the portion of Logan's salary resulting from local taxation was paid under his employment contract for that year.

Miss. Code Ann. § 37-57-105 was amended under the Uniform Law of 1986 so as to remove this discretionary authority in the municipal boards.

The record is silent as to the portion of Logan's total annual salary which came from state funds, and which portion came as a result of the local tax levies. The record contains only a factor-based salary schedule for principals adopted by the school district for the 1983-84 school year. As to that year we can only say that it appears local taxation constituted only a small portion of Logan's total salary.

As part of the exhibits to the stipulations between the plaintiffs and Logan (R. 347-49), the salary for Logan sets forth the following:

An Elementary School Principal shall be paid a salary of 1.12 times the monthly teachers salary for 10 months.

AAA-23 Donald Logan $22,878 $18,600.00 State 1,922.00 Local $20,522.00 Base 2,280.00 10th month $22,802.00 2,463.00 Factor 1.12 $25,265.00 Total Salary 300.00[*]

[*] Salary supplement passed by order of school district (this figure in handwriting)

JAMES D. NUNNALLY

Nunnally, a resident of Tippah County, was elected to the office of State Representative, 4th District of the Mississippi Legislature in 1971, and has been re-elected each succeeding election for a four-year term. He was elected to his present term in November, 1983, and formally accepted membership in that body for this term in January, 1984. On March 28, 1984, Representative Nunnally voted "yea" on House Bill No. 1172, which became law on May 8, 1984, as Chapter 165, Mississippi Laws, 1984. This Bill was an act making an appropriation to the State Department of Education for disbursement by the Department to the South Tippah County Consolidated School District, the Benton County School District, and other public school districts for support and maintenance during the fiscal year 1985 (July 1, 1984, through June 30, 1985).

Neither the pleadings nor the proof specifically pointed out the appropriations bills Nunnally voted on; however, we take judicial notice of these acts. In the Attorney General's action against Frazier, the State saw to it that the specific bills which constituted the violation were in the record. The Ethics Commission has failed to favor us with this information.

In 1984 Nunnally and the Benton County School District executed an employment contract whereby Nunnally was employed as a public school teacher at Ashland Middle School, at an annual salary of $15,575 for the 1984-85 school year. During this time Nunnally's wife, Betty Jo Nunnally, was employed by South Tippah County Consolidated School District as a public school teacher at Pine Grove High School, at an annual salary of $15,565 for the 1984-85 school year.

Again we express dissatisfaction with the record. Neither the pertinent employment contracts nor the terms of those contracts were made a part of the pleadings, save for certain facts stipulated by Nunnally.

On February 28, 1985, Representative Nunnally voted "yea" on House Bill No. 1172, which became law on April 5, 1985, as Chapter 95, Mississippi Laws, 1985, and which likewise was an appropriation bill to the State Department of Education just as Chapter 165, Mississippi Laws, 1984, but for the fiscal year 1986.

In addition to the appropriation bills, Representative Nunnally was a member of the Legislature when Senate Bill No. 2876 was enacted into law on March 19, 1985, as Chapter 351, Mississippi Laws, 1985. A portion of this act revised the teachers' salary schedule and increased the minimum education program allotment. See Miss. Code Ann. § 37-19-7 (Supp. 1985) (codification of teacher salary increases). While the bill passed the House of Representatives on March 17, 1985, Nunnally abstained from voting. House Journal, 1985, at p. 550-51.

The Ethics Commission failed to charge anywhere that Nunnally violated § 109 by virtue of this bill being passed while Nunnally was in the Legislature. It was only upon questioning by the Court in oral argument that this was brought out. We take judicial notice of Senate Bill No. 2876.

In 1985 Nunnally entered into a contract of employment with the Benton County School District as a public school teacher for the 1985-86 school year at a salary of $17,975. Nunnally's wife entered into a similar contract with the South Tippah County Consolidated School District for the 1985-86 school year at a salary of $17,965.

For the 1984-85 school year, the parties have stipulated that $15,325, all but $250 of Nunnally's salary, was paid from public funds appropriated by the Mississippi Legislature. As to the other employment contracts by Nunnally and his wife, the record does not disclose how much salary received by the Nunnallys was paid through the appropriation bills; however, Nunnally has stipulated that he and his wife receive "the majority" of their respective salaries from appropriated public funds.

MANUEL KILLEBREW

Killebrew was first elected as a Supervisor, District 4 of the Board of Supervisors of Quitman County on November 8, 1983, to a four-year term which he began serving January 2, 1984. At the time of his election and since he has been employed as a teacher in the Quitman County High School, a public school in the Quitman County School District.

Neither the pleadings nor the proof contained the pertinent employment contracts between Killebrew and the Quitman County School District.

On September 21, 1984, the Board of Supervisors of Quitman County entered an order levying an ad valorem tax of 4.00 mills on each dollar of assessed valuation of all taxable property in the county for the minimum education program under Miss. Code Ann. § 37-57-1, and 16.30 mills for the school district maintenance fund.

On September 3, 1985, the Board of Supervisors entered a similar levy of 3.96 mills for the minimum education program under Miss. Code Ann. § 37-57-1, and 19.87 mills for the school district maintenance fund.

As to the 1984 school tax levy, the 4.00 mill levy was mandatory under Miss. Code Ann. 37-57-1, and the 16.30 mill levy was discretionary under Miss. Code Ann. § 37-57-105 (Supp. 1985).

As to the 1985 school tax levy, the 3.96 mill levy was likewise mandatory, and the 19.87 mill levy was discretionary under Miss. Code Ann. §§ 37-57-1 (1972) and -57-105 (Supp. 1985).

Miss. Code Ann. § 37-57-105 was amended under the Uniform Law of 1986 so as to remove discretionary authority in the Board of Supervisors whether or not to levy the tax requested by the county school board.

DOUGLAS ANDERSON

Anderson was elected to the office of State Senator, 27th District of the Mississippi Legislature most recently on November 8, 1983, for a four-year term, and formally accepted membership in that body for this term in January, 1984. On March 29, 1984, Senator Anderson voted "yea" on Senate Bill 2985, which became law on May 14, 1984, as Chapter 209, Mississippi Laws, 1984. This bill was an act making an appropriation to the Board of Trustees of State Institutions of Higher Learning for disbursement by the Board to Jackson State University and other state institutions of higher learning for the fiscal year 1985 (July 1, 1984, through June 30, 1985).

Neither the pleadings nor the proof specifically pointed out the appropriations bills Anderson voted on; however, we take judicial notice of these acts. In the Attorney General's action against Frazier, the State saw to it that the specific bills which constituted the violation were in the record. The Ethics Commission has failed to favor us with this information.

In the fall school term of 1984, Anderson entered into a contract of employment with Jackson State University as an Assistant Professor of Mathematics. The record does not contain this employment contract or its relevant terms.

Again we must express our dissatisfaction with the record of the Ethics Commission. See Footnote 8.

On February 28, 1985, Senator Anderson voted "yea" on Senate Bill 2997, which became law on April 19, 1985, as Chapter 149, Mississippi Laws, 1985, and which likewise was an appropriation bill to the State Institutions of Higher Learning just as Senate Bill 2985, but for the fiscal year 1986.

In the fall term of 1985, Anderson entered into a contract of employment with Jackson State University in the same capacity as in the previous fall 1984 period.

PERRIN H. PURVIS

Purvis was elected to the office of State Senator, 6th District of the Mississippi Legislature in 1963, and has been re-elected each succeeding election for a four-year term. He was elected to his present term on November 8, 1983, and formally accepted membership in that body for this term in January, 1984. On April 18, 1984, Purvis voted "yea" on House Bill No. 1184, which became law on May 8, 1984 as Chapter 170, Mississippi Laws, 1984. This Bill was an act making an appropriation to the Tombigbee River Valley Water Management District for the support and maintenance of the Water Management District for the fiscal year 1985 (July 1, 1984, to June 30, 1985). On March 20, 1985, Purvis voted "yea" on House Bill No. 1169, which became law on April 17, 1985, as Chapter 145, Mississippi Laws, 1985, and which likewise was an appropriation bill to the Tombigbee River Valley Water Management District for the fiscal year 1985-86.

We take judicial notice of this act, which was not made a part of the record.

Throughout 1984 and 1985 Purvis also served as president and a shareholder of P.I.A., Inc., a Mississippi corporation in the business of selling insurance.

On April 25, 1985, the Board of Directors of the Water Management District gave notice to bidders by publication that bids for insurance coverage for the District would be accepted on May 8, 1985. P.I.A., Inc., entered such a bid, which was accepted by the Water Management District, and P.I.A. began providing insurance coverage for the District on May 8, 1985. As payment under this contract, P.I.A. received public funds appropriated by the Mississippi Legislature.

Subsequent to the filing of this action by the Ethics Commission, P.I.A. cancelled the insurance contract with the Water Management District and refunded its commission earned under the contract.

CONSTITUTION AND STATUTE

At issue in this case is the proper interpretation of Article 4, Section 109 of the Mississippi Constitution of 1890, and whether certain portions of Miss. Code Ann. § 25-4-105 (Supp. 1985) violate it.

Section 109 reads:

Section 109. No public officer or member of the legislature shall be interested, directly or indirectly, in any contract with the state, or any district, county, city, or town thereof, authorized by any law passed or order made by any board of which he may be or may have been a member, during the term for which he shall have been chosen, or within one year after the expiration of such term.

Miss. Code Ann. § 25-4-105 (Supp. 1985) is a part of Chapter 469, Laws of 1983, Miss. Code Ann. § 25-4-101, et seq., a comprehensive legislative enactment dealing with conflicts of interest by public officials.

The pertinent portions are as follows:

§ 25-4-101. Declaration of public policy.

The legislature declares that elective and public office and employment is a public trust and any effort to realize personal gain through official conduct, other than as provided by law, or as a natural consequence of the employment or position, is a violation of that trust. Therefore, public servants shall endeavor to pursue a course of conduct which will not raise suspicion among the public that they are likely to be engaged in acts that are in violation of this trust and which will not reflect unfavorably upon the state and local governments.

§ 25-4-103. Definitions.

The following definitions apply in this article unless the context otherwise requires:

(a) "Authority" means any component unit of a governmental entity.

* * * * * *

(h) "Government entity" means the state, a county, a municipality or any other separate political subdivision authorized by law to exercise a part of the sovereign power of the state.

* * * * * *

(j) "Material financial interest" means a personal and pecuniary interest, direct or indirect, accruing to a public servant or spouse, either individually or in combination with each other. Notwithstanding the foregoing, ownership of any interest of less than ten percent (10%) in a business or aggregate annual income of less than one thousand dollars ($1,000.00) from a business shall be deemed not be [sic] a material financial interest in such business.

* * * * * *

(p) "Relative" means the spouse, child or parent.

25-4-105. Certain actions, activities and business relationships prohibited or authorized; contracts in violation of section voidable.

* * * * * *

(2) No public servant shall:

(a) Be a contractor, subcontractor or vendor with the governmental entity of which he is a member, other than in his contract of employment, or have a material financial interest in any business which is a contractor, subcontractor or vendor with the governmental entity of which he is a member. [Emphasis added]

* * * * * *

(f) Be interested, directly or indirectly, during the term for which he shall have been chosen, or within one (1) year after the expiration of such term, in any contract with the state, or any district, county, city or town thereof, authorized by any law passed or order made by any board of which he may be or may have been a member.

(3) Notwithstanding the provisions of subsection (2) of this section, a public servant or his relative:

(a) May be an officer or stockholder of banks or savings and loan associations or other such financial institutions bidding for bonds, notes or other evidences of debt or for the privilege of keeping as depositories the public funds of a governmental entity thereof or the editor or employee of any newspaper in which legal notices are required to be published in respect to the publication of said legal notices.

(b) May be a contractor or vendor with any authority of the governmental entity other than the authority of the governmental entity of which he is an officer or employee or have a material financial interest in a business which is a contractor or vendor with any authority of the governmental entity other than the authority of the governmental entity of which he is an officer or employee where such contract is let to the lowest and best bidder after competitive bidding and three (3) or more legitimate bids are received or where the goods or services involved are reasonably available from two (2) or fewer commercial sources, provided such transactions comply with the public purchases laws.

* * * * * *

(h) May be employed by or receive compensation from an authority of the governmental entity other than the authority of the governmental entity of which the public servant is an officer or employee.

The Legislature submitted to the electorate of this State at the general election held on November 6, 1984, a proposal to amend Section 109 as follows:

Amend Section 109, Mississippi Constitution of 1890, to read as follows:

Section 109. No public official or public employee shall be interested in any contract with the governmental entity of which he or she is a member. The term "entity" shall mean any governmental body vested with the authority to contract.

No public official or public employee shall misuse his or her official position to obtain any pecuniary benefit for himself or herself or for any person or business with which he or she is associated.

The Legislature may further regulate conduct by public officials and public employees and may create a commission composed of members appointed by each department of government to accomplish the intent of this section.

This proposed amendment was rejected by the people.

The Legislature again submitted to the electors of this State at an election held on June 2, 1986, the following proposed amendment to Section 109:

Amend Section 109, Mississippi Constitution of 1890, to read as follows:

"Section 109. (1) No public officer, member of the Legislature or public employee shall have any interest in any contract with the governmental level of which he is a member, or within one (1) year after the expiration of his term of office or employment, if such interest would improperly influence the performance of his official duties or official actions.

(2) An improper influence would exist when a reasonably prudent public officer, member of the Legislature or public employee knows or has good reason to believe that the benefit or detriment in the subject matter in which he participates will impair his independent judgment or the faithful discharge of public duties in his official capacity.

(3) An improper influence would not exist if the benefit or detriment in the subject matter which is under consideration would accrue to the public generally.

(4) No public officer, member of the Legislature or public employee shall use his official position to obtain any pecuniary benefit for himself or for any person or for any business with which he is associated, other than those benefits as may be incidental to his office or accrue to the public generally.

(5) The term "accrue to the public generally" in this section shall mean that the benefit or detriment to the public officer, member of the Legislature or public employee is affected by the subject contract, action or decision to no greater extent than any other member of the public, segment of the public, or an industry, profession or occupation.

(6) The Legislature shall provide civil or criminal penalties and other appropriate remedies for the violation of this section. The Legislature shall also provide by law for the further regulaton and definition of lawful conduct, including proper public disclosure of pecuniary interests in official matters, by public officers, members of the Legislature or public employees. The Legislature may create a commission composed of members appointed by each department of government to accomplish the intent of this section." [Emphasis added]

This proposed amendment was also rejected by the electorate.

THE ATTORNEY GENERAL'S SUIT

On November 15, 1985, the State of Mississippi, through the Attorney General Edwin Lloyd Pittman filed a complaint in the chancery court of the First Judicial District of Hinds County against Frazier and Knox seeking a declaratory judgment under Rule 57, Mississippi Rules of Civil Procedure, that both defendants were in violation of Section 109, and that Miss. Code Ann. Sections 25-4-105(3)(a) and 25-4-105(3)(h) (Supp. 1985) be declared null and void.

The Attorney General alleged that Frazier had violated § 109 by entering into an employment contract which was authorized by the appropriation bills passed by the Legislature. The State alleged Knox was in violation of § 109 as a member of the county board of supervisors which entered into a county depository contract with banks in which Knox was an officer and shareholder.

Miss. Code Ann. § 25-4-105(3)(h) is statutory authority for Frazier to be a legislator and also employed by Jackson State University. Likewise, Miss. Code Ann. § 25-4-105(3)(a) (Supp. 1985) provides statutory authority for Knox to be an officer and shareholder in the State Bank of Como while serving on the county board of supervisors, which selects the Panola County depositories. The complaint charged that these sections were at cross-purposes with and violative of Section 109.

Following a motion by the State for summary judgment, the chancery court rendered an oral opinion on March 11, 1986, followed by a written opinion on March 20, holding that to the extent these code sections provided exceptions to Section 109 they were unconstitutional and void. The court also found that Frazier held a contract with Jackson State University, a governmental entity, which was authorized by laws passed while he was in the Legislature, and therefore his contract of employment violated Section 109. As to Knox, the court found that the contracts for the banks in which he was an officer, director and shareholder were authorized by the Board of Supervisors of which he was a member, and that he was in violation of Section 109. In accordance with the written opinion of the chancellor, a declaratory final judgment in favor of the State was rendered on the same date.

Frazier and Knox have appealed.

ETHICS COMMISSION SUIT

On December 2, 1985, the Mississippi Ethics Commission (the "Commission"), as a state agency, and its seven members filed a complaint in the same chancery court against Logan, Nunnally, Knox, Killebrew, Anderson and Purvis seeking declaratory relief as against these defendants as sought by the Attorney General in his action against Frazier and Knox.

The individual members of the Ethics Commission were Walter Brown, chairman; Ben H. Stone, vice-chairman,; Mark G. Hazard, secretary; Eugene L. Fair, Nina B. Goolsby, John C. Henegan, and Elizabeth C. Powers.

The complaint contained a separate count as to each defendant embracing the conduct of each, and as to Logan, Nunnally, Killebrew and Anderson, stated that insofar as Miss. Code Ann. § 24-4-105(3)(h) (Supp. 1985) purported to authorize such conduct, it violated Section 109 and was unenforceable. Therefore, each of their employment contracts was in violation of Section 109. As to Knox, essentially the same allegations was made as in the suit by the Attorney General. As to Purvis, the complaint stated that insofar as Miss. Code Ann. § 25-4-105(3)(b) (Supp. 1985) purported to authorize P.I.A.'s contract with the Tombigbee River Valley Water Management District, it violated Section 109, and that the insurance contract violated Section 109.

The chancellor sustained the motion of Knox to dismiss the action as to him because he was already being sued in the action filed by the Attorney General.

On December 16, 1985, the plaintiffs filed an amended complaint which sought restitution from all defendants except Purvis of all funds received thereafter under their contracts, and as to Purvis that the court order restitution of all funds received then or thereafter by P.I.A., Inc.

Each of the defendants in motions to dismiss challenged the authority of the Commission to file suit. The motions alleged the Commission was a nullity under our decision in Alexander v. State, ex rel. Allain, 441 So.2d 1329 (Miss. 1983), because two members were appointed each by the Lieutenant Governor, the Speaker of the House of Representatives of the Legislature, and the Chief Justice of the Mississippi Supreme Court, that the Attorney general had not given his consent to file the suit, that the Commission had no authority to seek a declaratory judgment under Miss. Code Ann. § 25-4-19(f), that the commission had no statutory authority to bring this type of action, and that venue was improper.

In response to a motion filed by the Commission to consolidate the two actions (and later withdrawn), the Attorney General challenged the authority of the Commission to bring the suit, alleging his office had the exclusive authority to bring such a suit, and at no time had his office refused to bring any action requested by the Commission. The Attorney General finally moved the chancery court to dismiss the action of the Commission.

In an oral opinion on January 28, 1986, the chancellor announced he was overruling the motions to dismiss because of the public importance in having a judicial resolution to the questions raised in the Ethics Commission action. On February 3 the chancellor entered an order overruling the motions to dismiss. The defendants who had not already done so then filed answers.

On March 31 the plaintiffs filed a motion for summary judgment against all defendants. Various defendants filed counter-motions for summary judgment.

On April 7 the chancellor conducted a hearing on the motions for summary judgment as to all parties except Nunnally, and announced he was overruling the defendants' motions for summary judgment, and sustained plaintiffs' motion for summary judgment to the extent of granting declaratory relief. While he had previously overruled the motions to dismiss, the chancellor expressed reservations as to the validity of the Commission because of the method of appointing its Members. (Vol. III, 389)

As to restitution, the chancellor was of the view that under this Court's decision in Golden v. Thompson, 194 Miss. 241, 11 So.2d 906 (1943), the defendants would be bound to pay restitution for monies received under proscribed conditions from and after the court's judgment became final.

In an amended answer filed March 13, Purvis stated a willingness to refund the entire commission P.I.A., Inc., had received under the insurance contract should the court hold there was a violation of Section 109.

The chancellor conducted a hearing as to Nunnally on June 16. On June 27 he filed his written findings of fact and conclusions of law, which we deem appropriate to set forth in some detail.

He found factually:

The action sought restitution, declaratory and injunctive relief against these defendants for conduct allegedly in violation of Section 109.

Plaintiffs were members of the Mississippi Ethics Commission, an agency of the State, and the seven members who appeared in their official positions and individually as Mississippi citizens and taxpayers.

Section 109 prohibited public officers, including legislators, from having a financial interest in any contract with the State of its political subdivisions when that contract was authorized by a law passed or order made by a public body of which the officer was a member, during or within one year after his term of office.

The Legislature in 1983 enacted the Standards of Conduct Act (the Act), Miss. Code Ann. §§ 25-4-101 to -4-117 (Supp. 1985) prohibiting certain activities through which public officials could derive pecuniary benefit by use of their official positions, defining the prohibited activities and establishing penalties for violation, Miss. Code Ann. §§ 25-4-105(2) and -4-109 (Supp. 1985). The Act also contained exceptions Miss. Code Ann. § 25-4-105(3)(a), (b), (c), (d) and (h), which had the effect of authorizing activities which would otherwise violate the Act's prohibitions. These exceptions permitted:

(a) certain public servants to contract with certain state, county or local governmental entities if such contract was let pursuant to competitive bidding or if the goods or services involved were reasonably available from less than three sources;

(b) Legislators and other public officers to be employed by or receive compensation from certain state, county or local governmental entities.

The chancellor found the statutory exceptions permitted such contracts or employment whether or not the contracts were authorized by the public body of which the officer was a member.

The Commission was an agency of the State, created in 1979 by the Legislature to insure the independence, integrity and impartiality of public officials, without regard to political considerations, and to promote public confidence in governmental integrity.

The Commission was composed of eight members appointed by the Governor, Lieutenant Governor, Speaker of the House of Representatives of the Legislature and Chief Justice of the Supreme Court to four-year terms, and had been given the specific independent authority to issue advisory opinions, conduct investigations, and bring civil actions through an attorney of its choice. Miss. Code Ann. §§ 25-4-5, 25-4-17, 25-4-19(f), (g).

The Commission had determined these defendants, while falling with one or more exceptions under the Act, apparently violated Section 109. Following investigations and conferences with the Attorney General, the Commission filed this action, even though the Attorney General had filed a complaint, because of a determination by the Commission that a greater variety of potential violations of Section 109 should be presented for adjudication than encompassed in the Attorney General's action.

The court then found the facts as to each of the defendants essentially as have been recited in this opinion.

His conclusions of law were:

The court had jurisdiction, and proper venue was with that court.

The Commission had authority to bring the action, under Miss.Code ann. § 11-45-11 (1972), and our holding in Grenada Municipal Separate School District v. Jesco, Inc., 449 So.2d 226 (Miss. 1984), and that it was unnecessary for the court to decide whether the commissioners in their individual capacities had standing to file the suit. The chancellor further found, however, that the commissioners had authority to bring the action as individuals, citing several authorities from this Court. (Vol. III, 455)

That while this was a type of case normally maintained by the Attorney General, and while the Attorney General had the right to direct the flow of litigation, his office could not frustrate lawful legislative purpose or block a lawful state agency from performing the lawful duties it was created to perform, and that this suit was properly before the court.

That the Commission officials' action in bringing suit against the defendants was valid, regardless of the constitutionality of their appointment (Vol. III, 457) citing decisions of this Court. While the defendants argued the Commission was unconstitutionally composed under Alexander v. State, by and through Allain, supra, the defendants did not contend the establishment of the Commission itself was beyond the power of the Legislature, or that the powers conferred upon the Commission should be removed by virtue of the source of their appointment. Therefore the Commission was a properly created and functioning state agency. The court remained concerned whether the members of the Commission could be appointed by other branches of government, but in deciding the narrow legal issue of whether the Commission officials' action was valid in bringing suit, longstanding principles of law prohibited the defendants from collaterally attacking the Commission's members.

The defendants were public officers, and in determining whether a violation of Section 109 had occurred, good faith and honest motives were not relevant, again citing decisions of this Court. (Vol. III, 458)

Regarding the conduct of the defendants, the chancellor made the following findings:

Logan. Citing Cassibry v. State, 404 So.2d 1360, 1367 (Miss. 1981), Logan's salary was a teacher was paid by ad valorem taxes levied as a result of orders entered by the city board, and therefore his contract was authorized by the city board of which he was a member. This was in violation of Section 109.

Nunnally. The appropriation bill enacted while Nunnally was in the Legislature authorized his and his wife's contracts of employment as school teachers. These constituted conflicts of interest in violation of Section 109 and of Miss. Code Ann. § 25-4-105(2) (Supp. 1985).

Anderson. As with Nunnally, the appropriation bill enacted while Anderson was in the Legislature authorized his contract of employment with Jackson State University, and violated Section 109.

Purvis. The appropriations to the Tombigbee River Valley Water Management District authorized the contract of insurance with P.I.A., Inc., and the District. As president and shareholder in P.I.A., this violated Section 109.

Killebrew. As with Logan, Killebrew's salary as a teacher in Quitman County was paid by ad valorem taxes levied as a result of orders entered by the Board of Supervisors of which he was a member, and his employment contract was likewise authorized by the board of which he was a member. This was in violation of Section 109.

To the extent the provisions of Miss. Code Ann. § 25-4-105(3) undertook to provide exceptions to Section 109 for these defendants, it was unconstitutional and void.

The court granted the following in regard to remedies:

Restitution as prayed for by the plaintiffs was denied, under Golden v. Thompson, supra.

A declaratory judgment would be entered holding that each defendant was in violation of Section 109, and to the extent that Miss. Code Ann. § 25-4-105(3)(a), (b) and (h) attempted to provide exceptions for public officers and members of the Legislature, these statutes were unconstitutional and void.

The court declined to enjoin the defendants from divesting themselves of any contractual interest, or resigning from public office, because the choice would obviously have to be made when the judgment became final.

A final judgment in accordance with this opinion was entered on July 22, 1986.

Purvis has perfected no appeal.

The remaining defendants have appealed. The Commission has cross-appealed the denial of restitution.

LAW LEGALITY OF ETHICS COMMISSION SUIT

Only the appellant Anderson has assigned as error on appeal the refusal of the chancellor to dismiss the Ethics Commission suit. The Attorney General with leave of this Court has filed an amicus curiae brief challenging the authority of the Commission to bring its action. We address this serious question at the outset, and a brief factual recitation (omitted above) is in order.

The Ethics Commission became concerned with the statutory exceptions contained in Chapter 469, Laws 1983 (The Standards of Conduct Act) to Section 109, and had received requests for advisory opinions from public officials.

This concern evolved into a decision by the Commission at its May 10, 1985, meeting to institute a suit against public officers at state, county and municipal levels of government. A subcommittee of the Commission met with the Attorney General and members of his staff a few days later. On June 7, 1985, the Commission identified seven possible defendants, and submitted their names to the Attorney General.

Thereafter a difference arose between the Commission and the Attorney General's office as to who should be sued. We credit both sides of this matter with absolute integrity and good faith, and the difference between their views and understanding is not necessary to our resolution of this matter. It is only necessary to note that on November 15, 1985, the Attorney General filed his action, and the Commission, concluding that the Attorney General would not file suit against the other defendants until the first suit was decided, resolved on December 2, 1985, to commence this action.

While it is quite true that the Attorney General partially complied with the request of the Commission and did indeed file a suit, it is just as obvious that he chose not to sue other defendants, which thereby would have precluded the judicial resolution of all questions which the Commission had determined needed to be settled. It is also true that the Commission was well within its statutory framework of powers and duties in seeking judicial resolution of all questions. See Miss. Code Ann. § 25-4-19 (Supp. 1985). The Commissioners had a right to ask a court of this State to settle the issues, to call upon the Attorney General for assistance, and to file the appropriate action.

The Commissioners determined the suit the Attorney General filed did not cover the needed territory. Having made this determination, and concluding that the Attorney General would not assist them until the suit he filed was terminated, they employed counsel and filed suit themselves.

Having done so, through their counsel on January 6, 1986, they asked the Attorney General to commence and prosecute this action.

The Attorney General responded by letter of January 6, 1986:

However, to correctly state the position of this office, I will reiterate that if the lawsuit as filed (the Attorney General's suit) does not accomplish the desired results and it becomes necessary to sue other individuals, such suit will be expeditiously filed and judicially prosecuted.

This Court, sitting in review of the facts after development in protracted trial court proceedings, observes that while the Attorney General's suit covers a large portion of these troubling issues, it does not cover them all. Moreover, neither the Commission nor the chancellor when he overruled the Attorney General's motion to dismiss had the benefit of hindsight. We have no difficulty in concluding that both the Commission and the chancellor had every reason to feel the impelling need for this State and our citizens to have the questions raised by the Ethics Commission suit, in addition to the Attorney General's suit, judicially resolved with reasonable judicial dispatch, and not, as the chancellor noted, "piecemeal."

For example, it would have been perfectly proper for the chancellor to dismiss the Commission's case against Anderson, since the Frazier suit brought by the State had covered the issue of a legislator-university professor in violation of § 109.
While we can view the cases of Frazier and Anderson in hindsight and determine it was unnecessary for the Commission to file that suit, there was no way for the chancellor to have determined whether or not there was some difference between the two situations when he made his ruling on the motion to dismiss.

Under our appellate procedure of pronouncing principles of law no further than necessary to settle the facts of a particular case, we must also conclude, as did the chancellor, that it would be a serious blow to our State if we did not resolve the issues raised by the Ethics Commission suit as well as the Attorney General's suit now.

Unquestionably, the Attorney General was the proper party to institute and manage this suit, as he is by common law, statute, and our Constitution the chief legal officer for this State. Mississippi Constitution of 1890, Article 6, Section 173; Miss. Code Ann. § 7-5-1; Kennington-Saenger Theaters, Inc. v. State, 196 Miss. 841, 18 So.2d 483 (1944); Capitol Stages, Inc. v. State, 157 Miss. 576, 128 So. 759 (1930). These cases provide that the Attorney General has the power to bring, control and manage the litigation on behalf of the State when the subject matter is determined to be of statewide interest.

However, all public officers, including the Attorney General, are subordinate to the laws of this State. See State v. Warren, 254 Miss. 293, 308-309, 180 So.2d 293, 300 (1965) (Attorney General clothed with all common law powers "except insofar as they have been expressly restricted or modified by statute or the State constitution.")

Thus the question in this case may be stated as follows: When a state agency attempts in a lawful manner to fulfill certain duties and responsibilities charged by statute and calls upon the State's chief legal officer for representation, is the Attorney General obligated to either (1) represent the agency with the same fidelity any client is entitled to be represented, or (2) permit the state agency to secure counsel of its choice?

The Attorney General contends that since his authority to bring, manage and control litigation of statewide interests is exclusive, no such authority exists in a state agency. The Attorney General also asserts that whether or not the subject matter is of statewide interest lies within the Attorney General's discretion.

The cases cited by the Attorney General are distinguishable from this case. Capitol Stages, Inc. v. State, supra, was a case where a district attorney sought to prevent by injunction a bus line from using the highways of this State. Kennington-Saenger Theaters, Inc. v. State, supra, was a quo warranto suit by a district attorney to oust a theater chain from doing business in this State. These cases presented questions as to whether the district attorney on his own initiative had authority to bring the suit. We held that suits of this nature were not within the framework of laws the district attorney is called upon to enforce, and that the trial court should have dismissed them. There was no state agency involved in either case calling upon a state's attorney to file suit.

White v. Lowry, 162 Miss. 751, 139 So. 874 (1932), was a case where the state auditor filed a suit without referring the matter to the Attorney General's office at all. We held no suit should have been filed without first referring the matter to the Attorney General for appropriate action.

Dunn Construction Co. v. Craig, 191 Miss. 682, 2 So.2d 166 (1941), was a case where the state tax collector filed suit to collect gross income tax, and in that case the Attorney General had indeed refused to file the suit. In that case, however, we held that where there was a statute giving exclusive jurisdiction of collection of the tax to the State Tax Commission, it was not a matter of the official concern of the state tax collector. Dunn would be more apposite to this case had it been the state tax commission rather than the state tax collector which had requested the Attorney General to file suit.

As the Attorney General argues, this Court has in the strongest possible terms unequivocally held that it his official prerogative to institute suits on behalf of the State, vouchsafed by our Constitution, our statutory law, and the history of common law. However, while this fundamental precept is indeed entitled to profound respect and deference, none of the decisions cited really cover the precise issue in this case. What we hold today is no departure from those decisions.

If this suit was necessary in order for the members of the Commission to properly fulfill the functions and responsibilities with which they were charged, then they were manifestly entitled to have some attorney represent the Commission in pursuing the matter in court. It is just as obvious that they were entitled to an attorney who had no conflict with the lawful purposes they were charged with carrying out, one who could serve such purposes with complete loyalty.

The Attorney General is indeed the attorney for the State to represent the people's interest. In representing the people it is his solemn lawful, professional and ethical responsibility to see that a state agency attempting to fulfill a lawful purpose is represented by his office with complete and unswerving fidelity. For in carrying out such lawful responsibilities, the state agency is for all intents and purposes the State of Mississippi and its people. The Attorney General is first and foremost a lawyer, generally among the state's most able, and he, like all lawyers, has an ethical duty to see that his loyalty is never diluted.

It therefore follows that while the Attorney General's office in advising state agencies as to the law and whether or not a suit should be filed will almost invariably be persuasive, his advice is not necessarily conclusive.

If an Attorney General declines to file a suit referred to him by a state agency, where the matter is of serious concern to state government, then that agency, if it determines its duties and responsibilities so require, is at least entitled to have some court pass upon whether it should have its full day in court. If the court determines that the subject matter of the litigation is one with which the agency is called upon to protect and enforce, then the agency should have its full day in court, which necessarily carries with it the right to have a lawyer represent it. The Attorney General's refusal to represent the agency does not deprive the court of the authority to keep jurisdiction and entertain the suit.

On the other hand, if the court determines the suit is outside of the official concern of the state agency, it should dismiss the case.

But in event of disagreement, it should be the court, not the Attorney General, which makes the final determination whether or not the agency is representing the people by carrying out lawful functions for which it was created.

Of course, all state agencies are still duty bound to follow any statutory regulations concerning that agency's ability to bring a lawsuit. We reiterate that our holding today does not usurp the Attorney General of his common law powers. However, in matters of vital statewide concern, where the Attorney General and the state agency cannot agree on the proper procedure of filing suit, the state agency should have its day in court if the agency is fulfilling its statutory duty.

This suit concerned conduct the Commission was required to supervise, investigate and regulate, and was clearly within the framework of duties the Commission was called upon to carry out. A reading of the Ethics in Government Act makes this plain. Miss. Code Ann. §§ 25-4-1, — 31 (Laws of 1979, Ch. 508; Laws 1982, Ch. 448). We specially note Miss. Code Ann. §§ 25-4-1; 25-4-17(h), (i), (j); 25-4-19(b), (g)(i)(ii); 25-4-21.

Indeed, it is clear that it was the investigation by the Commission which developed the factual background upon which the Attorney General ultimately based his suit.

Miss. Code Ann. § 25-4-19(f) and (g) authorize the Commission to employ counsel without reference to the Attorney General in order to file an action to seek restitution. The Commission argues this as one of the reasons it was authorized to institute suit, since restitution was sought in the amended complaint. The Attorney General argues otherwise. While we are inclined to agree with the Commission, we do not base our decision on a technical construction of this section. Rather, we note Miss. Code Ann. § 25-4-19(b) and Miss. Code Ann. § 25-4-21(e)(iii) specifically authorize the Commission to call upon the Attorney General for assistance in investigation of a public officer's conduct and recovery of civil remedies.

It would be meaningless for the statute to provide that the Attorney General could be called upon for assistance, then give him the sole and absolute prerogative whether or not to assist the Commission. The statutory right of a state agency to call upon the chief legal office of this State for assistance carries with it the word "meaningful."

As we stated in State v. Mississippi Public Service Comm'n, 418 So.2d 779, 784 (Miss. 1982), where the Attorney General was allowed to intervene in the case even though an Assistant Attorney General was assigned to represent the commission:

The attorney general has a large staff which can be assigned in such manner as to afford independent legal counsel and representation to the various agencies. The unique position of the attorney general requires that when his views differ from or he finds himself at odds with an agency, then he must allow the assigned counsel or specially appointed counsel to represent the agency unfettered and uninfluenced by the attorney general's personal opinion. If the public interest is involved, he may intervene to protect it. [Emphasis added]

We believe this decision is in accord with sister states which have been faced with similar questions. In Romulus City Treas. v. Wayne City Drain Comm'r., 413 Mich. 728, 322 N.W.2d 152, 157 (1982), the Michigan Supreme Court "also recognized the capacity of public officials to sue commensurate with their public trusts and duties." In State ex rel. Howard v. Oklahoma Corp. Comm'n. 614 P.2d 45 (Okla. 1980), a state commission being sued requested its own counsel since the Attorney General in that state had a conflicting position. The Oklahoma Supreme Court stated:

If, then, the Commission may be brought into court by relators . . . under any concept of affording it any semblance of even-handed justice, [the law] must require that it be represented if it so desires, by counsel who can and will ably and conscientiously express its views to the tribunal.

Id. at 50.

The Howard court also stated that if the object of the suit is to vindicate a public right, and the Attorney General refused to act, an action may be brought in the name of the state by a private citizen in order to protect the interest of the state. See also League of Women Voters v. Board of Comm'rs., 451 Pa. 26, 301 A.2d 797 (1973).

We held in Grenada Municipal Separate School District v. Jesco, 449 So.2d 226 (Miss. 1984), that a school district authorized to enter into a contract had the authority to sue for its breach, and there was no necessity that suit be brought by the Attorney General (who had declined to file the action). In State v. Wheatly, 113 Miss. 555, 589, 74 So. 427, 429 (1917), this Court held that a board of supervisors had authority to contest the legality of laws which might cause them to violate their oaths.

In Jesco, we held the school district was statutorily authorized to file suit pursuant to Miss. Code Ann. § 11-45-11 (1972), which gives the State the same rights as individuals in bringing an action. Since that lawsuit dealt with one isolated contract of local importance, our holding today, which pertains to issues of serious state-wide concern, is distinguishable and therefore is no departure from Jesco.

In the case before us, the Attorney General did have the authority to file and prosecute this suit, but his failure to do so did not deprive the Commission of doing so.

As to the contention of Anderson that the membership of the Commission was illegally and unconstitutionally appointed, this constitutes a collateral attack upon the membership, which Anderson cannot do in this proceeding. Miss. Code Ann. § 25-1-37; Trahan v. State Highway Commission, 169 Miss. 732, 151 So. 178 (1933); Cooper v. Moore, 44 Miss. 386 (1870); Upchurch v. City of Oxford, 196 Miss. 339, 17 So.2d 204 (1944).

SECTION 109

Miss. Const. Art. IV, § 109, reads:

No public officer or member of the legislature shall be interested, directly or indirectly, in any contract with the state, or any district, county, city or town thereof, authorized by any law passed or order made by any board of of which he may be or may have been a member, during the term for which he shall have been chosen, or within one year after the expiration of such term.

This section prohibits any public officer or member of the legislature from:

(a) having any direct or indirect interest in any contract

(b) with the state or any political subdivision

(c) executed during his term of office or one year thereafter, and

(d) authorized by any law, or order of any board of which he was a member.

At the outset we note there is no difficulty in ascertaining (b) and (c), whether the contract was with some governmental entity and the time of its execution. We observe further that while (a) and (d) of the above factors are not always so clear-cut, the answer has usually been simple. See: Golding v. Salter, 234 Miss. 567, 107 So.2d 348 (1958) (county-owned hospital trustees were public officers and hospital purchasing eggs and beef from trustees violated 109); State ex rel Sterling v. Board of Levee Comm'rs, 96 Miss. 677, 51 So. 211 (1910) (president of levee board of commissioners was public officer and in violation of 109 when employed by levee board as special attorney); Noxubee County Hardware Co. v. City of Macon, 90 Miss. 636, 43 So. 304 (1907) (city alderman in violation of 109 when his retail business sold hardware supplies to city-owned electric utility).

Yet it is (a) and (d) where the gray areas are encountered. What is meant by "direct or indirect interest"? When is a contract "authorized by law, or an order of a board of which the public officer is a member"? In Cassibry v. State, 404 So.2d 1360 (Miss. 1981), we found no difficulty in determining that Cassibry had been interested in a contract with the State, even though the contract was not with him individually, because the contract enabled his client to employ him virtually full time as an attorney for two years. We were also confronted with the question of whether the appropriation bill to the State Department of Public Welfare, which funded programs such as the one paid under the contract in which Cassibry was interested, was a "law authorizing the contract." We found it did, because without the appropriation, no such contract would have been legally binding upon the State. Cassibry v. State, 404 So.2d 1360, 1366-1367 (Miss. 1981); citing Colbert v. State, 86 Miss. 769, 39 So. 65 (1905); Constitution Article 4, §§ 63, 64, 68, 69, 113, 115; State v. Cole, 81 Miss. 174, 32 So. 314 (1902). See also Dickinson v. Edmondson, 120 Ark. 80, 178 S.W. 930, 931 (1915); Leddy v. Cornell, 52 Colo. 189, 120 P. 153, 154 (1912); State v. Carter, 167 Okla. 32, 27 P.2d 617, 620 (1933); Palmer v. State, 11 S.D. 78, 75 N.W. 818 (1898).

Further observations about 109:

First, it is clear this section is to protect the government. It is not a provision to protect individual rights. It is not concerned with whether some individual or class of individuals may suffer from its enforcement. As noted in Noxubee County Hardware Co., supra, the transgression test is intended to be mechanistic and objective, and motives and intentions of persons who violate it are immaterial. Its purpose is to remove any temptation to invade its proscription.

It is also a self-executing section, and more specific than many, perhaps most, constitutional provisions. See, e.g., Bucklew v. State, 192 So.2d 275 (Miss. 1966) (§ 175 held self-executing); In re Initiative Petition No. 281 v. Rogers, 434 P.2d 941 (Okla. 1967). It prohibits an individual having an interest in a contract when he as a public officer served on the official body which enabled the contract to come into being. It is that simple. Being self-executing, its provisions cannot be modified or encroached upon by the Legislature. Opinion of the Justices, 287 Ala. 337, 251 So.2d 755, 759 (1971); Frost v. Johnston, 262 Ky. 592, 90 S.W.2d 1045, 1048 (1936); State v. Smith, 355 Mo. 27, 194 S.W.2d 302, 305 (1946).

INTERPRETATION GUIDELINES

It is the prerogative and responsibility of this Court to make the final interpretation of our State's Constitution. Alexander v. State, by and through Allain, 441 So.2d 1329, 1333 (Miss. 1983), and this document is presumed capable of ordering human affairs decades beyond the time of ratification, under circumstances beyond the prescience of the draftsmen. Id. at 1334.

Our purpose in construing Section 109 is to "ascertain and give effect to the intent of those who adopted it," Moore v. General Motors Acceptance Corp., 155 Miss. 818, 822, 125 So. 411, 412 (1930); and while "its words must be the sole boundary [of its meaning]," State v. Henry, 87 Miss. 125, 144, 40 So. 153, 154 (1906), "ascertained from the plain meaning of the words and terms used within it," Ex parte Dennis, 334 So.2d 369, 373 (Miss. 1976), we should likewise "look to the circumstances under which the provision was ordained, the objects . . ., the evils to be avoided or cured, and thereby arrive at the reasonable meaning . . ., keeping in mind [it was] intended to stand . . . for a long, long time." Trahan v. State Highway Comm'n., 169 Miss. 732, 749, 151 So. 178, 182 (1933). It is not the function of judges to dwarf the grandeur of a Constitution by decisions which stifle any of its promises.

Our interpretation should not be "too literal," Dunn v. Love, 172 Miss. 342, 355, 155 So. 331, 333 (1934); City of Jackson v. Deposit Guaranty Bank Trust Co., 160 Miss. 752, 133 So. 195 (1931); and we have recognized that no constitutional prevision requires to be done that which is "thoroughly impracticable." Gulf Refining Co. v. Stone, 197 Miss. 713, 741, 21 So.2d 19, 21 (1945). We have likewise stated that our Constitution should be interpreted:

. . . In the light of developments which have appeared at the time of interpretation, and may therefore include things and conditions which not only did not exist but were not contemplated when it was drafted, so long as the new developments are in their nature within the scope of the purposes and powers for the furtherance of which the constitution was established.

Stepp v. State, 202 Miss. 725, 729, 32 So.2d 447, 447, suggestion of error overruled, 202 Miss. 725, 33 So.2d 307 (1947).

Our task, then is to carefully examine the words of § 109, the circumstances attending its adoption, and the evils it sought to avoid, thereby ascertaining the intent of its authors in light of the times in which we presently live. While it is unnecessary that we attribute to them supernatural ability, we must recognize that the body adopting our Constitution was composed of practical men of sound judgment, endowed with an abundance of common sense. The evils they envisioned in adopting this action were not imaginary in 1890, and they have not vanished in the ensuing years. The problems they addressed no doubt then, and most certainly now, can occur in a wide variety of factual settings.

Returning to our observation that § 109 is to protect our state government, we must interpret this section in accordance with the plain meaning of its words so long as it bears some rational relationship to this purpose. Yet no meaning, however abstractly valid, should be carried into practical effect if doing so would cause grave risks to be imposed on the sound government of the people of this State. Such an interpretation would insult the common sense of our predecessors when they adopted § 109.

Finally, in our interpretation we must take into account the rejection by the people in 1984, and again in 1986 of proposed amendments to § 109. Article 3, Sections 5 and 6 of our Constitution leave no doubt that "all political power is vested in, and derived from, the people," and the people have the "sole and exclusive right to . . . alter . . . their constitution."

THE DEFENDANTS

In Cassibry, 404 So.2d 1360, 1368, we stated there was no need to define the edge of a target when the defendant had scored a bull's-eye. Necessarily implied in that statement is the fact that the target does have an edge.

Most of these cases do indeed approach the edge of the target. Do they hit the target at all? Do they indeed come within the prohibition of § 109? We state at the outset that in all proceedings there is no suggestion but that all the defendants have served honorably in their official positions.

ANDERSON, FRAZIER AND NUNNALLY

These defendants all serve in the Legislature. We have answered Anderson's claim that the Ethics Commission did not have authority to litigate.

Anderson has only one other assignment of error, which is also argued by Frazier and by Nunnally, that the appropriation bills did not "authorize" their contracts. In addition to what we stated in Cassibry and above in this opinion in answer to this contention, it would denigrate the awesome importance, meaning and purpose of appropriation laws in the Legislature to accept the interpretation urged by the defendants. In the absence of some grave emergency, no state official, however supreme, has the power to obligate this state to pay one dollar without there having been an appropriation therefor. See, e.g., Dickinson v. Edmondson, 120 Ark. 80, 178 S.W. 930, 931 (1915); Burr v. City of San Francisco, 186 Cal. 508, 199 P. 1034, 1036 (1921); McDougall v. Board of Comm'rs, 49 P.2d 663, 666 (Wyo. 1935).

To further illustrate our views that an appropriation bill authorizes a contract are by no means singular, the Texas Attorney General has opined that a legislator cannot be interested in any contract with the state paid for by appropriation act funds, since to do so would violate Article III, Section 18 of the Texas Constitution, which provides in pertinent part: ". . . nor shall any member of the Legislature be interested, either directly or indirectly, in any contract with the State, or any county thereof, authorized by any law passed during the term for which he was elected."
The letter proclaims stentorially:

Over a sixty year period, five different attorneys general of the state have considered whether an appropriation act, as well as general legislation, will operate as "authorizing" legislation within the prohibition of Article III, Section 18 of the Texas Constitution. Every one of them have reached the same conclusion: it will.

Op.Att'y Gen. — Tx., JM-162, (June 8, 1984).
The same letter cites Department of Agriculture v. Printing Ind. Ass'n., 600 S.W.2d 264, 270 (Tex. 1980), which states:

A constitutional provision designed to guard against favoritism, corruption and extravagance in state government should not be given a narrow construction unless the intent of the framers to do so is clear, particularly where it has received a broad construction for many years.

The Tennessee Attorney General has rendered a similar opinion that it would be in violation of that state's conflict of interest statute for a person on a faculty of a state university to serve in the legislature because of the fact the university was operated by funds appropriated by law. Op.Att'y Gen. — Tenn., 85-253 (Sept. 30, 1985).

The governmental bodies contracting with these defendants could not have made payment under the contracts without these appropriations. These appropriation bills were laws. Cassibry, 404 So.2d 1360, 1366 (Miss. 1981). They were laws passed while these gentlemen served in the Legislature. Their contracts were made while they were in the Legislature. Thus, they squarely fit the prohibition of § 109.

Frazier makes two other assignments of error. He asserts the suit against him was moot, which we find without merit. Frazier has taught part-time at Jackson State University since 1976. See: Strong v. Bostick, 420 So.2d 1356 (Miss. 1982); United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303, 1309 (1953); County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642, 649 (1979). Also, there is a public interest exception in this case. See Sartin v. Barlow, 196 Miss. 159, 16 So.2d 372 (1944); M.T. Reed Construction Co. v. Jackson Municipal Airport Authority, 227 So.2d 466, 468 (Miss. 1969); Fordice v. Warren County Board of Education, 245 So.2d 201, 203 (Miss. 1971).

We likewise find no substance to Frazier's contention there was a factual issue as to whether his salary came from the state appropriations.

While it would make no difference in our construction of § 109, Frazier and Anderson suggest that since the board of trustees of the state institutions of higher learning, a constitutional body under Article 8, § 213-A, is in control of our state universities, it is carrying § 109 too far to prohibit their being on the faculty of a state supported university.
This argument ignores the obvious. Our colleges and universities are virtual total dependents of the Legislative branch of Government. One example of the importance of the Legislature to such institutions may be observed on the "Government Appreciation Day" of three of our major universities, a euphemism for "Legislators Appreciation Day," although other state officials are generously invited. The entertainment and food are always impressive, at times lavish.
A legislator-faculty member at a state supported college might well provoke the inquiry: Who's the boss?
In 1944 the people adopted Article 8, § 213-A to the Constitution, the very purpose of which was to remove our colleges and universities from state politics. We do not propose to interpret § 109 so as to put them back in politics, and in a far more formidable and threatening way than the evils corrected by Article 8, § 213-A.

Nunnally argues in addition that the appropriation bills authorizing his contract were "general" appropriation bills and not "specific" like the appropriation in Cassibry. While it is correct that in Cassibry we did not address whether a general appropriation bill should be treated differently from other appropriation bills of the Legislature, and there is some support for Nunnally's contention in State, ex. rel. Baca v. Otero, 33 N.M. 310, 267 P. 68 (1928), we cannot see such a distinction between House Bill No. 1172 (Chapter 165, Mississippi Laws 1984), which appropriated the funds necessary for a major portion of Nunnally's salary, and Senate Bill No. 2985 (Chapter 209, Mississippi Laws 1984), which appropriated the funds necessary for Anderson's and Frazier's salaries, as to require a different holding under § 109 in his case. Frazier and Anderson make no claim that their appropriation was general, as indeed it was not.

The Supreme Court of Oklahoma faced a virtually identical case as here in State v. Board of Education of Dependent School District No. D-38, 389 P.2d 356 (Okla. 1964). Article 5, Section 23 of the Oklahoma Constitution stated in pertinent part:

. . . nor shall any member, during the term for which he shall have been elected, or within two years thereafter, be interested, directly or indirectly, in any contract with the State, or any county or other subdivision thereof, authorized by law passed during the term for which he shall have been elected.

During State Representative Settles' term, the state legislature appropriated $52,500,000 for the support and maintenance of the public schools of Oklahoma. The local school district received approximately 85% of its funds from the state, and about 93% of the district's expenditures were for salaries of school teachers.

The Oklahoma Supreme Court noted that the above-quoted clause of its constitution had never been directly construed by that court, "if indeed construction is necessary." 389 P.2d at 359. That court held Settles was in violation of its state's constitution.

The Oklahoma Supreme Court held, as we have held, that the appropriation bill was necessary to make Settles' school contract legal and binding, and therefore his school contract violated the state constitution. See generally Norbeck Nicholson Co. v. State, 32 S.D. 189, 142 N.W. 847 (1913); Lillard v. Freestone County, 23 Tex. Civ. App. 363, 57 S.W. 338 (1900).

Also, as we have noted above, Nunnally was a member of the Legislative session setting teachers' minimum salaries statewide, and a major portion of his compensation is paid by the state rather than the local school district.

Nunnally makes the additional argument that his interest, being one of a class, is de minimis. This is a troublesome question, not however because his interest is de minimis. The term de minimis non curat lex means the law cares not for small things. If only a small portion of Nunnally's salary, as opposed to virtually all, came from the appropriation bill, he might have an argument. For here again, it would insult the common sense of the 1890 Constitutional Convention that they intended any interpretation of § 109 to trickle down to triviality.

Yet, what about Nunnally's being but one of a large class of individuals who will benefit from this appropriation?

Unfortunately for Nunnally, § 109 makes no exception for members of a large class. We must give weight to the words of § 109, and this is precisely how the Oklahoma Supreme Court interpreted that state's virtually identical constitutional provision involving a general appropriation bill.

We must agree that it is relentlessly severe to conclude § 109 means no employed public school teacher can serve in the Legislature. Yet § 109 is just as plain in its restriction as the Oklahoma constitution. We cannot hold that applying § 109 to employed public school teachers goes beyond any rational purpose or intent of its authors.

Even if we were inclined to view § 109 as Nunnally argues, this court cannot overlook the vote of the people of this State in 1984 and 1986 when amendments to § 109 which would clearly have authorized these defendants' conduct were soundly rejected by the people. Can we give an interpretation to § 109 which, when presented to the people for their approval, was soundly rejected? To do so would be an affront to Article 3, Sections 5 and 6 which declare all governmental power is vested in and derived from the people.

The people were not asked to repeal § 109, but were asked to amend it so that it would read a certain way. They rejected that "certain way." We cannot hold their rejection meaningless to any interpretation of § 109.

MRS. NUNNALLY

As to a legislator's wife being affected by this appropriation bill, however, we must reach some balance. There must be a point at which any prohibition which might be gleaned or strained from § 109 must be balanced against the potential harm to the state by its enforcement. Mrs. Nunnally is one of several thousand people affected by this appropriation bill and the law setting teachers' salaries. It is common knowledge that in the majority of households in this state, both spouses are employed outside the home. It has become a necessary part of our economic life.

Based on figures from the 1980 census of our state, there were 404,603 married couples in the labor force. Of that number 297,292 households, or 73%, reported both spouses were in the labor force. 1980 Census of Population, Vol. 1, Chapter D, Part 26 (Miss.), Table 215, at p. 26-131.

To inform the people of this state that they could not elect an individual to the legislature whose spouse is employed by the state as a member of a large class would be an unchannelled proscription that would strike out at public officials at random and risk depriving our people of the choice of selecting what may well be among our most able and deserving public servants. It is also a matter of common knowledge that it is not easy to get qualified citizens to offer their talents for public office. It is vital to democratic government that membership in the Legislative body be composed of members from as wide and diverse sections of the public as possible. No social, political or economic section should be precluded by law from running for the Legislature without good reason. Any evil sought to be avoided by § 109 would become attenuated by prohibiting a prospective legislator from serving the public. Such, a prohibition, when balanced against the potential harm to our people, goes beyond any possible intent or purpose of this section. We cannot envision the authors of § 109, or the people of this State in 1984 and 1986, ever intending that employment of a wife in the capacity of Mrs. Nunnally would prevent the spouse from running for the Legislature, and if elected, serving in that branch of government.

The authors of § 109, and the people in rejecting the amendments thereto, may well have wondered how a state employee holding down a full-time job, in which he was paid the same salary as all other state employees similarly employed could find time to also serve in the Legislature. If a private business can afford for one of its members to serve in the legislature, that is one thing. A full-time employee of the state is something else. The employment of a Legislator's spouse as one of a large class of state employees poses no such threat.

The Ethics Commission cites cases from other jurisdictions wherein the highest courts of those states have held that contracts between a political subdivision and a family member of one of the governing board was a conflict of interest under a prohibition against such official being directly or indirectly interested in contracts with the political entity, and thereby voiding the contract. See Woodward v. City of Wakefield, 236 Mich. 417, 210 N.W. 322 (1926) (purchase of realty by city from mayor's wife); Harrison v. City of Elizabeth, 57 A. 132 (N.J. 1904) (city plumbing contract with business managed by councilman and owned by his mother); McElhinney v. City of Superior, 33 Neb. 744, 49 N.W. 705 (1891) (city contract with brother of councilman; Nuckols v. Lyle, 8 Idaho 589, 70 P. 401 (1902) (community property state; school trustee was interested in teaching contract between the school district and his wife); Nielsen v. Richards, 75 Cal.App. 680, 243 P. 697 (1925) (teaching contract held void between school district and wife of superintendent, where superintendent had authority to enter into teaching contracts).

The answer to the above cases cited by the Ethics Commission, of course, is that we are not confronted with such a situation here. This is not a case of Nunnally being on a school board of the district which employed his wife. He is in the Legislature. His wife is one of several thousand public school teachers in the state. There has been no case cited to us from any jurisdiction which suggests a possible conflict of interest because a Legislator's spouse is employed by the state, as one of a large class.

Whatever might be said of the logic supporting the contention that § 109 was violated because (1) Mr. Nunnally was in the Legislature, (2) which passed a law authorizing his wife's public school employment contract (3) in which he manifestly had some interest, it simply defies practical wisdom to carry this section to such an extreme. As Justice Brandeis once observed, "the logic of words should yield to the logic of realities." DiSanto v. Pennsylvania, 273 U.S. 34, 43, 47 S.Ct. 267, 71 L.Ed. 524, 529 (1927).

We must hold, therefore, that Anderson, Frazier and Nunnally have violated § 109, and the provisions of Miss. Code Ann. § 25-4-105(3)(h) (Supp. 1985) which sought to authorize their dual employment was manifestly at odds with our Constitution and therefore void.

As to Mrs. Nunnally, we hold that § 109 was never intended to prohibit any individual from serving in the Legislature and voting on general public school laws simply because his or her spouse is employed as a public school teacher in this state.

LOGAN AND KILLEBREW

With these defendants we are faced with the question of whether they were members of boards which "authorized" their contracts. Logan maintains his contract was authorized by the Board of Trustees of the Long Beach Municipal Separate School District, not the city board of Long Beach. Similarly, Killebrew contends the Quitman County Board of Education authorized his contract and not the Quitman County Board of Supervisors.

It is true that school districts are agencies of the state, and have a separate and distinct identity from that of the city or county in which they are located. As we held in Harrell v. City of Jackson, 229 Miss. 815, 92 So.2d 240 (1957), trustees of municipal separate school districts, even though they may be appointed by the city board, are not agents of the municipality in carrying out their duties. Members of county school boards and, in some instances, trustees of a municipal separate school district are elected by statute. See: Miss. Code Ann. § 37-5-1 (1972), -7-203 (Supp. 1985); -7-207 (Supp. 1985).

It is also true, however, that school districts have no authority to levy taxes, but are dependent solely upon appropriations made by the state and municipality or county, as the case may be, of which they are a part. See: Miss.Code Ann;. §§ 37-19-37 (Supp. 1985); -19-39 (Supp. 1985); -57-1 (1972); -57-3 (1972); -57-105 (Supp. 1985).

Moreover, no school board may vote to spend funds not made available to it from state appropriations and local taxation.

In pertinent part, Miss. Code Ann. § 37-61-3 (1972) states:

§ 37-61-3. Use of school funds, generally.

The minimum education program funds of the county and municipal school districts and the funds derived from the supplemental school district tax levies authorized by law shall be used exclusively for the support, maintenance and operation of the schools in the manner provided by law for the fiscal years for which such funds were appropriated, collected, or otherwise made available, and no part of said funds shall be used in paying any expenses incurred during any preceding fiscal year. [Emphasis added]

Also, Miss. Code Ann. § 37-61-19 (1972) states in pertinent part:

§ 37-61-19. Expenditures shall be limited to budgeted amounts; personal liability for excess.

. . . It shall be the duty of the county boards of education, the county superintendents of education, and the boards of trustees of all school districts, including municipal separate school districts, in making or approving contracts for transportation, selecting, approving, contracting with, and fixing the salaries of superintendents, principals, and teachers, and in expending other available school funds or incurring obligations payable therefrom to limit the amount of such expenditures to the funds made available for such purposes during the fiscal year, and it shall be unlawful for any contract to be entered into or any obligation incurred or expenditure made in excess of the funds available for such purposes for such fiscal year. [Emphasis added]

See also Railroad School Township v. First State Bank, 73 Ind. App. 358, 126 N.E. 342, 344 (1920); Union Graded School Dist. No. 5 v. Ford, 169 Okla. 410, 37 P.2d 258, 259 (1934); Crosby v. P.L. Marguess Co., 226 S.W.2d 461, 463 (Tex. 1950).

It therefore follows that a tax levy by a city board or county board of supervisors serves the same function as an appropriation bill by the Legislature. The schools are dependent upon the tax levies and the state appropriation for their survival. A condition precedent to any expenditure by the school district is that sufficient funds have been made available to it by local taxation as well as state appropriation. Without them the teachers could not be paid.

Again illustrative of this view are opinions of the Attorney General of Tennessee which aptly state that "the appropriating body is the superintending agency," recognizing, of course, that he who holds the purse is the one who controls. See: Op.Att'y Gen. — Tenn., 85-253 (Sept. 30, 1985); Id., 85-122 (Apr. 16, 1985); 84-177 (May 25, 1984); 83-57 (Feb. 1, 1983); 79-5 (Jan. 8, 1979). See also Harrison v. City of Elizabeth, 57 A. 132, 132 (N.J. 1904) (city councilman who made appropriation to board of fire commissioners was interested in plumbing contract awarded by that board, when his compensation was derived from said appropriation).

We are again reinforced in this interpretation by the action of the voters of this State in rejecting proposed amendments to § 109 which specifically would have made contracts such as Logan's and Killebrew's lawful. See proposed 1984 and 1986 amendments, supra.

We hold that where a portion of the salaries derived by public school teachers under their teaching contracts comes from discretionary local tax levies, a teacher cannot make a valid contract with a school district while he is on the board of the governing authority which makes such tax levies, or within one year after his term on the governing board expires. Such a contract violates § 109.

It therefore follows that insofar as Miss. Code Ann. § 25-4-105(3)(h) attempts to make an exception and authorize such a contract, it is at cross purposes with § 109 and unconstitutional.

As was aptly stated in Commonwealth v. Withers, 266 Ky. 29, 98 S.W.2d 24, 25 (1936):

It is a salutary doctrine that he who is intrusted with the business of others cannot be allowed to make such business as object of profit to himself. This is based upon principles of reason, of morality, and of public policy. These are principles of the common law and of equity which have been supplemented and made more emphatic by the foregoing and other statutory enactments.

The Supreme Court of Missouri in Githens v. Butler County, 350 Mo. 295, 165 S.W.2d 650 (1942), stated the general rule:

At common law and generally under statutory enactment, it is now established beyond question that a contract made by an officer of a municipality with himself, or in which he is interested, is contrary to public policy and tainted with illegality; and this rule applies whether such officer acts alone on behalf of the municipality, or as a member of a board of [or] council. * * * The fact that the interest of the offending officer in the invalid contract is indirect and is very small is immaterial. * * * It is impossible to lay down any general rule defining the nature of the interest of a municipal officer which comes within the operation of these principles. Any direct or indirect interest in the subject matter is sufficient to taint the contract with illegality, if the interest be such as to affect the judgment and conduct of the officer either in the making of the contract or in its performance. In general the disqualifying interest must be of a pecuniary or proprietary nature.

Id. at 652, citing 2 Dillon, Municipal Corporations, § 773.

Neither Logan nor Killebrew have properly assigned as error that the local tax levy provided such an insignificant part of their salaries as to be inconsequential and could not have affected their judgment as board members.

NO DISCRETION IN MAKING LEVY

Our inquiry as to Logan does not end with ruling Miss. Code Ann. § 25-4-105(3)(h) unconstitutional with respect to his contract. He also argues that the tax levy by the city board of Long Beach was mandatory and not a matter of discretion; therefore his contract did not violate § 109. We find this argument persuasive. Except for the year 1985, all tax levies made by the city board of Long Beach were mandated by statute, and in some instances by decree of the chancery court as well. It was only in 1985 that an undetermined sum of his salary, undoubtedly small, came from the local tax levy.

Miss. Code Ann. § 37-57-105 (Supp. 1985) provides, in pertinent part, "the municipal governing authorities, upon receipt of . . . an order adopted by the [school district board of trustees] requesting a tax levy for the support of the school district, shall . . . levy an annual ad valorem tax in the amount fixed in such order . . ." [Emphasis added] The statute further provides that this " mandatory levy" shall not exceed certain millage limitations.

The Ethics Commission does not dispute that except for 1985, the tax levy by the municipality governing board was mandatory, but argues this makes no difference. We do not agree. We cannot envision penalizing a member of a public board for voting affirmatively on a matter in which a court decree or statute gave him no choice but to vote precisely as he did. In such instance, while his vote may be necessary to put into effect some official process, it is ministerial. Nor can we envision § 109 penalizing any individual for being on a board faced with such matter. Any evil envisioned by the authors of § 109 would have to come from a board member voting on a matter in which he had discretion to vote yes or no.

While it may have always been the case, most certainly in these times it is difficult to persuade many able men and women to serve in public office, particularly on governing boards of towns and counties. This is because such service frequently entails financial sacrifice, having to be away from the family, and receiving far more criticism than recognition or appreciation from the public they serve. It is no wonder many worthwhile citizens who could render invaluable public service are extremely reluctant to serve, indeed they frequently will not even consider it.

It is also in the interest of our state that members of governing boards of towns and counties come from all walks of life. It most assuredly was never the intent of the authors of § 109 to have this section applied to such an extreme as sought by the Ethics Commission. To do so would inflict grave and unnecessary wounds to the democratic process.

The Tennessee Supreme Court was faced with this same question in State ex rel. Boles v. Groce, 152 Tenn. 566, 280 S.W. 27 (1926), in which a public school teacher was also on the county's governing board which levied taxes to support the school. The Tennessee statute, like our Mississippi statutes, made such levies mandatory. That Court stated:

The county court [Tennessee's equivalent to our county board] has nothing to do with the fixing of salaries or the employment of teachers, and, should the board act contrary to its wishes in such matters, it has no power to review or supervise its action.

The county court necessarily has to levy a tax for creating needed school funds, because it is the only agency clothed with such power, and this duty is enjoined upon it by the state.

In view of the foregoing, we are of the opinion that the relator did not contract with the county within the spirit and intent of the statutes invoked. [Emphasis added]

Id. at 28.

It therefore follows that our view as to Logan is that he was not in violation of § 109 in voting on tax levies for all years he served as a member of the city board of Long Beach, except for the year 1985.

As to Killebrew, the tax levy by the county was discretionary, and therefore he does not come within the exception in Logan's case for the years covered in this case, and was in violation of § 109 as the chancery court found.

In regard to the amendment to Miss. Code Ann. § 37-57-105 (Supp. 1985), which now provides for mandatory local tax levies in support of the school districts by county boards of supervisors and city boards alike, we are not called upon to decide whether this amendment would remove Killebrew from having a conflict of interest as to any tax levies imposed by Quitman County for the years beginning with 1986.

KNOX

Regarding Knox we first deal with the question of whether or not he, as a county board member who selected the county depositories, has "authorized" that contract within the meaning of § 109. We hold he has. The entry of an order on the minutes of the county board of supervisors is essential to the validity of a contract. Burt v. Calhoun, 231 So.2d 496, 498 (Miss. 1970). The orders entered by the Panola County Board of Supervisors specifically stated that the board "will receive bids and award contracts for the privilege of keeping the county funds." Pursuant to these orders, two banks in which Knox was interested became county depositories. Therefore, it is clear that the order of the county board "authorized" these depository contracts.

Knox, however, urges that a county depository contract is a special animal not meant to be caged by the prophylactic standards of § 109. We must disagree with this interpretation, and we are reinforced in this belief by similar cases from other jurisdictions holding the same. See: Miller v. County of Lake, 71 Ill. App.3d 478, 27 Ill. Dec. 566, 389 N.E.2d 630 (1979), aff'd, 79 Ill.2d 481, 38 Ill.Dec. 798, 404 N.E.2d 222 (1980); City of Lincoln v. First Nat'l Bank of Lincoln, 146 Neb. 221, 19 N.W.2d 156 (1945).

In the City of Lincoln case, the Nebraska Supreme Court faced a situation closely akin to ours. The Lincoln City Council adopted a resolution designating three banks as the city depositories. A city councilman was a stockholder, director, and vice president of one of the banks. The City of Lincoln subsequently sought a declaratory judgment to determine if such a scenario was in violation of the city charter, which contained language identical to our § 109. The Nebraska court stated:

It seems clear under the circumstances that if a deposit in a bank is a contract and an officer of the city has an interest therein that such a contract comes squarely within the charter and statute. . . . This Court has held that the relation of banker and depositor can only be created by a contract express or implied. . . . The resolution of the council giving the city treasurer authority to deposit and the designation by the council of defendant bank and others as the sole and only depositories are only resolutions of the council. Such a resolution standing alone is not a contract. . . . The actual deposit of city funds as authorized in a designated bank creates the contractual relationship between the city and the particular bank in which the deposits are made.

19 N.W.2d at 158-59.

The City of Lincoln court stated further:

Manifestly the defendant is deriving a benefit or profit from the deposits of the city funds. The defendant in its answer so admitted. As a business institution it could not ordinarily be expected to receive and disburse so large an account without prospect of profit commensurate with the service required. Naturally, any person who was a stockholder, director or officer thereof would be both directly and indirectly financially interested in any contractual arrangement which returned a profit to his corporation. However, we call attention to the fact that if the contract is of a kind prohibited by law it is immaterial whether the officer of the city actually profited from the contract or whether he was actually influenced by his interest. The question is whether there was any contract to which the city or anyone for its benefit is a party in which the officer of the city was interested directly or indirectly by virtue of an opportunity to benefit or profit therefrom. [Emphasis added]

19 N.W.2d at 159.

Knox contends that the history of our county depository law suggests that § 109 is inapplicable to the case before us. Specifically, Knox points to a 1924 statute which amended the implementing provision of § 109 and provided a statutory exception for county board members who held office or stock in banks that were potential county depositories. See: S.B. 471, Chapter 238, Laws of 1924. To this contention we simply state that the 1924 statute has never been construed in relation to § 109, and therefore it is irrelevant to the issue before us today. The sole question presented here is whether a county board member who is a stockholder, director, and officer of a bank, is prohibited by § 109 from authorizing a contract which makes that bank a county depository.

Finally, Knox argues that the creation of a county depository is not a contract but a quasi public office, citing Miller v. Batson, 160 Miss. 642, 134 So. 567 (1931). For the purposes of a "contract" under § 109, however, we adopt the view taken by the Nebraska Supreme Court in City of Lincoln, supra. See also the following cases suggesting the debtor-creditor relationship between the depository bank and the county: Sunflower County v. Bank of Drew, 136 Miss. 191, 101 So. 192 (1924); Robertson v. Bank of Batesville, 116 Miss. 501, 77 So. 318 (1919). See also: School Dist. of Prairie County v. Massie, 170 Ark. 222, 279 S.W. 993, 994 (1926); Taelman v. Board of Finance, 212 Ind. 26, 6 N.E.2d 557, 562 (1937); Mitchell v. Bank of Ava, 333 Mo. 1195, 65 S.W.2d 104, 106 (1933).

DISCRETIONARY AUTHORITY OF KNOX

As we have noted in Logan's case, an order passed by a board in which a board member has some interest is not a per se violation of § 109, absent some discretionary power by that board member. Although Knox asserts that the selection and qualification of county depositories is totally regulated by the statutory law of this State, we cannot ignore the fact that these statutes dealing with the selection and qualification of depositories vest total discretion in the county board of supervisors.

Miss. Code Ann. § 27-105-303 (Supp. 1985) provides in pertinent part:

. . . Where more than one (1) financial institution in a county offers to qualify as a depository, the board of supervisors may allocate such money to each financial institution offering to qualify as nearly as practicable in proportion to their respective net worth, and may adopt the rules for receiving such deposits. [Emphasis added]

We have previously stated that this provision is permissive, not mandatory, so that a county is not required to divide the funds equally between two equally qualified banks. Leflore Bank Trust Co. v. Leflore County, 202 Miss. 552, 32 So.2d 744 (1947).

Miss. Code Ann. § 27-105-315 (Supp. 1985), which provides how banks may qualify as depositories, states that the board of supervisors shall have the right to reject any and all bids where, in the board's opinion, the bank has placed insufficient security on deposit. We have stated that this statute vests discretionary power in the board of supervisors. The Bank of McCool v. United States Fidelity Guaranty Co., 128 Miss. 828, 91 So. 566 (1922).

From these statutes it is apparent that Knox had discretionary authority over the depository contracts he voted on.

Our analysis of Knox's conflict of interest is fortified by Miller v. County of Lake, 71 Ill. App.3d 478, 27 Ill.Dec. 566, 389 N.E.2d 630 (1979), aff'd, 79 Ill.2d 481, 38 Ill.Dec. 798, 404 N.E.2d 222 (1980). Miller was a county board member who voted to designate a bank (in which he owned stock and was later a director) as an approved county depository. The trial court accepted Miller's argument that the county board merely approved the contracts for the county treasurer, who entered into the deposit contract. The Illinois Court of Appeals reversed, noting that a county treasurer would be reluctant to deposit county funds in non-designated banks due to possible exposure to personal liability. The appellate court remanded the cause for an evidentiary hearing to determine whether the designation of county depositories by the board was a "perfunctory act." Miller v. County of Lake, 27 Ill.Dec. at 571, 389 N.E.2d at 635. If, however, the designation of banks was not ministerial, the contracts of deposit would be void. On appeal the Illinois Supreme Court affirmed. Miller v. County of Lake, 79 Ill.2d 481, 38 Ill.Dec. 798, 404 N.E.2d 222 (1980).

The appellate court recognized this exception where the action of the county board was ministerial and not discretionary:

It may well be that, in some counties the county board, as part of a long tradition, always confers depository status upon any bank suggested by the treasurer. It may also be that, in the same counties, county board members never propose the designation of a bank not suggested by the treasurer. A county board member who, as part of such a well-established tradition, votes in this perfunctory way to confer depository status upon a banking corporation, of which he is a shareholder or a director, does not in our view work an offense of the Act.

* * * * * *

It would appear that where a county board member votes on the question on conferring depository status upon a bank, but does not have the opportunity, in any realistic sense, of influencing the formation of a contract between the treasurer and the bank, the Act is not violated.

27 Ill.Dec. at 570-571, 389 N.E.2d at 634-635. Cf. People v. Meschutt, 3 A.D.2d 938, 163 N.Y.S.2d 891 (1957) (county board member designating bank as county depository did not violate conflict-of-interest statute since county treasurer was officer making contract).

In the situation before us, there is no question of whether or not Knox's action was a "perfunctory act." Our state abolished the office of county treasurer in 1924, and since that time the county boards and municipal boards have exercised their full discretion in awarding county depository contracts.

Knox makes no de minimis argument nor does he contend that any benefit he might have received was too speculative and remote to suggest a violation of § 109. See McCloud v. City of Cadiz, 548 S.W.2d 158 (Ky.App. 1977). However, we are not dissuaded from our original conclusions in view of Knox's position of stockholder, officer, and director of the two banks. See 140 A.L.R. 343, 349 (1942): "A stronger case of interest exists where public officers are not only stockholders, . . . but also officers of corporations with which the public has attempted to enter into a contract."

It follows that Knox, as a county board member who authorized depository contracts between the county board and banks in which he was an officer and a stockholder, was in violation of § 109. To the extent that Miss. Code Ann. § 25-4-105(3)(a) attempts to provide for an exception to § 109, it is in conflict and therefore unconstitutional.

CROSS-APPEAL

The Ethics Commission's cross-appeal alleges error because the chancellor did not require restitution from the defendants for compensation received in violation of § 109.

In Golden v. Thompson, 194 Miss. 241, 11 So.2d 906 (1942), we adopted the view that a public official who, in the performance of his duty, acted in good faith reliance upon a statute before it had been declared unconstitutional by a Court should not be held civilly liable for conduct authorized by such statute. The chancellor found no bad faith on the part of any of the defendants in their misplaced reliance on the condemned sections, and we cannot say he was manifestly wrong in such finding. On cross-appeal the chancery court judgment should be affirmed.

CONCLUSION

As we have noted, Miss. Code Ann. § 25-4-105(3)(h) insofar as it authorizes legislators to be employed by a state-financed agency other than the Legislative body of which they are members is unconstitutional and void. We further find that Frazier and Anderson were in violation of Article 4, Section 109 by virtue of their serving in the Legislature and also being employed on the faculty of a state-supported university.

The declaratory judgment as to them is affirmed.

As to Nunnally we likewise find that he was in violation of Article 4, Section 109 by virtue of serving in the Legislature and also being employed as a public school teacher. It follows that the declaratory judgment as to Nunnally's dual employment is affirmed.

Insofar as the judgment against Nunnally was based upon his wife being employed as a public school teacher, however, the chancellor erred, and as to this finding the judgment is reversed. The employment of Mrs. Nunnally as a public school teacher while Nunnally served in the Legislature was not a violation of Section 109.

As to Logan and Killebrew, we likewise find that insofar as Miss. Code Ann. § 25-4-105(3)(h) authorized either of them to be employed by a political subdivision and simultaneously serve on the governing board of another political subdivision with discretionary authority to vote tax levies for the support of the political subdivision by which they are employed is unconstitutional and void. We further find that Killebrew, in serving upon the Board of Supervisors of Quitman County with discretionary authority to levy ad valorem taxes for the support of the Quitman County School District while employed as a public teacher in that school district, was in violation of Article 4, Section 109, and the judgment as to him is affirmed.

We further find that Logan, in serving upon the city board of Long Beach in 1985 when it levied a discretionary ad valorem tax levy of 3.95 mills for the support of the public schools of the Long Beach Municipal Separate School District, while at the same time being employed as a public school principal in that school district was in violation of Article 4, Section 109, and the judgment in finding him in violation of this section for that year is affirmed.

Insofar as the chancery court found Logan in violation of Section 109 for the years 1982, 1983 and 1984, however, the chancellor erred, and as to this finding the judgment is reversed. Logan was not in violation of § 109 for these years, because the city board was required by law to make the tax levy actually levied.

As to Knox we find that insofar as the provisions of Miss. Code Ann. § 25-4-103(3)(a) authorized the contract between the banks in which he was an officer and a stockholder, and Panola County when he was a member of the Board of Supervisors, is unconstitutional and void. Finally, we find that Knox, in serving as a member of the Board of Supervisors of Panola County which contracted with the bank of which he was an officer and stockholder, was in violation of Section 109, and the judgment as to him is affirmed.

RELIEF

As held in Alexander v. State by and through Allain, 441 So.2d 1329 (Miss. 1983), in affirming the final judgment the chancery court rendered in accordance with Rule 57 of the Mississippi Rules of Civil Procedure, there can be little doubt of this Court's authority to give the judgment immediate effect.

Also, as in Alexander, we note these public officials are not ordinary litigants. As was the case in State ex rel. Settles v. Board of Education of Dependent School District No. D-38, 389 P.2d 356 (Okla. 1964), undoubtedly since the inception of our Constitution there have been times when Legislators were also actively employed in some state-financed institution.

We likewise entertain little doubt that at least since the passage of S.B. 471, Chapter 238, Laws of 1924, there have been occasions when a member of a county board of supervisors also was an officer and a stockholder in a bank selected as a county depository by the board.

Public school teachers may also from time to time have served on the boards of supervisors or boards of aldermen of counties and municipalities which levied taxes to support their respective school districts.

We also observe that this is election year for all defendants except Logan, and it would cause an unnecessary disruption by giving immediate effect to this judgment, requiring special elections to fill vacancies in public offices for a period of only a few months.

We therefore have provided that this declaratory judgment shall be of no force and effect until January 1, 1988.

It is our further conclusion that Frazier, Anderson and Nunnally should not be disqualified under the case here presented from seeking employment at state-financed institutions for the 1987-1988 school year, beginning July 1, 1987, while at the same time serving in the Legislature, but if they elect to do so, it should be understood that service in the Legislature for the term beginning January 4, 1988, will invalidate any such contract of employment they have, for the reasons stated in this opinion.

As to Logan and Killebrew, we also find that their service on the Long Beach city board and the Quitman County board of supervisors, respectively, will not prevent their seeking employment in their respective school districts for the 1987-1988 school year, beginning July 1, 1987, but service on either board when it makes a discretionary tax levy for support of such school district will constitute a violation of Section 109 and invalidate their public school contracts.

As to Knox, the depository contracts between the county and the two banks in which he is an officer and stockholder shall remain valid for the 1987 year. However, the selection and qualification of these county depositories for any future contracts while Knox is a member of the county board will constitute a violation of § 109 and invalidate these contracts.

Insofar as the chancery court judgment found Nunnally to be in violation of Section 109 because his wife had a contract of employment as a public school teacher, and Logan in violation of Section 109 for the years 1982, 1983, and 1984, it is hereby vacated.

AFFIRMED IN PART, REVERSED AND RENDERED IN PART ON DIRECT APPEAL; AFFIRMED ON CROSS-APPEAL.

WALKER, C.J., ROY NOBLE LEE, P.J., and DAN M. LEE, PRATHER, and GRIFFIN, JJ., concur.

ROBERTSON, SULLIVAN and ANDERSON, JJ., concur in part and dissent in part and file three separate opinions.

PRATHER, J., specially concurs.