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AUGUST 03, 1988





The opinion released March 16, 1988 is modified. The following is now the official opinion of the Court.

 The Reverend James Dorsey, John E. Walls, Jr., Carl L. Brandon, Gussie P. Wilson, Harriet Aikerson, Individually and as Taxpayers of Claiborne County, Mississippi, and Roosevelt

 Yarbrough, Individually and as a Taxpayer of Claiborne County, Mississippi, and as a member of the Board of the Claiborne County School District, brought an action seeking declaratory and injunctive relief in the Claiborne County Chancery Court against Jimmy Smith, Daniel Jennings, Calvin C. Williams and Bennie Knox, remaining members of the Claiborne County School Board, for their conduct allegedly in violation of Section 109 of the Mississippi Constitution of 1890. The State through Edwin Lloyd Pittman, Attorney General, and the Ethics Commission joined the action by way of invitation from these plaintiffs. The final decree of the lower court found the defendants in violation of Section 109, and defendants appeal here.

 In this appeal this Court is asked to construe Section 109 as applied to contracts of teachers whose spouses are school board members. Stated differently, may a local school board contract with the spouses of its members?

 In Frazier v. State by and through Pittman, 504 So.2d 675 (Miss. 1987), we held that as between a legislator and spouse as a public school teacher, no such conflict of interest exists. We held that Section 109 was never intended to prohibit any individual from serving in the legislature and voting on general public school laws and appropriations therefor simply because his or her spouse is employed as a public school teacher in this state.

 Here we have a different factual situation, requiring another answer, therefore, we affirm the order of the chancery court as to defendants Jimmy Smith, Daniel Jennings, Calvin C. Williams, and Bennie Knox, finding that each of the defendants has been and is in violation of Section 109; declaring null and void all contracts between defendants' spouses and the Claiborne County School District; and enjoining the payment of any further salaries or payments of money to these spouses while the defendants are members of the Claiborne County Board of Education and for a period of one year after defendants shall leave said official capacities.

 We reverse as to the chancellor's order requiring restitution from the defendants for compensation received in violation of Section 109.


 Proceedings in the lower court were held on October 9, 1986. Testimony at trial and stipulated exhibits include documents issued to defendants by the Secretary of State

 certifying them as Claiborne County School Board members; contracts for employment for their spouses - Jo Anne Collins Smith, Mary Jennings, Ernestine Williams and Catherine Knox

 - as teachers in the Claiborne County School District, at the time defendants served as board members; the teachers' payroll records from 1980 - 1986; and minutes of the Claiborne County School Board from 1980 - 1986.

 On direct examination Dr. John Noble, the Claiborne County Superintendent of Education, stated that, following his recommendations of applicants for teaching positions within the district, the Claiborne County School Board had the authority to reach contracts of employment with these prospective teachers. The salaries for these teachers come from two separate sources, local funds and the State Minimum Program Fund. The contracts for employment contain within them the salary to be paid to the individual, as approved by the Board.

 On October 10, 1986, the chancellor entered an order finding all defendants to be in violation of Section 109. He further adjudicated the defendants' spouses' contracts to be null and void, and that each defendant had an indirect interest in these contracts as he had been a Trustee of the Claiborne County Board of Education when said Board approved one or more contracts for the employment of the defendants' spouses.

 Finally, the chancellor ordered claims of restitution be made against the spouses of the defendants because of the Section 109 violations. The Court found that these violations as to all defendants and their spouses had existed for several years up to and including the present date.

 This appeal followed.


 Article 4, Section 109 of the Mississippi Constitution of 1890 provides:

 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.

 In Frazier, supra, at 693, we said that this section prohibits any officer 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.

 We noted that while there is no difficulty in ascertaining (b) and (c), and while (a) and (d) have not always been so clear-cut, the answer" usually [being] simple, . . . it is (a) and (d) where the gray areas are encountered. "Id.

 The chancellor found that each defendant had an indirect interest in his spouse's contract as prohibited by Section 109. We would agree.

 In Frazier, supra, at 698, we declined to go so far as to hold that the rational purpose and intent of the 1890 constitution prohibited James Nunnally, appellant therein, from running for the legislature and serving as a member of that governmental branch, which voted on several public school laws at the time when his wife, Betty Jo Nunnally, was employed as a public school teacher in this state.

 Whatever might be said of the logic supporting the contention that Sec. 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).


 However, without hesitation we find that logic dictates some manifest interest by appellants herein in the public school employment contracts of their wives. Appellants are directly responsible for the hiring and firing of their spouses. Additionally, the record indicates that these school board members share fully in the process behind

 which the salaries are awarded to public school teachers in their district. This is not to say that we question the integrity or fairness of these board members in any way; we simply recognize that each has an indirect interest in his wife's contract which violates the constitutional provision.

 In Frazier, this Court said the following:

 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 Sec. 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 Sec. 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.

 504 So.2d at 700.

 And while this interpretation of Sec. 109 addresses the situation in which a school board member votes his own salary out of discretionary local tax levies, no distinction can be made by his voting that of his wife - the interest therein is one and the same.

 Next, we address the question of restitution ordered by the lower court and brought up on appeal.

 In the trial below plaintiffs and appellees herein

 neither plead nor raised the question of any bad faith committed by appellants for their role in the employment of their spouses. Nor did the chancellor make any finding of such.

 In our review of the record, we can see no allegation by these Claiborne County taxpayers that they did not receive value for services performed by the teachers, whose time of employment ranged from two (2) to thirty-three (33) years. Further, in at least one instance the record shows that a spouse of one board member had been teaching long before his election to that body.

 We have no doubt that such circumstances involving husband and wife teams in which one teaches and the other serves as a member of the school board are common-place across this state, with no thought to any wrong-doing by the parties involved.

 In Golden v. Thompson, 194 Miss. 241, 11 So.2d 906 (1942), this Court declined to order restitution to the parties therein because

 . . . 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 the 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.

 Frazier, supra, at 704.

 Although factually at odds with Golden (there is no statute upon which appellants herein in good faith relied upon as there was in Golden), we follow its rationale as the result reached in that case promotes the only equitable proposition available to the parties in the case at bar.

 In Tideway Oil Programs, Inc. v. Serio, 431 So.2d 454 (Miss. 1983), this Court, quoting the earlier case of Wilborn v. Balfour, held that:

 A court of equity is a court of conscience, but not a forum of vengeance. It will make restitution but not reprisals. It will fill

 full the measure of compensation, but will not overflow it with vindictive damages. 218 Miss. ...

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