Missouri AG Opinions — 1967

1. As used in Section 129.060, RSMo 1959, providing that no deduction shall be made from an employee’s “usual salary or wages” when he absents himself from employment for a maximum of three hours on election day, the quoted words refer to an amount received on a typical working day, and cannot be construed to indicate the usual hourly rate of wages. 2. Under a union contract requiring additional compensation for hours in excess of 7 1/2 worked in one day, and where an employee has previously worked nine (9) hours a day for over a year, any employer who excuses the employee to vote on election day after he has worked 8 1/2 hours, is required to pay such employee his usual salary or wages of 7 1/2 hours straight time pay plus 1 1/2 hours of overtime pay in accordance with Section 129.060, RSMo 1959.

The State Tax Commission has no authority to equalize only a portion of any class of property established by Section 138.390, RSMo. Its report and order purporting to decrease the valuation of “Motor vehicles, trucks, airplanes, motorcycles” in St. Louis City by 50 per cent in effect subdivides the statutory class for “other tangible personal property” and establishes a new class. It is the opinion of this office that the report and order is beyond the power of the Commission and therefore, is void and without effect.

Opinion letter to the Honorable Gene E. Voigts

If one is charged with operating motor boat in reckless or negligent manner so as to endanger life or property of any person, by permitting one to ride on bow, while boat is operated; no criminal violation of Section 306.110 (1) RSMo 1959, would be alleged. In addition to such allegations, other facts must be given, specifically showing how motor boat was operated in reckless and negligent manner within meaning of said section, to sufficiently charge defendant with violation of same.

A corporation which agrees for a specified annual payment to reimburse or furnish, wholly or partially, to its contract holders financial responsibility bonds, bail bonds, accident-travel expenses, legal expenses, emergency road service, towing, and tire changing arising from the operation of motor vehicles is engaging in the insurance business.

Section 329.070, RSMo 1959, requires a person to be at least seventeen years of age before that person can be an apprentice or student. The State Board of Cosmetology cannot waive this requirement.

Under the provisions of Section 194.190, RSMo Cum. Supp. 1965, only a person 18 years or older of sound mind may consent by writing as provided therein to donate his body or parts thereof to a named institution. A college, university, licensed hospital or the State Anatomical Board is not exempted from tort liability by Section 194.190 (6) if such institution removes or uses all or any part of a body for scientific, educational or therapeutic purposes without the written consent of the decedent except for cases where the consent of the decedent had be revoked but the institution acted in good faith without actual knowledge of the revocation.

(1). Upon withdrawal or discharge from service of an employee, not a member of the General Assembly, who has served less than 15 years, such employee’s accumulated contributions shall be retained by the Board of Trustees until the employee makes a written request for refund of his contributions.; (2). The Board of Trustees has no authority to determine that such a withdrawn member’s contributions shall be refunded, without a written request by the employee. (3). In the case of an employee, not a member of the General Assembly, who has served less than 15 years, upon his withdrawal or discharge from service, he ceases to be a “member” of the Retirement System without regard to whether he makes request for a refund of his contributions.

Opinion letter to the Honorable Lowell McCuskey

Opinion letter to Mr. Herbert C. Clare

Opinion letter to the Honorable George W. Parker

Opinion letter to Mr. John Harry Wiggins

The recorder of deeds has the authority and duty to determine whether instruments entitled to be recorded in his office are to be recorded by making photographic copies of such instruments which shall be bound, paged and indexed in record books pursuant to Section 59.410 RSMo 1959, or whether such instruments are to be recorded by means of microfilm or other mechanical process pursuant to Section 109.120, RSMo Cum. Supp. 1965.

Electronic voting systems may be used in second class counties containing part of city of more than 350,000 when ballot card placed in envelope, envelope number entered in poll books, second envelope number placed on ballot card and sticker placed on both numbers on envelope.

Opinion letter to the Honorable James R. Hall

(1) Soil and water conservation subdistricts organized under the provisions of Chapter 278, RSMo, to carry out watershed protection and flood prevention purposes and to further conservation and utilization of water for additional purposes including recreation, irrigation and wildlife development, have implied power to construct dams across non-navigable streams to achieve the ends for which the subdistricts are created; (2 ) Such soil and water conservation districts are governmental agencies of the state and do not come within the purview of Chapter 236 RSMo, which requires private persons or corporations to obtain permission of the circuit court to build dams for mills, electric power or other machinery; (3) Any damage to the riparian rights of downstream landowners from the construction of dams by soil and water conservation subdistricts would be consequential and result from the proper exercise of the police power of the state and be damnum absque injuria.

A public school board may allow the use of public school property by a church college or municipality for civic, social and educational purposes that do not interfere with the prime purposes of the school property and that where there is an exchange of consideration between the public school district and the church educational institution, then there is no aid to religion.

Opinion letter to the Honorable H. Dean Whipple

Opinion letter to the Honorable Michael Kinney

Opinion letter to the Honorable Hubert Wheeler

Venue of offense of witness not appearing in Workmen’s Compensation hearing is in county where witness was to appear.

Juvenile Court first acquiring jurisdiction over neglected child has exclusive jurisdiction in proceedings to terminate parental control.

Prosecuting attorney to furnish legal advice to juvenile officer but not participate in court proceedings.

A city may use funds allocated to it under provisions of Article 30(a), Constitution of Missouri, (Motor Fuel Tax) to purchase rights-of-way for street expansion.

(1) Under Supreme Court Rule 27.26, effective September 1, 1967, post-conviction transcripts are transcripts in civil cases and when ordered by the court under provisions of Section 485.100 RSMo Supp. 1965, the cost of such transcripts shall be paid for by the county, providing the appeal is duly perfected. (2). Unless the circuit court orders the transcript for an indigent under provisions of Section 485.100 the court reporter must furnish the transcript without fee as an officer of the court.

Opinion letter to the Honorable Charles H. Baker

1. Commission of another offense incident to driving while intoxicated is not necessary in order to convict an individual for the offense of “driving while intoxicated.; 2. An individual arrested for “driving while intoxicated” may have his license revoked for refusing to submit to a breath test, whether the arrest involved another offense incident to driving while intoxicated or not.

If petition for establishing county library district outside all cities and towns with tax supported libraries of county, filed with county court of such county, under Section 182.010 RSMo 1959, and court finds petition to comply with section, it shall make record required by section.; Court without discretion has mandatory duty of ordering election held. Court has discretion in setting date, and may order election held on next annual school election date or on special election date of petition. Cannot hold election less than forty-five days after filing of petition.

Increase in compensation for Senators and representatives under House Bill No. 100 of the General Assembly effective first day of regular session of General Assembly. Increase applies to holdover Senators as of such date.

Opinion letter to the Honorable Jewell Kennedy

Opinion letter to the Honorable James C. Kirkpatrick

Opinion letter to the Honorable James C. Kirkpatrick

Prescription glasses may be sold or dispensed to the individual who will wear the glasses or anyone of his choosing, and wholesale optical suppliers or manufacturers are not required to furnish such glasses pursuant to an individual prescription only to licensed optometrists and physicians.; Preparing a prescription for corrective glasses constitutes the practice of optometry as defined in Section 336.010, RSMo, and such a prescription may not be altered or changed in any manner that would affect the corrective properties of the lens by anyone other than a licensed optometrist or physician.

The annual license tax prescribed by Section 318.020, RSMo 1959, for tables described in Section 318.010, RSMo 1959, is applicable to pool tables which are not regulation size and are coin operated.

Opinion letter to the Honorable Haskell Holman

An owner of an ambulance service who operates an ambulance in connection with his business of providing ambulance service for compensation is required by Section 302.020, RSMo 1959, to have a valid chauffeur’s license.

Where a public road is closed or abandoned, the county would have a reasonable time to remove a bridge located on a county road. Title to the bridge does not revert to the adjoining landowners.

Opinion letter to the Honorable Bill D. Burlison

Opinion letter to the State Board of Education

A six director school district is a public corporation and under Section 177.101 RSMo Supp. 1965 when applicable, certain six director school districts are authorized to establish and maintain parks within their districts.

Rabbis have the power and authority to solemnize marriages in this state.

A coroner of a fourth class county, being himself, a physician or surgeon, is not entitled to a twenty-five dollar fee ($25) in conducting a post-mortem examination in addition to compensation in the form of salary as provided by law.

Patient in county nursing home established under Section 205.375 RSMo 1959 which is a public medical institution, under Section 208.010 RSMo 1959 may receive old age assistance payment if otherwise eligible. Division of Welfare has discretion to pay old age assistance to recipient-patient in county nursing home as it determines proper, or directly to county nursing home it has classified as medical institution.

The statutory prohibitions against interracial marriages as set forth in Section 451.020, RSMo Supp. 1965, and Section 563.240, RSMo 1959, are unconstitutional.

The relationship between the Mayor of a third class city and an employee who is the husband of the Mayor’s sister, is a relation within the fourth degree, by affinity, within the meaning of Article , Section 6, Missouri Constitution 1945 and hence this appointment violates Article , Section 6, Constitution of Missouri 1945.

The State Park Board has implied power and authority to construct an airport on State Park Land.

In a county in which there is no county highway engineer the county planning commission may nonetheless function.

Facilities owned by schools and colleges, used exclusively as residences for students and/or faculty of the school, are exempt from property taxes by Section 137.100, RSMo if this use is primarily for educational purposes and not only as housing facilities for the convenience and benefit of the students or faculty residing therein. The determination of what constitutes the primary use rests upon the facts of each individual case.

Opinion letter to the Honorable Gene E. Voigts

Operation of motor vehicle over city streets, whether marked or unmarked as state highway, by one in an intoxicated condition, a violation of Section 564.440, RSMo 1959, defining and fixing punishment for operating motor vehicle by intoxicated person, regardless of fact said city had ordinance in effect at time of alleged act, prohibiting operation of motor vehicle in city while one was intoxicated and city failed to charge such person with ordinance violation.