Missouri AG Opinions — 1961

Contract Number 1515 negotiated by Duncan Funeral Homes is not on its face an insurance contract, but negotiating of the same in the light of language found in the letter of Duncan Funeral Homes, dated May 19, 1961, causes Contract Number 1515 to evidence an insurance contract, offered in violation of . 375.300 and 375.310, 1959.

Opinion letter to the Honorable Jack L. Clay

Opinion letter to Mr. V. H. Simon

Pharmacy Board may not by regulation require drug stores to have a licensed pharmacist present at all times when they are open for business.

Opinion letter to Mr. Arthur V. Burrowes

(1) A prosecuting attorney may not compromise and settle an action for the collection of county hospital accounts on his own initiative but must have express approval of any such compromise settlement from the county court (2) Circuit judges and judges of the magistrate court have authority to require the payment of court costs or a docket fee in advance at the time of filing suit and counties would have to comply with such rule and pay whatever costs or docket fee are required by the rule when filing suit in such court with the exception of that part assessed as the library fee in circuit courts and that part assessed as the six dollar filing fee in magistrate courts. (3) A prosecuting attorney has no authority to forward delinquent county hospital accounts to an out of state attorney for collection. Any such arrangements must be made by the county court.

Since House Bill 214 amending Section 169.040, 1959, became effective on October 13, 1961, the Board of Trustees of the Public School Retirement System of Missouri are authorized to invest funds of the system which are in excess of a safe operating balance in common stocks and preferred stocks of corporations organized under the laws of the United States or any state therein subject to the prudent man rule regarding investments by trustees as expressed in Missouri court decisions.

Opinion letter to the Honorable T. D. McNeal

Supreme Court Rule 37.485 empowers the sheriff of the county in which the offense was committed, to set and take the amount of bail, which shall not be less than sixteen dollars nor more than two hundred dollars in accordance with the bail schedule established by the magistrate having jurisdiction over the offense, only in those cases where the magistrate court is not in session at the time, and the arrest of the person is without a warrant for a misdemeanor involving the operation of a motor vehicle.

Opinion letter to the Honorable J. L. Pickard

The division of resources and development has authority to provide planning assistance to any county, municipality, or metropolitan area and exercise all the power and authority granted under the provisions of Sections 255.130, 255.140, and 255.150, 1959.

Judges of the county court are prohibited from receiving extra compensation from county for services they render in distribution of surplus commodities. County clerk and county treasurer may receive extra compensation from the county for services they render beyond their official duties in the distribution of surplus commodities. County superintendent of schools may receive compensation from the county for any service he renders in the distribution of surplus commodities.

Improvements on leased land normally to be assessed against the owner thereof. Lessee’s leasehold interest may be assessed separately as realty.

May issue warrants in anticipation of current year’s income. May function with two commissioners pending appointment of third.

Board of Pharmacy may not pass a regulation prohibiting the truthful advertising of prescription drugs in pharmacies.

Teachers’ certificates are valid when issued and (except for county third grade certificates) the local County Superintendent of Schools does not have authority to require such certificates to be registered or recorded with him, and the county superintendent of schools does not have the power to pass on the moral character and requirements, other than scholastic, of the teacher, (except teachers holding county third grade certificates).

Opinion letter to the Honorable Larry M. Woods

Opinion letter to the Honorable James R. Reinhard

Land in Howell County is not “unorganized” territory and county court therefore cannot place it in another school district.

County treasurer must pay or protest warrant drawn on fund properly budgeted even though anticipated revenues as budgeted may exceed revenues actually collected.

Land owned by State Conservation Commission does not count in the total acreage of an area for the purposes of determining whether landowners petitioning for the creation or dissolution of a special road district own at least 50% of the acreage as required by law.

A regularly licensed and qualified physician who has been a member of the staff of the Callaway County Hospital and who has voluntarily resigned from said staff, may nevertheless continue to practice in the hospital when acting for his patient in the hospital.

Opinion letter to the Honorable June R. Rose

1. For keeping book on all receipts, disbursements and management of seven trust funds for maintenance of public and private cemeteries, under Sec. 214.180, 1959, County Clerk cannot be compensated from trust funds. 2. It is County’s responsibility to pay for County Clerk’s record book. 3. County Treasurer cannot be compensated for booking services on four of trust funds, services purely voluntary, no part of official duties. 4. Trustees’ annual report, required by Sec. 214.150, 1959, shall be prepared by County Clerk and filed by trustees. County Clerk and County Court cannot be paid compensation for preparation and filing of report. 5. When requested, Prosecuting Attorney shall advise County Court on all legal questions arising in connection with preparation of trustees’ annual report.; Not Prosecuting Attorney’s official duty to prepare report. He cannot be compensated for advice to Court in addition to statutory salary.

Opinion letter to the Honorable Paul Knudsen

Opinion letter to the Honorable A. Basey Vanlandingham

Opinion letter to the Honorable George H. Morgan

Opinion letter to the Honorable Cornelius Costello

The county court cannot be compelled to pay for air conditioning in the courtroom, clerk’s office, and judge’s chamber of a Magistrate Court.

Resignation of sheriff should be addressed to County Court, and is effective upon its acceptance by such county court, but not before the time specified in the resignation. No steps may be taken to fill the vacancy prior to the effective date of the resignation. When special election is required, notice thereof must be published at least once in some newspaper published in the county at least 20 days before the date of election. The county central committee of each political party may nominate the candidate of such party and independent candidates may also file for the office by obtaining sufficient signatures on nomination petitions.

Board of health center trustees managing county health center governed by . 205.150 1959 is vested with authority to expend monies derived from its authorized tax levy for the purpose of erecting a health center building on premises leased from the Federal Government.

County Court of third Class county may expend funds not otherwise allocated out of class 5 of annual budget for the acquisition, storage and distribution of surplus agricultural commodities under a program authorized by Senate Bill 143, General Assembly; if funds in Class 5 are insufficient, county court may supplement financing with Class 6 funds, as long as there is cash on hand in excess of funds already encumbered and amounts allocated to Classes 1 to 5.

A member of the General Assembly who is covered by the retirement or benefit fund of the Public School Retirement Fund cannot also become a member of the Missouri State Employees’ Retirement System.

An amendment to the “Missouri State Employees’ Retirement System” (Sections 104.310 to 104.600, 1959) granting an increase in benefits to retired employees at the time of the amendment on the condition that said retired employees voluntarily pay a reasonable sum certain into said retirement system as a condition precedent to receiving said increased benefits would be valid.

Constitutional prohibition against special or local laws laying out roads, highways, streets or alleys does not apply to private road.

Directors of a public library of first class city are authorized by Section 182.301, 1959, to contract with governing body of any other public library in state for cooperative library services. Such contract is not subject to review, approval or disapproval by council of such first class city.

Class 2 county officers are not authorized by the provisions of Section 50.660 to make purchases of $100.00 or less without approval of county court and certification of county auditor.

Under procedure established by Section 556.280, 1959, a defendant cannot be forced by the prosecution to testify as to his own prior convictions. To do so would be in violation of the immunity from self- incrimination granted to said defendant under Article I, Section 19, Missouri Constitution of 1945. However, said immunity may be waived by defendant voluntarily testifying to said prior convictions.

County health center in county of fourth class has no power, as such, to borrow money. County courts of such county, upon request of board of health center trustees, may in its discretion issue tax anticipation notes payable out of the health center fund. Board of health center trustees may incur indebtedness and issue duly authenticated vouchers therefor upon which the county court must order vouchers drawn on the health center fund even though there is no money presently in said fund, provided said indebtedness has been duly provided for in the county health center budget.

Old circuit court witness books, minute books, transcripts of judgments and transcripts on appeal are records belonging to office of the circuit clerk, and shall be kept at clerk’s office within meaning of Sec. 483.065 1949, and cannot be removed except in case of danger from invading enemy as provided by Sec. 483.070, 1949. To provide additional space for more current records, clerk may remove said old circuit court witness books, minute books, transcripts of judgments and transcripts on appeal from their usual places in his office and store them in another room of same office without violating Sections 483.065 and 483.070, 1949, if right of access and control over storage room is in clerk only, and room is not used jointly by clerk and other county officials.

Upon a change of venue to a circuit court or to another magistrate court, a cash bond previously posted remains in effect, obviating the necessity for a new bond to insure the defendant’s presence in the transfer court.

Section 137.177, R.S. Mo, 1957, adopted by a class three county ceases to be in force and effect when the county becomes a class two county.

A series of independent thefts or embezzlements by an individual from one owner at different times which thefts or embezzlements, independently, do not equal the sum of at least $50.00, can be pleaded in the aggregate in order to charge the individual with stealing in a sum of at least $50.00 under Section 560.156 1959, only in the event that the facts would show a single criminal purpose on the part of the thief or embezzler at the time of the thefts or embezzlements.

Driver of school bus must stop his bus on the unpaved portion (shoulder) of the highway in discharging or taking on passengers, except when impracticable to do so. In event that it is impracticable to stop on shoulder of road, he may stop school bus on paved portion of highway only is school bus is plainly visible for at least 300 feet in each direction to drivers of other vehicles upon the highway. In such event, he may stop bus on paved portion of highway for only such time as is actually necessary to take on and discharge passengers.

Mayor or city clerk of 4 class city or member of board of public works of special charter city may be member of Board of Trustees of county hospital when hospital is not located in any of such cities.

Compensation of County Officers whose salaries are fixed in relation to population by statute in effect at date of their election must be increased or decreased in accordance with such statutory classification. Greater compensation is not an increase within the meaning of Article 7, Section 13 of the Constitution. 1960 census effective as of Jan 1, 61, for purpose of ascertaining county officers’ compensation. As to incumbent officers paid on annual basis whose term commences on a date other than Jan 1, any change in compensation effective with next year of incumbency commencing after January 1, 1961.

Section 57.445 V.A.M.S. 1960 Pocket Part, is interpreted as conferring discretion upon the county court of second, third and fourth class counties to determine whether sheriffs in such counties should be provided living quarters.

Incumbent magistrates salaries must be increased or decreased as of January 1, 1961, the effective date of 1960 census if application of statutory classification in effect at commencement of their terms so results.

Employment by County Judge on hourly or monthly basis of park employee who later marries relative of judge during period of his employment does not constitute violation of Article 7, Section 6 of Constitution 1945. Signing employee’s payroll for service performed does not constitute an employment.

A school district may acquire realty by purchase or by gift. Such acquisition should not bind or restrict the school board’s discretion of determining educational policy. Contractual arrangements can only be for a reasonable period of time. School funds can not be used to improve public roads.