Missouri Attorney General Opinions

Opinion letter to Mr. Jack K. Smith

Opinion letter to the Honorable William H. Bolinger

Opinion letter to the Honorable Noel

Opinion letter to William G. Brooks

When votes are cast both for a deceased candidate and for his officially-designated successor in an election, the opposing candidate shall be declared elected if he receives more votes than were cast for both the deceased candidate and the successor candidate; the successor candidate shall be deemed elected if, not crediting him with votes for the deceased candidate, he receives more votes than were cast for the opposing candidate; and the election shall be declared void, if the opposing candidate receives more votes than the successor candidate but fewer votes than the total cast for the deceased candidate and the successor candidate. Straight party ticket votes for the party ticket which included the name of the deceased candidate shall be credited to the successor candidate as if the name of the successor had appeared thereon.

Persons who have resided in Missouri for thirty days or more but less than one year are eligible to vote in person or by absentee ballot for President and Vice President in this state without being registered. No person who has resided in Missouri for more than one year, and who is not registered to vote, except a person who has been absent from his home for such period of time that it has been substantially impossible for him to register to vote in person, is eligible to receive any ballot for the November 7, 1972, election, in those areas of Missouri in which registration is required, except that in areas with local option registration (Chapter 114, RSMo 1969), no person who has lived in Missouri more than one year and is not registered may receive a ballot. A person not registered who has resided more than one year in an area of Missouri in which registration is required (other than an area having local option registration) can receive an absentee ballot for President and Vice President only when he has been absent from his home for such period of time that it has been substantially impossible for him to register to vote in person.

A judge of the county court violates the prohibition of nepotism contained in Article , Section 6 of the Missouri Constitution if he participates in the appointment of a relative within the fourth degree of consanguinity to the board of trustees of the county library district.

A county library district which is a member of a regional library retains the power to levy taxes. When a city which contains a municipal library district annexes territory that is within a county library district, the annexed territory remains in the county library district and is subject to taxation by the county library district and not to taxation by the city library district.

The provisions of Section 70.610, RSMo, which authorize the governing body of a municipality to elect to come within the provisions of the Missouri Local Government Employees' Retirement System prevail over a charter provision of a constitutional charter city which requires that employee pension or retirement plans be submitted to the voters and that such a city may elect to come within the Local Government Employees' Retirement System by a majority vote of the governing body of such city without submitting the question to the voters.

With respect to the filing of nominations by party committees under the provisions of Section 120.550, RSMo to fill vacancies in the nominations for state representative and state senator: (1) The filing must be with the Secretary of State; (2) Telegraphic filing is not authorized under Section 120.550, RSMo.

A teacher is a permanent teacher, under the provisions of Section 168.104(5) of the Teacher Tenure Act (Sections 168.102 to 168.130, RSMo 1969), if he has been employed as a full-time teacher in the same school district for four successive years and reemployed for a fifth successive year after previously having been employed two years or more by another school district.

A Missouri state college or university, under Section 168.021, RSMo 1969, has the authority to issue the degree of bachelor of science in education without granting a life teaching certificate if the candidate does not present evidence of good moral character, as required by Section 168.031, RSMo 1969. The issuing authority's procedures for concluding that evidence of good moral character has not been presented should conform to recognized standards of fairness.

A notary public or other officer acknowledging absentee ballot affidavits is prohibited from assisting persons in marking absentee ballots and from receiving compensation for acknowledging absentee ballot affidavits.

A county clerk can publish notices of primary and general elections under Sections 120.400 and 120.580, RSMo 1969, in any two newspapers published in the county when the newspapers published in the county do not represent both of the two major political parties.

(1) The St. Louis Board of Election Commissioners should not send absentee ballots listing the names of candidates for state and local offices (including Congressional candidates) to legal residents of St. Louis temporarily living outside Missouri who are not registered voters. (2) The St. Louis Board of Election Commissioners send absentee ballots listing the names of Presidential and Vice Presidential candidates to legal residents of St. Louis temporarily living outside Missouri who are not registered voters.

The City of St. Louis has no authority to require that officers of the police force of such city hired after a specified date reside within the city.

Opinion letter to the Honorable Ralph Combs

Patronage employment within all levels of government in the state of Missouri is constitutionally impermissible where any of the following conditions attach to such employment: (1) Any requirement that political party membership or approval be obtained before consideration is afforded applicants for patronage positions or to assure job security in patronage employment; and, (2) Any requirement that contributions of money, time or talent be made to a political party or personage before consideration is afforded applicants for patronage positions or to assure job security in patronage employment. Likewise, any other form or manner of restriction or qualification placed on patronage employment would be constitutionally impermissible upon a determination by a court of law that it infringes or denies any of the following protected rights: (1) The First Amendment’s guarantee of free speech and political association; (2) The Ninth Amendment’s guarantee that allows one to engage in varying forms of political endorsements and activities to advance a particular view; (3) The Fourteenth Amendment’s protection against infringement of the right to have an equal chance to attain elective office; and, (4) The Fourteenth Amendment’s protection against infringement of the right to have an equally effective voice in the management of government.

The provisions of Section 66.250, RSMo (Senate Bill 389, General Assembly, Second Regular Session) requiring appointed police officers in police departments in any county of the first class having a charter form of government to complete training or show completion of certain training courses in law enforcement or possess specified experience will apply to appointed officers in the sheriff's office of Jackson County when its Charter goes into effect January 1, 1973.

The term “sale at retail” as defined by Section 144.010(8), RSMo 1969, does have the same meaning as the term “retail sale”, used in Section 114.025. The term “retail sale” refers only to sales made by those engaged in business and not in transactions between individuals. When an individual trades his automobile to another individual the net difference after a trade-in is immaterial because the transaction is not a “retail sale” and the full value of the automobile purchased is used to calculate the tax.

Neither the regular police officers of the Police Department of the City of St. Louis nor the reserve officers of such city appointed under the provisions of Section 84.175, RSMo (House Bill No. 1144, General Assembly, Second Regular Session) are under the provisions of Section 66.250, RSMo (Senate Bill No. 389, General Assembly, Second Regular Session) requiring certain training or experience of police officers in police departments in any county of the first class having a charter form of government.

The Missouri statutes with respect to the close of voter registration which provide for different closing dates for such registration are valid. The General Assembly of Missouri can by statutory enactment provide for a uniform closing date for registration throughout the state. County clerks are not prohibited from opening their offices for registration on a legal holiday under Sections 114.080 or 116.030, RSMo 1969.

Opinion letter to Honorable William E. Robinson

Opinion letter to Mr. Dexter D. Davis

Opinion letter to the Honorable Robert H. Martin

Article , Section 2(b) of the Constitution of Missouri provides that constitutional amendments proposed by initiative shall be voted on at the next general election (more than four months from the date of filing) or at a special election called by the Governor prior thereto. The circulators of the petition have no power to designate the date of the election at which the amendment is to be voted. If an initiative petition contains an election date, such petition is ineffective to authorize the submission of the measure at a date later than the date specified in the petition.

Opinion letter to the Honorable Richard E. Martin

Only educational institutions that have a department of anatomy and in which human anatomy is investigated or taught to all students in attendance at such institution or to all students in attendance at a school or department of such educational institution come within the provisions of Section 194.120, RSMo 1969, and are entitled to receive human cadavers from the State Anatomical Board. Penn Valley Community College is not entitled to receive human cadavers from the State Anatomical Board.

Opinion letter to Mr. Joseph Jaeger, Jr.

1. Under the provisions of Section 331.010, RSMo 1969, a chiropractor has authority to diagnose for the limited purpose of determining whether the particular treatment which he may legally render to a patient is proper treatment for the disease from which the patient is suffering. 2. A chiropractor is permitted to take and evaluate for diagnostic purposes only x-rays of the human spinal column and other parts of the human body for the limited purpose of determining whether the disease or ailment is one he can treat and to determine the proper treatment. 3. Section 331.010, RSMo 1969, prohibits chiropractors from employing any diagnostic tests or procedures which involve operative surgery or the administration or injection of any drug or medicine. Similarly proscribed are any procedures which are exclusively reserved to the fields of obstetrics, osteopathy, surgery or medicine.

The provisions of section 51, Article IV of the Missouri Constitution, requiring Senate confirmation of gubernatorial appointments, relates only to state executive branch officials.

Opinion letter to the Honorable Downing

School districts in St. Louis County, under the provisions of Section 92.350, RSMo 1969, must deduct the St. Louis City Earnings Tax from the wages and salaries of their employees who are residents of the City of St. Louis, and remit the amount withheld (less statutory allowances) to the St. Louis City Collector.

The cumulative period of both parole and probation of a person convicted of a misdemeanor, granted pursuant to Sections 549.071 and 549.101, RSMo, may not exceed the two year maximum set out in Section 549.071.

1. Tangible personal property consigned to a warehouse from an out-of-state point acquires a tax situs in this state when it is warehoused for the convenience of the owner of the property; 2. Goods that are shipped from different out-of-state sources and combined together as one item in the warehouse before being forwarded to an out-of-state consignee do acquire tax situs at the warehouse; 3. The documentary proof required to prove that shipments are in transit are those documents that, in the particular business involved, accurately reflect the destination or eventual sale or consignment of the goods; 4. To secure the exemption provided by Section 137.093, RSMo, bills of lading do not necessarily have to show shipments from the point of origin through a Missouri county to the final destination outside the state on one and the same document; 5. A public warehouse owner, when authorized to do so by the owner of tangible personal property consigned to his warehouse, may show documentary proof of in-transit status in the same manner as the actual owner of the goods and claim an exempt status for the owner; 6. The federal import exemption that applies to uncrated goods is binding on county assessors.

The county courts of third and fourth class counties who are conducting surface mining operations are not required to obtain permits under the provisions of Sections 444.760 through 444.786, RSMo Supp. 1971, because they are not "operators" as defined by Section 444.765(5).

Section 129.300, RSMo 1969, which requires the identification of persons publishing, circulating or distributing certain printed matter relative to the candidacy of any person seeking nomination or election to any public office applies to pamphlets, circulars , handbills and similar printed matter but does not apply to yard signs.

When a second class county which has adopted a charter form of government becomes a first class county it continues as a charter county.

1. A person whose name is written in on a ballot at the general election for city assessor in a third class city who receives a majority of the votes cast is elected city assessor. 2. The county assessor in a county of the third class can also hold the office of city assessor in a third class city.

Opinion letter to the Honorable Dan Harmon

1. A parole hearing may be had before officials of a receiving state pursuant to the Interstate Corrections Compact. 2. The Board of Probation and Parole of the State of Missouri may hold a parole interview or hearing in a state, other than Missouri, for an inmate sentenced to the Missouri Department of Corrections who has been transferred pursuant to the Interstate Corrections Compact. 3. The Director of the Department of Corrections may authorize the removal to the State of Missouri, for a parole interview or hearing, of an inmate who has been transferred to an institution without the State of Missouri pursuant to the Interstate Corrections Compact. 4. Parole interviews, or hearings, may be held before transfer for those inmates who are transferred to other states pursuant to the Interstate Corrections Compact.

A city is prohibited by Section 70.615, RSMo from establishing a pension and retirement fund for employees who are other than policemen or firemen on an independent basis and not under the Lagers Retirement Plan (Sections 70.600 to 70.760, RSMo 1969, as amended) other than the Federal Social Security Old Age, Survivors and Disability Insurance program, as amended, unless the city has an assessed valuation of at least forty million dollars and does not now have a pension system for its officers and employees adopted pursuant to state law.

(1) A duly elected town trustee forfeits his office by moving from the town of his election; (2) until his removal from the board of trustees, a nonresident trustee is a de facto officer and his official acts and decisions are valid; and, (3) Section 80.230, RSMo 1969 provides that all vacancies in the board of trustees shall be filled by the remaining members of the board, the chairman or temporary chairman not voting except in case of a tie.

Opinion letter to Dr. Arthur L. Mallory

Opinion letter to the Honorable William J. Esely

Opinion letter to the Honorable Robert B. Paden

Secretary of State should refuse to issue his certificate when examination of initiative petition shows such petition does not contain a constitutional enactment clause, does not contain a title, does not contain sufficient signatures or if the petition contains more than one amended and revised article of the Constitution or one new article which contains more than one subject. He has no power to determine the validity or genuiness of signatures on such petitions.